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How Emergency Situations Alter Liability in Nevada

Almost by definition, emergencies like large fires, floods, and hurricanes break down the ordinary course of things. In an emergency people can find themselves well outside their familiar boundaries, placed in situations that are radically unfamiliar and potentially frightening. As a consequence, people facing an emergency can end up doing things that cause harm to themselves or others. Once the emergency is over, someone who was injured by another person’s negligence may have the option of pursuing a personal injury claim.

Taking actions that are reasonable under the circumstances

A personal injury lawsuit needs to put forward a legally sound claim to recover compensation for an injured plaintiff. There are numerous causes of action that might underpin a personal injury lawsuit, with negligence being the most common. Broadly speaking, in a negligence suit the plaintiff’s aim is to show that the defendant breached a legal duty toward the plaintiff, and as a consequence the plaintiff was injured. In an emergency situation there are a number of factors that may determine the applicable parameters for evaluating whether the defendant behaved negligently. An ordinary person with no special training probably owes others only a duty to avoid causing harm to others by taking actions that are reasonable under the circumstances. The key question here is whether an ordinary person facing a similar situation as the defendant at the time of the alleged negligence would have behaved in a similar way. This standard offers defendants with a strong case if their negligent behavior happened in response to an emergency. For example:
  • While fleeing a rapidly moving wild fire the defendant was driving well over the speed limit and struck the plaintiff, who was walking down the middle of the road and obscured by heavy smoke. Under these circumstances, the defendant may have been acting reasonably to be driving quickly.
  • After a major car accident the defendant pushed the plaintiff to the ground to get him away from a burning car.

Negligence of professionals

The parameters of negligence can shift in some situations if the defendant has specialized training or is acting a professional capacity. Licensed professionals, like doctors, and members of the first responder community typically fall under specialized laws that generally make it more difficult to sue them for personal injuries that are caused during emergencies. For example, doctors, emergency medical staff (such as ambulance crews), and paramedics are shielded from suits based on ordinary negligence for injuries they cause while providing emergency assistance. A professional may nonetheless still be held liable for an injury if the professional acted recklessly—that is, without regard to the injured person’s safety. For example, a doctor arrives on the scene of an accident and renders emergency assistance to a seriously injured person. In the course of providing care, the doctor ignores basic principles of first aid and roughly moves the person, making the injuries substantially worse. Someone who has been injured in an emergency situation should speak to a personal injury attorney to better understand the available legal options. 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.

Recreational Marijuana Use by Nevada First Responders

Recreational Marijuana Use by Nevada First Responders
In 2017 Nevada joined a number of other states in decriminalizing the recreational use of marijuana. Although a marijuana user doesn’t face criminal prosecution under state law, other restrictions remain in place, from federal prohibition to state and local ordinances limiting when, where, and how it can be used. Employers also remain free to enforce drug policies. Decriminalization has not changed the tight restrictions against drug use for members of the state’s first responder community.

Workplace restrictions against marijuana use remain unchanged

The statute governing legalization of recreational marijuana use in Nevada, NRS Chapter 453D, makes clear that the sole object of the law is to remove most criminal penalties for using or possessing the drug. The law expressly leaves in place penalties for driving under the influence of marijuana, providing it to people who are under the age of 21, or possessing it on school grounds. Chapter 453D also permits public and private employers to prohibit or restrict marijuana use by their employees. NRS 453D.100(2)(a). A first responder should assume that his or her employer’s policies regarding marijuana use remain in effect. And one should not assume that the legalization of recreational use loosens drug testing standards. Just as before the law was passed, a first responder should take care to avoid being exposed to second-hand smoke, which likely will become a greater challenge for some first responders.

Recreational marijuana use can affect a first responder’s career in several ways

A first responder who is not routinely tested for marijuana use should not think that taking advantage of the state’s relaxed laws is a good idea. The most obvious issue is that an employer will have cause to terminate an employee who violates its drug policy, which could jeopardize not only a career but also earned pension and other benefits. There are several other ways that recreational use could affect one’s career. Perhaps the most important issue is federal prohibition. Even though state law no longer criminalizes marijuana use, it remains a Schedule I narcotic for federal purposes. Federal criminal charges are still possible and would carry the same consequences as any other criminal offense, regardless of state law. Another potential problem is the risk marijuana use poses to workers’ compensation coverage for work-related injuries. A workers’ comp insurance claim could be denied if the insurer has reason to believe that the employee’s injury occurred while under the influence of a controlled substance. NRS 616C.230(1)(d). Marijuana’s active ingredient can remain in the bloodstream for a long time after initial use, creating a risk that it could be present even if the injured employee is sober at the time of the accident. It’s best to not give an insurer a justification for denying a claim.

GGRM is here to answer first responders’ questions

The law firm of Greenman Goldberg Raby Martinez proudly serves clients in the Las Vegas first responder community. If you have questions about how the legalization of recreational marijuana affects you or your career, reach out to us today for a free, confidential attorney consultation. Call us at 702-388-4476 or send us a request through our site.

Firefighters Should Take Care When Posting on Social Media

Firefighters Should Take Care When Posting on Social Media
Social media use is getting some firefighters into professional trouble. A Boston firefighter was placed on leave last year after posting racially charged, violent material on Facebook. His incendiary posts raise questions about his fitness to serve the public and expose his department to public criticism. They are just one example of mistakes a firefighter can make when posting online.

Employers can fire employees for social media use

Employees in every industry are finding out the hard way that employers are able to fire them for what they post on social media, even in channels that they believe are private. Unless a firefighter is working under a contract, chances are good that his or her employment is “at-will.” That means that an employer often can fire an employee at any time, with or without cause. In the right situation a firefighter’s social media posts may give the department “cause” to terminate the employment relationship. Bear in mind that even though employers can show interest in an employee’s social media accounts, they cannot require employees to disclose their login credentials as a condition of employment. NRS 613.135. This arguably prevents employers from requiring their employees to give them access to their private social media feeds (i.e., as “friends” on Facebook). However, a firefighter could voluntarily accept a connection with a manager or other colleagues and effectively waive any expectation of privacy. Firefighters should know that the National Labor Relations Act (NLRA) provides that employees cannot be fired in retaliation for using social media to organize and discuss job-related issues. Complaints about job conditions, including issues with managers, enjoy greater leeway than other kinds of potentially unacceptable content. But care should be taken to keep such posts professional.

Kinds of posts that should be avoided

There are many kinds of social media posts that could get a firefighter into trouble. Many of them are simply common sense. Here are some examples:
  • Posts that breach confidentiality obligations. Firefighters have confidentiality obligations with regard to members of the public as well as internal department matters. For example, posting photos of a fire scene is potentially actionable, especially if the photos include members of the public.
  • Posts that show evidence of illegal or discouraged activity. It almost goes without saying that a firefighter should not post photos of himself or herself doing something illegal, like using prohibited drugs. Even posting material that expresses a positive opinion of such things can create problems. In Nevada firefighters need to be especially cautious now that recreational marijuana has been decriminalized: even though marijuana use is no longer a state criminal offense, its use by firefighters is still subject to employer restrictions.
  • Posts that violate department policy. Firefighters should be familiar with the policies that govern their social media use. For example, most fire departments prohibit unapproved use of official uniforms and insignia for unofficial purposes.
  • Posts that may be offensive. As public servants firefighters have an obligation to avoid making racially or sexually inappropriate comments on social media and elsewhere. Whether content is offensive isn’t necessarily up to the firefighter. Assume that content will be judged by a wide audience, and that it may reflect poorly upon the employer even though it is not posted in an official capacity.

GGRM serves the Las Vegas firefighting community

Greenman Goldberg Raby Martinez is proud of its long history of service to the Las Vegas first-responder community. If you are a firefighter with questions about your social media use, please reach out to us. For a free attorney consultation, call us at 702-388-4476 or send us a request through our site.

First Responders and Third-Party Negligence

First Responders and Third-Party Negligence
First responders face a lot of risks on the job. Firefighters sometimes have to enter burning buildings. Police officers sometimes get into physical altercations with suspects. But sometimes the risks they face are not of the typical sort one might expect. The firefighter rushing into a burning building could fall on a badly maintained staircase. Or a police officer could be attacked by a dog that isn’t properly restrained. In cases where third party neglect causes an injury, what legal recourse is available to the injured first responder?

The “firefighter’s rule” limits personal injury lawsuits

Nevada limits when a first responder can sue a third party for personal injuries the first responder suffers while responding to an emergency. The so-called “firefighter’s rule” is based on the idea that emergency personnel are public servants paid to take risks in the course of their duties. Essentially, the rule assumes that first responders assume the risk of injury. In Nevada, the rule originated in the state Supreme Court decision in Steelman v. Lind, 97 Nev. 425 (1981). In response to Steelman, the Nevada legislature created an exemption to the rule’s default bar against recovery. Under NRS 41.139, a first responder may sue for personal injury if the injury was caused by the defendant’s willful act or lack of ordinary care or skill in the management of their property and one of the following things was true:
  1. The conduct causing the injury occurred after the defendant knew or should have known about the presence of the first responder on the property.
  2. The person intended to cause the injury (for example, by setting a trap).
  3. The conduct violated a statute, ordinance or regulation that was intended to protect the first responder, or that prohibits resistance or requires compliance with the first responder’s instructions.
  4. The injury arose as a consequence of arson.
In Moody v. Manny’s Auto Repair, 110 Nev. 320, 326 (1994), the Nevada Supreme Court interpreted NRS 41.139 as a narrowing of the firefighter’s rule’s bar against recovery to “those instances when the negligent act which injures the public servant is the same act which required the public servant's presence.” In Moody the question was whether the firefighter’s rule prevented a police officer for injuries caused by a cable strung across the entrance to the defendant’s parking lot. Officer Moody had turned into the lot as a shortcut while in pursuit of a driver who had run a red light. Id. at 322. Because the event causing the officer’s presence on the property wasn’t related to the thing that caused the injury, the officer’s suit could go forward.

File a workers’ compensation claim

Regardless of whether the firefighter’s rule prevents a civil lawsuit, a first responder who is injured while on the job should file a workers’ compensation claim. Although the benefits of  workers’ compensation insurance might be substantially less than what could potentially be recovered in a personal injury lawsuit, the fact remains that recovering damages through civil litigation can be slow. Workers’ comp coverage ensures that injured first responders get the care they need without going into personal debt. In cases where a personal injury suit is an option, the workers’ comp insurance carrier likely will require the first responder to agree to some form of subrogation. Insurance subrogation allows insurers to recover their costs from third parties who are responsible for the insured worker’s injuries. When considering whether a personal injury suit is a good idea, it’s worth evaluating how an insurer’s subrogation rights may limit personal recovery.

GGRM serves Las Vegas first responders

For over 45 years the law firm of Greenman Goldberg Raby Martinez has proudly served the police, firefighters, and emergency medical personnel of the Las Vegas area. If you have questions about how Nevada’s firefighter’s rule affects your legal options, our attorneys are here to help.  To speak to an attorney, call us today at 702-388-4476, or ask us to call you by leaving a note on our contact page.

Post-Traumatic Stress Disorder and Workers’ Compensation in Nevada

Post-Traumatic Stress Disorder and Workers' Compensation in Nevada
Post-traumatic stress disorder, or PTSD, has received a lot of media attention for its prevalence among soldiers returning from overseas. But PTSD can also be a problem for people who experience extremely stressful workplace situations here at home. This is especially true for first responders who deal with violent or traumatic situations, but can also apply to someone who witnesses a bad work accident. Because the symptoms of PTSD can make working difficult or impossible, it can qualify someone for disability benefits. If the event that triggered PTSD happened at work, the sufferer may also qualify for workers’ compensation benefits.

Nevada’s stress injury statute

NRS 616C.180 governs workers’ compensation for injury or disease caused by stress, including PTSD. There are two important features of this statute. First, it explicitly exempts from coverage any condition “caused by any gradual mental stimulus.” This precludes workers’ comp claims for certain types of anxiety-related conditions. Second, the statute defines when a stress-related claim is compensable. To qualify for benefits, the condition must meet these factors:
  1. The employee has a mental injury caused by extreme stress in time of danger.
  2. The primary cause of the injury was an event that arose out of and during the course of employment.
  3. The stress was not caused by a layoff, termination, or any disciplinary action.
NRS 616C.180(3). The most important feature of this statute is the requirement that the stress must arise from a distinct event. A gradual accumulation of stress will not be compensable. In McGrath v. State Dep’t of Pub. Safety, 123 Nev. 120 (2007), the Nevada Supreme Court interpreted the statute to require claimants “to identify a discrete, identifiable, traumatic occurrence that gave rise to stress.” Like other disease-related workers’ comp claims, proving that the injury “arose out of and during the course of employment” may also be a challenge for PTSD sufferers. For example, if the traumatic event was not itself work-related, an insurer may try to deny the claim. A police officer involved in an on-duty shooting might have little trouble with this element, but it might be less clear for an off-duty officer who witnesses a traumatic traffic accident and offers her assistance.

Late onset further complicates claims

One challenge of PTSD is that it can develop long after the precipitating event. For a worker who begins to experience symptoms long after the event, it can be difficult to meet the statutory requirements for a good compensation claim. In Nevada a work-related illness must be reported to the employer within seven days of being discovered. In the case of PTSD, which can come on gradually, the point when the condition was known may become a major point of dispute. Insurers will deny claims on the basis that they were not reported on time, shifting the burden to the employee to show that he or she provided timely notice only after becoming aware of the connection between the traumatic work-event and PTSD. Late onset involves other practical problems as well. It may be difficult to trace the PTSD to a specific event. Witnesses to the event also may be difficult to procure.

GGRM is here to support people dealing with PTSD

The attorneys at the law firm of Greenman Goldberg Raby Martinez have handled complicated workers’ compensation cases for over 45 years. We are especially proud of our work with first responders in the Las Vegas area. If you are suffering from work-related PTSD and have questions about how to pursue a workers’ compensation claim, reach out to us for a free attorney consultation. Call us at 702-388-4476, or send us a request through our site.