I was hit by a drunk driver in Nevada. Can I file a lawsuit?

If you get injured by a drunk driver in Nevada, you can sue the intoxicated driver and that person’s insurance company for negligence. The motorist’s intoxication from alcohol and/or drugs could be an aggravating factor that results in a bigger settlement and possibly punitive damages.

You may be able to recover large compensatory damages, including:

• Medical bills,
• Lost wages,
• Lost earning capacity,
• Pain and suffering, and/or
• Punitive damages

Even if you played some role in your injuries – such as by not wearing a seat belt – you would still be entitled to damages as long as the DUI driver was at least 50% to blame.

In this article, our Nevada personal injury attorneys discuss how to file a lawsuit for DUI accidents in Nevada. Scroll down or click on a topic below to jump directly to that section:

• 1. What can I sue for if I was injured by a DUI driver in Nevada?
  • 1.1. Negligence
  • 1.2. Negligence per se
  • 1.3. Wrongful death
  • 1.4. Negligent entrustment
• 2. Who can I bring a claim against?
• 3. What damages can I recover?
• 4. How long do I have to file a lawsuit?
• 5. How can I prove a driver was under the influence?
• 6. How do DUI defendants try to fight back?
• 7. What if I was partly to blame for the DUI accident?

1. What can I sue for if I was injured by a DUI driver in Nevada?

As the victim in a DUI-related car crash, you may file a lawsuit against the parties responsible for the crash. Common “causes of action” you may sue for include:

• negligence;
• negligence per se;
• wrongful death (if the victim died); and
• negligent entrustment.

You would be the “plaintiff” in the lawsuit. Meanwhile, the parties you are suing are the “defendants.” If the DUI driver died in the crash, you could sue their estate.

1.1. Negligence

Probably the most common claim in car accident cases is negligence in Nevada. To prove that the defendant was negligent, you would need to show the following:

1. the defendant owed you a duty of care;
2. the defendant breached that duty of care; and
3. the defendant’s breach of duty proximately caused your injuries.¹

1.2. Negligence per se

Any drunk or intoxicated driver who allegedly causes an accident is vulnerable to a lawsuit for negligence per se in Nevada. You would need to demonstrate the following in order to win on this claim:

1. the defendant had the duty to follow a certain law (Nevada’s DUI laws);
2. you are one of the people that law was designed to protect (anyone else sharing the road);
3. the defendant violated that law (by driving drunk or high); and
4. the defendant’s violation proximately caused your injuries.²

1.3. Wrongful death

If an intoxicated driver caused a fatality, then the victim’s estate and family may bring a Nevada wrongful death lawsuit. You would need to prove the following:

1. The victim passed away;
2. This death was caused by the defendant’s wrongful act or negligence;
3. You are an heir or personal representative of the victim; and
4. You suffered damages for monetary injury as a result of the death.³

1.4. Negligent entrustment

As discussed in the following section, any party knowingly allowing a driver to operate a vehicle while intoxicated could be liable for negligent entrustment in Nevada. You would have to prove the following elements in order to prevail on this claim:

1. The defendant left the automobile with another person (a drunk driver);
2. The defendant knew — or should have known — that this person is incompetent to use the vehicle and could use it to harm others; and
3. The drunk driver used the car in a negligent fashion, harming you.⁴

2. Who can I bring a claim against?

Certainly, the obvious party to sue following a drunken automobile accident is the driver. Though other possible defendants may include anyone who allowed the driver to take the wheel despite knowing that they were impaired.

Example: Jack lends his son Henry the keys to his car even though Henry is visibly intoxicated. If Henry proceeds to get into an accident, the accident victim could sue Jack for “negligent entrustment” (discussed in the previous section).

If the car the drunk driver was operating may have been defective, you may also sue the car manufacturer for strict products liability in Nevada. Plus if poor roads or inadequate signage may have contributed to the accident, you could also sue the local city or county for negligence.

3. What damages can I recover?

If you are injured by an inebriated driver, you may be eligible for compensatory damages to cover the following expenses:

• Medical bills (such as for hospital stays, home health care, rehab hospital stays, and counseling),
• Lost wages, tips, and bonuses,
• Loss of future earnings,
• Pain and suffering,
• Vehicle-repair service bills, and/or
• If the victim died, funeral expenses and loss of support.

If you take the matter to trial and win, the court may also award punitive damages to “punish” the defendant and “deter” others from acting like the defendant. Punitive damages can be far bigger than compensatory damages.⁵

4. How long do I have to file a lawsuit?

In most cases, personal injury lawsuits must be filed no later than two (2) years after the accident or when you became aware of your injuries. However, there may be special circumstances that extend this time limit.

Learn more about statutes of limitations in Nevada personal injury cases.⁶

5. How can I prove a driver was under the influence?

The easiest way to prove that a defendant in a car accident case was drunk or high is if the defendant was convicted of DUI for that same incident. There are various DUI offenses in Nevada, including:

• first-time DUI
• second-time DUI
• third-time (or successive) DUI
• DUI causing injury or death (NRS 484C.430)
• vehicular homicide (NRS 484C.130)
• commercial driver DUI (NRS 484C.120)

All you would need to produce is court records documenting the conviction. Even if the defendant managed to escape conviction – or if the criminal case is still pending – it may still be possible to show that the defendant was under the influence.

Burden of proof

When bringing a personal injury lawsuit, you only need to prove that the defendant is liable “by a preponderance of the evidence.” In plain English, this means that it is more likely than not that the defendant was at fault.

This “preponderance of the evidence” standard in civil cases is much lower than the “beyond a reasonable doubt” standard in criminal cases. Therefore, a person could be found civilly liable for causing a drunken crash even if they were found not criminally liable for the same incident.

Evidence

Typical evidence to prove that someone was driving while under the influence includes:

• the police report;
• results from the defendant’s DUI breath test in Nevada or DUI blood test in Nevada that show the defendant was driving with a blood alcohol content of at least .08%.
• surveillance video of the defendant (including from cameras the police officers wear);
• eyewitnesses; and/or
• any confessions the defendant may have given at the scene to the police

6. How do DUI defendants try to fight back?

Defendants in DUI accident cases may try to show that there is insufficient evidence that they were indeed intoxicated or high. Some of the arguments they use include the following:

• the breath- or blood-testing equipment in their case was defective;
• the police waited too long to take a breath- or blood test (more than two hours after being stopped);
• the defendant suffered from a medical or physical condition that caused an inaccurate Nevada BAC (blood alcohol content) result;
• the defendant suffered from a medical or physical condition that resembled intoxication;
• the defendant was not driving the car at the time of the accident;
• the defendant did not begin drinking or ingesting drugs until after the accident;
• the people who administered the breath- or blood-tests made mistakes; and/or
• the defendant was not found guilty of DUI in criminal court.

Non-DUI related defenses

Other arguments that DUI accident defendants may try to use have nothing to do with intoxication: They are standard defenses in any car crash case:

• the crash was caused by a manufacturer’s defect in the car, not the defendant’s behavior;
• the crash was caused by poor weather or badly maintained roads or signage; and/or
• you were more to blame for the crash than the defendant (scroll down to the next section for more information on this)

Burden of proof

As discussed in the previous section, you have a lower burden of proof than prosecutors do in a criminal case. Even if the defendant was acquitted for DUI in criminal court, it may still be possible for you to show “by a preponderance of the evidence” that the defendant was liable for the crash.

7. What if I was partly to blame for the DUI accident?

It is not uncommon for car crashes to have several causes, including your own negligence. The defendant may have been drunk, but perhaps you were texting or speeding at the time of the accident. Even still, you often can recover damages anyway:

Under Nevada’s comparative negligence laws, you may recover damages in a personal injury case as long as the defendant was at least 50% at fault. So if you were more at fault than the defendant, then you would not be eligible for anything.

Example: Kay is high on marijuana while driving down the 215 in Las Vegas. Sarah is driving next to her while simultaneously applying her makeup in the visor mirror. Kay swerves into Sarah, damaging her car and injuring her shoulder.

At trial, the court determines that Sarah was 25% to blame because she may have been able to drive out of the way in time had she been paying attention. Though since Kay is more than 50% to blame, Sarah is eligible for a financial reward.

Note that if you were partly to blame for your accident, you will receive less money than if you were completely blameless.⁷

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