To recover under a negligence theory, the Plaintiff 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 Plaintiff suffered damages.


  1. Duty


     Generally, a person has a duty to every other person to conduct himself as the mythical reasonable person would.  To determine if a duty exists, in Nevada the test is whether the harm to the plaintiff from the defendant’s actions was foreseeable.  Factors Nevada Courts may consider in determining the existence of a duty where one is not already recognized are the following:


  • the foreseeability of harm to the injured party;
  • the moral blame attached to the defendant’s conduct;
  • the States underlying policy of preventing future harm;
  • the extent of the burden to the defendant and the consequences to the community of imposing a duty of care with resulting liability for breach; that is, the social utility of the defendant’s conduct from which the injury arose.
  • the availability, cost, and prevalence of insurance for the risk involved.
  • the feasibility of alternative conduct;
  • the costs and burdens associated with the alternative conduct;
  • the relative usefulness of the alternative conduct;
  • and the relative safety of the alternative conduct.

Additionally, some industries or professions have a specific duty of care assigned to that industry, including:

  1. Products

     Manufacturers, distributors, suppliers, retailers, and others who make products available to the public are held responsible for the injuries those products cause. Section 2 of the Restatement (Third) of Torts: Products Liability distinguishes between three major types of product liability claims: 1) manufacturing defect, 2) design defect, and 3) a failure to warn (also known as marketing defects).  The general trend nationally and in Nevada is to hold producers and distributors of products strictly liable for any defect in that product which causes a consumer injury; that is, rather than focus on the behavior of the manufacturer (as in negligence), strict liability claims focus on the product itself.  Under strict liability, the manufacturer is liable if the product is defective, even if the manufacturer was not negligent in making that product defective.

  1. Land

     In the case of landowners, the extent of a landowner’s duty of care depends upon who comes on their premises and for what purpose; thus, liability varies depending on whether a person is classified as a trespasser, licensee, or invitee although in most jurisdictions these distinctions have been abrogated.



  1. Standard of Care


     Once a duty is established, a complainant must show that the standard of care associated with that duty was breached.  In evaluating breach, Nevada courts imagine the mythical reasonable person and ask what he would do under the circumstances as they existed at the time the injury occurred.


     In a landmark case, the reasonable person standard was famously reduced to a mathematical formula.  In US v. Caroll Towing Co, the legendary Judge Learned Hand held that in balancing risks to establish a reasonable person’s standard of ordinary care, the probability of the harm potentially caused (P) must be balanced along with the gravity of the harm which could result (G), against the burden of conforming to a new and less dangerous course of action (B) along with the utility of maintaining the same course of action as it was (U).  This is sometimes noted in shorthand as P+G v. B+U.


  1. Negligence Per Se


     Where a State or Local Rule or Ordinance is violated and the Defendant is either cited or arrested for that violation, that fact can be used to establish both Duty and Breach of that Duty.  This doctrine is commonly known as Negligence Per Se.  To establish Negligence Per Se, first, the person harmed must be a member of the class of persons which the law was intended to protect. Second, the danger or harm must be one that the law was intended to prevent.  If these elements are satisfied, a Plaintiff need only prove proximate cause and damages for his claim to succeed.


  1. Standard of Care Under Specific Circumstances


  1. Professional Standard of Care


     In certain industries and professions, the standard of care is determined by the standard that would be exercised by the reasonably prudent professional in that line of work.  Thus, whether a Medical Doctor or Attorney have breached their duty of care depends upon what the average, competent.  Doctor or Lawyer would have done under the circumstances.


  1. Children


     Generally, children are held to the behavior that is reasonable for a child of similar age, experience, and intelligence under like circumstances.  (Restatement (Second) of Torts §283A).


  1. Persons with Disabilities


     A person with a disability is held to the same standard of care that an ordinary reasonable person would observe if he suffered from that same disability.  However, Nevada courts generally do not recognize a person with a mental disability to be subject to any such special standard, and are held to the “reasonable prudent person” standard, except when the onset of mental illness is unforeseeable and sudden.  Therefore, physical handicaps and infirmities, such as blindness, deafness, short stature, or a club foot, or the weaknesses of age or sex, are treated merely as part of the “circumstances” under which a reasonable man must act.



  1. Duty to Inform Self of Liabilities


     Often times the nature of certain commercial endeavors cause unintended consequences, such as when a new drug hits the market and has deadly consequences for those that consume that drug.  Another example is where a demolition causes unintended collateral damage.  Under those circumstances, where a person can be said to be engaged in a special and potentially dangerous activity that person must know or inquire of possible hazards or of any special duties and responsibilities inherent in that activity that might affect their ability to exercise reasonably prudent caution.


  1. Persons of Below Average Intelligence


     Sometimes a negligent act is caused by a person of diminished capacity and, under those circumstances, it could be said that that person is not liable for harm due to his diminished capacity.  However, the Restatement (Second) of Torts, § 289 cmt. n notes that the “reasonable person” standard makes allowances for age and physical disability but not “attention, perception, memory, knowledge of other pertinent matters, intelligence, and judgment”.  Therefore, under most circumstances, diminished capacity is no defense to liability for negligent conduct.

  1. Emergency Doctrine


     Circumstances may arise where a person, in attempting to save their own skin from certain death or grievous bodily harm, causes harm to an innocent third party.  The question here becomes “is that person required to risk his own safety for the benefit of others”?  Generally, in Nevada as in most jurisdictions, an ordinary prudent person is not under any obligation to undertake a heroic duty at the risk of his own life.  As one jurist famously put it, “The first duty in an emergency is to one’s own self, as long as that person did not contribute to or cause the emergency”.


  1. Causation


  1. Legal or Proximate Cause


     The third element that must be satisfied to prevail under a negligence theory is that the harm suffered was the result of the Defendant’s negligent conduct.  In determining this, Nevada courts generally apply the “but for test”.  That is, but for the Defendant’s conduct the Plaintiff’s injury would not have occurred.  This test is usually expressed as a question of ‘foreseeability’.  Therefore, an actor is liable for the foreseeable, but not the unforeseeable, consequences of his or her act.


     Thus, proximate cause is that cause which, in natural and continuous sequence and unbroken by any efficient, intervening cause, produces the injury complained of and without which the result would not have occurred. Proximate cause, or legal cause, consists of two components, cause in fact and foreseeability.

Cause in fact requires proof that the failure of a tortfeasor to use due care was a substantial factor in bringing about a Plaintiff’s injury.  The second component, foreseeability, is essentially a policy consideration that limits a tortfeasors liability to consequences that have a reasonably close connection with both the tortfeasor’s conduct and the harm that conduct originally created.


  1. Factual Cause


Sometimes described as “cause in fact” and, like proximate cause, can be determined by applying the ‘but for test’.



  1. Harm/Damages


     Once the breach of the duty is established, the only requirement left is to determine if the Plaintiff was harmed by the Defendant’s negligent act and, if so, compensate the victim.  In determining damages the Defendant’s culpability is of no consequence.  An important step in compensating the victim is determining if the mystical “reasonable person” would have been harmed by the negligent act.  If not, the claim dies here.  If so, then the victim must be compensated.  Damages are said to be compensatory in nature and are meant to address the Plaintiff’s losses and make him whole.  The types of damages regularly awarded are the following:

  • Special damages – are quantifiable dollar losses suffered from the date of defendant’s negligent act up to a specified time.  Examples include lost wages, medical bills, and damage to property.
  • General damages – these are damages that are not quantified in monetary terms.  Primarily, this type of damage addresses the victims pain and suffering.  A general damage example is an amount for the pain and suffering one experiences from a car accident.
  • Punitive damages – Punitive damages require intentional malicious, oppressive or fraudulent conduct and are therefore generally not available under a negligence theory, unless the Plaintiff can show gross negligence or reckless indifference upon which punitive damages may be awarded to punish the tortfeasor.