Imagine you are driving home from work. You stop at a light, wait for it
to turn green, and proceed cautiously into the intersection. Suddenly,
a police cruiser enters the intersection from a perpendicular street,
running a red light and barreling into your car. You suffer multiple injuries,
including damage to your knee which results in surgery. What are your
rights? Can you pursue a claim against the negligent officer? Will you
be compensated for all of your injuries and damages?
Nevada, like all other states, has sovereign or governmental immunity,
shielding the state from tort-based claims. Local governments are granted
that same immunity. Pursuant to NRS 41.031, Nevada has waived that immunity
to a certain extent, thus enabling injured parties to recover some monetary
figure when they are the victim of negligence on the part of the state
or an individual acting on behalf of the state. Other common examples
of claims that may involve governmental immunity include:
Car or motor vehicle accidents involving state employees or agents (police officers, county employees, etc.).
- Injuries related to negligent maintenance or design of permanent or temporary
traffic control devices.
Injuries related to
negligent property management on the part of the state.
- Negligent maintenance of machinery resulting in injuries.
Nevada potentially places a cap in the amount of $100,0000 in these circumstances.
NRS 41.035. Thus, if you are involved in a
car accident (or other incident) with a government employee during the commission of
his/her job duties, you will be limited in the damages you can recover.
Additionally, that same statute prevents an injured party from claiming
Punitive Damages against the state or its agencies.
The Supreme Court of Nevada has consistently held that NRS 41.035 allows
recovery of damages “on a per person per claim basis.”
Cty. of Clark, ex rel. Univ. Med. Ctr. v. Upchurch, 961 P.2d 754, 761 (Nev. 1998). NRS 41.035 allows one statutory limitation
for each cause of action, regardless of the number of actors.”
Id at 761. Therefore, simply naming multiple defendants will not translate
into multiple cap amounts.
The “per person or per claimant” standard permits an award
of damages up to the statutory cap for each person having a valid claim
against a governmental tortfeasor. In the case of a
wrongful death where there are multiple heirs, each heir with his/her own claim of emotional
pain and suffering, is entitled to his/her own cap, meaning the recovery
from a single incident could be far more than $100,000.
State v. Webster, 88 Nev. 690, 695 (1972), the Court held that the State was negligent
for failing to install a cattle guard at the entrance to a controlled-access
freeway. As a result of that failure, the plaintiff’s automobile,
with his spouse/wife as a passenger, crashed into a horse which was wandering
on the highway at night. The wife brought an action both for her own injuries
arising from the incident as well as for the wrongful death of her husband
in the same incident.
Webster Court ruled that the wife was entitled to recover the full amount of the
cap for the wrongful death of her husband, as well as monetary damages
for her own personal injury damages she personally suffered as a result
of the accident. In addition, three relatives of the decedent were allowed
to recover the full amount of the cap each on their wrongful death claims.
Thus, the Court allowed plaintiffs to recover damages against the State
on a per person per claim basis. The Nevada Supreme Court’s decision in
Webster states, “[a]lthough joined in one complaint, an action for wrongful
death and an action for personal injuries suffered by the plaintiff in
the same accident are separate, distinct and independent.”
Wells Inc. v. Shoemake, 64 Nev. 57, 177 P.2d 451 (1947). “They rest on different facts,
and may be separately maintained.”
Burns v. Brickle, 106 Ga. App. 150, 126 S.E.2d 633 (1962);
Chamberlain v. Mo.-Ark. Coach Lines, 354 Mo. 461, 189 S.W.2d 538 (1945).
A plaintiff characterizing separate acts or instances of wrongdoing will
not result in multiple caps.
Clark County Sch. Dist. v. Richardson Constr., Inc., 123 Nev, 382, 168 P.3d 87 (2007). Separate “claims” emanating
from or dependent upon an underlying negligence claim will not result
in multiple caps.
See State v. Webster, 88 Nev. 690, 695 (1972). A cause of action or claim is entitled to its
own cap only if it is separate, distinct and could be maintained on its own.
State v. Webster, 88 Nev. 690, 695 (1972). Therefore, a personal injury claim which includes
a claim for negligent hiring or training will not allow for a total recovery
in excess of $100,000.
A plaintiff’s recovery is controlled by the cap, but there are amounts
that may be pursued outside of the cap. For example, the cap applies to
prejudgment interest, but does not apply to post-judgment interest or
liability for attorney fees and costs.
Arnesano v. State ex rel Dept. of Transp., 113 Nev. 815, 821-822, 942 P.2d 139, 143-144 (1997).
There is also case law addressing Offers of Judgment, statutory settlement
offers which encourage parties to resolve claims. NRS 17.115(4)(d)(3)
states that if a party rejects an Offer of Judgment and fails to obtain
a more favorable judgment, the District Court may order that that party
pay "reasonable attorney's fees" incurred from the date
of service of the offer to the date of entry of the judgment.
See also NRCP 68(f)(2) (stating that "[i]f the offeree rejects an offer [of
judgment] and fails to obtain a more favorable judgment, ... the offeree
shall pay the offeror's post-offer costs... and reasonable attorney's
LVMPD v. Yeghiazarian, 312 P.3d 503 (2013), that is precisely what happened with plaintiffs
each receiving the statutory cap, and further receiving attorneys fees
and costs beyond the cap.
There are times it will not be clear whether the government can be held
liable for an employee’s actions. NRS 41.745 clarifies when an employer,
i.e. the State, would not be liable for harm or injury caused by the conduct
of their employee. For example, if the harm was not committed in the course
of the very task assigned to the employee or was not reasonably foreseeable
under the facts and circumstances of the case considering the nature and
scope of his or her employment, the state will not be held responsible.
Further, if the accident occurred while the employee was not on-the-clock,
performing his/her duties, or acting within the law, the government agency
may be able to shield itself from liability.
Nevada Revised Statutes 41.032 through 41.0337 set forth instances where
the government may invoke its immunity, thus eliminating the means of
recovery in particular actions. These exceptions include everything from
accidents involving school crossing guards to injuries caused by a failure
to inspect or discover hazards.
This article illustrates the fact that each and every accident claim must
be carefully reviewed by an experienced
Personal Injury Attorney
to consider potential recoveries available to injured parties. Though
governmental immunity exists, there are exceptions that may allow injured
parties to recover a great deal more than the $100,000 cap. If you or
someone you care about has been injured due to the acts or omissions of
a government employee or agent,
contact Shook & Stone
. We will investigate the matter free-of-charge.