Category: Drunk Driving

Punitive Damages In Las Vegas Personal Injury Cases

Punitive Damages in Las Vegas Personal Injury Cases

Many people have heard the term “punitive damages” and want to know how it applies to their personal injury or car accident claim in Las Vegas. “Punitive damages” is an amount that is awarded by a jury to punish a party in a civil lawsuit. This term is also sometimes called “exemplary damages,” as the award is intended to set an example. Punitive or exemplary damages is usually contrasted with compensatory damages, which are intended to make an accident victim whole again. Compensatory damages usually include medical bills, lost income, pain and suffering, and lost enjoyment of life.

Punitive damages cannot be awarded in most cases. For a personal injury plaintiff to even be able a jury for punitive damages, the plaintiff must show that the defendant was more than negligent. Negligence generally means careless. In other words, to be able to ask for punitive damages, a plaintiff must show that a defendant was more than careless. In Nevada, usually, this means showing that a defendant acted intentionally, recklessly, or with intent to do harm. In car accident cases, punitive damages usually do not apply but may apply in drunk driving cases. It should also apply to cases where a defendant was texting and driving.

In the McDonald’s coffee cup case that a lot of people seem to know about, the biggest portion of the jury’s award was the punitive damages. The jury in that case awarded $2.7 million against McDonalds. The large jury award in the case upset many people. Those people tend to refer to the McDonald’s case as an example of a frivolous lawsuit where the accident victim became rich. However, the purpose of that $2.7 million award was to punish McDonalds. The plaintiff’s attorney in that case showed that McDonalds served their coffee at temperatures higher than other restaurants. They also showed that, in a decade, McDonalds received about 700 complaints of people suffering burns from their coffee. In awarding punitive damages against McDonalds, the jury believed that McDonalds needed to be punished for their policy and deterred from continuing to follow this policy.

Nevada Law On Punitive Damages

In Nevada, the legislature enacted laws that governs when punitive damages can be awarded. Those laws can be found in Chapter 42 of the Nevada Revised Statutes (NRS). Under NRS § 42.005, a jury may award punitive damages against a defendant who “has been guilty of oppression, fraud or malice, express or implied.” NRS § 42.001 defines these terms as follows:

NRS § 42.001. Definitions; exceptions. As used in this chapter, unless the context otherwise requires and except as otherwise provided in subsection 5 of NRS 42.005:

  1.       “Conscious disregard” means the knowledge of the probable harmful consequences of a wrongful act and a willful and deliberate failure to act to avoid those consequences.
  2.       “Fraud” means an intentional misrepresentation, deception or concealment of a material fact known to the person with the intent to deprive another person of his or her rights or property or to otherwise injure another person.
  3.       “Malice, express or implied” means conduct which is intended to injure a person or despicable conduct which is engaged in with a conscious disregard of the rights or safety of others.
  4.       “Oppression” means despicable conduct that subjects a person to cruel and unjust hardship with conscious disregard of the rights of the person.

The Nevada legislature also limited how much punitive damages can be awarded in most cases. Subsection (1) of NRS § 42.005 limits the amount of punitive damage awards as follows:

  1. Except as otherwise provided in NRS § 42.007, in an action for the breach of an obligation not arising from contract, where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud or malice, express or implied, the plaintiff, in addition to the compensatory damages, may recover damages for the sake of example and by way of punishing the defendant. Except as otherwise provided in this section or by specific statute, an award of exemplary or punitive damages made pursuant to this section may not exceed:

(a) Three times the amount of compensatory damages awarded to the plaintiff if the amount of compensatory damages is $100,000 or more; or

(b) Three hundred thousand dollars if the amount of compensatory damages awarded to the plaintiff is less than $100,000.

The above limitation on punitive damages do not apply to product defect or product liability cases and to insurance bad faith cases, amongst others. See NRS § 42.005(2).

Examples of Punitive Damage Awards in Nevada

In a recent Las Vegas medical malpractice case, a jury assessed $8 million in punitive damages against a local hand surgeon. The jury found that the hand surgeon had committed fraud. The plaintiff, a U.S. Air Force pilot, claimed that the surgeon performed a procedure that was not the standard of care. In fact, the plaintiff presented expert testimony that no other hand surgeon ever performed or would have performed the same procedure. The plaintiff also argued that the surgeon performed the procedure in order to guarantee that the plaintiff will require future procedures, for which the surgeon can financially benefit.

In a product liability lawsuit, plaintiffs alleged that a drug manufacturer sold hormone replacement therapy drugs that increased the risk of getting breast cancer and failed to adequately warn its customers. The jury found that the defendant guilty of malice or fraud, and a separate trial was held on the question of how much the punitive damage award should be. Following that separate trial, the jury awarded a total of $99 million in punitive damages against the defendant. See Wyeth v. Rowatt, 126 Nev. 446, 244 P.3d 765 (Nev. 2010).

If you or a loved one have been injured and want to know if punitive damages apply to your personal injury case, speak to a Las Vegas personal injury and car accident attorney at D.R. Patti & Associates. Our experienced personal injury attorneys have dealt with punitive damages on many occasions and can answer your questions. Call 702-331-3391 for a free case consultation.

Liability Of Alcohol Sellers for Drunk Driving Accidents in Las Vegas

Las Vegas personal injury attorneys

Consider the following scenario: A patron, let’s call him Dana, enters a bar. He chooses to sit at the counter where there’s a video poker machine. Dana knows he will get free drinks as long as he is playing the game. The bar keeps serving him alcohol, even as he is staggering and slurring his words, because he is still putting money into the poker machine. Finally, the patron runs out of money. That’s when the patron decides to go home. He’s visibly drunk. He gets into his car. As he is driving home, he runs a red light and crashes into and kills Jo, a wife and mother just leaving her night shift.

Can Jo’s family sue the bar for continuing to serve alcohol to Dana even after he is obviously drunk? In Nevada, the answer is generally no. However, there are limited circumstances were a bar may be held responsible for a car accident in Las Vegas involving a drunk driver.

The laws governing whether sellers of alcohol can be held responsible when their customers get drunk and causes a car accident are called “dram shop laws.” While other states permit such liability, the Nevada Supreme Court has historically refused to recognize it. The Court refused to recognize an alcohol seller’s liability for a drunk driving accident even if the alcohol seller violated laws, such as by selling alcohol to a minor. See Yoscovitch v. Wasson, 645 P.2d 975, 976 (Nev. 1982) (holding that a motorcycle passenger injured due to a collision with an intoxicated minor driver has no claim against the convenience store that sold the alcohol to the minor); Van Cleave v. Kietz-Mill Minit Mart, 633 P.2d 1220, 1222 (Nev. 1981) (finding a convenience store was not liable for selling alcohol to a minor who later caused a drunk driving accident). In 1995, the Nevada legislature expressly prohibited it by enacting Section 41.1305 of the Nevada Revised Statutes (NRS).

In 2007, the Nevada legislature carved an exception to the liability of sellers of alcohol. It permitted holding those who provide alcohol to underaged persons liable if those persons cause an alcohol-related injury or death. It should be noted that the above exception is not limited to sellers of alcohol. It includes those who provide alcohol to underaged persons for free. This encompasses those who provide alcohol to minors at parties or other events. It also encompasses those who permit alcohol to be served to underaged persons on their property.

The statute now reads as follows:

NRS § 41.1305. Liability of person who serves, sells or furnishes alcoholic beverages for damages caused as a result of consumption of alcoholic beverage: No liability if person served is 21 years of age or older; liability in certain circumstances if person served is under 21 years of age; exception to liability; damages, attorney’s fees and costs.

1.  A person who serves, sells or otherwise furnishes an alcoholic beverage to another person who is 21 years of age or older is not liable in a civil action for any damages caused by the person to whom the alcoholic beverage was served, sold or furnished as a result of the consumption of the alcoholic beverage.

2.  Except as otherwise provided in this section, a person who:

(a) Knowingly serves, sells or otherwise furnishes an alcoholic beverage to an underage person; or

(b) Knowingly allows an underage person to consume an alcoholic beverage on premises or in a conveyance belonging to the person or over which the person has control,

is liable in a civil action for any damages caused by the underage person as a result of the consumption of the alcoholic beverage.

3.  The liability created pursuant to subsection 2 does not apply to a person who is licensed to serve, sell or furnish alcoholic beverages or to a person who is an employee or agent of such a person for any act or failure to act that occurs during the course of business or employment and any such act or failure to act may not be used to establish proximate cause in a civil action and does not constitute negligence per se.

4.  A person who prevails in an action brought pursuant to subsection 2 may recover the person’s actual damages, attorney’s fees and costs and any punitive damages that the facts may warrant.

5.  As used in this section, “underage person” means a person who is less than 21 years of age.

We know how devastating it could be to lose someone you love or be severely injured in a car accident caused by a drunk driver. We’ve seen clients go through the grieving process or endure the economic hardship of medical bills and losing a job because of injuries caused by a drunk driver. We also know the hardships personally. The car accident attorneysat D.R. Patti & Associates have also loved ones who have been victims of drunk drivers.

If you or a loved one have been injured by a drunk driver or in a car accident in Las Vegas, the experienced car accident attorneys in Las Vegas at D.R. Patti & Associates can help you. With over 50 years of combined experience in personal injury cases, we know the law and have the skills to get you the compensation you deserve.

What is Negligence in a Personal Injury Case? (Part I)

Las Vegas Personal Injury And Car Accident Attorneys

Many lay people may use the term “negligence” without fully understanding how the law defines it and how it is applied. Generally, “negligence” refers to the failure to exercise the appropriate level of care. So when someone says “so and so was negligent,” they are really saying that person did not act in a way that others generally act. While a violation of the law can be negligence, negligence does not require there to be a violation of the law.

American common law recognizes that a person injured by the negligence of others is entitled to compensation. The underlying policy behind the concept of negligence is that certain conduct involves a risk of harm to others that is greater than what society is willing to accept. Because of that risk of harm, the law makes the negligent person responsible for the resulting harms.

To be legally recognized as a negligence claim, the following elements must be proved:

  1. Duty: the defendant owed the injured person a duty recognized by the law
  2. Breach: the defendant breached that duty
  3. Damages: the defendant’s breach of that duty legally or proximately caused injuries
  4. Causation: the injury caused by defendant’s breach was foreseeable

Each of the foregoing concepts continue to be litigated, depending on the circumstances or as society changes. This is particularly with the concept of duty, since duty, as defined, is one that the law recognizes. Some states may recognize a particular duty, but not in other states. For example, Nevada does not recognize “dram shop” laws. Dram shop laws are laws that make a business that sells alcohol to a person who is obviously drunk liable if that person injures another. For example, if after leaving a bar, a drunk driver hits and kills someone, the victim’s family may be able to hold the bar responsible. While a majority of other states have such law, Nevada generally does not. See Hamm v. Carson City Nugget, Inc., 85 Nev. 99, 450 P.2d 358 (1969).

Negligence can give rise to the following common types of personal injury cases:

In car accident cases, negligence is often expressed as a driver’s failure to exercise ordinary care. Usually, duty and breach of duty are not an issue in Las Vegas car accident cases. It is quite well settled law that a driver owes a legally-recognized duty to other drivers and pedestrians to exercise care when driving. What is kind of care is often answered by looking at the traffic laws and rules of the road. Nevada’s traffic laws and rules of the road can be found in Chapters 484, 484A, 484B, and 484C of the Nevada Revised Statutes.

What could be issues in Las Vegas car accident cases are damages and causation, particularly if there is not a lot of visible property damage. We’ve already discussed in another blog how insurance companies use low property damage to argue that someone could not be injured. This tactic of insurance companies is so prevalent that there is a name for it – “Minor Impact Soft Tissue” or MIST cases. Don’t be fooled by these arguments. Of course, the insurance companies’ goal is to pay as little as possible, and they do so by equating visible property damage to a person. But a person is not a car, is not built with metal, and every person is unique. Read more on how experienced Las Vegas car accident attorneys deal with the insurance companies MIST arguments.

If you or a loved one have been injured by the negligence of another, contact the Las Vegas personal injury attorneys of D.R. Patti & Associates. With a combined total of 50+ years of experience, our award-winning attorneys have handled many negligence cases arising from a variety of circumstances. We’ve handled the typical and less typical Las Vegas car accidents to commercial trucking accidents and have obtained millions of dollars on behalf of our clients. Call us today.

Drugged Driving: Alcohol Is Not the Only Cause of Las Vegas DUIs, Car Accidents, and Personal Injuries

Las Vegas impaired driving accidents

In our over 26 years of experience as Las Vegas personal injury attorneys, we have seen our fair share of car accidents caused by drivers who were impaired or high on drugs, both illegal and legal drugs. A while back ago, the Las Vegas car accident attorneys at D.R. Patti & Associates represented the families of two victims of a car accident caused by an individual who was under the influence of prescription drugs. The at fault party was so high she did not even realize she had hit another car and killed one of the victims. In another case, our Las Vegas personal injury lawyers represented an individual who was rear-ended by a Porsche driving at 70 miles per hour at least. The police questioned the Porsche driver, who kept falling asleep, and ultimately the driver admitted to having taken Ambien, a sleeping pill, within 30 minutes before driving. In another case, a client was injured when her car was rear-ended; the person who rear-ended her apologized profusely and asked her not to call the police, saying that he was on new prescription pain medications and should not be driving.

It is no surprise that certain legal prescription medications can affect driving ability.  At this day and age, we should be familiar with the warnings that accompany many prescription drugs against the operating of machinery—including motor vehicles.  This means that certain medications, even when taken legally and according to doctor’s instructions, can cause car accidents.

Despite such warnings, driving under the influence of such medications, alone or in combination with alcohol, the number of people found to drugged driving remain relatively significant.  The 2007 National Roadside Surgery by the National Highway Traffic Safety Administration (NHTSA), more than 16% of weekend, nighttime drivers tested positive for medications, whether illegal, prescription, or over-the-counter.

A 2009 NHTSA study found that 18% of drivers who died as a result of a motor vehicle accident tested positive for at least one drug.  This represented an increase of 5% from the 13% in a 2005 NHTSA survey.
The number of people driving under the influence and not caught is even greater.  Results from a 2009 National Survey on Drug Use and Health (NSDUH) revealed that about 4.2%, or approximately 10.5 million people 12 years and older, self-reported driving under the influence of illicit drugs.  For those 18 to 25 years old, the percentage is even greater, rising to 12.8%.

A problem with apprehending drugged drivers is that there is no test like a breathalyzer that can be performed, investigating law enforcement officers must look for other outward signs of drug impairment, such as by performing field sobriety tests.  Education of drivers against the dangers of driving while under the influence of medication, whether legal or illegal, should hopefully help curb these incidences.

Under Nevada law, drivers don’t have to “blow” the legal limit for drugs or alcohol to be impaired. Section 484C.110 of the Nevada Revised Statutes (NRS) prohibits driving under the influence of any combination of substances that renders the driver unfit to drive.  Such substances include properly prescribed pain medication.  The statute, NRS § 484C.110, provides in pertinent part as follows:

NRS 484C.110. Unlawful acts; affirmative defense; additional penalty for violation committed in work zone.
. . .

  1. It is unlawful for any person who:

(a) Is under the influence of a controlled substance;
(b) Is under the combined influence of intoxicating liquor and a controlled substance; or
(c) Inhales, ingests, applies or otherwise uses any chemical, poison or organic solvent, or any compound or combination of any of these, to a degree which renders the person incapable of safely driving or exercising actual physical control of a vehicle, to drive or be in actual physical control of a vehicle on a highway or on premises to which the public has access. The fact that any person charged with a violation of this subsection is or has been entitled to use that drug under the laws of this State is not a defense against any charge of violating this subsection.

If you’ve been injured in a car accident in Las Vegas that was caused by a driver under the influence of drugs then call and speak to a car accident lawyers at D.R. Patti & Associates.