Monthly Archives: December 2018

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Can a Personal Injury Plaintiff Recover Compensation for Weight Gain?

Weight gain is a common side effect of injuries and long-term illnesses. Pain and loss of mobility often limit the injured person’s ability to stay active. Some people, especially those who are normally very active, like runners, find that their ordinary diet gives them more calories than they need. And some medications used to treat pain also can also contribute to weight gain. There are strategies that can help mitigate the problem, but in many cases weight gain is outside the individual’s control. When an injury leads to a civil lawsuit the object of the plaintiff is to recover compensation from the defendant for the consequences of the injury—what in legal terms are called damages. Among the things that a plaintiff must prove to recover for any form of damages are two important requirements: justiciability and causation.

The justiciability (practicality) of weight gain damages

“Justiciability” simply means that the issue in question is of the sort that a court can solve as a legal and practical matter. There are lots of things that a court can’t do. Some of these things come from the legal rules governing the courts, from constitutional principles to specialized rules of procedure. Other things are simply practical limits. A court can’t order a defendant to take the plaintiff’s excessive weight away. This is why damages for things like pain, suffering, or weight gain need to be reduced to dollar figures. Ordering someone to pay another person money is a straightforward and concrete solution to many problems. But putting a monetary value on a nonmonetary problem (in legal terms, noneconomic damages) is not always easy. A plaintiff who claims noneconomic damages bears the burden of proving that the damages have been calculated fairly and accurately. For weight gain, this calculation might include factors like long-term health consequences, emotional or psychological challenges related to weight, and so on.

Causation and weight gain

To recover any kind of damages the plaintiff also must show that the damages were caused by the defendant’s wrongful action. After all, if the defendant didn’t cause the harm, it would be unjust for the court to include it in the damages award. It is sometimes relatively straightforward to draw the link between damages and the defendant’s behavior. If the defendant ran a red light and smashed into the plaintiff’s car, there’s a clear connection between that event and the plaintiff’s resulting medical bills. Causation can be a tricky area for weight gain. Unlike a broken arm, weight gain is a slow process that can have a wide range of causes. To avoid liability for the plaintiff’s weight gain the defendant could raise a number of arguments. A common strategy is to find another, intervening cause of the problem. For example, if the plaintiff began to eat a lot of high-calorie food after the accident, despite a doctor’s recommendation to stay on a restricted diet, perhaps the plaintiff was responsible for the gain. Plaintiffs who want to claim weight gain among their damages must anticipate arguments like these. Each case requires its own set of solutions. Testimony from the plaintiff’s doctors, scientific evidence of how weight gain is a consequence of the injury, and other forms of evidence can be used to show the causal relationship between the defendant’s actions and the weight gain.

GGRM is a Las Vegas personal injury law firm

For over 45 years the law firm of Greenman Goldberg Raby Martinez has represented Las Vegas clients in personal injury cases. We treat each case with the personalized care it deserves, and help clients recover compensation for the full range of damages for their injuries. Call us today for a free, confidential attorney consultation. We can be reached at 702-388-4476 or send us a request through our site.

How Not Wearing a Seatbelt Can Affect Accident Lawsuits

Motor vehicle accidents are the leading cause of death in the United States for people under the age of 40. Over half of the people killed in crashes were not wearing their seatbelts at the time of the accident. As in every state, Nevada law requires drivers and passengers in most motor vehicles to use seat belts. Children under the age of six who also weigh less than 60 pounds are required to be restrained in safety seats, ideally in the back seat. Failing to follow these rules can lead to devastating injuries in the event of an accident. Although Nevada law requires passengers and drivers to wear seat belts, it also limits how a failure to wear a seat belt can be used in a civil lawsuit. Under NRS 484D.495(4), a violation of the seatbelt requirements “may not be considered as negligence or as causation in any civil action or as negligent or reckless driving.” In practical terms, what does this mean?
  • Not wearing a seatbelt is not a form of contributory negligence. In a personal injury lawsuit the defendant may want to argue that the plaintiff contributed to the plaintiff’s injuries by committing an independent act of negligence. Contributory negligence typically involves some breach of a legal duty, like not using a hand-held cell phone while driving. NRS 484D.495(4) specifically prevents defendants from raising this argument in cases where a plaintiff has been injured in an accident in which the defendant was at fault but the plaintiff’s injuries were made worse by the plaintiff’s failure to wear a seatbelt.
  • Not wearing a seatbelt is not an intervening cause of injury. One of the hurdles for bringing a successful personal injury lawsuit is the requirement that the plaintiff prove that the defendant’s actions caused the plaintiff’s injuries. If the defendant can argue that the injuries were caused by something other than the defendant’s actions, the defendant can’t be held liable. For example, a plaintiff’s car might have suffered a major mechanical problem during the accident that was more to blame for the plaintiff’s specific injuries. But the fact that the plaintiff wasn’t wearing a seatbelt can’t be used in this way.
These rules offer a legal shield for people who were not wearing their seatbelts at the time of an accident in which they were injured. A defendant who was responsible for the accident cannot reduce or eliminate liability by using the mere fact that the plaintiff wasn’t wearing a seatbelt to raise two standard and powerful defenses. The short takeaway is that people who were not wearing seatbelts at the time of their accident should not be deterred from pursuing legal action. For over 45 years the law firm of Greenman Goldberg Raby Martinez has helped clients in the Las Vegas area recover compensation in auto accident cases. For a free attorney consultation about your case call us today at 702-388-4476 or send us a request on our contact page.

What to Do if a Defendant Doesn’t Pay

Getting a favorable court judgment in a personal injury lawsuit, whether as a result of a full trial or through a settlement agreement, often is not the last challenge for injured plaintiffs. Collecting on the judgment can, in some circumstances, be a challenge as well. Some defendants aren’t able to pay the amount they owe, while others are willing to risk being held in contempt by withholding payment out of spite. In a negotiated settlement agreement, plaintiffs can require defendants to deposit funds into an escrow account as part of the settlement, but absent such an arrangement plaintiffs sometimes need to take extra steps to recover what they are owed. If a defendant doesn’t pay within a reasonable time it can put the plaintiff in an increasingly difficult financial position. The reason the plaintiff has brought suit in the first place is to recover compensation for the costs associated with the plaintiff’s injury. Many people who suffer injuries take on debts for their immediate medical needs. They also often have to take time off work, which can force them to miss payments on credit card bills, mortgages or rent, phone bills, and so on. Late fees and the threat of worse—damaged credit ratings, foreclosures—will continue to mount until the defendant makes the plaintiff whole. Unfortunately, this is a common problem. Personal injury lawyers help their clients pursue a range of avenues for collecting from unwilling defendants. There are a few mechanisms available:
  • Building collections into a settlement. As mentioned above, in some ways plaintiffs can protect themselves by reaching a settlement agreement with a defendant who may not be able or willing to pay on a judgment. Plaintiffs need not accept a settlement that doesn’t make adequate provision for the financial side of the deal. Settlements can provide for structured payment plans that can provide defendants with a practical way to pay down their liability, which can be especially attractive for defendants who must pay out of their personal assets (as opposed to an insurer).
  • Go after the defendant’s property with a writ of execution. The owner of a judgment can ask the court to issue what is called a writ of execution, which authorizes the plaintiff to take possession of certain specified property owned by the defendant, such as cash or investments. To enforce a writ of execution the plaintiff may need to hire a professional collection agent, who specializes in tracking down property that the defendant may not be willing to part with.
  • Garnish the defendant’s wages. If the defendant has a job the plaintiff can ask the court to order the defendant’s employer to withhold a portion of the defendant’s wages, up to a statutory maximum.
  • Place liens on the defendant’s property. Although a plaintiff may not be able to force a defendant to sell a primary residence to pay the value of a judgment, the plaintiff may be able to place a lien on the property so the defendant can’t sell without satisfying the judgment debt. Liens like this are typically junior to liens held by mortgage lenders, which means their primary purpose is to tie down the defendant’s assets while the debt is outstanding.
For more than 45 years the law firm of Greenman Goldberg Raby Martinez has represented clients in personal injury cases. We work closely with clients to help them recover what they are owed. If you have been injured and you have questions about your case, please reach out to us for a free attorney consultation. We can be reached at 702-388-4476, or ask us to call you through our contact page.

Supplemental Security Income Benefits and Personal Injury Settlements

The goal of most personal injury lawsuits is to make the injured plaintiff financially whole by requiring the person responsible for the injury to assume its associated costs. For a variety of reasons most personal injury disputes end up settling out of court. In filing suit the plaintiff makes claims for damages suffered in connection with the defendant’s negligence or other wrongdoing. Damages typically include medical bills and property losses. They also usually include lost earnings. Plaintiffs who receive Supplemental Security Income, or SSI, can be surprised to learn that their personal injury settlement can affect their eligibility for continued payments under the SSI program. SSI is a program operated by the federal Social Security Administration that provides supplemental income to qualified individuals. To qualify an individual must, among other things, be disabled, blind, or over the age of 65. The individual must also “have limited income and resources.” A straightforward cash payment as part of a personal injury settlement usually will push an individual out of qualifying under this second, asset-based requirement. An individual with qualified assets worth more than $2,000, or $3,000 for a married couple, is not eligible for SSI benefits. A significant number of personal assets are not included in this figure: the SSA does not count the value of a primary home, a vehicle, household goods, and business property. However, ordinary cash held in a checking or savings account does count toward the resources limit. As such, accepting a check in a settlement can instantly disqualify a plaintiff from continuing to receive SSI benefits. The problem with this outcome is that the funds a plaintiff receives from a settlement generally need to be used straight away to pay off the costs associated with the plaintiff’s injuries. The settlement award is, therefore, not always a windfall but simply a way to pay down debts. If the award also renders the plaintiff ineligible for SSI benefits the effect can be the loss of significant and even vital monthly income. One strategy for overcoming this problem is to create what is called a special needs trust to hold the settlement proceeds. Trusts are legal entities that are created by carefully preparing paperwork. The object of a special needs trust is to place strict limits on how the money in the trust can be used—in the case of an injury settlement, the usual purpose is to pay for expenses related to the plaintiff’s injury. By formally restricting how the plaintiff can use settlement funds a properly designed special needs trust can ensure that the settlement does not qualify as a “resource” that would disqualify the plaintiff for SSI benefits. Problems like those faced by injured plaintiffs who receive SSI benefits are another good reason to work with an experienced personal injury law firm when pursuing a case. For more than 45 years the law firm of Greenman Goldberg Raby Martinez has represented Las Vegas clients in personal injury cases. If you receive SSI benefits and you have concerns about how your personal injury lawsuit may affect your eligibility, we are happy to discuss your case with you. For a free attorney consultation call 702-388-4476 or send us a request through our site.

Getting Adequate Compensation for Spinal Injuries

Spinal injuries can be devastating and lead to life-long challenges. Nerve damage is profoundly difficult to treat and typically leads to long-term pain that must be treated with powerful medication. Paralysis can force dramatic lifestyle changes and impose significant costs. When a spinal injury leads to a personal injury lawsuit compiling a complete calculation of damages is one of the important considerations for the injured plaintiff’s attorneys.

Accounting for the full scope of damages

In any personal injury lawsuit the calculation of damages can be a hotly contested topic. Defendants naturally hope to limit their financial obligations. Insurance companies in particular have deep experience in defending themselves from liability. As such, the plaintiff’s damages calculations need to be compiled with care. Spinal injuries often involve categories of damages that extend well into the future. The scope of damages will depend on the plaintiff’s specific circumstances, but probably will include things like these:
  • Pain and suffering, with consideration for the long-term problems the plaintiff will face.
  • Medical bills, which includes costs of the immediate treatment to stabilize the injury as well as long-term rehabilitation.
  • Lost wages for anyone who will no longer be able to continue working.
  • Costs to modify the plaintiff’s home.
  • Costs related to specialized transportation accommodations, such as modifications to a car or the purchase of a vehicle with hydraulic lifts.
  • Costs of psychological care.
  • Impacts on family members.
Calculating damages is often a more difficult process than one might at first assume. Financial costs that can be readily quantified, like medical bills, may be relatively easy. But many damages are contingent. A person’s lost earnings will depend on the severity of the plaintiff’s disability and other factors. Estimating the plaintiff’s long-term medical challenges may require testimony from medical experts who can attest to the suffering the plaintiff may expect to endure. In some cases the plaintiff may also need the help of forensic accountants, who specialize in calculating damages in complex cases where difficult estimates such as long-term business losses need to stand up to counterarguments from the defense.

Talk to a Las Vegas personal injury firm about your case

The law firm of Greenman Goldberg Raby Martinez has a long history of representing injured clients in the Las Vegas area. If you have suffered a spinal injury and would like to explore your legal options, please contact us today for a free, no-obligation attorney consultation. We can be reached at 702-388-4476 or through our contacts page.

Who Can Collect on Wrongful Death Claims?

When a person dies due to another person’s negligence the legal system offers a number of responses. Any time someone causes another person’s death there will be a criminal investigation, which may result in prosecution by the state. Depending on the facts of the tragedy, the responsible person might be prosecuted for involuntary manslaughter or second-degree murder. The criminal prosecution may result in jail time for the defendant. In some circumstances the criminal court may also order the defendant to pay financial restitution to the deceased person’s estate.

The criminal justice system does not fully compensate victims

The criminal justice system’s ability to compensate victims is limited in a number of important ways. Criminal courts are constrained in the kinds of financial compensation they are allowed to grant to victims of crime. Convicted criminals can be ordered to pay restitution for economic damages, which includes things like medical costs, funeral expenses, and lost earnings. But a criminal court cannot order the defendant to pay compensation for the victim’s pain and suffering, or the emotional and life-altering harms suffered by the victim’s family. Criminal prosecutions may fail to serve the interests of victims in other ways. Prosecutors may prefer to save resources and reach a plea deal that leaves out restitution altogether. The prosecution may take a long time. And due to the high standards required for conviction, the defendant may be acquitted.

Wrongful death offers family members a path to compensation

A civil claim for wrongful death is often an appropriate remedy for qualified plaintiffs who want financial compensation from the person responsible for causing another person’s death. A claim for wrongful death can seek compensation for a range of harms related to the death. In addition to economic losses associated with the deceased’s injuries, plaintiffs can also pursue compensation for their grief, loss of support, loss of companionship, and the pain and suffering of the deceased. These categories often capture significant losses. Nevada law provides that only certain people have standing to bring a wrongful death claim. Two categories of people have standing. The first category is the deceased person’s personal representative. This typically means an estate lawyer or executor. The second category covers the deceased person’s legal heirs. These are the people identified in a will or, if there was no will, by applying default rules. Wrongful death lawsuits can unwittingly give rise to conflicts among heirs and personal representatives, each of whom may have valid claims. This can be especially problematic if the defendant’s resources are limited. Ideally everyone involved in the lawsuit will agree upon the suit’s goals and how any financial awards will be allocated among them. If the plaintiffs have significant disagreements, especially if there is a significant potential recovery available, the parties may need to hire separate attorneys and negotiate a coordinated strategy amongst themselves.

GGRM is a Las Vegas personal injury law firm

For more than 45 years the law firm of Greenman Goldberg Raby Martinez has been committed to giving our clients the personal, caring attention they deserve. We represent clients in cases involving personal injury, including wrongful death. We work closely with clients to relieve them of the burden of protecting their interests and defending the legacy of their loved ones. For a free attorney consultation, reach out to us today at 702-388-4476, or contact us through our website.

Suing a Neighbor for Misuse of Pesticides and Herbicides

Responsibly applied pesticides and herbicides can be useful ways to control weeds and pests. Some consumer-grade chemicals, like the popular herbicide RoundUp, are engineered to persist in the environment for a short time to limit the harm they can cause to people, pets, and wildlife. But the use of these chemicals requires care and a good understanding of the risks they can pose to health. When a neighbor uses chemicals in a way that leads to serious harm, or threatens to do so, a lawsuit may be an appropriate remedy. The specific approach one takes to disputes with a neighbor depends on the facts of the dispute. Several legal tools are available to address irresponsible use of chemicals:
  • Nuisance. The nuisance cause of action can be an appropriate response to unreasonable behavior by a neighbor. In a case involving chemical use, there are two critical requirements that a plaintiff must satisfy to successfully sue. First, the use of chemicals must be unreasonable, unwarrantable, or unlawful. Reasonableness is typically measured according to the standards of average people (as opposed to professional exterminators) and depends heavily on context. Ordinary spraying of a weed killer may meet the reasonableness requirement, but dumping large quantities of rat poison pellets all over an unfenced residential property might qualify as “unreasonable.” Secondly, the use of chemicals must be the cause of a loss of enjoyment of the plaintiff’s property. So long as the effects of the chemical use do not pass beyond the boundaries of the defendant’s property the plaintiff may not have a cause of action.
  • Personal injury. To prevail in a personal injury lawsuit in Nevada the plaintiff needs to prove, among other things, that the defendant was negligent and the plaintiff suffered injuries as a consequence of the negligence. Negligence requires a breach of a legal obligation, which sets up a preliminary challenge to any personal injury suit. Ordinary, responsible use of chemicals on one’s property probably doesn’t breach any legal duty to others. On the other hand, spraying or spreading chemicals that go onto another person’s property may constitute unlawful trespass.
  • Injunctions. If a neighbor is continuing to do something that is causing damage or threatening to cause damage the plaintiff can ask the court to order the neighbor to stop by way of an injunction. Injunctions typically form part of a broader case and must be based, among other things, on a reasonable probability of success of the underlying claim. That claim might be nuisance, personal injury, or some other theory. Injunctions can be temporary or permanent. A permanent injunction may be one of the goals of a suit that is also asking for cash compensation. Temporary injunctions are relatively easy to obtain, but they only last for a short time.
For over 45 years the attorneys at Greenman Goldberg Raby Martinez have represented clients in the Las Vegas area in personal injury cases. We can assist you with resolving neighbor disputes. Call today for a free attorney consultation at 702-388-4476 or request a call through our website.

Potential Guest Liability in Short-Term Stay Arrangements

Most guests who stay in short-term rentals arranged through online marketplaces like AirBNB or VRBO can be trusted to take good care of the property. Hosts collect security deposits to protect themselves against minor things like broken plates and dings in drywall. But a guest can do more harm than these simple things. What sort of harm can a guest cause? Consider the circumstances. Guests in short-term rentals usually have exclusive use of the property. In theory this means that they can do a lot of things that a homeowner might not expect. In cases where the damage is not reported it can lead to significant dangers for others who come on the property. For example:
  • Damaging electrical fittings and creating a fire or electrocution risk.
  • Leaving a gas stove turned on.
  • Breaking a stair or bannister, creating a fall risk.
  • Damaging a boat or other vehicle that comes with the rental.
  • Deliberately setting traps designed to injure others.
Homeowners should make sure that these kinds of risks are accounted for in their insurance policies. This is especially important for someone who plans to rent without an intermediary hospitality firm like AirBNB. Even if working with a hospitality site and protected by its insurance, it’s important to understand the restrictions and limitations of the policy. If a guest should create conditions that lead to someone getting hurt, it will be important to preserve evidence of the guest’s negligence so that they can be pursued in court. This will be important even if an insurance policy will cover all of the costs associated with the injury—the insurer may want to pursue legal action to recover its costs. If insurance will only cover certain costs and not others, the homeowner may have no choice but to join the litigation to pursue compensation directly. In some cases the homeowner may also need to file a police report. Whether this is necessary will depend on the nature of the harm done. Intermediary sites may require hosts to file police reports as part of their insurance coverage. Certainly in cases where a guest has behaved maliciously, by deliberately causing damage or creating a dangerous condition, a police report is warranted. For more than 45 years the law firm of Greenman Goldberg Raby Martinez has helped injured clients recover compensation. If you are hosting guests in short-term rentals and you have questions about how to best protect yourself against risk, call us today for a free attorney consultation at 702-388-4476 or reach us through our contact page.

Homeowner Liability for AirBNB Guest Injuries

Online hospitality marketplaces like AirBNB and VRBO have radically disrupted the hotel business. Property owners love the chance to offset the cost of ownership of homes and vacation getaways, all within the scope of a well-established rental system. At the same time, owners need to be careful to take stock of how having paying guests may affect their legal liability in the event that a guest is injured during their stay.

Homeowner liability for guest injuries, in general

When someone is injured at someone else’s home the usual question is whether the homeowner committed an act of negligence that caused the guest’s injury. For negligence to apply, the homeowner must have owed the guest a duty of care and breached that duty. Ordinarily a homeowner owes a guest fairly limited duty of care. Specifically, homeowners are not required to continuously ensure that their homes are free of dangerous conditions that might lead to an injury. For example, a homeowner who lives in a place with freezing conditions doesn’t need to constantly look out for buildup of ice on a walkway. On the other hand, once a homeowner knows about a dangerous condition there is a duty to warn guests about the problem and to make reasonable efforts to resolve it. The character of a homeowner’s legal duty can change if a guest is paying the homeowner for the privilege of using the property. When someone pays for lodging the legal duty can be more strict than would otherwise be the case. A homeowner who does not take care to inspect the property for risky conditions takes a chance that a visitor will be injured and sue.

Insurance considerations

The heightened risk means that homeowners should take care to analyze their insurance policies to ensure that they are covered against liability. AirBNB covers homeowners with a Host Protection Insurance policy. The AirBNB policy provides up to $1 million per incident. But there are some important limitations that the homeowner may still be responsible for paying. For example, the policy does not cover loss of earnings. It also does not cover things like a guest’s car, loss of electronic data, or injuries that the host should have expected to happen (such as by ignoring unsafe ice buildup on the front porch). A guest who suffers an excluded injury likely will sue the homeowner to recover whatever cannot be recovered from the AirBNB insurance policy. As such, the homeowner should not rely solely on the coverage provided by the online marketplace. Hosts should also verify that they are adequately protected by their homeowner’s insurance policy. Some policies may not cover rentals, and some may also carve out exclusions that are similar to those carved out by the rental site’s policy. If there are gaps left over, the homeowner must decide if bearing the excluded risks is worth it. Homeowners should also bear in mind that in many jurisdictions short-term rentals are prohibited by law or subject to specific licensing, zoning, or other rules. An insurer may be quick to deny coverage for a rental that violates local laws. In addition, breaking such laws could expose the host to fines and even criminal prosecution.

GGRM is a Las Vegas personal injury law firm

The law firm of Greenman Goldberg Raby Martinez has represented clients in personal injury cases for over 45 years. If you have been injured during a stay at a short-term rental or if you are a host with questions about your potential liability, call us today for a free, confidential attorney consultation. We’re available at 702-388-4476 or contact us through our website.

Pharmacy Mistakes Can Threaten Patient Health

Like other people in the medical services field, pharmacists are highly trained, licensed, and regulated professionals. Their work requires a constant attention to detail. Providing the wrong dosage or the wrong medication can lead to serious consequences for the patient. In some cases pharmacy errors have even caused patients to die. Pharmacies face a lot of challenges when it comes to getting things right. The list of potential sources of errors is long:
  • The names of different medications can be confusingly similar.
  • Pills of two very different drugs may look the same.
  • Hand-written prescriptions can be notoriously hard to decipher, with abbreviations and other shorthand increasing the risk of errors.
  • In the fast-paced environment of a pharmacy, it can be easy to get disorganized, make storage mistakes, or accidentally skip necessary safety steps.
Strict policies and procedures can reduce the risk of mistakes, but pharmacists are human and errors still happen. When they do, and the patient suffers a serious injury as a consequence, a lawsuit may be necessary to recover compensation for the costs associated with the injury or, in the worst case scenario, the costs of the patient’s wrongful death. Pharmacists and their employers may be held civilly liable for malpractice. As specially trained professionals, pharmacists owe patients a high duty of care. This duty extends to all aspects of filling a prescription, including:
  • Verifying that the prescription is valid, lawful, and complete. As the last line of defense, pharmacists also need to be ready to catch mistakes in a prescription, such as accidentally high doses.
  • Accurately filling the prescription.
  • Providing the patient with complete, accurate information about the medication and its use, including information about side effects and potential interaction with other medications the patient is taking.
If a pharmacist fails to fulfill these duties and the patient suffers an injury as a result, a lawsuit may be appropriate. The law firm of Greenman Goldberg Raby Martinez has represented clients in personal injury and professional negligence cases for over 45 years. If you or a loved one has been injured as a consequence of mistakes by a pharmacy, please give us a call today for a free attorney consultation. We can be reached at 702-388-4476 or through our contacts page.