What is the “duty of care” in Nevada personal injury cases?

Nevada law applies a “duty of care” to every person and entity. This refers to the legal obligation to exercise reasonable caution and prudence to avoid harming others during their activities.

A duty of care most frequently arises from:

• A federal, state or local law or administrative statute; or
• An obligation created by federal or Nevada state courts.

Examples of a duty of care in Nevada include (but are not limited to):

• The obligation to obey traffic laws when driving on a public road so as to avoid injuring pedestrians or causing a car accident;
• The duty not to manufacture, distribute or sell a defective product;
• The duty to maintain premises in a safe condition in order to avoid slip-and-fall injuries and other accidents;
• An attorney’s fiduciary duty to provide competent counsel to clients;
• The duty not to publish false “facts” about someone (defamation); and
• The duty of a babysitter to exercise reasonable care when looking after someone’s child.

To help you better understand the duty of care in a Nevada accident or injury case, our Nevada personal injury lawyers discuss:

• 1. How does the duty of care apply in a Nevada negligence case?
• 2. How does Nevada law define “duty of care”?
• 3. Can the duty of care be waived?
• 4. Does my own negligence negate a defendant’s duty of care?

1. How does the duty of care apply in a Nevada negligence case?

To prevail on a negligence claim in a Nevada injury case, you must generally show that:

1. The defendant owed a duty of care to you;
2. The defendant breached that duty;
3. The breach was the legal cause of your injury (“causation”); and
4. As a result of that breach, you suffered damages.¹

2. How does Nevada law define “duty of care”?

A duty of care is one created by

• the operation of a law or
• a court decision.²

It is a duty to protect people who can and should reasonably be expected not to be injured by the consequences of someone else’s actions.

Companies and people do not owe a duty of care to just anyone. For instance, you have no duty to maintain your home in a safe condition in order to prevent harm to criminals who break into your house to steal from you.

However, under Nevada’s premises liability laws, you owe a duty of care to guests and workers who enter your property

• with your permission or
• as legally required by law (for instance, to utility meter readers).

3. Can the duty of care be waived?

Unless to do so would be against public policy, you can sometimes waive a defendant’s duty of care. Ways of releasing a defendant from a duty of care in Nevada include (but are not limited to):

Assumption of the risk

In many cases, you assume the risk of injury, either explicitly (by verbal or written agreement) or by your actions.

Example: While sitting in the stands behind first base at a baseball game, Lola is hit by a foul ball and suffers a fractured jaw. By attending a baseball game and sitting behind first base, Lola has assumed the risk of getting hit by a foul ball.

Waiver of liability (express or implied)

Example: Jackie decides she would like to race an exotic sports car for her 21st birthday. Under normal circumstances, owners of premises open to the public have a duty to use reasonable care to prevent injuries to their patrons. But as a condition of allowing people to race sports cars, the track’s operator requires patrons to sign a waiver of liability agreement. The agreement provides that the track has no duty of care to prevent injuries from its ordinary negligence. The agreement is legally binding.

By violating a law

Example: Dave and Ernie dare each other to spend a night in a hotel undergoing renovation. The property is said to be haunted by ghosts. Although a hotel has a duty to prevent harm to its guests and people working on the property, it has a lower duty of care to trespassers. Because Dave and Ernie are trespassing, they may not have a legal remedy under Nevada’s premises liability laws.

Excuse or justification

In some cases, a defendant’s failure to exercise reasonable care may be excusable.

Example: Ned crashes his motorcycle into a car parked in someone’s driveway. The owner of the car sues Ned to recover the costs of repairing his car. However, the reason Ned crashed into the car was because he was trying to avoid hitting a child who had run into the street to chase after a ball. Because he was doing his best to avoid injuring the child, Ned’s failure to exercise the ordinary duty of care is excused.

4. Does my own negligence negate a defendant’s duty of care?

Your negligence does not negate any duty of care owed to you by the defendant. However, it could affect your ability to recover damages.

Under Nevada’s comparative negligence law, a defendant is not liable to you if you were more than 50% responsible for an injury or accident, even though the defendant owes you a duty of care.

If you were less than 50% responsible, your recovery will be reduced by the percentage of the accident or injury for which you were responsible.

Example: Veronica is driving 15 mph over the posted speed limit on a Las Vegas street when she gets into an accident with a truck that runs a stop sign. The truck driver sues her for his spinal injury. Technically, both drivers have a duty of care to other drivers and pedestrians on Nevada streets. However, a jury determines that the trucker was 60% liable for the accident. So even though Veronica had a duty of care to him, he cannot recover for his injuries.

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