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Pokémon Go and Personal Injury

Pokemon Go and Personal Injury
Mobile gaming has become a big phenomenon in recent years. Games, like other content on a cell phone, can be distracting. But some games are especially so. Pokémon Go and other “augmented reality” games of its type work by overlaying game elements on the real world. Players advance in the game by exploring for virtual objects to interact with using their phones. The potential for “distracted walking” accidents is brought to players’ attention when starting up the game app. Pokémon Go’s loading screen warns players to “Remember to be alert at all times. Stay aware of your surroundings.” And before playing, players are required to click-through warnings like, “Do not enter dangerous areas while playing Pokemon Go,” and, “Do not play Pokémon Go while driving.”

Developers protect themselves against liability

These games also require players to agree to terms of service that provide that players play at their own risk and disclaim liability for personal injuries that occur while playing. Because a user must affirmatively agree to the terms of service before being allowed to play, chances are good that this type of “click-through” contract will be enforceable in court. This most likely means that the developers of games like Pokémon Go aren’t likely to be held liable for the personal injuries of players. They have two strong arguments in their favor: first, that the player entered into a valid contract that waived the developer’s liability, and second, that the player assumed the risk of injury by playing in a dangerous manner. One can draw parallels between augmented reality games and virtual racing apps. Someone who stares at a phone while walking risks all kinds of injury, from simple trip-and-fall accidents to walking in front of an oncoming car. Like riding a bike, there are risks inherent in not paying attention to your surroundings. A careful developer will make sure to avoid placing game elements in places that are inherently dangerous, because doing so could expose them to claims that they deliberately encouraged players to take risks. Pokémon Go players are unlikely to find important game elements located on an airport’s runway. However, a developer could face liability if it knows that an existing game feature is located in a place that has become dangerous, for example by being turned into a construction site.

Playing games could reduce potential compensation

Someone who is injured while distracted by a game can expect their distraction to play a role in any lawsuit they bring against the person who caused the injury. Nevada’s modified comparative negligence rule provides that an injured plaintiff’s final award will be reduced by the percentage of fault that a jury or judge concludes was due to the plaintiff’s own negligence. NRS 41.141. For example, if a Pokémon Go player ignores a red light and steps directly in front of an oncoming car it’s likely that at least a portion of the fault for the resulting accident will rest with the player, even though the driver may have fault for not swerving or stopping. Bear in mind that the mere fact that someone was playing an augmented reality game when an accident occurred isn’t conclusive by itself. An experienced personal injury lawyer can review the specifics of an accident to determine the best path forward for an injured client. The law firm of Greenman Goldberg Raby Martinez has served clients in the Las Vegas area for over 45 years. Our attorneys are available to answer your personal injury questions. For a free consultation reach out to us today at 702-388-4476 or contact us through our website.

Headphones and Personal Injury

Headphones and Personal Injury
Wearing headphones while walking on busy city streets, riding a bicycle, or driving a car can increase the risk of accidents. Headphones are potentially distracting and take away the ability to hear sounds like sirens, horns, and verbal warnings. When an accident does happen and serious injury results, the fact that one party was wearing headphones can be a factor in the process of determining legal liability.

Wearing headphones likely is not negligence per se in Nevada

People operating vehicles are not required to be able to hear, and in Nevada it is not illegal to wear headphones while driving or riding a bicycle. In the context of a lawsuit, this means that wearing headphones is not negligence per se absent a local ordinance that changes the default rule. Negligence per se can be used to shift the burden of proof from one party to the other, by showing that a party was violating a law or regulation at the time of the accident. But someone involved in an accident with a person wearing headphones probably can’t use this theory.

So, can wearing headphones be negligence?

Whether headphones contributed to an accident in a way that constitutes negligence will depend on the circumstances. Headphones might contribute to someone not paying close attention in dangerous situations. For example, a commercial truck that is backing up will have a warning signal that someone with headphones might not hear. A pedestrian or bicyclist might not hear a siren and get in front of a speeding emergency vehicle. Someone might not hear a warning horn given by a driver. In each of these examples, there’s the possibility that the person wearing headphones committed contributory negligence. In a situation where headphones are actually a distraction and not just cancelling out someone’s hearing, this theory could be used by the other party in litigation to shift some or all of the liability for an accident. Nevada is a modified comparative negligence state. The potential compensation available in a lawsuit will be reduced by the extent to which a plaintiff’s negligence contributed to the damages the plaintiff is seeking to recover. If a jury finds that under the circumstances wearing headphones constituted negligence, it might assign a percentage of fault to that fact. A plaintiff who is 50% or more at fault cannot recover anything from the defendant.

GGRM is listening

Because the law doesn’t require that anyone be able to hear (for obvious reasons), proving that wearing headphones was a negligent act can be difficult. An experienced personal injury lawyer can examine the facts of an accident to determine the best legal strategies for recovering compensation. For over 45 years the law firm of Greenman Goldberg Raby Martinez has served clients in the Las Vegas area. Our attorneys are happy to answer your personal injury questions. For a free attorney consultation call us today at 702-388-4476, or send us a request through our site.

The Types Of Negligence Recognized In Nevada

The Types Of Negligence Recognized In Nevada
Negligence is a commonly used legal standard in many kinds of lawsuits, including personal injury cases. For non-lawyers who are researching their legal options, negligence can be a confusing topic. That is in part because negligence has several variants with their own rules. In this piece we look at the types of negligence that can be found in Nevada civil lawsuits.

“Ordinary” negligence

The most common type of negligence is sometimes called “ordinary” negligence. All other forms of negligence to some degree refer back to the elements of ordinary negligence. A plaintiff who brings suit under a claim of ordinary negligence must show the following elements:
  • The defendant acted negligently by “failing to exercise that degree of care which an ordinarily careful and prudent person would exercise under the same or similar circumstances.” J.I. 4.03.
  • The plaintiff suffered an injury or property damage.
  • The defendant’s negligence was a proximate or legal cause of the plaintiff’s injury.
  • The plaintiff’s injuries resulted in damages that can be compensated through a legal process (in other words, the plaintiff’s injuries can be reduced to a dollar value).
The element of proximate or legal cause can be the lynchpin of a negligence case. In formal terms, a proximate cause produced the injury “in the natural and continuous sequence.” Nev. J.I. 4.04. Proximate cause is sometimes referred to as a “but for” test: but for the defendant’s negligence, the plaintiff would not have been injured. Legal arguments around proximate cause often focus on intervening causes that might have disrupted the “natural and continuous sequence” between the defendant’s negligence and the plaintiff’s injury. A legal cause is simply a cause that was “a substantial factor in bringing about the injury.” Nev. J.I. 4.04A. A legal cause argument is used in place of the proximate cause test when the plaintiff’s injury may have had two causes, and either of those causes would’ve caused the injury by itself. Wyeth v. Rowatt, 126 Nev. 446, 464-65 (2010).

Other forms of negligence

There are several other kinds of negligence that you may run across. A lawsuit may claim more than one type of negligence, hoping to prevail on the most serious one.
  • Gross negligence is a variety of negligence that can apply where a defendant has acted especially badly. What differentiates gross negligence from ordinary negligence is the degree to which the defendant has acted without care. Nev. J.I. 6.21. The Nevada Supreme Court has described it as an “indifference to present legal duty . . . [an] utter forgetfulness of legal obligations so far as other persons may be affected.” Hart v. Kline, 61 Nev. 96 (1941).
  • Negligence per se is a special variety of negligence that arises in cases where the defendant caused the plaintiff’s injury by violating a statute that was designed to protect a class of persons to which the plaintiff belongs. Barnes v. Delta Lines, 99 Nev. 688, 690 (1983). An example of a negligence per se situation might be a car accident caused by someone running a red light.
  • Comparative negligence is a legal defense that a defendant uses to reduce the amount of damages they owe by the extent to which the plaintiff’s negligence contributed to the injury. A jury will assign the plaintiff’s negligence a percentage of responsibility for the plaintiff’s injuries. Under Nevada’s modified comparative negligence statute, NRS 41.141, if the plaintiff is more than 50% at fault, he or she cannot recover anything.

Talk to a Las Vegas personal injury lawyer about negligence

The attorneys at Greenman Goldberg Raby Martinez have deep experience with negligence cases of every stripe. If you have questions about how negligence might fit into a dispute, we are happy to help. For a free attorney consultation call us today at 702-388-4476, or reach us through our contact page.

Comparative Negligence and Bike Accidents in Nevada

Being injured in a bicycle accident can have long-lasting consequences, including medical bills and chronic pain. Seeking to recover compensation for injuries by filing a lawsuit is often necessary. But in a trial, the at-fault party will likely raise the argument of comparative negligence to reduce the driver’s liability.

Comparative negligence is a legal defense

Most traffic accident cases in Nevada focus on the question of whether the defendant was negligent. A typical bicycling accident case involves an injured cyclist (the plaintiff) seeking to recover damages (that is, a cash payment) from a defendant driver’s insurer. The plaintiff must show that the driver failed to exercise a reasonable level of care under the circumstances, causing the plaintiff’s injuries, which in turn resulted in damages like medical bills, pain and suffering, and property damage. Nevada’s comparative negligence law recognizes that one party rarely is solely responsible for an accident or its resulting injuries. Under Nevada’s comparative negligence statute, NRS 41.141, a defendant may ask a jury to consider how the plaintiff’s negligence contributed to the accident. The jury must first determine the total amount of damages in the case. It then assigns a percentage of fault to each side of the dispute, with the plaintiff’s share of the fault reducing the final recovery from the defendant. Under Nevada’s so-called modified comparative negligence rule, if the jury determines that the plaintiff is more than 50% at fault, the plaintiff recovers nothing).

Bicyclists have lots of opportunities to behave negligently

Here are a few ways a cyclist can Defendants can make a strong legal case for contributory negligence when the cyclist-plaintiff was breaking the law at the time of the accident.
  • Breaking the law. Perhaps the easiest way a defendant can show the plaintiff-cyclist’s negligence is by proving that the plaintiff was breaking a law at the time of the accident, and that breaking the law contributed to the plaintiff’s injuries. For example, a cyclist who rides at night without the required headlight or tail and side reflectors will be much harder to see. Cyclists in Nevada are required to obey all traffic signals and road signs.
  • Not wearing a helmet. Nevada does not require cyclists to wear helmets. However, a defendant can still argue that a cyclist’s failure to wear a helmet contributed to the cyclist’s head injuries. Because head injuries can be especially devastating, wearing a helmet is a wise health choice as well as a good legal strategy.
  • Getting overtired or riding with an injury. Insurance company lawyers will look for any angle to support their comparative negligence defense. They’ll ask questions like, how long was the cyclist riding before the accident? Was the cyclist in good enough health to be riding that day? They will use any bad facts they can to establish that the rider was not behaving reasonably at the moment the accident occurred.

Cyclists who are injured in an accident need to talk to a lawyer

GGRM has represented injured Las Vegas residents for over 45 years. If you have been involved in a serious bicycling accident and would like to speak to a lawyer about your legal options, call us today for a free consultation. We can be reached at 702-388-4476, or through our contact page.