1 - Negligence; Duty (Nevada)

Negligence

Liability for negligence requires proof of a duty of care owed by the defendant to the plaintiff, a breach of that duty, and that the breach was the actual and proximate cause of damages suffered by the plaintiff.

General Duty

Holds that everyone owes a duty to exercise due care so as not to subject others to unreasonable risks of harm.

Cardozo Rule on Duty (General)

Under Palsgraf v. Long Island Railroad Co., Justice Cardozo’s majority opinion held that a defendant owes a duty only to those who could foreseeably be endangered by the defendant’s negligent act. Therefore, according to the rule, there is no duty owed to a plaintiff who is in a position of apparent safety when the defendant commits a negligent act. This is the so-called “orbit of danger” test.

Andrews Rule on Duty (General)

In the Palsgraf case, Justice Andrews gave a dissenting opinion which has been applied as the majority opinion in other cases. Andrews argued that if the defendant owes a duty to anyone, then he owes a duty to everyone who could foreseeably be injured by his action. Thus, Cardozo looked at the issue from a perspective of identifying whether a duty is owed, while Andrews considered the issue as one of proximate causation.

Negligence Per Se

Under the doctrine of negligence per se, the elements of duty and breach are proved when a defendant violates a safety statute which was intended to protect the class of people to which the plaintiff belongs from the kind of injury the defendant caused. In California, a presumption of negligence arises.

Duty Owed to a Guest Passenger (Drivers of Vehicles)

A driver of a motor vehicle, in the absence of a statute otherwise, owes to persons riding in the vehicle a duty of driving with due care. However, a number of jurisdictions have statutes that provide that a guest passenger in an automobile cannot recover from the owner or operator of the automobile unless the owner or operator is guilty of willful misconduct, recklessness, or intoxication.

Duty Owed to a Person Injured by a Drunk Driver (Drivers of Vehicles)

A person who serves alcoholic beverages to one who is intoxicated is not, in the absence of a statute stating otherwise, liable for the damages done by the intoxicated person. However, in those jurisdictions which have statutes traditionally referred to as dram shop acts, an owner, a bartender or other persons serving alcoholic beverages to a person who is intoxicated can be held liable for the foreseeable damages caused by the intoxicated person.

Owner Liability Statutes (Drivers of Vehicles)

Certain statutes impose liability upon owners of vehicles for the tortious acts committed by persons to whom the owner intentionally furnishes the vehicle.

Family Purpose Doctrine (Drivers of Vehicles)

A parent who furnishes a vehicle to the members of his or her family for customary convenience, assumes liability for the tortious acts committed by those persons when the car is being driven for a family purpose.

Omission to Act

An omission to act to prevent injury, or “nonfeasance” as it is sometimes called, does not give rise to tort liability unless there is a special relationship or special circumstance which creates an affirmative duty requiring the defendant to act to protect the plaintiff.

An affirmative duty to act may arise when there is a close familial relationship, such as parent and child or husband and wife; when the defendant and the plaintiff are co- venturers; when the defendant caused the plaintiff to be in danger or injured; when the defendant has begun to render assistance to the plaintiff; when the defendant fails to perform a duty to control the behavior of others; when the defendant is an innkeeper; or when the defendant operates a common carrier such as a plane or ship.

Duty Owed by a Good Samaritan (Good Samaritans / Rescuers)

A person who embarks upon the performance of services for another, whether gratuitously or for consideration, is under a duty to render those services with due care. This person, however, is under no duty to complete the performance of the services unless abandonment would prejudice the other party's position. The rendering of aid in an emergency constitutes the performance of services, and a duty of care is imposed upon those who undertake to render such aid.

Some jurisdictions have enacted statutes designed to encourage physicians to render emergency aid, by limiting the liability that could otherwise be imposed upon them. Generally speaking, liability can be imposed upon them only for reckless or wanton misconduct.

Duty Owed by a Rescuer (Good Samaritans / Rescuers)

A person whose negligence creates a situation in which he needs to be rescued may be held liable for injuries incurred by his rescuer.

Negligent Supervision

A cause of action which is brought by a plaintiff who suffered injury because a child or other person was inadequately supervised by one who owed a duty of supervision. Most commonly, it is brought against parents who failed to exercise ordinary parental discretion as to the manner in which their child is supervised or cared for.

Modernly, a child may bring an action against his or her own parents for injuries sustained by the child because of lack of proper supervision.

Professionals

To exercise the degree of skill, care, and diligence that is commonly possessed and exercised by members of the same profession under similar circumstances.

Invitee (Land Occupiers)

A person who has an express or implied invitation to enter property for the purpose for which the property is maintained.

Duty Owed to an Invitee (Land Occupiers)

A land occupier owes a duty of ordinary care to invitees, which includes reasonably inspecting the land for dangerous conditions and repairing those dangerous conditions which a reasonable inspection would reveal.

Business Invitee (Land Occupiers)

A person who has express or implied permission to enter business property to do business with the land occupier.

Public Invitee (Land Occupiers)

Enters property in the possession of another for the purpose for which the property is held open to the public. It is not required that a business purpose be involved. Public employees acting within the scope of their official duties are included in the category of public invitees.

Duty Owed to a Licensee (Land Occupiers)

A landowner owes a duty of ordinary care to licensees, which includes either 1) warning licensees of known dangerous conditions, unless they are obvious or already known to the licensee, or 2) repairing dangerous conditions to make the property safe.

Licensee (Land Occupiers)

A person who enters property with the express or implied permission of the land occupier. Such entry is not for the purpose of doing business.

Duty Owed to a Trespasser (Land Occupiers)

The land occupier generally owes no duty of care to the trespasser unless the trespasser is a constant trespasser upon a limited area or a child to whom the Attractive Nuisance Doctrine applies.

Trespasser (Land Occupiers)

Someone who enters the real property of another without express or implied consent.

Duty Owed to a Constant Trespasser Upon a Limited Area (Land Occupiers)

The land occupier owes a duty to a constant trespasser upon a limited area of warning him of known dangerous artificial conditions unless such conditions are obvious.

Constant Trespasser Upon a Limited Area (Land Occupiers)

A trespasser whose presence is known, or should be known, to land occupier because of the trespasser's repeated acts of trespassing.

Duty Owed to a Child Trespasser (Land Occupiers)

The land occupier owes no duty to a child trespasser unless he is a constant trespasser upon a limited area or unless the case is one in which the Attractive Nuisance Doctrine applies.

Attractive Nuisance Doctrine (Land Occupiers)

Recognized in most jurisdictions, imposes a duty upon land occupiers for the protection of young children whose trespasses are to be anticipated and whose immaturity renders them particularly susceptible to injury from dangerous conditions on the land. The land occupier owes a duty of reasonable care to eliminate a danger or to otherwise protect children when the following elements are present:

1) foreseeability of trespass,
2) foreseeability of serious harm,
3) the child is unaware of the danger, and
4) the benefit to the owner of maintaining the condition in its dangerous form is slight when weighed against the risk to children.

Duty Owed to a Person Off the Premises (Land Occupiers)

The land occupier owes a duty to maintain the premises in a reasonably safe condition for the protection of passersby and occupiers of adjoining premises. This includes the duty of inspection to discover and correct those defects which a reasonable inspection would reveal.

Rowland v. Christian (Land Occupiers)

The court eliminated the distinction between business invitee, licensee, and trespasser, and found that the land occupier owes a duty to act as a “reasonable man” for the purposes of rendering the occupied property safe for others.

Natural Conditions (Land Occupiers)

A land occupier traditionally owed no duty to others for the care of natural conditions on the occupied property. However, the recent trend may be to impose a duty of reasonable care as to natural conditions, at least in those situations where the condition is known to the landowner.

Duty Owed by Lessees and Lessors of Land (Lessors & Lessees)

A lessee is a land occupier and has the same liabilities that any land occupier would have. A landlord owes no duty to a person coming onto land with the consent of the lessee, with the following exceptions:

1) the lessor owes a duty if a danger exists at the start of the lease which the lessor knows or should know about and which the lessee has no reason to know about;

2) the lessor has the duty to inspect for and repair dangerous conditions, if the lessor knows the lessee will hold the land open to the public;

3) the lessor has a duty to use reasonable care to make common areas safe;
4) the lessor owes a duty to keep the premises in good repair if that is part of the lease contract;
5) the lessor owes a duty if he begins repairs and performs them unreasonably or does not finish them;
6) the lessor owes a general duty of care in some jurisdictions.

Lessors (Lessors & Lessees)

Someone who conveys real or personal property by lease.

Lessees (Lessors & Lessees)

Someone who has a possessory interest in real or personal property under a lease.