The law imposes a legal obligation to exercise reasonable care and prudence to avoid injuring another while exercising your duty. This legal obligation is referred to as the duty of care. Duty of care is pivotal in personal injury cases since plaintiffs have to demonstrate that a legal duty existed as the basis of their legal action against a defendant. If the plaintiff fails to establish that the defendant owed him/her a duty of care, the plaintiff compromises his/her chance of securing compensation.

Before moving forward on a personal injury claim, it is wise to learn about the duty of care and its significant role in the case.

Duty of Care Under Nevada Law

Nevada personal injury law defines the duty of care as the legal obligation imposed on an individual to exercise caution to avoid risking injury to another while conducting his/her activities. The duty of care arises from two scenarios:

  • The operation of the law through an administrative statute, state law, federal law, or.
  • Through a federal or Nevada state court’s decision

Some examples of situations where a duty of care exists include but are not limited to the following.

  • Manufacturers have a duty to distribute or sell non-defective products.
  • Attorneys owe their clients a fiduciary duty to provide competent counsel.
  • All drivers owe a duty of care to other motorists, including cyclists and pedestrians.
  • News outlets have a duty to publish factual stories and not false facts about an individual. Failure to which the aggrieved party can seek a defamation action against the outlet.
  • Landlords and premise managers are responsible for maintaining safe premises to avoid the risk of accidents. Individuals who suffer slip-and-fall injuries can seek legal action against the premises owner or manager.

Nevada personal injury laws impose a particular threshold in personal injury cases. Plaintiffs must demonstrate the following.

  • The defendant owed the plaintiff a duty of care,
  • The defendant breached the duty,
  • The breach is the legal basis of the plaintiff’s injury (causation), and
  • The plaintiff suffered damages as a result of the breach.

  1. Duty of Care

As pointed out earlier, the duty of care can either be established under the law or a judge has to determine its existence. A negligence case only exists if there is a duty of care.

  1. Breach of the Duty of Care

It is not enough that a duty exists. Plaintiffs, through their attorneys, must prove that the defendant breached the said duty. Breach refers to the defendant's failure to exercise a reasonable degree of caution.

This breach is best defined as negligence. Simply put, negligence refers to the carelessness of an action or a failure to act in a manner a prudent individual would engage in, given the circumstances.

Whether a defendant breached the duty by failing to exercise a reasonable degree of care is a question of fact for the jury to determine.

  1. Cause in Fact of the Injury

Plaintiffs must prove that the defendant’s actions caused the plaintiff's injuries. This rule is referred to as “but-for” causation. That is, but for the defendant’s actions, the plaintiff would not have suffered the injuries.

  1. Proximate Cause of Harm

Proximate cause addresses the scope of a defendant’s responsibility for the defendant’s negligent actions. A defendant is only responsible for harm or injuries he/she could reasonably foresee as he/she performed his/her obligations.

Plaintiffs will have to prove that actions carried out beyond the scope of what is foreseeable while the defendant carried out their obligations were the proximate cause of the damages.

  1. Damages and Injuries

It is not enough that the defendant failed to exercise reasonable care. Plaintiffs must prove that they suffered a physical injury or loss of property for which he/she is seeking compensation for.

Waiving the Duty of Care

Plaintiffs can waive a defendant’s duty of care. However, with one condition: that doing so would not be against public policy. As a plaintiff, you can release a defendant from a duty of care in the following ways.

  1. Assumption of risk
  2. Through signing liability waivers

  1. Assumption of Risk

When a plaintiff voluntarily engages in an activity likely to be dangerous, the individual is said to have assumed the risk. An individual assumes the risk of harm when he/she:

  • Is aware of the risk involved with the activity or conduct
  • Fully appreciates the danger the activity poses
  • Voluntarily accepts the potential risk, either expressly or through a written agreement, or implied conduct or words

Express Assumption of Risk

You must have come across written agreements that state you acknowledge the risk of injury or death. The institution further requires you to sign the contract. Once you sign, you assume the risks the activity exposes you too. Therefore, you cannot recover damages should you suffer any injuries, even if the injuries result from the operator’s negligence.

Express assumption of risk enforceable in the agreements is also combined with liability waivers. These waivers are legally enforceable and non-negotiable. You will not be allowed access to the facility or engage in the activity without signing the agreements.

Injuries covered in the assumption of risk agreements include those sustained in:

  • Gyms
  • Rock climbing facilities
  • Go-kart race facilities
  • Pole dancing classes
  • Sports car racing tracks

Note: Express assumption of risk does not necessarily require a written agreement for it to be enforceable. In some cases, a verbal acknowledgment suffices.

However, the law requires certain conditions to be met for the assumption of risk to be enforceable. The plaintiff must:

  • Have actual knowledge of the risks the activity or conduct poses
  • Fully appreciate the potential dangers likely to result from the risk
  • Voluntarily accept the risk

Therefore, if you did not have knowledge of and accept the conditions above, you can sue the defendant.

Implied Assumption of Risk

Assumption of risk is implied when a plaintiff engages in inherently risky behavior.

For example, playing football. Football players suffer injuries. Therefore, by playing football, you accept the risks involved without the need to sign an agreement acknowledging that you assume the risks.

Implied assumption of risk falls under two categories:

  • Primary implied assumption of risk
  • Secondary implied assumption of risk
  1. Primary Implied Assumption of Risk

The primary assumption of risk is evident in situations where an individual voluntarily accepts a potential risk and understands that another party bears no responsibility for the injuries. This is evident in sports. Whereas stadium owners are responsible for ensuring the stadium is well maintained to minimize the risk of injuries, it does not eliminate the fact that most sports are inherently dangerous. You cannot sue the stadium owner for harm caused by playing the game, for example, an individual suffering a concussion while playing football.

  1. Secondary Implied Assumption of Risk

The secondary assumption of risk occurs when the defendant owes the plaintiff a duty of care, but the plaintiff assumes the risk and voluntarily accepts it.

For example, James goes to a go-kart race track for a ride. The attendant notifies James that the go-kart he opted for has worn out breaks and is decommissioned. The attendant advised him to wait for another. However, James decides to use the decommissioned go-kart.

Whereas the go-kart center owes James a duty of care, James voluntarily assumes the risk of the worn-out brakes.

Note: Implied assumption of risk is a legal defense in a personal injury lawsuit. The defense will argue you voluntarily assumed the risk and the potential consequences to shift or reduce their liability for the injuries the plaintiff sustained.

Under the primary implied assumption of risk, the defendant owes no duty of care to the plaintiff. Therefore, the plaintiff cannot sue the defendant for damages. For the secondary implied assumption, the plaintiff can sue the defendant. However, the plaintiff will use the implied assumption of risk as a defense.

  1. Liability Waivers

Accessing some facilities will require you to sign an agreement stating you assume all risks posed by an activity. The facility's management will deny you access should you decide not to sign the waiver.

Signing a liability waiver prevents you from recovering damages sustained from a potentially risky activity. The waivers further stop individuals from seeking damages for unrelated injuries occasioned by the facility employee's or operator’s negligence.

Every facility has a version of its liability waiver. However, most are titled “ Waiver and Release of Liability.”

It bears emphasizing that liability waivers are non-negotiable. You either sign the agreements, or the management will deny you access to the facility. Further, the contracts are legally binding. However, their enforceability is subject to the following conditions.

That:

  • The waiver is easily understandable by the average individual
  • The waiver does not excuse more than ordinary negligence
  • The waiver’s conditions are not hidden in the fine print
  • The critical provisions of the waiver are not otherwise buried, for example, appearing in the back of the document or in a light font

The question, therefore, arises, ”Should I sign a liability waiver?"

The answer is a personal decision. You have to decide whether the value outweighs the risk of not being able to seek compensation for the injuries you sustain while participating in the activity.

Should you decide to engage in the activity, you should consider a few concerns.

  • Check the operator’s safety record — Access the facility’s websites to check the reviews, ratings, and safety concerns of the facility’s previous attendees.
  • Ask to inspect the facility before signing the agreement — You need to examine how the facility’s staff engages with the clients and the condition of the facility’s equipment. If you are unsatisfied with your assessment, do not sign the waiver.
  • Obey the safety guidelines — The safety rules implemented by the facility will protect you. Failure to abide by them gives the facility’s owners or operators the excuse to challenge the claim and shift the responsibility for your damages to you.
  • Have current medical insurance — Most facilities assert that the attendance fee includes an insurance coverage fee. Though this could be true, the limits are relatively low. The cost of treating your injuries could easily exceed the potential payout by the facility’s insurer. Further, the insurance company could delay the payments if you win your claim. This situation proves disastrous since injuries require immediate medical attention. Your personal medical insurance coverage will help as you seek compensation.

Winning a Case if You Have Signed a Liability Waiver

The winning strategy in a personal injury lawsuit with a signed waiver requires you to prove that the defendant (the facility’s owner or operator) acted with gross and not ordinary negligence. This win is achievable by demonstrating to the court that the defendant willfully executed a wrongful act.

You will require an expert witness's testimony. They will testify as to the nature of the injuries. Additionally, the testimony will link the defendant’s actions to the injuries or death the victim suffered.

Gross negligence requires an assessment of the facility operator’s safety record, employee checklist, and maintenance records. Further, eyewitness accounts, video, and photo evidence support your negligence claim and are pivotal in helping you win the case.

Comparative and Contributory Negligence

Negligence is at the heart of a personal injury claim. You claim negligence and assert that the defendant’s negligent actions caused your injuries. A defendant is negligent when he/she fails to exercise due care.

Courts assess negligence in two ways:

  • Contributory negligence or
  • Comparative negligence

  1. Contributory Negligence

States like Maryland, Alabama, Virginia, and North Carolina apply the contributory negligence rule. This doctrine prohibits a plaintiff from recovering damages if the jury finds he/she acted in a negligent manner that played a role in causing the accident.

Therefore, should a plaintiff have even a mere one percent of the apportioned blame, the contributory negligence rule bars him/her from recovering damages.

Nevada no longer applies the contributory negligence principle. This doctrine is deemed unfair.

  1. Comparative Negligence

Under the comparative negligence doctrine, the fault is apportioned to each party in the lawsuit based on their contribution to the accident. The jury assigns a percentage of responsibility to the plaintiff and defendants, all adding up to 100%. The defendant’s recoverable damages will then be reduced by his/her share of the blame.

For example, Charlotte sued Brain for $100,000 in damages after being involved in a car crash. The jury determined that Brian was 70% at fault, while Charlotte’s share of the blame was 30%. The jury further upheld Charlotte’s ask of $100,000 and awarded the same amount in damages. Charlotte will only recover 70% of the $100,000, which is $70,000.

Comparative negligence can either be:

  • Pure comparative negligence or
  • Modified comparative negligence

Pure Comparative Negligence

With comparative negligence, a plaintiff can recover damages even if he/she is partially to blame for the accident.

Like contributory negligence, the jury assigns blame for an accident totaling 100%. Under pure comparative negligence, a plaintiff can recover damages even if he/she is 99% to blame for the crash.

For example, Adam runs a red light and crashes into Peter, who is texting. Adam sued Peter to recover damages for the losses and injuries he sustained. The jury determines that Adam bears 80% responsibility for the crash, while the jury apportions 20% responsibility to Peter. The jury further awards $1 million in damages. Under the pure comparative negligence principle, Adam will recover 20% of the damages despite being largely to blame for the crash.

Whereas Adam was the party at fault, Peter had to bear the total cost of defending the lawsuit. This, in some cases like Peter’s, is unfair. The remedy: modified comparative negligence.

Modified Negligence Principle

Nevada is a modified negligence state. The rule is set forth under Section 41.141 of the Nevada Revised Statutes. This doctrine allows a plaintiff to recover damages only if his/her portion of the blame does not exceed 50%. Therefore, if the jury determines you to be 51% at fault for an accident, you are not entitled to recover damages, no matter how grave the injuries are.

If the jury finds the plaintiff is entitled to recover damages, it will return two verdicts.

  • A regular verdict — It indicates the plaintiff's total damages. However, it does not include the plaintiff’s fault, and
  • A special verdict — This verdict specifies the portion of fault attributable to each party.

The judge will then reduce the damages recoverable by the plaintiff by the percentage of fault attributable to the plaintiff.

Having several defendants in a personal injury lawsuit is complex. However, the modified comparative negligence applies. The party with the highest portion of the fault will have their recovery offset by what they owe to other parties.

There are some cases where the comparative negligence rule is inapplicable. They include the following civil lawsuits:

  • Intentional torts like assault or battery
  • Concerted acts by defendants
  • Disposal, spillage, or emission of hazardous or toxic substances
  • Injuries sustained by individuals or losses to a property because of a product manufactured, distributed, sold, or used in Nevada
  • Strict liability — Cases where the plaintiff does not have to prove the defendant acted negligently. Nevada law imposes strict liability on companies who manufacture, distribute or sell defective products.

Contact a Las Vegas Personal Injury Attorney Near Me

You maximize the potential to secure damages in a personal injury lawsuit with the aid of a personal injury attorney. At Las Vegas Personal Injury Attorney Law Firm, we work to ensure our clients receive just compensation. Contact our team today at 702-996-1224 for assistance.