People who suffer slip and fall accidents in Nevada may try to bring a negligence lawsuit against the property owner or tenant. In Clark County, many of the personal injury lawsuits against Las Vegas hotels stem from dangerous flooring conditions.
In order to win a falling case, the plaintiff has to prove three things:
- There was a hazardous surface on the premises;
- The property owner or occupant knew (or should have known) about the hazard; and
- The hazard caused the plaintiff's injuries.
Plaintiffs who prevail in their slip and fall lawsuits may be awarded compensatory damages to pay for their:
When the court finds that the defendant's behavior was malicious or otherwise shocking, the defendant may have to pay punitive damages as well to the plaintiff. Depending on the case, punitive damages can amount to three times or more than the compensatory damages.
Even falling victims who were partially to blame for their injuries may still be able to win a personal injury lawsuit. Under Nevada's comparative negligence laws, property owners or tenants owe accident victims damages whenever they were at least 50% at fault.
In this article, our Nevada personal injury attorneys discuss:
- 1. How to prove a slip and fall claim in NV
- 2. Dangerous surfaces and conditions
- 3. Common falling scenarios in Las Vegas hotels
- 4. Falling claims against grocery stores
- 5. Defenses to a falling claim
- 6. Damages for falling injuries
- 7. Personal injury attorney strategies
- 8. Settlements and verdicts
Slip and fall victims who get injured on another's property may have a negligence claim against the property owner, tenant, or occupant. Whenever these cases proceed to trial, the victims ("plaintiffs") would need to prove the following elements in order to win:
- The defendant is the owner of the premises or is in control of the place where the fall took place;
- The plaintiff was on the premises with the defendant's consent;
- A falling hazard exists on the premises;
- Defendant caused, knew of, or should have known of the alleged falling hazard; and
- The falling hazard caused the plaintiff to suffer an injury and/or other damages.1
Plaintiffs in these Nevada premises liability cases have the burden to prove negligence "by a preponderance of the evidence." This is the legal way of saying that it is more likely than not that the defendant's negligence caused the plaintiffs' fall.2
Note that if the victim died from his/her injuries, the victim's family can bring a wrongful death lawsuit in Nevada against the property owner, tenant, and/or occupant.
1.1. Defendant owned or controlled the site of the fall
Defendants usually face premises liability when they own or otherwise control the property where the accident happened. Therefore, defendants in falling cases may include:
- the property owner,
- a tenant on the property,
- an occupant on the property
Typical evidence that can demonstrate the defendant has ownership or control of the property includes:
- leases, and
- other property records.
1.2. The plaintiff was permitted to be on the property
Property owners, tenants, and occupants are legally required to extend a reasonable duty of care to anyone they allow on their property. This typically includes people such as:
- hotel guests
- store customers
- mail deliverers
- home health care workers
- social guests
Plaintiffs can prove that they were "permissive" users of the defendants' property through such evidence as:
- service contracts,
- recorded audio, visual, or text conversations, and
- eyewitness testimony
(Note that even trespassers may be able to recover money damages for a slip and fall if they can show that the defendant failed to exercise a reasonable duty of care towards them.3)
1.3. A falling hazard exists on the defendant's premises
As discussed more fully below in section 2, common examples of falling hazards include:
- slippery surfaces from spilled drinks
- slippery surfaces from recently washed floors
- frayed carpet
- uneven tile or pavement
- rugs that do not grip the floor underneath
- swimming pool tiles that lack friction
- any other flooring not built to code
Typical evidence that can prove one of these falling hazards exists on the defendant's property includes:
- surveillance video, and
- eyewitness testimony.
The plaintiff's medical records following the fall might also help prove that a falling hazard existed: Perhaps an expert medical witness can testify that the plaintiff's specific injury could have been caused only by a fall.
1.4. Defendant had (or should have had) knowledge of the falling hazard
The best way to prove that a property owner or tenant knew (or should have known) of a falling hazard on the property depends on the case.
It is usually presumed that defendants are aware of any "open and obvious" falling hazards on their property. It is also presumed that defendants are aware of any falling hazards documented in any inspection reports that have been done on the property.
Or if a good Samaritan or neighbor informed the property owner or tenant of the falling hazard, the plaintiff may then rely on the informer as a witness that the landowner or tenant had notice of the falling hazard.
1.5. The falling hazard caused the plaintiff's injuries
As discussed below in section 7, plaintiffs in personal injury cases need evidence to prove that the defendant is at fault for their injuries. Typical evidence includes:
- any video recordings that may exist of the fall,
- eyewitnesses to the fall,
- medical records, and/or
- expert medical testimony linking the falling hazard to the plaintiff's injury
One of the advantages plaintiffs have in this day and age is that nearly every public place is under video surveillance. And nearly everyone has smartphones that can take photos and video. This visual evidence of the accident scene can often be the key to winning a slip and fall lawsuit.
Dangerous flooring lawsuits in Nevada typically involve people slipping and falling in hotels, casinos, shops, restaurants, sidewalks, and parking lots. Floor surfaces become hazardous when the property owners or managers breach their duty of care by failing to do preventative maintenance or repair existing problems. And if the defective floors cannot be repaired right away, property owners and managers have a duty to warn people of the dangerous condition with a sign or by cordoning it off.4
Specifically, dangerous surfaces and conditions may arise when landowners and tenants fail to take the following preventative and remedial measures:
- Replace damaged, torn, or worn carpeting;
- Using flooring or rugs that are trip- or slip-resistant;
- Use traction mats or paint as necessary;
- Removing excess wax from floors following waxing;
- Repairing cracked, holey, loose, defective, or uneven walkways and stairs;
- Maintaining handrails on staircases;
- Putting warning signs/cones by slick or sticky floors or construction zones;
- Keeping walkways free of debris, loose cords, and falling objects;
- Following safety codes;
- Providing adequate lighting;
- Providing adequate drainage to catch rainwater and mud;
- Salting ice (if necessary);
- Maintaining level manholes (if necessary);
- Providing adequate security to monitor crowd control;
- (In stores) keeping product displays sufficiently far from each other;
- Keeping public bathroom floors dry and clear of paper towels and other items that may cause people to slip;
- Mopping up spills; and/or
- Cordoning off hazardous areas
Note that falls are not the only potential hazard of dangerous flooring. For instance, flooring that contains formaldehyde can cause people to develop respiratory conditions, such as in the recent Lumber Liquidators class-action lawsuit in Las Vegas.5
2.1. Dangerous flooring injuries
The National Floor Safety Institute reports that slipping and falling injuries lead to more than one million ER visits a year.6 Slipping and falling occur most frequently in high-traffic areas. In Las Vegas, this may include hotel or store entrances and "productivity zones," such as by buffet spreads or checkout counters.
Just some of the common injuries from dangerous flooring include:
- bruises, contusions, lacerations, or scars,
- twisted, torn, inflamed, or sprained tendons and ligaments,
- facial injuries,
- slipped or herniated disks,
- knee injuries, including dislocated patellas or MCL or ACL injuries
- neck, shoulder, hip, tailbone, rotator cuff, or spinal injuries,
- wrist or elbow injuries (especially when victims use their arms to break a fall)
- head injuries such as concussions and traumatic brain injury,
- nerve or organ damage,
- permanent mobility issues,
- chronic pain,
- cognitive and behavioral problems,
- catastrophic injuries, and/or
- occasionally death
Even relatively minor falling injuries can interfere with a person's daily activities, such as driving, cooking, dressing, or typing. It is no surprise that the elderly and people with such bone conditions as osteoporosis are most vulnerable to injuries from falling.
Las Vegas hotels and casinos are comprised of all different types of flooring, each of which carries potential falling hazards. Common slipping and falling accidents in Las Vegas hotels include:
- Slipping in the shower because the bath mat is too worn to provide non-slip protection
- Tripping over frayed carpet in the casino floor, hotel room, elevators, or restaurants
- Skidding on a spilled drink by the bar or in the lobby
- Stumbling over uneven pavement outside the hotel
- Tumbling down uneven steps or a malfunctioning escalator
- Falling off defective gym equipment
- Slipping by a swimming pool, where defective drainage is causing water to pool on the tiles
Under Nevada law, hotel patrons are considered "invitees." This means that hotels have a duty regularly to inspect the premises for potential hazards and quickly address any existing hazards.
Therefore, hotel staff are supposed to be on constant lookout for flooring problems that could cause a slip and fall. Depending on the location and how dangerous a particular flooring condition is, the hotel must:
- cordon the dangerous area off,
- put out caution signs by the dangerous area, and/or
- fix the hazard
Note that patrons who trespass into staff-only areas of the hotel and suffer a fall may have a more difficult time proving negligence than if the accident occurred in the hotel's public areas. But depending on the case, even trespassers may be able to recover money damages from hotels.
Slipping and falling is very common in supermarkets, where virtually every grocery item can become a tripping hazard if it drops onto the floor. Furthermore, shoppers often have their eyes up searching store shelves, oblivious to any spills.
Similar to hotel patrons, supermarket patrons are considered "invitees" under Nevada law. This means that the store has a duty to actively search for any potential hazards and address them quickly.
Supermarket staff are supposed to regularly patrol the aisles in search of dangerous conditions and to respond quickly when customers alert them to dangerous conditions. Once staff is aware of a problem, the staff must:
- mop up the spill,
- cordon off the area, and/or
- put out "caution: wet floor" or other applicable sign
Note that a supermarket's high standard of care towards its customers extends to all areas of the supermarket open to the public. This includes the self-checkout aisles where customers -- not staff -- handle the inventory.7
4.1. What to do after a slip and fall in a grocery store
People who suffered a fall in a grocery store are advised to take the following steps if possible:
- Report the accident to the store manager, and obtain a copy of the accident report prior to leaving.
- If there were any eyewitnesses, get their names and contact information.
- Photograph and videotape the area with a smartphone.
- Obtain and keep a sample of the substance(s) that caused the fall, if any (this may require refrigerating or freezing the sample).
- Write down everything that happened, even minor details.
- If rainwater, snow, or debris from the wind contributed to the fall, obtain a copy of the weather report for that day.
- Place the clothing and shoes worn during the fall in a safe place for inspection later.
- Get medical help, and keep all medical records.
- Do not talk to the supermarket's insurance company or sign anything prior to consulting with a personal injury attorney.
All fall victims are advised to hire private counsel in order to deal with the supermarket's attorneys and insurance company. The supermarket's attorneys may sound friendly, but they will do everything to escape liability and pay nothing if possible. A personal injury attorney should help preserve the victim's rights and maximize their payout.
Many defendants carry business insurance or homeowners insurance in the event someone gets injured on their property. These insurance companies, in turn, hire "insurance defense" attorneys who have one goal: Pay out as little as possible. There are many strategies these attorneys may try to implement when defending against negligence lawsuits, such as trying to show that:
- The defendant sufficiently warned against the falling hazard
- The falling hazard was open and obvious
- The plaintiff's injuries were caused by preexisting conditions
- The plaintiff failed to exercise due care
- An intervening cause was responsible for the injury
Note that plaintiffs who signed liability waivers prior to their accident may still be able to recover damages: Some liability waivers are not enforceable, and others are limited to certain narrow circumstances that may not cover the plaintiff's injuries.
5.1. The defendant gave adequate warning
Defendants in falling lawsuits may claim that they gave adequate warning to the plaintiffs, such as posting a "wet floor" sign. But the defendants could be lying, or their warnings could be inadequate:
Example: Ned goes to the Fashion Show Mall and slips on a spilled drink by the food court. He suffers a broken leg and sues the Fashion Show for negligence. The attorney for the Fashion Show claims they had put out a "wet floor" sign by the spill, which should have given Ned adequate warning. However, Ned's friend took pictures of the scene after his spill, which shows that the sign was several feet away from the actual spill.
If the court in the above example determines that the warning sign was too far away from the hazard to adequately warn Ned, then Ned should be able to recover for his injuries.8
5.2. Ther "open and obvious" defense
Defendants in falling lawsuits may claim that the plaintiff's injury was due to an open and obvious hazard that any reasonable person would have noticed and avoided. An example of an open and obvious hazard may be a big gaping hole in the ground that is visible from several yards in either direction.
However, defendants can still be liable for not addressing "open and obvious" hazards if the court finds that the defendants did not act "reasonably" under the circumstances:9
Example: Jim signs up for "boot camp" at his local gym. After a grueling first day, he lumbers into the sauna and trips over a large stack of towels that the staff left for patrons. Jim breaks his arm and brings a personal injury lawsuit for gym accidents in Nevada. The gym argues that the stack of towels was "open and obvious," which relieves the gym from any duties to warn or remedy the situation. But Jim's attorney argues that it was foreseeable that gym patrons like Jim who are exhausted from boot camp would be too tired to notice a stack of towels, especially in a sauna with low visibility.
If the court in the above example agrees that the gym should have reasonably foreseen that patrons might not have been alert enough to avoid the towels, then the "open and obvious" defense would fail.
5.3. Preexisting conditions
Whenever slip and fall victims sue venues for their injuries, the venues' attorneys may try to obtain the plaintiffs' medical records in search of "preexisting conditions." These are illnesses and injuries that predate the slip and fall, and which might have caused the plaintiffs' accident to be more serious than it otherwise would have been:10
Example: Tom has a fractured ankle that is nearly healed. While hobbling in her cast through Cheesecake Factory, he slips on a wet floor, and the bone breaks again. Tom brings a personal injury lawsuit for restaurant injuries in Nevada for not warning against the wet floor. The restaurant counters by arguing that Tom's preexisting condition caused his fracture: Had he not already had a broken ankle, his injury from the fall might not have been so drastic.
Nevada law requires defendants to take plaintiffs as they are, even if they more physically fragile than the average person. Therefore, Tom should be entitled to compensatory damages to the extent that the accident aggravated his pre-existing injury.
5.4. Lack of due care
Defendants in slip and fall lawsuits often try to argue that the plaintiff failed to exercise due care and is therefore at fault for injuring him/herself. It is true that everyone -- even "invitees" -- is legally expected to act reasonably and avoid danger while on another's property. However, it still may be possible for slip and fall victims who were partly to blame to recover damages.
Nevada courts abide by the "modified comparative negligence rule." This permits plaintiffs to recover for their injuries whenever they are no more than 50% at fault.11 Then when the court calculates the final damages, the defendant would be ordered to pay these damages minus the percentage of fault attributable to the plaintiff:
Example: Helen is running barefoot and intoxicated through the Bellagio lobby. She slips on a spilled drink and fractures her wrist. She racks up $100,000 in medical bills and lost wages. Helen brings a personal injury lawsuit for casino injuries in Nevada against Bellagio for not cleaning up the spill. The judge determines that Bellagio breached its duty of care for not cleaning up the spill, but it also determines that Helen was 50% at fault: Any reasonable person would know that running barefoot on mosaic tile floor while drunk is hazardous. Therefore, the court orders Bellagio to pay Helen 50% of the damages, which amounts to $50,000 (half of $100,000).
Slip and fall victims who blame themselves for their accidents should still consult with a personal injury attorney about bringing a lawsuit. If the attorney can show that the victim was no more at fault than the venue, then the victim may still be entitled to a substantial financial award.
5.5. Intervening causes
A typical defense in falling lawsuits is that an "intervening cause" that was beyond the defendant's control was responsible for the plaintiff's injuries. But in many cases, these intervening causes could have been prevented or remedied by the defendant:12
Example: Max is waiting to get into the T-Mobile Arena one evening for a concert. Max then slips on a puddle of rainwater from that morning's rainstorm and sprains his ankle. Max brings a personal injury lawsuit for concert injuries in Nevada against the venue for not clearing away the rainwater or warning against it. The venue's attorneys argue that it should not be held liable for an "act of God" like an unpreventable rainstorm. In response, Max's attorney argues that the venue should have foreseen that people might slip on the puddle since it was night, and inadequate lighting made the water difficult to discern.
Certainly, the Arena in the above example should not be blamed for the rainstorm. But the venue can be blamed for responding negligently to it. If the court agrees that the venue should have provided better lighting or warned against any rain puddles that were hard to see at night, then it would probably reject its "intervening cause" defense.
The term "damages" is the legal way of referring to the money that defendants owe accident victims for causing their injuries. In a standard slipping and falling negligence case, plaintiffs sue defendants for "compensatory damages." Compensatory damages are meant to cover the following expenses:
- Medical bills: This comprises such expenses as hospital bills, outpatient doctor's visits, rehab, home health care, and medications.
- Lost wages: This includes any money the plaintiff was unable to earn while he/she was injured; this can include tips and bonuses as well as salaried payments.
- Future lost wages: This includes any money the plaintiff will be unable to earn due to his/her injuries; this can include tips and bonuses as well as salaried payments.
- Pain and suffering: Though this is difficult to calculate, the purpose of "pain and suffering" damages is to compensate for the plaintiff's physical and emotional stress from the injuries.
When the defendant's behavior which caused the injury was malicious or otherwise egregious, the court can order the defendant to pay punitive damages as well. Punitive damages can be far greater than compensatory damages, and they are meant to punish the defendant and deter others from being similarly negligent.13
One of the most important functions of personal injury attorneys is compiling evidence that demonstrates or suggests that the defendant breached its duty of care towards the plaintiff.14 The attorney can then use this information as bargaining chips when negotiating with the defendant.
Common evidence in slipping and falling lawsuits include:
- building codes, affidavits, and contracts, that show that the defendant had a duty to maintain safe surfaces;
- eye-witnesses and surveillance video, to reveal that the flooring was a fall hazard at the time of the accident;
- residue from the victim's shoes or clothes from the time of the accident, to show that the flooring was a fall hazard;
- medical records and photographs, to show that the plaintiff (victim) has been hurt by a fall;
- expert medical testimony, to link the dangerous flooring and surface conditions to the plaintiff's injuries;
- testimony by accident reconstruction experts, to explain how the fall resulted from the defendants' breach of duty and not by any unreasonable behavior of the plaintiff
As discussed below in section 8, most personal injury cases settle without a trial. Often a personal injury attorney can negotiate a favorable resolution without much litigation. Sometimes the personal injury attorney and defendant engage in formal mediation to hash out a deal.
Note that there is usually a two (2) year statute of limitations for falling lawsuits. This means that plaintiffs have two years from the time of the fall to sue the defendant.15
7.1. Remedial measures by the defendants post-fall
After someone suffers a fall, it is common for the landowner or tenant to quickly repair the dangerous flooring hazard. Logically, these remedial measures seem like evidence of the defendants' guilt.
However, Nevada law states that courts may not use evidence of these post-accident remedial measures as evidence that the defendants breached their duty of care towards the plaintiffs. Instead, personal injury attorneys focus on the defendants' actions prior to and during the fall to show that the defendants failed to act reasonably to prevent foreseeable falls.16
The majority of personal injury cases resolve through negotiations. A benefit of settling out of court is that the plaintiff avoids trial, which can be a very lengthy and stressful process. And even if the plaintiff wins the trial, the payment of damages can be held up if the defendant appeals.
That being said, going to trial has several benefits as well. If the plaintiff wins, the court can award substantial punitive damages as well as compensatory damages (depending on the case). And the plaintiff may simply feel better and more vindicated by having his/her day in court.
Las Vegas Defense Group's personal injury attorney Dallas Horton (of counsel) has won tens of millions of dollars for his clients. Just some of his verdict and settlement winnings include:
- $9.6 million for a car accident
- $8.9 million for a car accident
- $6.5 million for a brain injury
- $5.4 million for sexual abuse
- $4.8 million for a spinal cord injury
- $2.9 million for a leg injury
- $2.3 million for constructive fraud
- $2.2 million for a spinal cord injury
Call a Nevada personal injury attorney...
Injured in a slip and fall accident? Call our Las Vegas personal injury attorneys at 702-DEFENSE (702-333-3673) for a FREE consultation. We can bring suit against all the responsible parties and fight for the largest compensatory damages and punitive damages possible.
Injured in California? See our article on California premises liability laws.
- Rolain v. Wal-Mart Stores, Inc., U.S. Dist. LEXIS 42373 (2013); Hammerstein v. Jean Dev. West, 111 Nev. 1471, 907 P.2d 975 (1995)("To recover under a negligence theory, the complainant must prove four elements: (1) that defendant owed him a duty of care; (2) that defendant breached this duty of care; (3) that the breach was the legal cause of plaintiff's injury; and (4) that the complainant suffered damages."); Restatement (Third) of Torts: Physical and Emotional Harm, § 51 (“[A] land possessor owes a duty of reasonable care to entrants on the land with regard to: (a) conduct by the land possessor that creates risks to entrants on the land; (b) artificial conditions on the land that pose risks to entrants on the land; (c) natural conditions on the land that pose risks to entrants on the land; and (d) other risks to entrants on the land when any of the affirmative duties . . . is applicable.”).
- See, e.g., Deiss v. Southern Pac. Co., 53 P.2d 332, 56 Nev. 169 (1936).
- See, e.g., Asmussen v. New Golden Hotel Co., 80 Nev. 260, 262 (1964)("It has long been established that the waxing of floors is compatible with the legal standard of ordinary care. Annot., 63 A.L.R.2d 591. An owner in treating a floor may use wax without incurring liability to one who slips and falls, unless he is negligent in the materials he uses or in the manner of applying them."); Worth v. Reed, 79 Nev. 351, 354 (1963)("[T]he peril (water on a tiled floor) cannot, in good sense, be deemed 'obvious' as a matter of law. Water is a transparent substance...One may easily fail to notice water on a tiled floor."); Worth v. Reed, 79 Nev. 351, 355 (1963)("T]he failure of the maintenance man, when he left the room to get mop and bucket, to warn Julia that a danger still existed could reasonably have been considered by the jury to be a breach of the defendant's duty of ordinary care.").
- NRS 41.515; NRS 41.515.
- Carrie Geer Thevenot, Report on Lumber Liquidators flooring leads to Vegas lawsuits, Las Vegas Review-Journal (March 19, 2015).
- National Floor Safety Institute Quick Facts.
Sprague v. Lucky Stores, 109 Nev. 247, 250 (1993)("The owner or occupant of property is not an insurer of the safety of a person on the premises, and in the absence of negligence, no liability lies. Gunlock v. New Frontier Hotel, 78 Nev. 182, 185, 78 Nev. 182, 370 P.2d 682, 684 (1962). An accident occurring on the premises does not of itself establish negligence. Id. Yet, a business owes its patrons a duty to keep the premises in a reasonably safe condition for use. Asmussen v. New Golden Hotel Co., 80 Nev. 260, 262, 392 P.2d 49 (1964). Where a foreign substance on the floor causes a patron to slip and fall, and the business owner or one of its agents caused the substance to be on the floor, liability will lie, as a foreign substance on the floor is usually not consistent with the standard of ordinary care. 80 Nev. at 262, 370 P.2d at 50; Eldorado Club, Inc. v. Graff, 78 Nev. 507, 509, 377 P.2d 174, 175 (1962). Where the foreign substance is the result of the actions of persons other than the business or its employees, liability will lie only if the business had actual or constructive notice of the condition and failed to remedy it. Asmussen, 80 Nev. at 262, 392 P.2d at 50; Eldorado Club, 78 Nev. at 510, 377 P.2d at 175.");
FGA, Inc. v. Giglio, 128 Nev. 271, 280-282 (2012)("'[A] business owes its patrons a duty to keep the premises in a reasonably safe condition for use.' Sprague v. Lucky Stores, Inc., 109 Nev. 247, 250, 849 P.2d 320, 322 (1993). Where a foreign substance causing a slip and fall is made to be on the floor by the business owner or one of its agents, then "liability will lie, as a foreign substance on the floor is usually not consistent with the standard of ordinary care." Id. Traditionally, where a foreign substance causing a slip and fall results from "the actions of persons other than the business or its employees, liability will lie only if the business had actual or constructive notice of the condition and failed to remedy it." Id. at 250, 849 P.2d at 322-23. However, there is a modern trend toward modifying this traditional approach to premises liability to accommodate newer merchandising techniques, such as the shift that grocery stores have made from clerk-assisted to self-service operations. Sheehan, 863 N.E.2d at 1281-82. One such variation is the "mode of operation" approach. Id. at 1282. This approach focuses on the nature of the business at issue. Id. at 1282-83. '[W]here an owner's chosen mode of operation makes it reasonably foreseeable that a dangerous condition will occur, a store owner could be held liable for injuries to an invitee if the plaintiff proves that the store owner failed to take all reasonable precautions necessary to protect invitees from these foreseeable dangerous conditions.' Id. at 1283. The rationale underlying the mode of operation approach is that an owner of a self-service establishment has, as a cost-saving measure, chosen to have his customers perform tasks that were traditionally performed by employees. Ciminski v. Finn Corporation, Inc., 13 Wn. App. 815, 537 P.2d 850, 853 (Wash. Ct. App. 1975). If a customer who is performing such a task negligently creates a hazardous condition, the owner is "charged with the creation of this condition just as he would be charged with the responsibility for negligent acts of his employees" because it was the owner's choice of mode of operation that created the risk. Id. Under the mode of operation approach, "the plaintiffs burden to prove notice is not eliminated. Instead, the plaintiff satisfies the notice requirement if he establishes that an injury was attributable to a reasonably foreseeable dangerous condition on the owner's premises that is related to the owner's self-service mode of operation." Sheehan, 863 N.E.2d at 1283. There is a strong modern trend toward recognizing some form of a mode of operation rule, although most jurisdictions have applied it narrowly. See Fisher v. Big Y Foods, Inc., 298 Conn. 414, 3 A.3d 919, 928 n.21 (Conn. 2010) (noting that 22 jurisdictions have adopted some variation of the mode of operation rule, and that the majority of the jurisdictions adopting it have applied it narrowly). In Sprague v. Lucky Stores, Inc., this court implicitly adopted the mode of operation approach in reversing an order granting summary judgment in favor of Lucky. 109 Nev. at 251, 849 P.2d at 323. There, the plaintiff slipped and fell on a smashed grape left on the floor of the produce department in a Lucky grocery store. Id. at 249, 849 P.2d at 322. The plaintiff offered no evidence indicating that Lucky was responsible for the grape's presence on the floor or that it had actual knowledge of the grape's presence on the floor; therefore, under the traditional approach to premises liability, the plaintiff was required to prove that Lucky had constructive notice of the grape's presence on the floor in its produce department. Id. at 250, 849 P.2d at 323. This court stated that even in the absence of constructive notice, "a jury could conclude that Lucky should have recognized the impossibility of keeping the produce section clean by sweeping" alone. Id. at 251, 849 P.2d at 323. Further, this court stated that sufficient evidence was presented "to justify a reasonable jury in concluding that Lucky was negligent in not taking further precautions, besides sweeping, to diminish the chronic hazard posed by the produce department floor." Id. However, Sprague dealt with a self-service produce section in a supermarket; therefore, the court did not address whether such an analysis would extend beyond the self-service context.").
- Harrington v. Syufy Enters., 113 Nev. 246, 250 (1997) ("[T]he obvious danger rule only obviates a duty to warn. It is inapplicable where liability is predicated upon acts other than a failure to provide adequate warning of a dangerous condition. Consequently, even where a danger is obvious, a defendant may be negligent in having created the peril or in subjecting the plaintiff to the peril.").
Foster v. Costco Wholesale Corp., 128 Nev. 773, 291 P.3d 150 (2012)("Traditionally, a landowner had no duty to protect entrants on the landowner's property from open and obvious dangers. This court, along with the vast majority of jurisdictions, has since embraced an exception when the landowner should anticipate the harm despite the hazard's open and obvious nature. By modifying the traditional rule, negligence laws throughout the country have progressed in favor of upholding the general duty of reasonable care. See Moody v. Manny's Auto Repair, 110 Nev. 320, 333, 871 P.2d 935, 943 (1994) ("[A]n owner or occupier of land should be held to the general duty of reasonable care when another is injured on that land. . . . [and] determinations of liability should primarily depend upon whether the owner or occupier acted reasonably under the circumstances."). In recognition of the continuing development of the law governing landowner liability, we adopt the rule set forth in the Restatement (Third) of Torts: Physical and Emotional Harm section 51, and consequently, we conclude that a landowner owes a duty of reasonable care to entrants for risks that exist on the landowner's property. In accordance with this position, we hold that the open and obvious nature of a dangerous condition does not automatically relieve a landowner from the general duty of reasonable care. The fact that a dangerous condition may be open and obvious bears on the assessment of whether reasonable care was exercised by the landowner.")
- State Indus. Ins. Sys. v. Kelly, 99 Nev. 774, 671 P.2d 29 (1983)("We have, however, recognized the principle that "preexisting illness normally will not bar a claim if the employment aggravates, accelerates or combines with the disease process to trigger disability or death." Spencer v. Harrah's, Inc., 98 Nev. 99, 101, 641 P.2d 481, 482 (1982). We consequently adopt the rule of law enunciated by our sister state Arizona regarding this issue. The claimant has the burden of showing that the claimed disability or condition was in fact caused or triggered or contributed to by the industrial injury and not merely the result of the natural progression of the preexisting disease or condition."); Perez v. Las Vegas Medical Ctr., 107 Nev. 1, 805 P.2d 589 (1991)("Additionally, the damages are to be discounted to the extent that a preexisting condition likely contributed to the death or serious debilitation."); FGA, Inc. v. Giglio, 128 Nev. 271, 283-284 (2012)("A prior injury or preexisting condition may be relevant to the issues of causation and damages in a personal injury action...In order for evidence of a prior injury or preexisting condition to be admissible, a defendant must present by competent evidence a causal connection between the prior injury and the injury at issue.").
- NRS 41.141; Humphries v. Eighth Judicial Dist. Court of State, 312 P.3d 484, 129 Nev. Adv. Rep. 85 (2013)("As we recognized in Café Moda and Warmbrodt, however, the Legislature has supplanted the traditional, common-law functioning of joint and several liability by enacting NRS 41.141. Café Moda, 128 Nev. at ___, 272 P.3d at 139; Warmbrodt, 100 Nev. at 707-08, 692 P.2d at 1285-86. As currently enacted, NRS 41.141(1) and (2)(a) abolish contributory negligence and allow a plaintiff to recover damages if his comparative negligence is not greater than that of a defendant (if the plaintiff has sued only one defendant) or the combined negligence of multiple defendants (if the plaintiff has sued multiple defendants). NRS 41.141(4) alters joint and several liability by permitting apportionment of fault and providing for several liability amongst negligent defendants "[w]here recovery is allowed against more than one defendant." NRS 41.141(5) specifies certain theories under which defendants will remain jointly and severally liable.").
- Bower v. Harrah's Laughlin, Inc., 125 Nev. 470, 215 P.3d 709 (2009)("To determine whether an intervening cause is foreseeable, we consider several factors. These include whether (1) the intervention causes the kind of harm expected to result from the actor's negligence, (2) the intervening event is normal or extraordinary in the circumstances, (3) the intervening source is independent or a normal result of the actor's negligence, (4) the intervening act or omission is that of a third party, (5) the intervening act is a wrongful act of a third party that would subject him to liability, and (6) the culpability of the third person's intervening act. Restatement (Second) of Torts § 442 (1965). When a third party commits an intentional tort or a crime, the act is a superseding cause, even when the negligent party created a situation affording the third party an opportunity to commit the tort or crime. Id. § 448. In such a scenario, the negligent party will only be liable if he knew or should have known at the time of the negligent conduct that he was creating such a situation and that a third party "might avail himself of the opportunity to commit such a tort or crime." Id.").
- NRS 42.005.
See Eldorado Club v. Graff, 78 Nev. 507, 509-511 (1962)("[I]n the "slip and fall" case involving a foreign substance upon a surface, proof as to how and why such substance was there is indeed a problem. If, perchance, evidence is available to establish or permit the reasonable inference that its presence was the result of conduct by agents or employees of the defendant, liability may be found upon ordinary agency principles; respondeat superior is applicable, and notice is imputed to the defendant. In such case "notice" need not be shown. Wagon Wheel v. Mavrogan, 78 Nev. 126, 369 P.2d 688. On the other hand, if the presence of the foreign substance was due to the acts of persons other than agents or employees of the defendant, liability may be found only on proof that the defendant had either actual or constructive notice thereof. Annot., 61 A.L.R.2d 6, 69. Frequently, positive evidence is not available to explain the presence of such foreign substance, and the trier of fact is called upon to draw such reasonable inferences as are permitted from the evidence offered in this regard...The admissibility of evidence of prior accidents in this kind of a case, to show notice or knowledge of the danger causing the accident, is generally confined to situations where there are conditions of permanency. See annot., 70 A.L.R.2d 167. Evidence of the type here in question is usually excluded where it relates to a temporary condition which might or might not exist from one day to the other unless, of course, there is proper showing that the conditions surrounding the prior occurrences have continued and persisted...No such showing was made here. It would be grossly unfair to demand immediate awareness of new peril. The "slip and fall" due to the temporary presence of a lettuce leaf is a different type situation than that existing in Longabaugh v. The Virginia City and Truckee R. R. Co., 9 Nev. 271, and Powell v. N. C. and O. Railway, 28 Nev. 40, 78 P. 978, relied upon by respondent, and we do not consider the claimed analogy to be valid. We view the precise question here presented to be one of first impression in Nevada. Some cases may be read as permitting evidence of prior slips and falls, even absent a showing that the conditions surrounding the prior occurrences continued and persisted...We consider the opposite view to be preferable. We hold, therefore, that where a slip and fall is caused by the temporary presence of debris or foreign substance on a surface, which is not shown to be continuing, it is error to receive "notice evidence" of the type here involved for the purpose of establishing the defendant's duty.").
Worth v. Reed, 79 Nev. 351, 356 (1963)("A slip and fall, standing alone, does not prove either that she was, or was not, negligent.").
- NRS 11.190.
- NRS 48.095.