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Can Witnesses be Forced to Testify in Personal Injury Cases?

The viability of a personal injury lawsuit can sometimes hinge on the testimony of witnesses. Witnesses can provide essential information about an injury and related matters, such as the extent of the plaintiff’s damages. Some witnesses are willing to provide testimony and information without being compelled to do so. But others may be reluctant. Perhaps the witness is a friend of the defendant’s and doesn’t want to testify to facts that will help the plaintiff. Or perhaps the witness is an employee of a company that is being sued and wants to protect a career. In many cases such witnesses can be required to testify through the use of subpoenas.

What is a subpoena?

The subpoena power is a significant resource that only becomes available once a lawsuit has been filed. Its purpose is to give the parties to litigation a means to gather evidence related to the case even against the objection of individuals who have it. Subpoenas may demand testimony (a subpoena ad testificandum) or production of documents or other materials (a subpoena duces tecum). A court may charge someone with contempt if they fail to comply with a valid subpoena. Under Nevada law contempt is punishable by a fine of up to $500, imprisonment for up to 25 days, or both, as well as reimbursement of legal fees and other expenses of the party that originally sought the subpoena.

The mechanics of subpoenas in Nevada state civil courts are governed by Rule 45 of the Nevada Rules of Civil Procedure. To be valid a subpoena must comply with all of the requirements of Rule 45 and other related rules. A subpoena must be served upon the party being compelled to appear. Service must be in person and, with a few exceptions, must be accompanied by compensation for the witness’s mileage and a day’s fees.

Can someone avoid a subpoena?

There are a few ways someone can avoid responding to a subpoena. Many of the exceptions relate to the validity of the subpoena itself:

  • Avoiding service of process. One reason people hire professionals to serve process is that some people take pains to avoid it, thereby frustrating efforts to make the subpoena valid and binding. Process servers use creative methods to deliver documents to people who try to hide from service.
  • Undue burden. A respondent is not required to comply with a subpoena that creates an undue burden. This abstract concept is evaluated on a case-by-case basis, but might include things like interrupting necessary medical care. An attorney who issues and serves a subpoena that creates an undue burden or unreasonable expense upon the person being served can be subject to sanction by the court.
  • Reasonable time. The subpoena must allow the respondent a reasonable time to appear.
  • Reasonable place. A subpoena cannot order someone to travel more than 100 miles from the respondent’s home or business, unless it is to the place where the trial is held.
  • Protected information. Subpoenas may be quashed or modified if they require someone to disclose trade secrets, confidential business information, or compels an opinion by an expert who has not been retained by a party as a paid witness.

Experienced personal injury attorneys are used to using subpoenas to gather information that pertains to their cases. For more than 45 years the law firm of Greenman Goldberg Raby Martinez has represented Las Vegas clients in personal injury cases. For a free attorney consultation about your case call 702-388-4476 or send us a request through our site.

Safely Riding Bikes with Kids

Teaching kids how to ride bikes safely is a great way to encourage them to develop life-long healthy habits. Putting children on bikes also involves a significant responsibility. Preventing accidents and injuries should be a top priority. Children can be at greater risk than adults for bicycling accidents. They don’t always ride in a straight line, may not have sufficient skill to respond to changing conditions, and may be easily distracted. Bearing in mind that many accidents can be prevented even by the people who are not legally at fault, here are a few tips for keeping kids safe on bikes.

  1. Check for mechanical problems. Kids’ bikes go through a lot. They get dropped, left outside for long periods, and so on. Before going for a ride in public places it’s a good idea to always check for mechanical problems, especially with brakes and any point of contact between the bike, the rider, and the road (such as seats, handlebars, wheels). A quick tightening of a loose nut may prevent an accident.
  2. Make children wear helmets. Nevada law doesn’t require cyclists to wear helmets. Although not wearing a helmet won’t result in a citation, it could result in a serious or even fatal head injury. Bear in mind that helmets do not prevent every kind of head injury, they only reduce the likelihood of severe trauma.
  3. Teach traffic safety. Bicycles are not regulated in the same way as cars in Nevada, but they are subject to traffic rules. Kids who will ride in public need to have a basic working knowledge of what signs mean. It’s especially important that kids know when they must stop. They also need to know to stay within designated lanes and when it is ok to leave them. When riding on roads, cyclists are required to stay within designated bike lanes if they are present, unless roadway conditions in the bike lane makes it unsafe to do so.

If a child is injured while riding a bike and someone else was at fault, there may be an option of suing for compensation for the child’s injuries. The facts of the accident will be vitally important for determining the outcome of the case. After an accident it is important to gather as much information as possible about the event, including the time of day, the location, details about the people involved, and so on. Of course, this is easier said than done when a child has been injured and needs medical help.

In any ensuing litigation the central question probably will be whether the person responsible for the accident was negligent. If the child was riding recklessly—for example, by running a red light into oncoming traffic—that may offer a partial or complete defense.

Talk to a Las Vegas personal injury firm about your case

The law firm of Greenman Goldberg Raby Martinez has represented clients in personal injury and accident cases for over 45 years. If you have questions about an accident involving a child on a bicycle, please contact us today for a free, no-obligation attorney consultation. We can be reached at 702-388-4476 or through our contacts page.

Using a Cell Phone to Record Details of an Accident

Cell phone cameras are valuable tools for gathering evidence after an accident. The first priority after an accident should be to call police and emergency services, stabilize any injuries, and get clear of hazards like burning vehicles. Once those essential steps are taken, and provided that circumstances allow for it, taking photos or even video can help attorneys, insurance companies, and police investigators analyze the accident.

What sort of photo evidence is useful?

The short answer to this question is: all of it. A photograph can reveal things that our minds don’t process in the moment. While we’re focused on the damage to a car we may not see an important detail that is outside the focus of our vision. A photograph may capture this detail and make it available later.

There are limitless possibilities about what may be important to photograph at the scene. Here are some important examples

  • All visible damage to the vehicles involved.
  • Roadway conditions, like debris, skid marks, or spilled oil or other chemicals that might have contributed to the crash.
  • The scene of the accident, including the location of traffic signs and signals, the address, weather.
  • Personal injuries, but note that before taking pictures of an injured person it’s important to first get their consent.

Moving around the scene to capture photos from many angles is important for building up a complete record of the scene. One area where this can be important is if the two drivers involved in the crash have different recollections of how the crash occurred. Having photos from various angles of damage to the vehicles may help investigators determine what actually happened.

Be mindful of the photos as evidence

Once photos of the scene are on your phone it’s important to take steps to preserve them. Getting them downloaded to a computer or uploaded to cloud storage should be a priority. It’s very important to preserve the photos in their original format: editing a photo may raise doubts about its authenticity later on.

Also take care before putting accident photos onto social media sites. The best approach is to avoid making any statements about an accident online, but this can be especially true of photos, which may have unintended consequences, such as offending the privacy rights of an injured individual.

GGRM is a Las Vegas accident law firm

For more than 45 years the law firm of Greenman Goldberg Raby Martinez has helped clients who have been injured in auto accidents recover compensation. If you have been injured in an accident please call us for a free, no obligation attorney consultation. Reach out to us today at 702-388-4476 or contact us through our website.

How to Choose a Nevada Personal Injury Law Firm

After being injured in an accident, choosing the right attorney can feel like picking from a hat. There are dozens of personal injury law firms in the Las Vegas area alone. Anyone who has driven through Las Vegas has seen the barrage of billboards from lawyers looking for clients. A similar barrage is found across the media spectrum, from radio and television to the Internet. In the face of this flood of information (and misinformation) it is important to refocus on the things that really matter when it comes to choosing an attorney.

  1. Personal service. Some law firms have adopted a “high volume” approach to litigation. Such firms hope to make more money for their partners by adopting a standardized, impersonal process for each client. At GGRM we believe that a quality law firm treats each client with the respect and attention they deserve. Someone who is dealing with a serious injury probably has a wide range of related problems that are adding to the stress of being hurt. To really serve the client’s interests an attorney has to take time to tailor legal strategies around the personal needs of the client. That means taking the time to get to know the client, treating the client like a person and not like a number.
  2. Experience. The difference between a relatively junior attorney and one with experience can be enormous. Mastering the procedural components of litigation is only part of the process of becoming a competent attorney. A seasoned litigator knows how to craft arguments that anticipate the other side’s strategies and frame the debate in a favorable light.
  3. Resources. Personal injury litigation can sometimes require sophisticated outside resources, like expert witnesses. It also requires a quality team of professionals within the firm, such as experienced paralegals. A common misconception is that only the largest firms have access to these resources. The truth is that even small firms can have a deep pool of resources available to support a client’s case. Part of developing those resources comes through a firm’s experience, but it also comes from a willingness to invest in the case.
  4. Fee structure. Law firms charge clients in a variety of ways. A typical personal injury case is taken on contingency, which means the firm doesn’t get paid until it has reached a favorable outcome for the client. Not all contingency fee arrangements are created equal. Some firms try to pass on costs to clients regardless of the outcome of the case, and many firms charge exceptionally high fees even for cases that are fairly straightforward. An ethical firm not only explains in detail how its contingency fee arrangements work, but also works hard to keep its costs under control.

The attorneys at Greenman Goldberg Raby Martinez have represented injured clients in the Las Vegas area for over 45 years. We are proud of our long-standing tradition of providing high quality, personalized service to our clients. Call today for a free attorney consultation at 702-388-4476 or request a call through our website.

Elements of a Nevada Medical Malpractice Claim

Elements of a Nevada Medical Malpractice Claim

Patients trust doctors and other medical personnel to use good professional judgment to make choices that are right for the patient’s health. Even under the best circumstances a doctor’s actions can be insufficient to solve a patient’s problems—there’s always a chance that a treatment won’t work. But sometimes a medical professional’s actions aren’t simply ineffective but rise to the level of negligence. In circumstances where a doctor’s negligence causes serious injury or death, the injured person may want to file a medical malpractice (in Nevada, “professional negligence”) lawsuit.

Basic requirements of a Nevada professional negligence complaint

Nevada’s professional negligence statute, NRS Chapter 41A, has a number of important requirements that a plaintiff must meet before a case can go forward.

  1. An assertion of negligence. Professional negligence in Nevada is the failure of a provider of health care, such as a physician, dentist, or other licensed professional, “to use the reasonable care, skill, or knowledge ordinarily used under similar circumstances by similarly trained and experienced providers of health care.” NRS 41A.015. Whether a provider’s actions were “reasonable” is often a central issue.
  2. An affidavit of a medical expert. NRS 41A.071 requires plaintiffs to submit an affidavit signed by a professional who works within the area of practice as the defendant. The affidavit must substantiate the claims of negligence in detail. Essentially, the doctor or other professional signing the affidavit must concur with the plaintiff that negligence occurred. Depending on the facts of the injury, finding a physician who is willing to sign such an affidavit may be difficult. Failure to submit an affidavit is grounds for a court to immediately dismiss the case.
  3. Mandatory settlement conference. Before a professional negligence case goes to trial the parties involved must come together for a judicially administered settlement conference.
  4. Evidence of causation. To prevail a plaintiff will need the expert testimony of one or more professionals, or documentation from medical manuals, showing not just that the defendant deviated from an accepted standard of care, but also that the deviation caused the plaintiff’s injury. NRS 41A.100. Cause and effect questions are standard to negligence cases, but in the professional negligence setting the standard of evidence is quite high.
  5. Timing requirement. A professional negligence case must be filed within three years of the injury or one year of its discovery, whichever comes first. NRS 41A.097.
  6. Damages limitation. Although a plaintiff can recover the full scope of economic damages suffered in connection with the injury (such as medical costs and lost earnings), Nevada has capped non-economic damages (pain and suffering, disfigurement) for each incident at $350,000. NRS 41A.035.

In some cases, negligence is presumed

There are a few cases where a defendant’s negligence will be presumed. In such cases, the burden of proof shifts to the defendant, who must show either that he or she didn’t act negligently, or that the negligence was not the cause of the plaintiff’s injuries. These situations are set out in NRS 41A.100(1):

  • A foreign substance other than a medication or prosthetic was accidentally left in the patient’s body after surgery (for example, surgical gauze).
  • An explosion or fire started in a substance used during treatment.
  • An unintended burn caused by heat, radiation, or chemicals.
  • An injury to a part of the body other than the one being treated.
  • A surgical procedure is conducted on the wrong patient or the wrong part of a patient’s body (i.e., the surgeon removes the wrong arm).

Such cases are rare, but when they happen, it’s comforting to know that the law puts pressure on the responsible professional to compensate the victim for resulting injuries.

GGRM is a Las Vegas personal injury law firm

At Greenman Goldberg Raby Martinez we provide personal, attentive service to every client. Cases of medical negligence can be complicated and involve high stakes for the professionals involved. An experienced attorney can take the bull by the horns and gives plaintiffs the best chance at recovering compensation. For a free attorney consultation, call us at 702-388-4476 or send us a request through our site.

Restaurant Responsibilities for Food Allergies

People who suffer from food allergies face constant challenges when they go out to eat. Being exposed to an allergen can have serious or even fatal health consequences. For restaurants, one challenge of food allergies is their sheer variety. When someone is exposed to an allergen in restaurant food and suffers serious injury as a result, the question may become whether the restaurant bears legal responsibility.

Liability requires negligence

Responsibility for personal injury is usually a question of negligence. A negligence claim against a restaurant must show that the restaurant owed the patron a duty of reasonable care, breached that duty, and as a result of the breach the patron was injured.

In any negligence case, the duty of reasonable care needs to be based in law, created either by statute or by the courts. Nevada has a lengthy set of rules restaurants must follow for general sanitation and food preparation, chiefly to avoid the spread of food-borne illnesses. Nevada law also requires restaurants to train their employees in food safety, including general training in food allergies. NAC 446.053. Restaurants also must label prepackaged or repackaged food with lists of ingredients, including any source of major food allergies. For labeling purposes, “major food allergens” include milk, eggs, fish, shellfish, nuts, wheat, and soybeans. NAC 446.187.

But in general, Nevada does not require restaurants to actively protect their customers from allergens. That makes sense. A restaurant can’t predict the allergies of every person who walked through the door. Instead, people who have food allergies must take steps to protect themselves, by asking questions and knowing the things they must avoid.

Where negligence might apply

A restaurant might bear liability for a customer’s allergy-related injuries if certain facts are present. Here are a few examples:

  • Failure to comply with training or labeling laws. If a restaurant doesn’t properly train its staff in the basics of food allergies, it may be committing negligence per se (that is, its negligence might be presumed from the fact that it was not complying with a regulatory requirement). But the failure to comply with regulations would need to be causally connected to the patron’s injury.
  • Providing bad information. A restaurant could be liable if it doesn’t provide accurate information once asked. For example, if a patron asks if a dish contains peanuts and the staff incorrectly responds that it does not, the restaurant may be liable if the patron suffers serious injury. Ultimately, this is why Nevada requires its restaurants to train its personnel: to avoid harmful mistakes.
  • Failure to respond to an emergency. When a restaurant patron suffers a medical emergency, the restaurant becomes responsible for taking reasonable steps to help. That might include promptly calling 911 and taking other steps that an ordinary person might take. This doesn’t mean that the restaurant needs to take every possible step. For example, a restaurant that doesn’t keep an EpiPen auto-injector on hand to respond to serious allergic reactions isn’t necessarily behaving unreasonably.

We are happy to answer your questions

For over 45 years the law firm of Greenman Goldberg Raby Martinez has helped clients in the Las Vegas area seek compensation for their injuries. If you have questions about your legal options following a serious allergic reaction to food and would like to speak to a lawyer, call us today for a free consultation at 702-388-4476, or reach us through our contact page.

Employer Responsibilities for Air Quality

Air pollution at work can cause serious health problems, and can aggravate conditions like asthma. For employers, maintaining good air quality in the workplace helps to keep employees healthy and safe, and improves productivity.

OSHA and indoor air quality

The general duty clause of the federal Occupational Safety and Health Act of 1970 (OSHA Act) requires employers to keep their workplaces free from recognized hazards that are causing or are likely to cause death or serious physical harm” to their employees. 29 U.S.C. 654. Although the regulations under the OSHA Act and Nevada’s own OSHA law, NRS 618 et seq., do not address indoor air quality in general, specific standards have been adopted, including:

In addition to the specific standards, the Occupational Safety and Health Administration provides nonbinding guidance for employers who operate commercial and institutional buildings.

For employees working in places that do not fall within one of the specific standards, the OSHA Act’s general duty clause offers an umbrella protection against inadequate ventilation or other unhealthy air quality problems. For example, a restaurant that fails to maintain adequate vent hoods and exposes its workers to constant oven smoke might be violating OSHA standards, among other things.

The Safety Consultation and Training Section (SCATS) of the Nevada Division of Industrial Relations offers air quality evaluations by qualified industrial hygienists in the Las Vegas area.

Smoking and the Nevada Clean Indoor Air Act

The Nevada Clean Indoor Air Act, NRS 202.2483, regulates where smoking of tobacco is permitted in places of employment. The law prohibits smoking in most publicly accessible businesses, including indoor areas at restaurants, shops, schools, and government buildings. It also requires employers to post “No Smoking” signs and take steps to stop prohibited smoking. The Clean Indoor Air Act permits smoking in casinos, outdoor areas of restaurants, and other venues, so while it limits employee exposure to tobacco smoke to a large degree, it leaves many Las Vegas employees exposed to second-hand smoke.

Smoking marijuana in public is still illegal

Public consumption of marijuana, the recreational use of which has been legal in Nevada since January 2017, continues to be illegal. Unlike the Clean Indoor Air Act’s exceptions for tobacco smoking, Nevada’s recreational marijuana law makes no exceptions. Smoking marijuana in a public place, which is defined simply as “an area to which the public is invited or in which the public is permitted regardless of age,” is a misdemeanor. NRS 453D.030(17), NRS 453D.400(2).

GGRM helps Las Vegas workers protect their rights

Workers who are concerned that their employers are not taking adequate care to prevent air quality problems have a range of options for addressing the problem. State and federal agencies provide complaint mechanisms, and in some situations a workers’ compensation claim or even a personal injury lawsuit may be appropriate. The law firm of Greenman Goldberg Raby Martinez works with employees in the Las Vegas area to get compensation for injuries caused by problems like bad workplace air quality. For a free consultation call us today at 702-388-4476, or send us a request through our site.

Legal Liability for Sports-Related CTE

Legal Liability for Sports-Related CTE

Chronic traumatic encephalopathy, or CTE, has become a focus issue for sports in general, and especially for contact sports like football and boxing. CTE is connected to repetitive brain trauma from blows to the head. It is a progressive degenerative disease, leading to serious symptoms like memory loss, depression, and dementia. CTE is usually only diagnosed after the ill person dies. For someone who is dealing with problems that are potentially related to sports-induced head trauma, pursuing a lawsuit may be an option.

Potential legal theories for CTE litigation

Litigation for sports-related head injuries can follow several different strategies. The best strategy for a given situation can only be determined by an attorney who has carefully examined the available evidence. But generally speaking, these are the most likely theories upon which a case would rest:

  • Personal injury. A sports league, whether at the professional or amateur level, owes its participants a duty to ensure that the activity is reasonably safe. Failing to do so could expose the league to a personal injury claim based in negligence. For example, a peewee football club that doesn’t take adequate care to ensure that its players’ helmets fit properly could be responsible for the consequences of resulting concussions. A league can also be responsible for not taking reasonable steps to respond to head injuries when they do occur. Personal injury suits may also be appropriate against individuals who have behaved negligently.
  • Products liability. If helmets or other safety equipment do not perform as intended, a plaintiff might have a products liability claim against the manufacturer or seller. Among other things, a products liability claim in Nevada must show that the product had a defect that made it unreasonably dangerous. Nev. J.I. 7.02. This standard may be challenging to overcome absent compelling facts. For example, helmet manufacturer Riddell is facing litigation for alleged misrepresentations in its advertising.
  • Wrongful death. Because CTE is often only recognized after the sufferer dies, the individual’s heirs or representatives may wish to bring a wrongful death suit against a league or individuals that they believe negligently caused the death of their loved one.

Challenges for CTE lawsuits

A lawsuit arising out of CTE will probably face a number of significant challenges. These are just a few examples:

  • Proving causation. For many CTE litigants a major difficulty will be proving that the specific defendant in a case was responsible for the underlying cause of the condition. Because CTE develops over time, it may have many sources. For example, a football player who began his career as a child might have difficulty establishing whether his injuries arose at the peewee level or in middle school, high school, or college.
  • Passage of time. Because CTE is a progressive disease, many years may divide the triggering injuries and diagnosis. The passage of time can render evidence unavailable and erode memories. In this regard, it doesn’t help that CTE affects memory.
  • Assumption of risk. Because CTE tends to be linked most strongly to contact sports like football, boxing, or hockey, defendants may focus on the injured player’s assumption of risk as a participant. This will probably become more prevalent as awareness grows about CTE and other head injuries. Although someone injured in the era before CTE was widely known might not have known about it, and therefore might not have been able to willingly assume the risk, the situation is arguably different today.
  • Liability waivers. Participants in amateur sports typically are asked to sign liability waivers that limit the legal responsibility of organizers and others. It’s always important to read such waivers carefully before signing them.

Consult with experienced personal injury lawyers

CTE can be a particularly devastating injury for people suffering from it and for the loved ones who care for them. Especially when CTE leads to unmanageable medical costs, litigation may offer a path to financial relief. The personal injury attorneys at GGRM have served the Las Vegas community for over 45 years. For a free attorney consultation call us today at 702-388-4476, or send us a request on our contact page.

Lawful Use Of Pyrotechnics In Las Vegas Entertainment Venues

Lawful Use Of Pyrotechnics In Las Vegas Entertainment Venues

Fire and explosions can be an exciting part of a Las Vegas stage show. To ensure that pyrotechnics are handled safely, Nevada requires professional licensing for people who handle them. Failing to follow state and local licensing and permitting requirements can lead to terrible accidents, not to mention serious legal consequences. Producers who are considering using pyrotechnics, and venues thinking about hosting their shows, should take a moment to understand the licensing rules.

Nevada pyrotechnics licensing requirements

The Nevada State Fire Marshal Division enforces Nevada’s pyrotechnics licensing program. The use of fire effects in shows falls under the rules governing commercial fireworks displays. Nevada requires anyone in the business of producing fireworks displays to hold a license. NAC 477.606. Regular licenses are only issued to persons who are at least 21 years old, though apprentice and assistant licenses are available to anyone 18 or older.

The licensing process requires applicants to provide information about their training and experience with pyrotechnics as well as their proposed safety procedures. The licensee is required to wear safety gear while producing a pyrotechnics display, as described in the 2010 edition of the National Fire Protection Association (NFPA) Code of Fireworks Display. Applicants also must provide the fire marshal with an insurance certificate showing that they have the minimum coverage required in NAC 477.618.

State pyrotechnics licenses can be revoked if the licensee injures someone or creates a fire hazard at the performance location or where equipment is stored. Licensees are required to notify the fire marshal of any injury or fire they cause. NAC 477.646.

Categories of pyrotechnics licenses

Nevada separates its licensing requirements for pyrotechnics into several categories. Each category has its own requirements and rules.

  • Fire performers are entertainers like jugglers who use open flames as part of their act. To be licensed, fire performers must complete a safety course and at least 40 hours of training. NRS 477.223, NAC 477.630.
  • Magicians use materials like flash paper or powder smoke in their performances. Magicians may only use such materials within twelve feet of themselves. NAC 477.620.
  • Pyrotechnic operators run fireworks displays. They begin as assistant pyrotechnic operators, who to be licensed must pass a written exam covering N.F.P.A. standards for the storage and use of fireworks. They must also submit endorsements from two licensed operators and proof of employment. Holders of assistant licenses are only permitted to work under the supervision of a fully licensed individual. A licensed assistant pyrotechnic operator can obtain a full operator license by passing a written exam and submitting evidence of experience. NAC 477.622 to 628.
  • Flame effects operators are licensed to use a specific fuel type (natural gas, propane, or solids) for creating flame effects in front of an audience. Flame effects operators must first be licensed as flame effects assistants. The assistant license process requires passing a written exam on fire safety procedures, the submittal of endorsements from two licensed flame effects operators, and evidence of employment as a flame effects assistant. NAC 477.631 to 633.

Local licensing laws

In addition to complying with the state fire marshal’s requirements, a pyrotechnics operator also must comply with local licensing laws. Las Vegas requires permits for any commercial display of fireworks, open flame effects, or fire performances. The city requires permit holders to carry minimum insurance that is twice the minimum required by state licensing rules. The insurance policy must name the city as an additional insured. Las Vegas Fire & Rescue personnel must be present during performances.

The law firm of Greenman Goldberg Raby Martinez has called Las Vegas home for over 40 years. From licensing problems to injuries caused by negligent operators, we are here to answer your questions. For a free attorney consultation call us today at 702-388-4476, or send us a request on our contact page.

Can Venues Be Sued For Spreading Communicable Diseases?

Every now and then we hear about a business like a hotel or cruise ship getting quarantined for the presence of a serious pathogen. Some infectious diseases, like hepatitis A or Legionnaires’ disease, can linger in an environment that’s not kept clean and dry. The consequences for someone who contracts such a disease can be devastating, even fatal. When a patron of a business comes down with a serious illness that can be traced to the business itself, a lawsuit may follow.

Premises liability and communicable disease

Like other types of personal injury lawsuits, a civil case for damages arising from a disease will be based on the theory of negligence. To prevail in a negligence suit, the injured plaintiff must show:

  • The defendant owed the plaintiff a duty of care.
  • The defendant breached that duty of care.
  • The defendant’s breach was the legal cause of the plaintiff’s injuries.
  • The plaintiff’s injuries resulted in damages, like medical bills and lost earnings.

In Nevada the owner or operator of a property has a legal duty to take reasonable care to ensure that visitors on the property are not injured by dangerous conditions on the premises. Foster v. Costco Wholesale Corp., 128 Nev. 773, 777 (2012). A business that invites the public onto its property is expected to take extra steps to ensure that its facilities are safe for use. Doud v. Las Vegas Hilton Corp., 109 Nev. 1096 (1993). A business is expected to correct problems that it knows about, or should know about. A business is also responsible for problems created by the actions, or inactions, of its employees. Sprague v. Lucky Stores, 109 Nev. 247, 250 (1993).

The foreseeability of disease

One challenge in a case involving disease is that the source of the disease probably was invisible. This differentiates disease from ordinary premises liability cases arising from things like improperly maintained stairways. Unlike a pool of spilled olive oil on a supermarket floor, bacteria on the rim of a spa or a virus lurking in water pipes isn’t easy to spot. This can make the element of actual or constructive notice more difficult to prove in the case of disease.

Instead, a plaintiff likely will argue that the presence of disease was a foreseeable consequence of the defendant’s negligence. Hammerstein v. Jean Dev. West, 111 Nev. 1471, 1477 (1995). In other words, a venue that fails to take reasonable steps to clean areas where bacteria can foreseeably thrive arguably has acted negligently. A gym needs to routinely disinfect its shower areas. A hotel needs to keep its pool and spa areas properly treated.

GGRM understands premises liability

For over 45 years, the experienced personal injury attorneys at the law firm of Greenman Goldberg Raby Martinez have given personalized, caring advice to clients in the Las Vegas area. If you are recovering from a disease that you think was caused by a venue’s negligence, an attorney can help you review your options. For a free attorney consultation call us today at 702-388-4476, or ask us to call you by leaving a note on our contact page.