Written by Joe Tommasino, Esq.
Supreme Court of Nevada
Civil commitment: (1) The statutory framework governing credit for time served allows for crediting preconviction confinement only against the duration of the sentence imposed for a criminal conviction; and (2) because the civil-commitment scheme is not punitive but a preventive, treatment-oriented measure aimed at protecting both the individual and the community, the rationale for allowing credit against the duration of a criminal sentence does not apply. Here, the Appellant argued that NRS 176.055 required the district court to give him credit against the duration of the civil commitment term for the “over 40 years” he spent in prison for criminal convictions. However, the plain language of the statute limits credit to sentences imposed after a criminal conviction. Other jurisdictions have similarly held that credit applies only when the confinement relates to punishment for a criminal conviction and not when the individual is held under a civil commitment or unrelated order. Civil commitment serves protective and therapeutic aims rather than punitive ends. The district court may order civil commitment only if it finds by clear and convincing evidence that the incompetent individual poses a danger to themself or others and the individual’s dangerousness is such that they require placement at a secure forensic facility. Such facilities provide treatment and evaluation before any potential release into the community, rendering criminal sentencing credit inapplicable. Other courts have observed the same principles in evaluating claims that time served on criminal charges should offset a civil commitment, explaining that the need for treatment, not the length of a prior term of incarceration, governs the duration of commitment. They emphasize that civil commitment remains distinct from criminal punishment because its purpose and procedures rest on different standards that focus on mental health and public safety. These principles show that applying criminal-custody credits to a civil-commitment period would risk releasing someone prematurely and would diminish the central role that treatment plays in this setting. Accordingly, NRS 176.055 provides no basis to reduce the Appellant’s term of civil commitment. Rogers v. State of Nevada, 142 Nev. Adv. Op. No. 3, ___ P.3d ___ (January 15, 2026).
Equitable subrogation: An excess insurer may seek equitable subrogation against a primary insurer who fails to settle within primary policy limits when the insured, but for the excess insurer’s contribution to the settlement, would have had a claim against the primary insurer for its failure to reasonably settle. The excess insurer who contributes to settlement may assert any claims against the primary insurer that the insured itself could have asserted. Whether the claim settled within the combined policy limits is not relevant to the equitable subrogation inquiry in this context. Public policy favors allowing excess insurers who contribute towards settlements to seek equitable subrogation against primary insurers who fail to accept reasonable settlement offers. Doing so promotes fair settlement practices, disincentivizes primary insurers from rejecting reasonable settlement offers, and levels the playing field for insureds who have obtained additional, excess coverage. North River Ins. Co. v. James River Ins. Co. (NRAP 5), 142 Nev. Adv. Op. No. 7, ___ P.3d ___ (January 29, 2026).
Judicial disqualification: Even in the absence of statutorily disqualifying judicial bias, the Nevada Supreme Court’s supervisory authority may be invoked in exceedingly rare cases where reassignment is necessary to preserve public confidence and trust in the fairness of a judicial proceeding. NRS 1.230(1) provides that “[a] judge shall not act as such in an action or proceeding when the judge entertains actual bias or prejudice for or against one of the parties to the action.” Judges are presumed to be unbiased. Rule 2.11(A) of the Nevada Code of Judicial Conduct establishes an objective test for overcoming that presumption, requiring recusal “in any proceeding in which the judge’s impartiality might reasonably be questioned.” The objective standard applies when the alleged bias arises from an extrajudicial source. A heightened standard applies when the alleged bias arises during the judicial proceedings. In that event, Nevada courts apply the standard set forth in Liteky v. United States, 510 U.S. 540 (1994), which interpreted the federal judicial recusal statute, 28 U.S.C. § 455(a), to require disqualification only where “the judge forms an opinion that displays a deep-seated favoritism or antagonism that would make fair judgment impossible.” Under Liteky, judicial rulings or comments on their own “almost never constitute a valid basis for a bias or partiality motion.” But judicial bias of the narrow sort addressed in Liteky isnot the only reason to reassign a case, and appellate courts’ authority to do so is not derived exclusively from judicial recusal statutes. As federal caselaw recognizes, even “[a]bsent proof of personal bias requiring recusation [under federal statute],” appellate courts may nonetheless invoke their supervisory authority to reassign cases in “unusual circumstances where … assignment to a different judge is salutary and in the public interest, especially as it minimizes even a suspicion of partiality.” To determine whether to reassign under this distinct authority, courts evaluate three principal factors:
(1) Whether the original judge would reasonably be expected on remand to have substantial difficulty in putting out of his or her mind previously expressed views or findings determined to be erroneous . . . ,
(2) Whether reassignment is advisable to preserve the appearance of justice, and
(3) Whether reassignment would entail undue waste and duplication of judicial resources out of proportion to any gain in preserving the appearance of fairness.
Here, the Supreme Court found that a judge had prejudged the defendant’s guilt and deemed a shooting to be murder before the defendant had an opportunity to present his defense. Thus, the Court concluded that this case presents a rare instance in which, to preserve the presumption of innocence and the integrity of the justice system, reassignment under the Court’s supervisory authority is justified. Williams (Thomas) v. Dist. Ct. (State) (Criminal), 142 Nev. Adv. Op. No. 5, ___ P.3d ___ (January 29, 2026).
Miranda warnings: Here, the totality of circumstances clearly shows that because of the defendant’s limited understanding of the English language and the failure to provide him with an interpreter, the defendant did not knowingly and intelligently waive his right against self-incrimination under the United States and Nevada Constitutions: specifically, his right to remain silent and right to have an attorney present during police questioning. Where a defendant has limited English proficiency, a court should consider factors such as the language barrier between the defendant and law enforcement, efforts by law enforcement to explain the defendant’s rights, the defendant’s background and experience, and the defendant’s own indications that they understood their rights and knowingly and intelligently waived them. It is incumbent upon law enforcement to recognize when the totality of the information and circumstances available to them indicate that a defendant lacks the English proficiency required to understand their rights as read and/or in writing. In these circumstances, law enforcement must likewise recognize when an interpreter is necessary as opposed to persisting in explanations and hypotheticals that are not going to remedy the defendant’s lack of understanding. A district court errs when it admits evidence of a custodial interrogation where, as here, a defendant explicitly and implicitly indicates that they do not understand English well enough to waive their rights, and law enforcement fails to meaningfully address this language barrier. Ajay (Ajay) v. State (Criminal), 142 Nev. Adv. Op. No. 4, ___ P.3d ___ (January 15, 2026).
Pseudonyms: A party may proceed pseudonymously when that party’s need for anonymity outweighs prejudice to the opposing party and the public’s interest in knowing the party’s identity. Courts should balance factors from the following nonexhaustive list: (1) the severity of the threatened harm, (2) the reasonableness of the anonymous party’s fears, (3) the anonymous party’s vulnerability to such retaliation, (4) the prejudice to the opposing party, and (5) the public interest. Additionally, a party seeking to proceed anonymously must file their initial complaint or petition conditionally under a pseudonym and then move for an order granting permission to proceed pseudonymously, at which time the court should apply the above standards in determining whether to grant the requested relief. If the request is granted, the initial pleading may remain. If the request is denied, the pleading must be amended to state the party’s legal name or dismissed. Also, “it is the responsibility of the party wishing to proceed anonymously to seek leave of court before doing so.” A litigant must challenge the use of a pseudonym and bring the issue to the district court’s attention when the pseudonymous party has not obtained prior approval to proceed pseudonymously. Burns (Gregory) v. Dist. Ct. (DOE) (Civil), 142 Nev. Adv. Op. No. 8, ___ P.3d ___ (January 29, 2026).
Nevada Court of Appeals
Premises liability: (1) Under the mode-of-operation approach to premises liability, a plaintiff who is injured at a self-service business establishment can satisfy the notice requirement of a negligence action if they can show their “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”; and (2) a plaintiff need not also show that the self-service function was traditionally performed by employees or that the owner adopted a self-service mode of operation as a newer merchandising technique. A business owes its patrons a duty to keep the premises in a reasonably safe condition for use. When a patron slips and falls due to a foreign substance that was on the floor because of the actions of the business owner or one of its agents, liability will lie, as a foreign substance on the floor is usually not consistent with the standard of ordinary care. But when the foreign substance came to be on the floor because of the actions of someone other than the business or its employees, traditionally the business would only be liable if it had actual or constructive notice of the condition and failed to remedy it. However, there is a modern trend toward modifying this traditional approach to premises liability to accommodate newer merchandising techniques, like those found in self-service establishments. One alternative to the traditional approach is mode-of-operation liability, which comes into play when a business owner’s chosen mode of operation makes it reasonably foreseeable that a dangerous condition will occur. In these situations, a plaintiff need not prove actual or constructive notice of the dangerous condition; rather, “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.” Here, the district court misread prior Nevada caselaw to the extent it determined that a plaintiff who is injured at a self-service establishment is required to show that customers were performing tasks that were “traditionally performed by employees” or that the establishment’s self-service operation was a “newer merchandising technique” in order to rely on the mode-of-operation theory of premises liability. While mode-of-operation liability typically applies where a business has customers perform tasks that were traditionally performed by employees, and the adoption of this approach to premises liability was part of a response to “newer merchandising techniques,” these points were made in discussing the policy rationale underpinning the mode-of-operation approach. Nothing in Nevada caselaw can be read as suggesting that these policy principles somehow constitute additional elements that must be proven to support a premises-liability claim under the mode-of-operation approach. Moore v. Primadonna Co., LLC (Civil), 142 Nev. Adv. Op. No. 6, ___ P.3d ___ (January 29, 2026).
Resources
- “Advance Opinions” are viewable at this link: http://nvcourts.gov/Supreme/Decisions/Advance_Opinions/
- A list of “Forthcoming Opinions” is available at this link every Wednesday: http://nvcourts.gov/Supreme/Decisions/Forthcoming_Opinions/
- “Supreme Court Unpublished Orders” are viewable at this link: http://nvcourts.gov/Supreme/Decisions/Unpublished_Orders/
- “Court of Appeals Unpublished Orders” are viewable at this link: http://nvcourts.gov/Supreme/Decisions/Court_of_Appeals/Unpublished_Orders/
About the author
Joe Tommasino has served as Staff Attorney for the Las Vegas Justice Court since 1996. Joe is the President of the Nevada Association for Court Career Advancement (NACCA).
About the article
© 2026 Clark County Bar Association (CCBA). All rights reserved. No reproduction of any portion of this issue is allowed without written permission from the publisher. Editorial policy available upon request.
This article was originally submitted for publication in the Communiqué (February 2026), the official publication of the Clark County Bar Association.
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