Comparative Negligence in Nevada: Equal Fault Does Not Bar Recovery

I have a case where my client had backed out of parking space, stopped and started to proceed when another driver backed out and hit her car.  It is our position, of course, that the other driver is 100% at fault for the accident as our client had clearly gained control of the driving aisle and the other driver failed to look before backing and crashing into our client’s car.

The other driver’s insurer, Loya Casualty Insurance Company, has taken the position that each of the drivers is 50% at fault for the accident and, therefore, my client is barred from recovery.  I have explained to them that the law in Nevada is that a person may recover from another if the injured person is not MORE at fault for the accident than the other.  Here’s the statute behind my statement:

 41.141.  When comparative negligence not bar to recovery; jury instructions; liability of multiple defendants.

1.    In any action to recover damages for death or injury to persons or for injury to property in which comparative negligence is asserted as a defense, the comparative negligence of the plaintiff or the plaintiff’s decedent does not bar a recovery if that negligence was not greater than the negligence or gross negligence of the parties to the action against whom recovery is sought.

2.    In those cases, the judge shall instruct the jury that:

(a)    The plaintiff may not recover if the plaintiff’s comparative negligence or that of the plaintiff’s decedent is greater than the negligence of the defendant or the combined negligence of multiple defendants.

(b)    If the jury determines the plaintiff is entitled to recover, it shall return:

(1)    By general verdict the total amount of damages the plaintiff would be entitled to recover without regard to the plaintiff’s comparative negligence; and

(2)    A special verdict indicating the percentage of negligence attributable to each party remaining in the action.

(Emphasis added)

The Statute is pretty clear and supports my statement to the Loya Insurance adjuster who says that he needs to take this to his legal department for a determination.  O.K., fine, here’s some case law that supports my statement if the statute is not clear enough for them.

In Turnbow v. Wasden, 608 F. Supp. 237 (Nev. 1985), Ms. Turnbow, who was intoxicated was returning to her truck after relieving herself o the side of the road crossed into the path of an oncoming tractor trailer.  Judge  Edward C. Reed, Jr. wrote:

The ultimate issue here is whether Mr. Wasden was more or less negligent than Ms. Turnbow. Plaintiffs’ attorney has done a highly skillful job of endeavoring to develop and exploit all the possible indications of negligence on the part of Mr. Wasden. Mr. Wasden’s conduct was not perfect, but comparing the conduct of Mr. Wasden and Ms. Turnbow, Ms. Turnbow’s conduct was far more negligent than that of Mr. Wasden. The preponderance of the evidence is that the negligence of Ms. Turnbow contributed more to cause the accident and her resulting injuries than any negligence of Mr. Wasden. Upon making this finding, this Court may not award any damages to Ms. Turnbow. See, NRS 41.141(1). Nevada law adopts the comparative negligence standard, thus, precluding recovery if plaintiff’s actions are more negligent than defendant’s. Id.

Hopefully, Loya Insurance will realize that they are wrong on this issue and that my client is not barred from recovery based on their belief that a person is barred from recovery if they are 50% responsible for an accident. Even If they do make an offer to pay ½ of the damages, we will likely not accept it as their insured was 100% liable for the accident.

Do Lawyers Deserve the Image of Being Arrogant?

Many people see lawyers as arrogant, thoughtless, and haughty….I’m sure there are hundreds of other, less than favorable terms, used by people when speaking about us lawyers.

Believe it or not, some of us work hard to show that we, as lawyers, aren’t just arrogant jerks. Sometimes, this work is undermined by the actions of other attorneys.

I went to Court to handle a simple traffic matter today and ran in to two people who would support the equation lawyer = (insert your favorite derogative here – with or without expletives.)

First, I walk into the Traffic Counter area where one of the Traffic machines that prints out tickets for attorneys/runners/etc was not working.  An attorney walks in and tries to show me how to use the machine with a very demeaning attitude. When she realizes I was right when I said the machine was not working (as a result of being out of paper to print on), does she allow me to use the other machine??? NO – she jumps right in ahead of me.  No apology, no excuse me, no “you were right”, nothing. Just the right to go first on the other machine which she does without batting an eye.  I’m sure she didn’t realize I was an attorney since I was not in a suit today.  I’m not so sure it would have mattered.

So, after that experience, ‘m annoyed that I’ve run into one arrogant attorney.  A bad enough experience once, but not enough for me this day – or so it appears.

I leave the Courthouse and down the steps outside the South Entrance.  There – parked in the middle of the crosswalk – was a BIG RED TRUCK with “QUALITY BUDGET LEGAL” written all over it while the driver and some guy in a suit (who one would assume was another lawyer) were talking and blocking the crosswalk.  I mean, really??? Come on! These guys don’t think this makes attorneys look like major (insert your favorite plural derogative here – with or without expletive.) I wonder if anyone who saw this rude act would want to retain this person as Counsel?

People: it’s our image and for us to protect.  Obviously these two (or three) don’t care enough about our image to bother with the slightest regard for others.

I tried to get a picture, but the driver moved a bit out of the crosswalk.  He probably heard my comment about it not being a parking spot.

Parties Should Have a Right to Know if Jurors Have Had Any Dealings with, or Knowledge of, Arbitrators Involved in Their Cases

I recently represented a victim of a slip and fall personal injury case in a Short Trial.  I have done many Short Trials over the years and noticed that something was missing at this most recent Trial – asking the Jury if they are familiar with the Arbitrator who rendered the Arbitration Award.

First a little background…..

In Nevada, cases with an expected value of less than $50,000.00 are usually submitted to Arbitration for a ruling by an Arbitrator.  If either Party is unhappy with the Arbitrator’s Decision, they can file a Request for Trial De Novo placing the case into either a conventional Trial or Short Trial.  During the Trial, the Jury is given evidence of the Arbitrator’s Award pursuant to NRS 38.259. That award includes the Arbitrator’s name and signature and will be included in the evidence the Jury considers as it deliberates.

As you may have seen on televised trials, movies or TV shows, Parties and their Attorneys are allowed to ask Jurors questions to help them choose a Jury that will be fair and impartial.  This is known as Jury Voir Dire and will be addresses in detail in another blog post. In my experience, Judges ask a set of basic questions prior to the Parties being allowed to question the Jurors as a group and individually.  Among those questions, the Judges ask if any of the Jurors are familiar with the Parties, their Attorneys, any of the witnesses who may be called, and, in personal injury cases, any of the physicians who treated the Plaintiff who is suing for injuries cased by an accident.

Now to the issue…..

In  all of the Trials I have done where the case had previously been heard by an Arbitrator, I have never seen/heard the Jury asked if they were familiar with the Arbitrator in a case.  I think this question has simply been overlooked.  It should be asked of every Jury Panel where a case had been submitted to an Arbitrator and the Arbitrator’s name and Award are disclosed the the Jury.

NRS 38.259 requires a Jury Instruction be given to the Jury which includes the language:

The findings of the arbitrator may be given the same weight as other evidence or may be disregarded. However, you must not give those findings undue weight because they were made by an arbitrator, and you must not use the findings of the arbitrator as a substitute for your independent judgment. You must weigh all the evidence that was presented at trial and arrive at a conclusion based upon your own determination of the cause of action.

This is all fine and well, but what about the case where a Juror may not be able to give the Award the same weight as the other evidence? A Juror may know that the Arbitrator has strong leanings in a type of case.  Since I work in personal injury representing victims of personal injury accidents, I can imagine a case where an Arbitrator has strong feelings for or against these cases.  Suppose an Arbitrator is a Defense Attorney who believes all personal injury cases are made up or exaggerated and a potential Juror is familiar with that Arbitrator.  If the Juror has good feelings about that Arbitrator he may give the Award great weight and ignores the rest of the evidence.  If the potential Juror has strong negative feelings towards the Arbitrator (if, for instance, he was the adverse attorney involving the potential Juror), she may want to give a verdict strongly contradictory to the Arbitrator’s Award to “show him.”  Parties and their Attorneys need to know whether or not any familiarity with an Arbitrator will influence the potential Juror’s ability to be fair and impartial and the Judges should be asking Jurors to disclose this information.

Do We Really Need Witnesses to Car Accident Cases?

I was driving home from work a couple of nights ago…well, actually, I was between stops taking care of stuff on my way home….when I saw an accident at Decatur just south of Charleston Blvd.  I was making a left hand turn to go south onto Decatur from the shopping center. I was a few cars back (maybe 3 – 6) in my SUV when I saw a woman making slowly making the left in front of me clip an electric wheel chair and throw its user to the ground.

I thought the car was going to go in front of the wheelchair, but saw the wheelchair yanked to the side and pieces fall off of it.  I decided I had to stop and crossed the street to park and make sure everything was being taken care of.  A young man was on the phone and verified he was calling 911.  Another man was helping the women on the ground.  A third had pulled her van in front of the car that hit the wheelchair to prevent her from leaving the scene.

After ensuring that I would not offer any specific help out in the middle of the street, I decided to move my truck around to block traffic from hitting the woman on the ground and those assisting her.  As I got there, a Metro police officer arrived on his motorcycle and Paramedics got to the scene.  So, I, again, decided to pull into the lot as I was not needed to block traffic.  The man who had first rendered assistance and had been guiding traffic to that point left and the man who had called 911 was also gone.  No other independent witnesses stayed at the scene.

I waited and gave a statement to the investigating officer and spoke with another woman who rendered assistance (and a blanket) to the woman on the ground.  She had picked up a piece of the car from the ground, but I advised her it was best to leave it there for the officer to document.  The driver spoke to me and told me that she had never hit anyone before and that she did not see the wheelchair and the sun was in her eyes.  She also told me that she was going to keep going but that others yelled at her to stop.  By the way….I never saw the van that stopped her once the police arrived.

I know this intersection and pass through it on a fairly regular basis.  There is no left turn signal for traffic crossing Decatur and I thought the walk sign would have been on when our light turned green allowing us to make our left turns.  I did not see the walk/don’t walk sign and cannot say it was in walk mode at the moment of impact from personal observation, but believed it was from past experience.  I have since been at the intersection and noticed that the walk/don’t walk sign did not go into walk mode when the light turned green, but this was at a different time of day and there was no on waiting to walk across the street with the light.  This unfortunate accident was, in my opinion, solely the fault of the driver who made the left turn and could not see due to the sun in her eyes.

Why did I stay?  Because it’s the right thing to do.  This incident proves this to me.  Here, there were, likely, at least four eyewitnesses to the accident (myself, the man who called 911, the man who rendered assistance, and the person driving the van that stopped the driver from leaving the scene) – there were probably others in the cars in front of me as well as those stopped at the light on Decatur.  Of those, it looks like ONLY I stayed to give a statement to the officer.  Without my statement, liability may be more easily contested.  Giving statements – or at the very least identifying yourself as a witness to an accident and providing contact information – can prevent those who drive negligently and their insurers from contesting liability in cases where none exists.  This is becoming even more important where Las Vegas Metropolitan Police Department may not show up to a call for policy or other reasons.  It can help cases settle rather than be litigated on a he-said she-said liability fight.

Why did I write this? Two reasons.  First, I wanted to discuss the importance of witnesses to come forward and speak up.  This would be true even if the woman who was injured was at fault.  Had that been the case, then she should not be compensated and the case should not be litigated causing expenses for an insurer and extra strain on the Court System.  Those should be left for cases of true liability and damages issues.

Second, I wanted to memorialize what I could and could not remember from an accident that I saw less than a day ago.  I can still picture the car driving slowly and hitting the wheelchair spinning it and throwing the woman to the ground.  I can see the parts of the wheel chair flying off it into the street.  I can picture the man who called 911, the man who rendered assistance and others at the scene.  I can recall the at-fault driver admitting that she could not see and the sun was in her eyes.  I know that I did not look to the Walk sign to determine what mode it was in at the time of the impact or immediately thereafter.  Maybe I will need to remember these facts in the future as a witness to the case and memorialize them here.  I’m sure there will be other details I do and do not recall, but these are the basic facts that come to mind at this moment.

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