Before the Court en banc. Opinion by Justice Hardesty.
This original petition for writ of mandamus arose out of district court litigation pertaining to a fatal automobile accident at a construction site in Las Vegas. Otak Nevada, LLC (“Otak”) was the architect on the project; Real Parties in Interest Cheyenne Apartments, PPG, LP, Pacificap Holdings XXIX, LLC, Pacificap Properties Group, LLC, and Chad Rennaker and Jason Rennaker (collectively, “Owners”) were the owners and developers, and Pacificap Construction Services, LLC (the “Contractor”) was the general contractor. Otak entered into an agreement with the Owners to design a multifamily housing project, then subcontracted with an engineering firm to design traffic medians and replace traffic markers near the construction site. The accident occurred because one of the medians was not installed and the traffic markers were not replaced. The plaintiffs eventually agreed to settle their claims against Otak for $210,000.00, after which Otak filed a motion to approve a good-faith settlement. The district court granted the motion and rejected the Owners’ and Contractor’s arguments that the settlement would unfairly shift Otak’s liability to them, and that the proposed amount of the settlement was less than Otak’s potential liability or its insurance policy limits. Thereafter, the court granted the Owners leave to file a third party complaint against Otak, which Otak moved to dismiss on the grounds that all proposed claims were barred by NRS 17.245. Otak filed its writ petition after the district court denied Otak’s motion to dismiss.
The Court first determined that the evidence in the record demonstrated that Otak’s liability was minimal: Otak was not contractually required to visit the site to report unsafe conditions, nor was it contractually responsible for safety programs or precautions. Moreover, Otak did not breach any duties that it owed to any of the parties, and it was not involved in, or responsible for, the road construction that resulted in the accident. The Court also noted that insurance policy limits are not “exclusive criteria in determining whether a settlement is in good faith,” and the fact that a settlement may eliminate third party liability does not mean that the settlement was made in bad faith. Therefore, the district court did not abuse its discretion by granting Otak’s motion for approval of good-faith settlement.
Next, the Court examined NRS 17.245(1)(b), which “discharges the tortfeasor to whom [a release from liability] is given from all liability for contribution and for equitable indemnity to any other tortfeasor.” The Court noted that the statute “does not state whether ‘contribution’ [an equitable sharing of liability] or ‘equitable indemnity [a complete shift of liability to the party that is primarily responsible] only include claims titled as such, or whether NRS 17.245(1)(b)’s bar encompasses all theories of recovery that seek contribution or equitable indemnity, regardless of the claim’s actual title.” In holding that the statute requires that latter, the Court first noted that the purpose of the Uniform Contribution Act Among Tortfeasors was to “permit plaintiffs to sever a joint tortfeasor from the case without needing to first reach a global settlement with all of the defendants.” Next, the Court observed that the Nevada Legislature amended NRS 17.245 in 1997; prior to that time, the statute barred a non-settling defendant from seeking contribution from a settling defendant, but permitted claims for equitable indemnity. The legislative history revealed that the amendment was made “to eliminate [equitable indemnity as a] defense and promote and encourage settlements among joint defendants.” Thus, the Court concluded that after a defendant has settled in good faith, 17.245(1)(b) bars all claims that seek contribution or equitable indemnity damages from that defendant, regardless of how those claims are titled. The Court also held that because NRS 17.245(1)(b) does not distinguish between equitable and contractual contribution claims, all contribution claims are barred by the approval of a good-faith settlement.
In determining whether a claim seeks contribution or equitable indemnity, district courts should consider whether “(1) the claim arose from the same basis on which the settling defendant would be liable to the plaintiff, and (2) the claim seeks damages comparable to those recoverable in contribution or indemnity actions.” In light of this standard, the Court concluded that the Owners’ claim for express (contractual) indemnity was actually a claim for contribution, because the contractual provision at issue apportioned liability according to fault rather than shifting liability to the party that was primarily responsible for damages. Therefore, the Owners could not prevail on this claim. Likewise, because the Owners did not seek any damages from Otak that were unrelated to the accident, nor did the Owners allege that Otak breached any duties to them “on a basis other than that Otak was potentially responsible for the plaintiffs’ accident,” its contract-based claims were actually claims for contribution. Those claims were also barred by the statute. Petition granted. (Patrick Murch, Associate in the Las Vegas office of McDonald Carano Wilson).
Showing posts with label Personal Injury. Show all posts
Showing posts with label Personal Injury. Show all posts
Thursday, November 7, 2013
Thursday, December 27, 2012
Foster v. Costco Wholesale Corporation, 128 Nev. Adv. Op. 71 (Dec. 27, 2012)
Before Justices Cherry, Pickering and Hardesty. Opinion by Chief Justice Cherry.
In this appeal, the Court considered a landowner’s duty of care to entrants on the landowner’s property in a negligence suit. The Appellant, Foster, tripped and fell over a wooden pallet at a Costco warehouse store, and sustained several injuries from the fall. The pallet had been positioned in an isle of the warehouse by a Costco employee, and there were no barricades placed to warn customers or to prevent them from entering the isle where the pallets were. Foster testified that he tried to walk around the pallet, but caught his foot on a corner of the pallet that was apparently concealed by the boxes on top of the pallet. Costco moved for summary judgment and the district court granted summary judgment, holding that Costco had not breached its duty of care because the hazard created by the pallet was open and obvious to Foster. In reaching this conclusion, the district court relied on Gunlock v. New Frontier Hotel, 78 Nev. 182, 379 P.2d 682 (1962), in which the Nevada Supreme Court held that a landowner “is not liable for an injury to an invitee resulting from a danger which was obvious or should have been observed by the exercise of reasonable care.” The court examined the history of the “open and obvious” doctrine, recognizing that the Nevada Supreme Court had held after Gunlock that “determinations of liability should primarily depend upon whether the owner or occupier of land acted reasonably under the circumstances.” The Court then explicitly adopted the rule from the Restatement (Third) of Torts, holding that landowners bear a general duty of reasonable care to all entrants, regardless of the open and obvious nature of the dangerous condition, or put another way, that the open and obvious nature of a dangerous condition does not automatically relieve a landowner from the general duty of reasonable care. Instead, the fact that a dangerous condition may be open and obvious bears on the assessment of whether reasonable care was exercised by the landowner. The analysis of the landowner’s exercise of reasonable care must be conducted with regard to the foreseeability and gravity of the harm, and the feasibility and availability of alternative conduct that would have prevented the harm. In the circumstances of this case, the Court stated that the fact finder must take into account circumstances such as whether the nearby displays were distracting and whether the landowner has reason to suspect that the entrant would proceed despite a known or obvious danger. The Court further held that the open and obvious nature of the danger could be a factor in the reasonable care assessment of the entrant’s actions when apportioning comparative fault. The Court reversed the district court’s decision on summary judgment, holding that liability could not properly be decided as a matter of law on the facts presented pursuant to the standard adopted by the court because there was evidence that the danger of the pallet in the isle was not open and obvious to Foster, as the dangerous corner may have been blocked from his sight. Reversed and remanded. (Megan Starich, Associate in the Reno office of McDonald Carano Wilson LLP.)
In this appeal, the Court considered a landowner’s duty of care to entrants on the landowner’s property in a negligence suit. The Appellant, Foster, tripped and fell over a wooden pallet at a Costco warehouse store, and sustained several injuries from the fall. The pallet had been positioned in an isle of the warehouse by a Costco employee, and there were no barricades placed to warn customers or to prevent them from entering the isle where the pallets were. Foster testified that he tried to walk around the pallet, but caught his foot on a corner of the pallet that was apparently concealed by the boxes on top of the pallet. Costco moved for summary judgment and the district court granted summary judgment, holding that Costco had not breached its duty of care because the hazard created by the pallet was open and obvious to Foster. In reaching this conclusion, the district court relied on Gunlock v. New Frontier Hotel, 78 Nev. 182, 379 P.2d 682 (1962), in which the Nevada Supreme Court held that a landowner “is not liable for an injury to an invitee resulting from a danger which was obvious or should have been observed by the exercise of reasonable care.” The court examined the history of the “open and obvious” doctrine, recognizing that the Nevada Supreme Court had held after Gunlock that “determinations of liability should primarily depend upon whether the owner or occupier of land acted reasonably under the circumstances.” The Court then explicitly adopted the rule from the Restatement (Third) of Torts, holding that landowners bear a general duty of reasonable care to all entrants, regardless of the open and obvious nature of the dangerous condition, or put another way, that the open and obvious nature of a dangerous condition does not automatically relieve a landowner from the general duty of reasonable care. Instead, the fact that a dangerous condition may be open and obvious bears on the assessment of whether reasonable care was exercised by the landowner. The analysis of the landowner’s exercise of reasonable care must be conducted with regard to the foreseeability and gravity of the harm, and the feasibility and availability of alternative conduct that would have prevented the harm. In the circumstances of this case, the Court stated that the fact finder must take into account circumstances such as whether the nearby displays were distracting and whether the landowner has reason to suspect that the entrant would proceed despite a known or obvious danger. The Court further held that the open and obvious nature of the danger could be a factor in the reasonable care assessment of the entrant’s actions when apportioning comparative fault. The Court reversed the district court’s decision on summary judgment, holding that liability could not properly be decided as a matter of law on the facts presented pursuant to the standard adopted by the court because there was evidence that the danger of the pallet in the isle was not open and obvious to Foster, as the dangerous corner may have been blocked from his sight. Reversed and remanded. (Megan Starich, Associate in the Reno office of McDonald Carano Wilson LLP.)
Thursday, December 6, 2012
Holcomb v. Georgia Pacific, 128 Nev. Adv. Op. 56 (Dec. 6, 2012)
Before the Court en banc. Opinion by Chief Justice Cherry.
In this appeal from orders granting summary judgment in favor of respondents, the Court examined the appropriate causation test to use in connection with claims for mesothelioma resulting from exposure to asbestos-containing products. Prior to Holcomb, Nevada had not articulated a causation standard in asbestos cases for determining whether a plaintiff’s mesothelioma is sufficiently caused by exposure to a defendant’s products. After considering causation tests from California (“exposure-to-risk” test), Texas (“defendant-specific-dosage-plus-substantial factor” test) and the Fourth Circuit (“frequency, regularity, proximity” test), the Court adopted the test applied by a majority of federal circuits and state courts set forth in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986), as the test was explained in Gregg v. V-J Auto Parts, Inc., 943 A.2d 216, 225 (Pa. 2007), a mesothelioma case. Under the Lohrmann test, a plaintiff is required to prove exposure to a defendants’ product “on a regular basis over some extended period of time” and “in proximity to where the plaintiff actually worked,” such that it is probable or reasonable to infer, that the exposure caused the mesothelioma. The Court noted that although plaintiffs generally bear the burden in establishing causation, plaintiffs in asbestos litigation are often unable to provide precisely how much exposure they received from any particular defendant’s products due to a lengthy latency period between exposure and the manifestation of the injury, poor record keeping and the expense of reconstructing such data. The Court adopted the Lohrmann test because it balances the rights and interests of manufacturers with those of plaintiffs. In applying the Lohrmann test to the facts of Holcomb, the Court reversed the order granting summary judgment in favor of the respondent asbestos manufacturers, holding that appellants raised sufficient evidence of probable exposure to products manufactured by respondents Georgia Pacific, Kaiser Gypsum, and Kelly-Moore to defeat summary judgment. With respect to the asbestos supplier, respondent Union Carbide, the Court affirmed the order granting summary judgment. Affirmed in part, reversed in part, and remanded. (Kristen T. Gallagher, Associate in the Las Vegas office of McDonald Carano Wilson LLP).
In this appeal from orders granting summary judgment in favor of respondents, the Court examined the appropriate causation test to use in connection with claims for mesothelioma resulting from exposure to asbestos-containing products. Prior to Holcomb, Nevada had not articulated a causation standard in asbestos cases for determining whether a plaintiff’s mesothelioma is sufficiently caused by exposure to a defendant’s products. After considering causation tests from California (“exposure-to-risk” test), Texas (“defendant-specific-dosage-plus-substantial factor” test) and the Fourth Circuit (“frequency, regularity, proximity” test), the Court adopted the test applied by a majority of federal circuits and state courts set forth in Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156 (4th Cir. 1986), as the test was explained in Gregg v. V-J Auto Parts, Inc., 943 A.2d 216, 225 (Pa. 2007), a mesothelioma case. Under the Lohrmann test, a plaintiff is required to prove exposure to a defendants’ product “on a regular basis over some extended period of time” and “in proximity to where the plaintiff actually worked,” such that it is probable or reasonable to infer, that the exposure caused the mesothelioma. The Court noted that although plaintiffs generally bear the burden in establishing causation, plaintiffs in asbestos litigation are often unable to provide precisely how much exposure they received from any particular defendant’s products due to a lengthy latency period between exposure and the manifestation of the injury, poor record keeping and the expense of reconstructing such data. The Court adopted the Lohrmann test because it balances the rights and interests of manufacturers with those of plaintiffs. In applying the Lohrmann test to the facts of Holcomb, the Court reversed the order granting summary judgment in favor of the respondent asbestos manufacturers, holding that appellants raised sufficient evidence of probable exposure to products manufactured by respondents Georgia Pacific, Kaiser Gypsum, and Kelly-Moore to defeat summary judgment. With respect to the asbestos supplier, respondent Union Carbide, the Court affirmed the order granting summary judgment. Affirmed in part, reversed in part, and remanded. (Kristen T. Gallagher, Associate in the Las Vegas office of McDonald Carano Wilson LLP).
Thursday, June 14, 2012
FGA Inc., v. Giglio, 128 Nev. Adv. Op. 26 (June 14, 2012)
Before Justices Douglas, Hardesty and Parraguirre. Opinion by Justice Douglas.
In this appeal from a jury verdict in a tort action, the Court considered whether the “mode of operation” approach to premises liability, under which the plaintiff does not have to prove the defendant’s knowledge of a particular hazardous condition if the plaintiff can prove that the nature of the defendant’s business tends to create a substantial risk of the type of harm the plaintiff suffered, extends beyond the self-service context. In answering the question in the negative, the Court held that because the mode of operation approach is premised on the idea that business owners should be held responsible for the risks that their choice to have customers serve themselves creates, the mode of operation approach does not extend to “sit-down” restaurants. The Court found no reason to extend mode of operation liability to such sit-down restaurants absent a showing that their owners created an increased risk of a potentially hazardous condition by having their customers perform tasks that are traditionally carried out by employees. Additionally, the Court addressed issues regarding the general verdict rule and rulings on the admissibility of evidence of pre-existing conditions, alcohol consumption, and testimony to correct erroneous statements. Of particular importance, the Court held that the general verdict rule (which provides that if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party) does not apply when there are multiple factual theories supporting a single legal theory of recovery. As a result, the appellant in this case was able to obtain reversal of the judgment on the jury verdict based on errors that affected only the mode of operation basis for the finding of negligence, despite evidence in the record from which a jury could have concluded that an employee of the restaurant was directly responsible for the spilled substance. Reversed and remanded. (Anthony L. Carano, Associate in the Reno office of McDonald Carano Wilson LLP.)
In this appeal from a jury verdict in a tort action, the Court considered whether the “mode of operation” approach to premises liability, under which the plaintiff does not have to prove the defendant’s knowledge of a particular hazardous condition if the plaintiff can prove that the nature of the defendant’s business tends to create a substantial risk of the type of harm the plaintiff suffered, extends beyond the self-service context. In answering the question in the negative, the Court held that because the mode of operation approach is premised on the idea that business owners should be held responsible for the risks that their choice to have customers serve themselves creates, the mode of operation approach does not extend to “sit-down” restaurants. The Court found no reason to extend mode of operation liability to such sit-down restaurants absent a showing that their owners created an increased risk of a potentially hazardous condition by having their customers perform tasks that are traditionally carried out by employees. Additionally, the Court addressed issues regarding the general verdict rule and rulings on the admissibility of evidence of pre-existing conditions, alcohol consumption, and testimony to correct erroneous statements. Of particular importance, the Court held that the general verdict rule (which provides that if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party) does not apply when there are multiple factual theories supporting a single legal theory of recovery. As a result, the appellant in this case was able to obtain reversal of the judgment on the jury verdict based on errors that affected only the mode of operation basis for the finding of negligence, despite evidence in the record from which a jury could have concluded that an employee of the restaurant was directly responsible for the spilled substance. Reversed and remanded. (Anthony L. Carano, Associate in the Reno office of McDonald Carano Wilson LLP.)
Thursday, April 5, 2012
Haley v. Eighth Judicial District Court, 128 Nev. Adv. Op. 16 (Apr. 5, 2012)
Before Justices Douglas, Hardesty and Parraguirre. Opinion by Justice Parraguirre.
In this petition for writ of mandamus, the Court addresses the scope of a district court’s authority to unilaterally modify a settlement agreement under NRS 41.200, Nevada’s statute governing the compromise of a minor child’s claim. The Court reviewed the history of the case, in which a child ward of the state’s claim against a health care provider was brought by Petitioners (her attorney and her guardian ad litem) on her behalf. The parties reached a settlement and submitted it to the district court for approval. The district court denied the compromise because the amounts awarded to the Petitioners exceeded the amount payable to the minor. Petitioners again moved for approval of the compromise, this time with supporting documentation. The district court approved the overall amount of the settlement but changed the allotted amounts payable to Petitioners and the minor, respectively. Petitioners’ writ of mandamus challenges the district court’s authority to alter the distribution unilaterally. The Supreme Court denied this part of the writ petition. The Court looked to NRS 41.200(1), which provides that a compromise made on a minor’s behalf is not effective until approved by a district court. The Court broadly construed the authority granted by this section to encompass a review of the apportionment of proceeds, including the amount for attorney’s fees and costs. As support for its position, the Court noted that other subsections of NRS 41.200 provide that a petition must include the proposed allocation of fees and expenses, and that therefore such aspects of the compromise are within a district court’s discretion when it conducts its review under 41.200(1). The Court also noted that its result is consistent with NRCP 17(c), which allows a district court to issue any “order as it deems proper for the protection” of a minor. The Court cited federal case law interpreting NRCP 17’s federal analog, FRCP 17, to give courts authority to evaluate whether the net recovery of a minor is fair and reasonable. Finally, the Court granted in part the writ petition because the district court’s reallocation of funds was unclear as between the attorney and the guardian. The Court instructed the district court to provide a distribution (with an explanation) of the allocated amount as between the attorney and the guardian. Denied in part, granted in part, and remanded. (Mark W. Dunagan, Associate in the Reno office of McDonald Carano Wilson LLP).
In this petition for writ of mandamus, the Court addresses the scope of a district court’s authority to unilaterally modify a settlement agreement under NRS 41.200, Nevada’s statute governing the compromise of a minor child’s claim. The Court reviewed the history of the case, in which a child ward of the state’s claim against a health care provider was brought by Petitioners (her attorney and her guardian ad litem) on her behalf. The parties reached a settlement and submitted it to the district court for approval. The district court denied the compromise because the amounts awarded to the Petitioners exceeded the amount payable to the minor. Petitioners again moved for approval of the compromise, this time with supporting documentation. The district court approved the overall amount of the settlement but changed the allotted amounts payable to Petitioners and the minor, respectively. Petitioners’ writ of mandamus challenges the district court’s authority to alter the distribution unilaterally. The Supreme Court denied this part of the writ petition. The Court looked to NRS 41.200(1), which provides that a compromise made on a minor’s behalf is not effective until approved by a district court. The Court broadly construed the authority granted by this section to encompass a review of the apportionment of proceeds, including the amount for attorney’s fees and costs. As support for its position, the Court noted that other subsections of NRS 41.200 provide that a petition must include the proposed allocation of fees and expenses, and that therefore such aspects of the compromise are within a district court’s discretion when it conducts its review under 41.200(1). The Court also noted that its result is consistent with NRCP 17(c), which allows a district court to issue any “order as it deems proper for the protection” of a minor. The Court cited federal case law interpreting NRCP 17’s federal analog, FRCP 17, to give courts authority to evaluate whether the net recovery of a minor is fair and reasonable. Finally, the Court granted in part the writ petition because the district court’s reallocation of funds was unclear as between the attorney and the guardian. The Court instructed the district court to provide a distribution (with an explanation) of the allocated amount as between the attorney and the guardian. Denied in part, granted in part, and remanded. (Mark W. Dunagan, Associate in the Reno office of McDonald Carano Wilson LLP).
Wednesday, November 23, 2011
Estate of Smith v. Mahoney’s Silver Nugget, 127 Nev. Adv. Op. 76 (November 23, 2011)
Before Justices Saitta, Hardesty, and Parraguirre. Opinion by Justice Parraguirre.
In this appeal from the grant of summary judgment in a wrongful death case, the Court reviewed the process for determining the legal duty of an innkeeper when a person is injured or killed by a third party on the innkeeper’s premises under NRS 651.015. The deceased, Smith, punched another patron of the Silver Nugget and a third patron fatally shot Smith in retaliation. Resolving an apparent conflict between NRS 651.015 and the Court’s decision in Doud v. Las Vegas Hilton Corp., 109 Nev. 1096 (1993), the Court concluded that NRS 651.015 requires a district court to determine duty as a matter of law by considering the foreseeability of the wrongful act and a jury must determine proximate cause by considering the foreseeability of the injury or consequences of the wrongful act. The Court then addressed the two methods of determining the foreseeability of a wrongful act set forth in NRS 651.015: (1) failure to exercise due care (2) prior similar acts. The “failure to exercise due care” approach allows for consideration of the totality of the circumstances as applied in Doud; it allows a Court to impose a duty despite the absence of prior similar wrongful acts if the “innkeeper’s outright failure to take reasonable precautions to protect its patrons” increased the likelihood of the wrongful act. The Court also attempted to clarify the extent of similarity required to establish a duty based on prior similar acts. Noting that the Legislature intended courts to have some discretion in considering the similarity of wrongful acts, the Court stated that whether acts are similar is, at least in part, determined by looking at whether the acts implicated similar security concerns. Because there had been no prior security incidents involving serious injury or concealed handguns at the Silver Nugget, the Court affirmed the district court’s conclusion that the shooting here was not foreseeable in a manner that created a duty on the part of the Silver Nugget. Affirmed. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson).
In this appeal from the grant of summary judgment in a wrongful death case, the Court reviewed the process for determining the legal duty of an innkeeper when a person is injured or killed by a third party on the innkeeper’s premises under NRS 651.015. The deceased, Smith, punched another patron of the Silver Nugget and a third patron fatally shot Smith in retaliation. Resolving an apparent conflict between NRS 651.015 and the Court’s decision in Doud v. Las Vegas Hilton Corp., 109 Nev. 1096 (1993), the Court concluded that NRS 651.015 requires a district court to determine duty as a matter of law by considering the foreseeability of the wrongful act and a jury must determine proximate cause by considering the foreseeability of the injury or consequences of the wrongful act. The Court then addressed the two methods of determining the foreseeability of a wrongful act set forth in NRS 651.015: (1) failure to exercise due care (2) prior similar acts. The “failure to exercise due care” approach allows for consideration of the totality of the circumstances as applied in Doud; it allows a Court to impose a duty despite the absence of prior similar wrongful acts if the “innkeeper’s outright failure to take reasonable precautions to protect its patrons” increased the likelihood of the wrongful act. The Court also attempted to clarify the extent of similarity required to establish a duty based on prior similar acts. Noting that the Legislature intended courts to have some discretion in considering the similarity of wrongful acts, the Court stated that whether acts are similar is, at least in part, determined by looking at whether the acts implicated similar security concerns. Because there had been no prior security incidents involving serious injury or concealed handguns at the Silver Nugget, the Court affirmed the district court’s conclusion that the shooting here was not foreseeable in a manner that created a duty on the part of the Silver Nugget. Affirmed. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson).
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