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Calculating Pain and Suffering in Personal Injury Cases

The category of damages called “pain and suffering” can sometimes be the eye-catching part of a personal injury trial’s outcome. For example, a recent case awarded a plaintiff $10 million for pain and suffering in connection with a severe injury suffered by a teenager on a homeowner association’s badly maintained swing set. Someone who has been injured and is considering filing a lawsuit should take a moment to understand what pain and suffering damages are and what their limitations rae.

The categories of damages in Nevada civil litigation

Civil trial damages are divided into three categories:

  1. Economic (or compensatory) damages can be thought of as the consequences of the defendant’s wrong actions that can be reduced to a firm dollar figure without resorting to abstraction. Past and future medical expenses, lost earnings, and property damage are examples of economic damages. The scope of economic damages can itself be a controversy at trial. For example, a person’s future earnings are contingent on many factors, like the person’s age, years to retirement, and career path.
  2. Punitive damages are sometimes awarded in cases where the defendant has acted especially badly. The aim of punitive damages is to make an example out of the defendant to deter others from behaving in the same way.
  3. Noneconomic damages tend to be difficult or impossible to quantify using commonly accepted formulas. Examples of noneconomic damages include humiliation, anxiety, grief, and loss of enjoyment. Pain and suffering are just two closely related variations of noneconomic damages.

The types of damages that a plaintiff can seek in a case depend on the nature of the claim, the parties involved in the case, and other factors. Economic damages tend to be available in almost every case that isn’t simply barred on other grounds. But noneconomic damages can be subject to caps or even prohibited altogether. Such restrictions are usually contained in statutes that are designed to limit the liability risk of certain activities. For example, Nevada law limits noneconomic damages in professional negligence cases (e.g., medical malpractice) to $350,000. NRS 41A.035.

How are pain and suffering damages calculated?

A plaintiff’s claim for pain and suffering, or other forms of noneconomic damages, must be fair and reasonable and may not exceed any applicable statutory cap. Like all damages, pain and suffering also must be proven with evidence. The greater a showing the plaintiff can make of the tribulations suffered due to the defendant’s wrongful actions, the greater the potential damages award. Unlike a plaintiff’s medical bills, pain and suffering isn’t so much a matter of math as one of reasoned argument.

Proving pain and suffering requires a careful collection of hard evidence, like photos and medical records. Documentation of the plaintiff’s medical condition, such as x-rays, can be especially persuasive. Oral testimony can also be vitally important. The plaintiff’s family members, friends, occupational therapists, and others can help to paint a picture of how the plaintiff’s life has changed after the incident.

GGRM is an experienced personal injury law firm in Las Vegas

The law firm of Greenman Goldberg Raby Martinez has represented injured clients in the Las Vegas area for over 45 years. If you have been injured in an accident and would like to speak to an attorney at no cost, please give us a call today at 702-388-4476. We can also be reached through our contacts page.

Can a Bicyclist Injured by a Pothole Sue?

Riding a bicycle on city streets exposes the rider to many kinds of hazard. Distracted drivers, pedestrians walking dogs, roadway debris, and even other cyclists can all pose dangers. Issues with the surface of the road, like potholes and cracked pavement, can be especially dangerous. But if a cyclist is injured by a fall caused by a pothole, can the person or entity responsible for maintaining the road be sued?

Nevada’s recreational use statute limits suits against private landowners

Under NRS 41.510, someone who is injured on private property while engaged in a recreational activity, including riding bicycles, cannot sue the property’s owner, lessee, or occupant for injuries caused by the inadequate maintenance of the property. A private property owner has no obligation to keep roadways safe for use as cycling paths. Nor is the owner required to post warning signs or take other steps, like applying bright paint around hazards. This is true even if the owner has given express permission to the person using the road, unless the rider paid the owner a fee for access.

An exception to this rule will apply if the owner has maliciously or deliberately created an unsafe condition or done nothing to remedy a known, serious hazard. For example, if the owner of a property digs a trench across a roadway but doesn’t take steps to cover the trench or provide warnings, a cyclist who falls into the trench probably has a good cause of action despite Nevada’s recreational use statute.

Limitations on recovering from state and local government agencies

The state of Nevada has waived the sovereign immunity of the state and its political subdivisions, theoretically allowing individuals to bring lawsuits to recover for damages caused by a government agency’s negligence. NRS 41.031. However, state law has limited when government agencies or the employees can be held responsible for civil damages. For example, government agencies are shielded from liability for failing to inspect roadways for potential hazards. NRS 41.033.

Potholes can develop rapidly, especially on heavily used roadways. The agency responsible for the roadway’s maintenance may not discover the hole in time to do anything about it. However, once an agency has actual notice of a hazard, the shield against liability no longer applies. This rule gives cyclists an added incentive to call cities or counties to report roadway problems.

Cyclists should note that in lawsuits against both government agencies and private landowners the most that can be recovered in a lawsuit is $100,000. NRS 41.035. Damages can only be calculated based on the plaintiff’s actual costs (medical bills, lost earnings, etc.). An important lesson to take from this limitation is that cyclists need to make sure their personal health insurance policies cover cycling injuries, which can pile up medical bills well in excess of $100,000.

GGRM is a Las Vegas accident law firm

The attorneys at the law firm of Greenman Goldberg Raby Martinez are experienced in handling personal injury and accident cases. If you have been injured in a bicycling accident we would be happy to talk to you about your options. For a free attorney consultation call us today at 702-388-4476 or ask us to reach out to you through our contact page.

Liability for Accidents Involving Pregnant Women

Pregnant women who are injured in accidents face unique risks. Injuries to the fetus from seatbelts and steering wheels are responsible for four out of five fetal deaths that are trauma-related. Even injuries that don’t directly affect the fetus can complicate pregnancy. If an accident leads to litigation, pregnancy-related injuries can have important consequences for the liable party.

Pregnancy and damages

In a personal injury case a plaintiff can seek compensation for all of the costs that are associated with the injury caused by the defendant. Pregnancy-related injuries are no different. The defendant must compensate the plaintiff for pregnancy-related complications to the extent the defendant is responsible for causing them. Among these damages can be the cost of recovering from emotional trauma.

Nevada law also permits plaintiffs to recover for injuries to an unborn fetus. In White v. Yup, 85 Nev. 527 (1969), the Nevada Supreme Court adopted the rule that a plaintiff may sue for damages on behalf of an unborn fetus, including for wrongful death. As a threshold matter the fetus must have been viable at the time of the accident. If the child is stillborn following the accident and the plaintiff can establish that the accident caused the still birth, wrongful death may be the appropriate cause of action. In such cases the plaintiff can recover medical and funeral costs. In some cases punitive damages may also be awarded, but under Nevada’s wrongful death statute a plaintiff may not recover damages for pain and suffering. NRS 41.085(5)(b).

Pregnant women are at higher risk of accidents

The special dangers of injury during pregnancy make it especially important for pregnant women to take precautions. One study found that women were 42% more likely to get into a car crash during their second trimester than they were during the three years prior to getting pregnant. Paying attention to seatbelt positioning, seat adjustments, and other precautions can reduce some, but not all, of the risk of injury.

Just because a pregnant woman faces higher risks doesn’t mean that she bears responsibility in the event that she’s injured by another person’s negligence. Although in accident cases an injured person’s comparative negligence can be a factor in determining a defendant’s liability, the mere fact that the plaintiff was pregnant at the time of the accident is not going to be enough. On the other hand, if the plaintiff was suffering from particularly severe morning sickness there may be an argument that she should not have attempted to drive.

GGRM is a Las Vegas personal injury law firm

For over 45 years the attorneys at Greenman Goldberg Raby Martinez have represented injured clients in the Las Vegas area. If you have been injured in an accident call us today for a free attorney consultation at 702-388-4476 or request a call through our website.

Las Vegas Window Washers Face Significant Injury Risk

Highrise window washers quite literally step into thin air to do their work. Hanging from the side of buildings, often hundreds of feet in the air, they help to keep Las Vegas sparkling for its visitors. The approach to safety varies from company to company and building to building, depending on the sort of infrastructure incorporated into the building and the approach taken by the window washer. Everything from a scaffold to harness points built into the side of buildings may be used to keep washers safe.

Working at such heights involves significant risk of serious injury or death. People who work in the window washing business need to have a clear understanding of their legal rights so that if they are injured they can take the right course of action to protect themselves. Here are some principles to consider:

  • Make sure your employer has workers’ compensation coverage. Every employer in Nevada is required to cover its employees with workers’ compensation coverage. People who are hired as “independent contractors” generally also have access to their employer’s workers’ compensation coverage. A Nevada employer’s coverage can be verified online. A key question is whether the employer’s coverage is adequate for the sort of risks that employees must face. It’s best to understand these questions before heading up to the top of a skyscraper.
  • Be mindful of safety. All employers are required to maintain their workplaces in safe condition for employees under state and federal occupational safety and health rules (the familiar OSHA standards). These laws are enforced by regulatory agencies at the state and federal level. An employee who has safety concerns that aren’t being addressed by the employer should consider reporting them to authorities. This is especially true of professions like window washing, where inadequate safety measures can turn an otherwise low-risk job into something highly perilous.
  • Understand who is responsible. Window washers often rely on the safety equipment already present at project sites. Things like hydraulic systems, winches, ropes, harnesses, and scaffolds may all be provided by the owner of the building that is being cleaned. When an equipment failure leads to injury it’s important to know if the building owner or operator may have some share of the blame.
  • Be prepared to refuse the job. Working in high winds or with defective equipment dramatically increases the risks window washers face .A scrupulous employer should take such risks very seriously and keep workers off the job until conditions improve. If a manager is insisting that workers should ignore the risks and work anyway, the correct course may be to refuse to work. Under OSHA rules an employer cannot force an employee to continue to work under conditions that are known to be unreasonably dangerous.

Window washers who feel that they are faced with abnormally dangerous working conditions or who have suffered injuries and need help navigating their workers’ compensation claims should consider talking to an attorney about their legal options. For more than 45 years the law firm of Greenman Goldberg Raby Martinez has represented clients in personal injury and workers’ compensation cases. Call us today for a free attorney consultation at 702-388-4476 or reach us through our contact page.

Suing a Hotel for Personal Injury in Las Vegas

For a lot of good reasons, hotels go the extra mile to ensure that their guests are safe and well cared for. This isn’t just important for protecting their reputations. It’s also an important way that they manage their legal risk. For someone who has been injured at a hotel, it may be possible to recover compensation from the hotel or its insurance policies for the costs associated with the injury.

A hotel’s liability is often a question of negligence

In most personal injury cases the key issues are whether the defendant behaved negligently, and whether that negligence caused the plaintiff’s injury. Negligence takes place if a person or business has a legal obligation to treat another person with a certain standard of care and fails to meet that standard. Standards of care are established in the long history of judicial decisions and, sometimes, in statutes.

Hotels, motels, hostels, and so forth are subject to laws governing public accommodations. As a public accommodation a hotel has a high duty of care toward visitors. It must take all reasonable precautions to prevent foreseeable injuries to guests. This duty extends to the entire publicly accessible property owned or operated by the hotel, including its parking lots, pool areas, gyms, and restaurants.

The high standard of care makes hotels responsible for rapidly responding to dangerous conditions once the hotel (through its staff) is aware of them. Hotels also have an obligation to routinely inspect their property for potential hazards. For example, a guest using a hotel’s public restroom spills water on the floor. Here are two scenarios leading from this that could result in liability for the hotel:

  1. The guest promptly tells a member of the hotel’s staff about the spill, but the staff member doesn’t do anything about it. Shortly thereafter, someone slips and falls on the wet floor, suffering a serious injury. The inaction on the part of the staff member, acting as an agent of the hotel, may be sufficient to find liability.
  2. The guest doesn’t tell the hotel about the spill. The hotel doesn’t have a routine process for checking bathrooms, and two hours later someone falls and gets hurt. Here the key question is whether requiring the hotel to inspect the bathroom for things like spilled water is reasonable.

A hotel has limited obligations to prevent injuries caused by third parties

Another source of potential injury at hotels is not the hotel itself but other guests. Nevada law limits the liability of a hotel for injuries caused by people who are not employees of the hotel unless the act causing the injury was foreseeable and the hotel didn’t exercise due care to keep visitors safe or prevent the wrongful act of the perpetrator. The foreseeability requirement is a key component of this rule. A hotel that has a long history of rowdy fights in its bar probably has a higher duty of care to be prepared for such events in the future (i.e., by employing security) than a hotel with no such history.

GGRM is a Las Vegas personal injury law firm

For more than 45 years the law firm of Greenman Goldberg Raby Martinez has represented clients in personal injury cases in Las Vegas. If you have been injured at a hotel and would like a free attorney consultation to discuss your case, please call us today. Call 702-388-4476 or contact us through our website.

Understanding Social Security Disability Benefits

Social Security is one of several potential sources of financial support for people who cannot work due to an injury or illness. As with any form of financial support from the government, Social Security disability benefits are subject to a range of restrictions and prerequisites. The benefits may also affect one’s ability to get financial support through other sources, so anyone considering applying for Social Security benefits should examine not just the rules for the program itself but also how it may play into a larger strategy of making ends meet while off work.

Qualifying for Social Security disability benefits requires a number of specific elements. The first is that the applicant must have paid into the Social Security system by working in jobs that contribute to it. People who work in jobs that are exempt from Social Security will not qualify. Second, the applicant must be disabled in accordance with the Social Security Administration’s (SSA) definition of the term. For Social Security purposes disability means:

  • The applicant is unable to do the work he or she did before the injury or illness due to limitations in the applicant’s physical or mental abilities.
  • The applicant’s condition makes switching to different work untenable.
  • The condition has lasted or is expected to last for at least one year, or is expected to result in the applicant’s death.

In addition to these prerequisites, a condition also must appear on the SSA’s list of impairments. Although this list is quite extensive, it may not capture every potential condition that could disrupt someone’s ability to work. This is especially important to keep in mind if a physician providing a diagnosis is doing so with a mixed set of incentives, as can be the case for physicians who conduct screening for insurers.

Social Security disability and other sources of support

For people who have been disabled as a consequence of an injury, questions often arise as to how Social Security disability benefits may affect, and be affected by, workers’ compensation claims, personal injury settlements, and state disability benefits. There isn’t one answer to this question, which depends on the source of the alternative support and a range of other factors. For example, Social Security disability payments probably will not be affected by a personal injury settlement or favorable judgment. But they may be reduced if disability payments from a state program combine with the Social Security benefits to exceed eighty percent of the applicant’s former annual income. Note that other forms of Social Security payments, like supplemental income (SSI), are subject to different rules.

For more than 45 years the law firm of Greenman Goldberg Raby Martinez has helped injured clients find strategies for making ends meet after being injured. We provide personalized advice to each client to ensure that their full circumstances are taken into account as we explore legal solutions together. Call us today for a free attorney consultation at 702-388-4476 or reach us through our contact page.

Illegal Urban Racing and Personal Injury

Whether due to movies like the Fast and Furious franchise, similar television shows, or video games, so-called street racing occasionally rears its ugly head in cities around the United States. During such races a driver is likely to exceed the speed limit, ignore traffic signals and signs, and place pedestrians and other drivers in significant danger. That is why street racing is illegal in Nevada and elsewhere. Someone who has been injured by someone who is competing in an illegal street race should consult with an attorney.

Nevada law on street racing

Driving or organizing “an unauthorized speed contest on a public highway” is a crime in Nevada, punishable by a fine, mandatory community service, and prison time. NRS 684B.653. By definition, driving in such a race is a form of reckless driving. A first-time offender may be fined up to $1,000, ordered to serve up to 99 hours of community service, and jailed for up to 6 months. The penalties go up for repeat offenders. Offenders can also have their drivers’ licenses suspended and their cars impounded. Note that these penalties are in addition to penalties for broken traffic laws, refusing to stop for police, and so forth.

A street racer faces significantly more serious penalties if he or she causes serious injury or death to another person in the course of a race. In such cases the driver may be imprisoned for up to six years and fined up to $5,000.

Criminal prosecution of illegal racers may not fully compensate victims

When someone is prosecuted for any crime the prosecution may ask the court to order the defendant to make restitution payments to the victims of the crime as part of the sentencing process. Such restitution can only be ordered for economic damages suffered by the victim: medical bills, lost earnings, and so forth. By law, criminal courts don’t get involved with so-called noneconomic damages, such as pain and suffering.

The criminal justice system may or may not protect the injured victim in other ways. The prosecution is not within the victim’s control. It may take a long time and ultimately may fail for reasons having to do with the high requirements for conviction.

People who are injured by illegal racers therefore have a strong incentive to pursue civil lawsuits to recover complete compensation for their injuries. Even if the criminal prosecution is ongoing, it can be worthwhile to also pursue a civil action. And if the criminal prosecution has concluded with a conviction, the conviction can be used in the civil case to prove the defendant’s liability.

GGRM is a Las Vegas accident law firm

The law firm of Greenman Goldberg Raby Martinez has represented clients in personal injury and accident cases for over 45 years. If you have been injured by a driver who was involved in an illegal street race, call us today for a free, confidential attorney consultation. We’re available at 702-388-4476 or contact us through our website.

Preparing for a Deposition in Your Personal Injury Trial

Depositions are often a critically important part of discovery, the fact-gathering phase of litigation. In a deposition, attorneys representing the parties in the dispute ask a witness a series of questions that are intended to help the attorneys gather information that may be important to the case. Witnesses answer questions under oath, meaning they face possible legal consequences for lying or misleading their questioners. A court reporter keeps a transcript of the deposition, which may also be videotaped in some situations. In some circumstances a witness may be assisted by an attorney, but as a rule a witness in a deposition is expected to prove accurate answers to all the questions that are asked.

For someone who is directly involved in a legal dispute over a personal injury, a deposition may sound like a kind of interrogation. Television and film like to ratchet up the drama with scenes of aggressive attorneys badgering witnesses into emotional outbursts. In reality a deposition needn’t be a stressful event. Although a witness is expected to answer every question that is asked, the witness’s attorney can enter objections on the record and can even ask that the deposition be stopped if the witness is being unfairly attacked.

Another important part of an attorney’s job is to prepare clients for depositions. There are a number of things that a witness can do to prepare for a deposition:

  • Get clear about the important facts. To be clear, a witness’s preparation for a deposition is not about crafting a good story. It’s about making sure that the witness has a clear memory of the things that are likely to come up, so the answers given at the deposition are as accurate as possible. This includes knowing what one doesn’t know, and what one is unsure about.
  • Practice answering questions. It can be helpful to have a friendly attorney roleplay the deposition. Not only does this help the witness think about how to answer difficult questions, it also makes the deposition itself feel more familiar and less stressful.
  • Think about body language and vocal inflection. An attorney who is experienced with depositions will be looking for clues not just in what the witness says, but also in how the witness behaves. There’s nothing to gain by being argumentative, rude, or angry during a deposition. The witness should think about steps that could help relieve tension, such as taking a breath, sipping water, or other simple tactics.
  • Get clear about procedure. During a deposition, attorneys will banter about technicalities, raise objections, and make comments to the court reporter. It can be helpful to a witness to know how this back-and-forth may affect them. Simply put, most of it can be ignored. At a minimum, witnesses should be prepared to answer questions even if their attorney objects to it. It can also be helpful for a witness to know how to go about asking for a break.

The law firm of Greenman Goldberg Raby Martinez has represented clients in personal injury cases for over 45 years. Our team is devoted to providing personal, thoughtful attention to each client. We have extensive experience with helping clients prepare for their depositions. We can be reached at 702-388-4476 or through our contacts page.

Challenges to Suing a Homeowner’s Insurance Policy for Personal Injury

Someone who suffers an injury at a private home may be entitled to coverage under the homeowner’s insurance policy. Insurers are experts at denying claims and will frequently look for reasons why an injury did not qualify under the homeowner’s insurance policy. Policies are written to provide insurers with numerous ways of escaping liability. As a consequence the insurer may need to be sued, often along with the homeowner. In doing so the injured plaintiff can face a number of challenges. Here are two examples.

Coverage limits may not fully compensate the plaintiff

The first challenge can simply be the coverage limits built into the policy. It should be no surprise that a homeowner’s policy is deliberately designed to limit the financial exposure of the insurer to risk. Policies do this in part by placing strict caps on how much the insurer will pay out for different events. The details of these caps can draw fine distinctions between who qualifies for coverage, how much coverage will be given to specific types of injuries, and so on.

A policy will always specify how much the insurer will pay for a given injury (normally some factor of $100,000). Many policies include “umbrella” provisions that add an extra catch-all value on top of the itemized coverage. The insurer will not pay more than the maximum amount of coverage. The first challenge for plaintiffs is often that the amount available under the homeowner’s policy is simply not enough to cover all the costs associated with an injury. A policy with a coverage limit of $100,000 per incident and a $500,000 umbrella provision will not make a plaintiff whole if the plaintiff is facing $1 million in damages.

Plaintiffs may not be covered in some situations

A second challenge can arise if the plaintiff is not within the scope of coverage. Some policies may distinguish between full-time residents, guests, and contractors. It may also disclaim responsibility for specific types of injury. As a hypothetical example, a policy might specify that the insurer does not cover accidental electrocution of someone who is working on electrical systems without the appropriate professional license.

One area where this “category” problem can be important is cases where the injured person was performing services for the homeowner at the time of the injury. Many homeowners’ insurance policies disclaim responsibility for injuries to contractors, with the idea being that the contractors will already have their own insurance. If a neighbor is injured while helping a landowner clear brush, the insurer may look for ways to characterize the neighbor as a contractor. One way it might succeed in doing that is if the neighbor was being compensated in some way for the work. For example, if the neighbor is helping out as a way to repay the landowner for lending the neighbor a tractor, that might be enough to place the neighbor outside the coverage scope.

GGRM is a Las Vegas personal injury law firm

Being injured at another person’s home raises a lot of difficult questions, not least of which can be how to preserve the relationship with the homeowner despite being in a legal dispute. For more than 45 years the law firm of Greenman Goldberg Raby Martinez has helped injured clients recover compensation. We work with clients to examine the complete picture of each case to ensure that the client’s personal and financial interests are protected. Call us today for a free attorney consultation at 702-388-4476 or reach us through our contact page.

Suing for Childhood Sexual Abuse in Nevada

The results of various studies suggest that victims of childhood sexual abuse rarely see justice done to their attackers. The reasons for this are as sad as they are complex. Very young victims may not understand that they have been abused, may be afraid of speaking up, or may simply lack the vocabulary to express what has happened. Abusers may be otherwise trusted friends or family members who escape discovery by carefully maintaining a veneer of respectability. But when victims grow up they do not need to accept what happened to them when they were young without fighting back.

Nevada is one of many states that has adopted a special statute of limitations for civil lawsuits brought against perpetrators of childhood sexual abuse. Statutes of limitations set strict deadlines by which a lawsuit must be filed to be valid. For many civil causes of action, like negligence, Nevada’s statute of limitations is two years from the time the plaintiff knew about his or her injury.

In recognition of the special nature of childhood sexual abuse, Nevada has extended the statute of limitations that applies to causes of action that arise from it. Under NRS 11.215, a victim of childhood sexual abuse must file a civil suit within the later of twenty years of reaching the age of 18, or within 20 years of discovering that an injury, such as psychological trauma, was caused by the abuse. This latter provision provides recourse for individuals who only recall their abuse through the assistance of a therapist.

Nevada law defines “sexual abuse” broadly. In addition to the sort of behavior that need not be described, it includes behavior that is done “with the intent of arousing, appealing to, or gratifying the lust or passions or sexual desires of [the] person.” NRS 201.230(1)(a). The laws governing sexual abuse are criminal statutes, meaning that the perpetrator may be prosecuted and sent to prison for an extended period if convicted. Unfortunately, in many instances the lack of evidence makes criminal prosecution less likely.

Even if prosecutors do not pursue a case the victim of childhood sexual assault should consider filing a civil lawsuit. Quite often the victim has suffered a range of long-term psychological consequences following the abuse, for which they should be compensated. To recover damages in civil court a victim of sexual abuse must be able to show by clear and convincing evidence that the abuse occurred.

For more than 45 years the law firm of Greenman Goldberg Raby Martinez has helped injured clients recover compensation. We understand that childhood sexual abuse is a complex and difficult topic. Our firm is committed to providing every client with personal, caring attention. Call us today for a free attorney consultation at 702-388-4476 or reach us through our contact page.