Victims injured by a drunk driver in Las Vegas can sue the intoxicated driver, and the 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.
Victims may be able to recover large compensatory damages in Nevada, including:
- Medical bills in Nevada
- Lost wages in Nevada,
- Lost earning capacity in Nevada,
- Pain and suffering in Nevada, and/or
- Punitive damages in Nevada
Even if the victim played some role in his/her injuries — such as by not wearing a seat belt — the victim would still be entitled to damages as long as the DUI driver was at least 50% to blame.
In this article, our Las Vegas 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. Legal claims for DUI accident victims
- 2. Potential defendants
- 3. Possible damages
- 4. Time limits for bringing suit
- 5. How to prove DUI
- 6. How defendants fight back
- 7. If you were partly to blame
The victim in a DUI-related car crash may file a lawsuit against the parties responsible for the crash. Common “causes of action” the victim may sue for include:
- negligence per se
- wrongful death (if the victim died)
- negligent entrustment
The victim would be the “plaintiff” in the lawsuit. Meanwhile, the parties the victim is suing are the “defendants.” If the DUI driver died in the crash, the victim could sue his/her estate.
Probably the most common claim in car accident cases is negligence in Nevada. In order to prove that the defendant was negligent, the plaintiff would need to show the following:
- the defendant owed the plaintiff a duty of care;
- the defendant breached that duty of care; and
- the defendant’s breach of duty proximately caused the plaintiff’s injuries.1
Any drunk or drugged driver who allegedly causes an accident is vulnerable to a lawsuit for negligence per se in Nevada. The plaintiff would need to demonstrate the following in order to win on this claim:
- the defendant had the duty to follow a certain law (Nevada’s DUI laws);
- the plaintiff is one of the people that law was designed to protect (anyone else sharing the road);
- the defendant violated that law (by driving drunk or high); and
- the defendant’s violation proximately caused the plaintiff’s injuries.2
If an intoxicated driver caused a fatality, then the victim’s estate and family may bring a Nevada wrongful death lawsuit. The plaintiff would need to prove the following:
- The victim passed away;
- This death was caused by the defendant’s wrongful act or negligence;
- The plaintiff is an heir or personal representative of the victim; and
- The plaintiff suffered damages for monetary injury as a result of the death3
As discussed in the following section, any party who knowingly allows a driver to operate a vehicle while intoxicated could be liable for negligent entrustment in Nevada. The plaintiff would have to prove the following elements in order to prevail on this claim:
- The defendant left the automobile with another person (a drunk driver);
- The defendant knew — or should have known — that this person is incompetent to use the vehicle and could use it to harm others; and
- The drunk driver used the car in a negligent fashion, harming another4
Certainly, the obvious party to sue following a drunken automobile accident is the driver. But other possible defendants may include anyone who allowed the driver to take the wheel despite knowing that he/she was 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, the victim may also sue the car manufacturer for strict products liability in Nevada. And if poor roads or inadequate signage may have contributed to the accident, the victim could also sue the local city or county for negligence.
People injured by an inebriated driver 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 the plaintiff takes the matter to trial and wins, 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
In most cases, personal injury lawsuits must be filed no later than two (2) year after the accident or when the defendant became aware of his/her injuries. However, there may be special circumstances that extend this time limit. Learn more about statutes of limitations in Nevada personal injury cases.6
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 in Nevada
- second-time DUI in Nevada
- third-time (or successive) DUI in Nevada
- DUI causing injury or death (NRS 484C.430)
- vehicular homicide in Nevada (NRS 484C.130)
- commercial driver DUI (NRS 484C.120)
All the plaintiff would need to produce is court records documenting the conviction. But 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.
When bringing a personal injury lawsuit, plaintiffs 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 he/she was found not criminally liable for the same incident.
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
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
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 of the car, not the defendant’s behavior;
- the crash was caused by poor weather or badly maintained roads or signage; and/or
- the plaintiff was more to blame for the crash than the defendant (scroll down to the next section for more information on this)
As discussed in the previous section, plaintiffs in personal injury cases 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 the plaintiff to show “by a preponderance of the evidence” that the defendant was liable for the crash.
It is not uncommon for car crashes to have several causes, including the victim’s own negligence. The defendant may have been drunk, but perhaps the plaintiff was texting or speeding at the time of the accident. Even still, the plaintiff often can recover damages anyway:
Under Nevada’s comparative negligence laws, the plaintiff in a personal injury case may recover damages as long as the defendant was at least 50% at fault. So if the plaintiff was more at fault than the defendant, then the plaintiff 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. But since Kay is more than 50% to blame, Sarah is eligible for a financial reward.
Note that plaintiffs who were partly to blame for their accident will receive less money than plaintiffs who were completely blameless.7
Call a Nevada personal injury attorney…
Injured by a drunk driver in Nevada? Call our Las Vegas DUI accident attorneys for a free consultation. We may be able to get you a settlement that covers all of your expenses, including pain and suffering.
We take none of your money unless we are victorious in your case, so you have nothing to lose.
Injured in California? See our article on personal injury lawsuits against drunk drivers in California.
- Turner v. Mandalay Sports Entm’t, LLC, 124 Nev. 213, 180 P.3d 1172 (2008).
- Atkinson v. MGM Grand Hotel, Inc., 98 P.3d 678, 680 (Nev. 2004).
- NRS 41.085.
- Hall v. Enter. Leasing Company-West, 122 Nev. 685, 137 P.3d 1104 (2006).
- NRS 42.005.
- NRS 11.190.
- NRS 41.141.