Nevada Personal Injury Law:
The Comparative Negligence Doctrine

By Beth M. Zelman
Staff Writer

A lot can happen in a city the size of Las Vegas, where tourists are the major import and excitement abounds. Let’s say you’re staying at one of the hotels and you’re walking through the lobby when suddenly you slip on a puddle. You fall and sustain injuries to your back when you land on your tailbone and your shoulder when you catch yourself before your head hits the ground. After months of physical therapy your pain still persists and you decide to file suit against the hotel. Luckily you took pictures of the puddle and notified a member of the hotel’s security staff, who helped to get you to the emergency room and prepared an accident report. Under Nevada law, the hotel owes a duty of care to its guests and visitors to maintain its premises in reasonably safe condition. This would include monitoring the floors with reasonable frequency to detect and correct dangerous conditions before someone is injured.

While at first glance a large puddle in the middle of the lobby may appear to place the blame entirely on the hotel, this is not always the case. Here in Nevada the courts might determine that you were partially to blame for your injuries. The portion of fault that might be attributed to you is called “Comparative Negligence”. Whether you were or were not comparatively negligent is a question of fact to be decided by the jury.

Under the comparative negligence doctrine, if a plaintiff is found partially at fault for an accident or the extent of his injuries, he is not necessarily barred from recovery. Nevada law states that in any action in which comparative negligence is asserted as a defense, the comparative negligence of the plaintiff does not bar recovery provided that negligence is less than the negligence attributable to the defendant. In simple terms, if you are found to be more than 50% at fault for your own fall, you recover nothing.

In determining the potential value of your claim, the insurance company insuring the hotel (or the hotel itself if they “self-insure”) may require you to answer certain questions. Needless to say – all questions should be answered truthfully, and with the advice and counsel of your attorney. Questions you are likely to be asked may include the following:

• Were you attentive to the conditions of the floor as you were walking?
• Where was your attention focused?
• Were you doing anything else while walking (counting your chip)?
• Were you running?
• When were your eyes last examined and by whom?
• Had you consumed any alcohol within the twenty-four hours preceding your fall, and if so, how much had you consumed?
• What kind of footwear were you wearing?
• Were there any eye witnesses to your fall?
• How long after your fall did you report the accident to hotel security?
• How long after the incident did you obtain medical treatment for your injuries?
• Had you suffered any injuries to your back or shoulder prior to your fall at the hotel?

While it is always prudent to consult with an experienced Nevada personal injury attorney before giving any statements to anyone, an affirmative response to any of these common questions may raise the issue of comparative negligence on your part, and undermine the success and/or value of your claim.

If, after consulting with an attorney and answering these questions truthfully the hotel or its insurance company concludes that your accident could have been avoided had you taken more care to avoid it, it may deny the claim entirely or reduce the value of its settlement offer to reflect the degree of comparative negligence it believes a jury may attribute to you.

If the insurance company does agree to extend a settlement offer that you and your personal injury attorney feel is below the value of your claim, you may conclude that filing a law suit is a more favorable route to obtaining a favorable result. Once the case has been filed in court, and the parties have concluded their pre-trial investigations (often referred to as “discovery”) the trial judge or jury will be asked to determine what percentage of fault – if any – is attributable to you. If the jury finds that you were 25% to blame for the accident, and further finds that the fair value of your injuries is $20,000, that amount will be reduced by 25% (the amount you were found to be at fault) and you will be awarded $15,000. However – if the jury finds that you were more than 50% at fault for your accident, the entire award, regardless of how much the jury awards – will be eliminated under the Nevada Comparative Negligence doctrine.

For these reasons, it is essential to carefully review all of the facts and circumstances surrounding your accident with a lawyer highly experienced in Nevada personal injury law.

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