Nevada Appellate Court Summaries 8-7-20

By Joe Tommasino, Esq.

Supreme Court of Nevada:

Administrative procedure: (1) NRS 233B.130 provides for judicial review of a final judgment in an administrative proceeding, and a petition for judicial review “must be served upon the agency and every party” under NRS 233B.130(5), but the statute does not specify the method of service; and (2) a petition for judicial review is best construed in this context as a post-complaint filing, so personal service is unnecessary and an alternative method of service under NRCP 5(b) will suffice. Because all the parties are already aware of the underlying matter, a petition for judicial review is best construed as a post-complaint pleading in this context, and a more relaxed standard of service is appropriate. Personal service of a petition for judicial review is unnecessary, and NRCP 5(b)’s alternative methods of service are sufficient. State, Dep’t of Corr. v. DeRosa, 136 Nev. Adv. Op. No. 37, ___ P.3d ___ (July 9, 2020).
https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Anti-SLAPP statutes: Nevada’s anti-strategic lawsuit against public participation (anti-SLAPP) statutes, which include a procedural mechanism to summarily dismiss meritless lawsuits aimed at chilling speech, do not violate the constitutional right to a jury trial. NRS 41.660 allows a party to file an anti-SLAPP motion to dismiss and sets forth a two-pronged test for determining whether the district court should grant or deny such a motion. Under prong one, the court must only decide whether the defendant demonstrated that the relevant communications were made in good faith. Because the district court need not make any findings of fact specifically regarding a plaintiff’s underlying claim and cannot defeat a plaintiff’s underlying claim under prong one, prong one itself does not render the jury-trial right practically unavailable. Under prong two, the court must only decide whether the plaintiff demonstrated with prima facie evidence a probability of prevailing on the claim. The court does not make any findings of fact. Rather, prong two merely requires a court to decide whether a plaintiff’s underlying claim is legally sufficient. In other words, the prima-facie-evidence standard requires the court to decide whether the plaintiff met his or her burden of production to show that a reasonable trier of fact could find that he or she would prevail. Nevada’s anti-SLAPP statutes do not interfere with the jury’s ability to make findings of fact as to a plaintiff’s underlying claim. Rather, they function as a procedural mechanism, much like summary judgment, that allows the court to summarily dismiss claims with no reasonable possibility of success. Upon making the requisite showing under prong two, a plaintiff can proceed to a jury trial on the underlying claim. A plaintiff who fails to meet this burden would not have been entitled to a jury trial, even absent an anti-SLAPP motion to dismiss. Taylor v. Colon, 136 Nev. Adv. Op. No. 50, ___ P.3d ___ (July 30, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Civil procedure: (1) NRCP 60(b)(1) provides that a district court may grant relief “from a final judgment, order, or proceeding” based on a showing of “mistake, inadvertence, surprise, or excusable neglect”; (2) the district court must consider factors announced in Yochum v. Davis, 98 Nev. 484, 486, 653 P.2d 1215, 1216 (1982), overruled in part by Epstein v. Epstein, 113 Nev. 1401, 1405, 950 P.2d 771, 773 (1997), when determining if excusable neglect has been established; and (3) district courts must issue express factual findings, preferably in writing, pursuant to each Yochum factor to facilitate appellate review. To determine whether grounds for NRCP 60(b)(1) relief exist, the district court must apply four Yochum factors:

  1. A prompt application to remove the judgment;
  2. The absence of an intent to delay the proceedings;
  3. A lack of knowledge of procedural requirements; and
  4. Good faith.

Here, the district court believed that it need not apply the Yochum factors when determining the existence of sufficient grounds for NRCP 60(b)(1) relief from an order, as opposed to a judgment. However, NRCP 60(b) does not distinguish between relief from a “final judgment, order, or proceeding.” Willard v. Berry-Hinckley Indus. , 136 Nev. Adv. Op. No. 53, ___ P.3d ___ (August 6, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Constables: (1) NRS 258.007 requires a constable to become certified as a category II peace officer within a certain amount of time or forfeit the office; and (2) the statute does not give a board of county commissioners power to remove a constable from office, nor does it necessitate quo warranto proceedings, as the statute works an automatic forfeiture of office if the constable fails to become certified. The Supreme Court of Nevada distinguished NRS 258.007, which sets forth a requirement for holding office, from other statutes that designate events or circumstances as triggering forfeiture. With the latter, judicial proceedings are likely necessary to establish the facts triggering the forfeiture and provide the officer with due process. Here, however, POST certification is an eligibility requirement, and unless the constable contests POST’s determination, judicial proceedings are unnecessary to determine whether the constable has met that statutory requirement for holding office. Clark County v. Eliason, 136 Nev. Adv. Op. No. 49, ___ P.3d ___ (July 30, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Controlled substances: (1) NRS 453.337 prohibits a person from possessing, for the purpose of sale, flunitrazepam, gamma-hydroxybutyrate, or any schedule I or II controlled substance; and (2) the identity of a substance is an element of the crime described in NRS 453.337, such that each schedule I or II controlled substance simultaneously possessed with the intent to sell constitutes a separate offense. NRS 453.570 points toward substance identity being an element of NRS 453.337 because it requires that the type of drug be proven at trial. NRS 453.570 provides that “[t]he amount of a controlled substance needed to sustain a conviction of a person for an offense prohibited by the provisions of NRS 453.011 to 453.552 . . . is that amount necessary for identification as a controlled substance by a witness qualified to make such identification.” Because a witness must positively identify a substance as a specific controlled substance, a substance’s identity is necessarily an element of the crime described in NRS 453.337. Further, the identity of a substance determines the applicable schedule of controlled substances, which may determine the applicable punishment. Controlled substances are classified according to their potential for abuse, medical use, and potential dependence. The State Board of Pharmacy places a substance in schedule I if the substance “[h]as high potential for abuse” and “no accepted medical use in treatment in the United States or lacks accepted safety for use in treatment under medical supervision.” The Board places a substance in schedule II if the substance “has high potential for abuse,” “has accepted medical use in treatment in the United States, or accepted medical use with severe restrictions,” and “abuse of the substance may lead to severe psychological or physical dependence.” NRS 453.337 outlines the applicable sentences for a violation of the statute, unless the greater penalties described in NRS 453.3385 (dealing with flunitrazepam; gamma-hydroxybutyrate; precursors to flunitrazepam or gamma-hydroxybutyrate; and schedule I controlled substances, except marijuana), NRS 453.339 (dealing with marijuana and concentrated cannabis), or NRS 453.3395 (dealing with schedule II controlled substances) apply. Thus, the Supreme Court of Nevada concluded that the identity of a substance is an element that must be proven to sustain a conviction under NRS 453.337, rather than a means of committing the offense. Figueroa-Beltran v. United States, 136 Nev. Adv. Op. No. 45, ___ P.3d ___ (July 16, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Counterclaims: This record neither supports the district court’s determination that the parties tried a counterclaim by consent nor supports upholding the related damages award; thus, the district court improperly awarded damages to respondents in the absence of an express or implied counterclaim. NRCP 15(b) provides that an issue not raised in the pleadings may nevertheless be tried by the parties’ “express or implied consent,” and that the court should treat such issues “as if they had been raised in the pleadings.” Here, the record does not show that the parties tried a counterclaim by implied consent. The defendants failed to mention a counterclaim or propose a damages award in either their motions for summary judgment or their pretrial proposed findings of fact and conclusions of law. Moreover, the defendants never made an obvious attempt to raise a counterclaim at trial, and the trial judge gave no indication, before his ruling, that he was considering awarding damages against the plaintiff. Separately, the Supreme Court of Nevada found that neither NRCP 8(c) nor NRCP 54(c) warrant upholding the damages award. Yount v. Criswell Radovan, LLC, 136 Nev. Adv. Op. No. 47, ___ P.3d ___ (July 30, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Defamation: (1) The judicial-proceedings privilege absolutely protects statements made during judicial proceedings, and those statements cannot form the basis of a defamation claim; (2) this privilege extends to statements made during quasi-judicial proceedings, but the issue here was whether the public-comment periods of planning-commission and improvement-district meetings are quasi-judicial proceedings; and (3) in this case, the public-comment portions of the meetings were not quasi-judicial because they lacked the basic due-process protections one would normally expect to find in a court of law. To qualify as a quasi-judicial proceeding for purposes of the absolute privilege, a proceeding must, at a minimum,

  1. provide the opportunity to present and rebut evidence and witness testimony,
  2. require that such evidence and testimony be presented upon oath or affirmation, and
  3. allow opposing parties to cross-examine, impeach, or otherwise confront a witness.

Because the public-comment periods in this case lacked basic due-process protections normally found in a court of law, they were not quasi-judicial in nature. Thus, the absolute privilege that attaches to judicial and quasi-judicial proceedings did not apply. Spencer v. Klementi, 136 Nev. Adv. Op. No. 35, ___ P.3d ___ (July 9, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Discovery: (1) Here, the Supreme Court of Nevada had to determine whether a government entity (the State of Nevada Department of Taxation) has “possession, custody, or control” over the content on the personal cell phones of former workers hired through a temporary employment agency, so as to be required under NRCP 16.1 to disclose that material; (2) the Court held that a party has “possession, custody, or control” over documents, electronically stored information, or tangible things if the party has either actual possession of, or the legal right to obtain, the material; and (3) the Court concluded that the personal cell phones at issue fall outside the government entity’s “possession, custody, or control” under NRCP 16.1. Ordering a party to procure documents that it does not have the legal right to obtain will oftentimes be futile, precisely because the party has no certain way of getting those documents. Furthermore, the civil-procedure rules provide a mechanism for seeking materials from a nonparty under NRCP 45, and that rule grants nonparties subject to a subpoena certain protections, such as quashing or modifying the subpoena if necessary. Accordingly, the Court held that documents, electronically stored information, or tangible things are within a party’s “possession, custody, or control” under the Nevada Rules of Civil Procedure if the party has either actual possession of or the legal right to obtain the same. Here, the workers’ cell phones are outside the Department’s “possession, custody, or control” under NRCP 16.1; therefore, the district court exceeded its authority when it compelled the Department to produce that information. State, Dep’t of Taxation v. Dist. Ct. State, Dep’t of Taxation v. Dist. Ct. Adv. Op. No. 42, ___ P.3d ___ (July 9, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Experts: NRS 50.295 expressly permits expert witnesses to proffer testimony that embraces ultimate issues, which includes opinions about a defendant’s mental state when he or she has entered a not-guilty-by-reason-of-insanity plea, so long as that testimony is otherwise admissible under Nevada’s evidence code and does not stray from psychological opinions about factual matters to conclusions about the appropriate verdict. Here, the district court abused its discretion by preventing the defendant’s psychiatric expert witness from opining about his mental state for purposes of supporting his not-guilty-by-reason-of-insanity plea under NRS 174.035(6). Because there is a reasonable probability that the psychiatric expert-witness testimony would have affected the outcome of the trial, the district court’s error was not harmless. Pundyk v. State, 136 Nev. Adv. Op. No. 43, ___ P.3d ___ (July 16, 2020).
https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Family law: (1) While joint preliminary injunctions under EDCR 5.517 are injunctions, NRAP 3A(b)(3) permits appeals only from injunctions pursuant to NRCP 65, and joint preliminary injunctions under EDCR 5.517 are not subject to NRCP 65; and (2) the Supreme Court of Nevada does not have jurisdiction to review such an order under NRAP 3A(b)(3). Because no court rule or statute permits an appeal of a district-court order denying a request for a joint preliminary injunction pursuant to EDCR 5.517, the Court dismissed this appeal. Nelson v. Nelson, 136 Nev. Adv. Op. No. 36, ___ P.3d ___ (July 9, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Homeowners’ associations: (1) Here, the Supreme Court of Nevada addressed whether the entire amount of a homeowners’ association’s (HOA) yearly assessment can be included in the superpriority piece of an HOA’s lien under NRS 116.3116; (2) the Court concluded that the entire amount of a yearly assessment is entitled to superpriority status, so long as the assessment became due in the 9 months preceding the HOA’s recording of its notice of delinquent assessments; and (3) because the first-deed-of-trust holder in this case did not tender the entire superpriority amount before the HOA foreclosed on its lien, the HOA foreclosure sale extinguished the first deed of trust on the property. The plain language of NRS 116.3116 allows for the entire amount of a yearly assessment to be included in the superpriority piece of the HOA’s lien. NRS 116.3116(2) specifically provides that the amounts subject to superpriority status are those that “would have become due in the absence of acceleration during the 9 months immediately preceding institution of an action to enforce the lien.” Here, the parties agree that the HOA imposed yearly, rather than monthly, assessments, and that the yearly assessment became due in the 9 months preceding the notice of delinquent assessments, which is the act that institutes the enforcement of the lien. Nothing in NRS Chapter 116 prohibits an HOA from making its assessments payable annually, rather than monthly. While parties often refer to the superpriority lien as being equal to 9 months’ worth of assessments, that is when the reference is to assessments assessed monthly, rather than yearly. Thus, the plain language of NRS 116.3116(2) supports the interpretation that, if an HOA makes assessments payable annually, the entire assessment amount can have superpriority status if it becomes due in the 9 months preceding the notice of delinquent assessments. Anthony S. Noonan IRA, LLC v. U.S. Bank, 136 Nev. Adv. Op. No. 41, ___ P.3d ___ (July 9, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Judicial discipline: By statute, a public reprimand may be given only where a judge has violated the Code of Judicial Conduct in a knowing or deliberate manner or where aggravating factors are present. Disciplinary proceedings for judges generally should not arise from disputes over legal decisions or factual findings, absent exceptional circumstances such as where a judge abuses her authority, disregards fundamental rights, intentionally disregards the law, or exhibits a pattern of error inconsistent with faithfully discharging the judicial function. For claims where relief may ordinarily lie in the appeals process, disciplinary proceedings should be pursued sparingly. Proceeding otherwise risks chilling the exercise of judicial discretion and harms the administration of justice. Here, an appropriate resolution might have been to dismiss the complaint without holding a hearing and issue a non-disciplinary letter of caution, warning the judge of the need to more closely supervise the clerk in the preparation of minutes. In re Hughes, 136 Nev. Adv. Op. No. 46, ___ P.3d ___ (July 16, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Jurors: (1) The district court must clearly explain its determinations and reasoning under Batson v. Kentucky, 476 U.S. 79 (1986), when ruling on an equal-protection objection to the use of a peremptory challenge to remove a veniremember; (2) a clear record from the district court is particularly important when the explanation for the peremptory challenge depends on the veniremember’s demeanor; and (3) while the Supreme Court of Nevada is primed to afford the district court’s decision great deference, the Supreme Court cannot do so if the district court does not engage in the sensitive Batson inquiry and explain its conclusions. Here, the Supreme Court was faced with a record devoid of any findings regarding the credibility of the State’s demeanor-based explanation for its peremptory challenge of an African-American veniremember. Although the State offered nondemeanor explanations for the peremptory challenge, those explanations are belied by the record. Thus, the Supreme Court concluded that it is more likely than not that the State used the peremptory challenge for impermissible reasons. Matthews v. State, 136 Nev. Adv. Op. No. 38, ___ P.3d ___ (July 9, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Kidnapping: (1) Under NRS 201.540, the Nevada Legislature has criminalized sexual conduct between certain school employees or volunteers and students who are old enough to consent to sexual conduct; (2) such a crime is not an unlawful act perpetrated upon the person of a minor such that it is a predicate offense for first-degree kidnapping under NRS 200.310(1); and (3) accordingly, the first-degree kidnapping convictions here cannot stand. Interpreting the language in NRS 200.310(1) to include any crime involving a minor would expand an already broad kidnapping statute beyond what is reasonable, leading to absurd results. The relevant provision in NRS 200.310(1) is more narrowly focused on crimes upon or against a minor’s body. Because NRS 201.540 is indifferent regarding the student’s actual consent or the offender’s actual exploitation of the student, it is the offender’s status that is the gravamen of the offense in NRS 201.540. The offender’s status of school employee or volunteer in a position of authority lends itself to the perception that the offender influenced or exploited the student. It is thus the offender’s status that makes the sexual conduct unlawful. Given that NRS 201.540 is predominately concerned with the appearance of impropriety rather than actual impropriety, its focus is on decency and morals rather than harm to a particular individual. Because this is consistent with the chapter in which the Legislature chose to codify the offense and the gravamen of the offense, and without a clear statement of intent by the Legislature to treat a violation of NRS 201.540 as a crime against the minor’s person for purposes of NRS 200.310, the defendant’s convictions of first-degree kidnapping cannot stand. Lofthouse v. State, 136 Nev. Adv. Op. No. 44, ___ P.3d ___ (July 16, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Professional negligence: (1) Under NRS 41A.071, if a party files an action for professional negligence against a provider of health care without a supporting medical-expert affidavit, the district court must dismiss the action; (2) in Szydel v. Markman, 121 Nev. 453, 459, 117 P.3d 200, 204 (2005), the Court adopted the “common-knowledge” exception to the affidavit requirement for claims falling under NRS 41A.100 (the res ipsa loquitur statute), and the common-knowledge exception provides that where lay persons’ common knowledge is sufficient to determine negligence without expert testimony, the affidavit requirement does not apply; and (3) the common-knowledge exception can also be applied to determine whether a claim that appears to sound in professional negligence, and does not fall under NRS 41A.100, actually sounds in ordinary negligence and is not subject to NRS 41A.071. Here, the Court considered whether a nurse’s mistake in administering a drug to one patient, when the drug was prescribed to a different patient, as well as the alleged failure to monitor the patient, are matters of professional negligence subject to NRS 41A.071’s affidavit requirement or a matter of ordinary negligence that would not require a supporting affidavit under the common-knowledge exception. The Court concluded that the exception applies to the drug’s administration, as lay jurors could understand that mistakenly administering a drug to the wrong patient is negligent without the benefit of expert testimony. Thus, any claim based solely on that act would not be subject to dismissal under NRS 41A.071 for failing to attach a supporting medical-expert affidavit. However, the Court concluded that the other allegation of failing to monitor the patient after administering the drug is subject to NRS 41A.071’s affidavit requirement. Est. of Curtis v. S. Las Vegas Med. Inv’rs, 136 Nev. Adv. Op. No. 39, ___ P.3d ___ (July 9, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Search and seizure: (1) Here, the search of the defendant’s backpack was beyond the scope of a permissible search incident to arrest; and (2) the evidence at issue would not have been discovered through a lawful inventory search, as the booking deputy failed to generate an actual inventory of the backpack’s contents, so the evidence was not admissible under the inevitable-discovery doctrine. The authority to search incident to arrest derives from the need to disarm and prevent evidence from being concealed or destroyed. Here, the search occurred after officers arrested the defendant, secured her inside a patrol car, put her backpack in the trunk, and took her to jail. Thus, at the time of the search, she did not pose a threat to officer safety, nor was there an immediate need to preserve evidence because she was separated from her backpack. Thus, the search of the backpack was not a lawful search incident to arrest. Under the inevitable-discovery doctrine, evidence will not be suppressed based on improper police conduct if the prosecution can prove by a preponderance of the evidence that it ultimately would have been discovered by lawful means. A valid inventory search can constitute a lawful means of discovery. To be valid, the officers conducting the search must produce a true inventory of personal items found during the search. Here, the inventory search was invalid because the booking deputy merely listed “bag” on the inventory sheet and did not produce a written inventory detailing the contents of the backpack. State v. Nye, 136 Nev. Adv. Op. No. 48, ___ P.3d ___ (July 30, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Special Immigrant Juvenile (SIJ) status: For the purpose of SIJ findings, a district court addressing whether reunification is not viable should consider the history of the parent-child relationship, the conditions on the ground in the child’s foreign country, and whether returning the child to the parent in the foreign country would be workable or practicable due to abandonment, abuse, or neglect. The federal government provides a pathway for undocumented juveniles residing in the United States to acquire lawful permanent residency by obtaining SIJ status under 8 U.S.C. § 1101(a)(27)(J). Before an applicant may file a petition with the federal government for SIJ status, the applicant must obtain a state juvenile-court order with three findings:

  1. The juvenile is dependent on a juvenile court, [or] the juvenile has been placed under the custody of . . . an individual appointed by the court (dependency/custody prong);
  2. Due to abandonment, abuse, neglect, or some comparable basis under state law, the juvenile’s reunification with one or both parents is not viable (reunification prong); and
  3. It is not in the juvenile’s best interest to be returned to the country of the juvenile’s origin (best-interest prong).

NRS 3.2203 provides district courts with jurisdiction to make SIJ findings when requested in certain proceedings, such as custody proceedings. This case focused on the reunification prong which requires the court to find that “reunification of the child with one or both of his or her parents [is not] viable because of abandonment, abuse or neglect or a similar basis under the laws of this State.” The Supreme Court of Nevada adopted a nonexhaustive list of factors that a court should consider in determining whether abuse, neglect, or abandonment indicate that reunification is not viable:
[NUMBERED LIST STARTS 1-3]

  1. The lifelong history of the child’s relationship with the parent (i.e., is there credible evidence of past mistreatment);
  2. The effects that forced reunification might have on the child (i.e., would it impact the child’s health, education, or welfare); and
  3. The realistic facts on the ground in the child’s home country (i.e., would the child be exposed to danger or harm).

While the district court may look to definitions of abandonment that apply in other contexts, the Court cautioned district courts to remember that because SIJ findings do not result in the termination of parental rights, the consideration of whether a parent has abandoned a child such that reunification is not viable is broader than the consideration of whether a parent’s abandonment of a child warrants termination of the parent’s parental rights. Lopez v. Serbellon Portillo, 136 Nev. Adv. Op. No. 54, ___ P.3d ___ (August 6, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Statutes of limitation: (1) Nevada’s statute of limitations for actions on judgment, NRS 11.190(1)(a), generally provides that “an action upon a judgment or decree of any court of the United States” must be commenced within six years; (2) in Davidson v. Davidson, 132 Nev. 709, 718, 382 P.3d 880, 886 (2016), the Supreme Court of Nevada held “that the six-year statute of limitations in NRS 11.190(1)(a) applies to claims for enforcement of a property distribution provision in a divorce decree”; and (3) here, the Court clarified that the Davidson holding does not apply to claims for enforcement of real-property distribution in divorce decrees because NRS 11.190(1)(a) unambiguously excludes from its purview actions for recovery of real property. Separately, the Court held that respondent was not required to renew the divorce decree pursuant to NRS 17.214 to enforce his real-property rights. The Court emphasized that the plain and unambiguous language of NRS 17.214 applies only to a “judgment creditor” or his or her successor attempting to renew an unpaid judgment, clearly contemplating a monetary judgment or type of indebtedness—not enforcement of a quitclaim deed or decree regarding ownership of real property. Finally, the Court held that appellant’s partition action is barred by claim preclusion. Kuptz-Blinkinsop v. Blinkinsop, 136 Nev. Adv. Op. No. 40, ___ P.3d ___ (July 9, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Workers’ compensation: A totality-of-the-circumstances approach must be used to determine whether a police officer’s injury qualifies for the law-enforcement exception to the “going-and- coming” rule in workers’-compensation matters. NRS 616C.150(1) provides that an injured employee may receive compensation if he or she establishes “by a preponderance of the evidence that the employee’s injury arose out of and in the course of his or her employment.” An injury occurs within the course of employment when there is a causal connection between the injury and the nature of the work or the workplace. The Supreme Court of Nevada has recognized a general rule, known as the “going-and-coming” rule, which precludes compensation for most employee injuries that occur during travel to or from work. However, the going-and-coming rule has exceptions. One exception, known as the distinct-benefit exception, provides that an employee may still be in the course of employment when going or coming if the employee’s travel “confers a distinct benefit upon the employer.” Another exception pertains specifically to law enforcement. The law-enforcement exception recognizes that law-enforcement officers generally possess a responsibility to enforce the law while traveling on public roads, so the injuries they sustain while traveling may be compensated. However, because the distinct-benefit exception is separate from the law-enforcement exception, this overlap in analysis is not appropriate. As a result, the Court clarified that the distinct-benefit exception applies only to non-law-enforcement employees, while the law-enforcement exception is reserved for law-enforcement officers. Whether a law-enforcement officer conferred a benefit upon his employer is a circumstance that can be taken into account in considering whether the law-enforcement exception applies. However, whether or not a law-enforcement officer conferred such a benefit, it is not an exception unto its own. Cannon Cochran Mgmt. Servs. v. Figueroa, 136 Nev. Adv. Op. No. 51, ___ P.3d ___ (July 30, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Nevada Court of Appeals:

Products liability: (1) The MGM pylon sign is a product within the meaning of strict products liability, as the pylon sign falls directly within the contemplation of section 402A of the Second Restatement of Torts; (2) large commercial signs, such as the MGM pylon sign, are products for purposes of strict liability, where, as here, they are designed, manufactured, and sold by a party engaged in the business of selling and manufacturing such signs; and (3) to the extent that the pylon sign was custom-made for MGM, this fact alone is insufficient to remove it from the sphere of strict liability, especially because the public-policy considerations for applying the doctrine of strict products liability in this case have been satisfied. The Court of Appeals concluded that adopting a fixed definition of “product” for purposes of strict liability, such as the Third Restatement’s, is not necessary for two reasons. First, applying the policy objectives articulated in section 402A, including judicial interpretations and expansions thereof, is sufficient to resolve the question presented, so adopting a limited definition of product is unwarranted at this time. Second, utilizing a case-by-case methodology is the more prudent approach because it is versatile, permitting courts to analyze each case individually and adjust to changes in technology, and because it is consistent with the text and purpose of section 402A. Therefore, when determining whether an item or instrumentality is a product that falls within the scope of strict products liability, courts must apply section 402A of the Second Restatement, including the public-policy objectives of the doctrine as well as relevant precedents interpreting section 402A. Schueler v. Ad Art, Inc. , 136 Nev. Adv. Op. No. 52, ___ P.3d ___ (July 30, 2020). https://nvcourts.gov/Supreme/Decisions/Advance_Opinions/

Resources

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).

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