The Elements for a Claim of Assault in Nevada

In Nevada, the elements for a claim of civil assault are:

  1. Intentionally placing another person in reasonable apprehension of immediate harmful or offensive touching;
  2. Offender intended to cause harmful or offensive touching;
  3. Lack of consent for the contact;
  4. The victim was put in apprehension of such contact; and
  5. Causation and damages.

Graham v. Connor, 490 U.S. 386, 109 S. Ct. 1865 (1989); In re Bradshaw, 315 B.R. 875 (Bankr. D. Nev. 2004); Burns v. Mayer, 175 F. Supp. 2d 1259 (D. Nev. 2001); Lerner Shops v. Marin, 83 Nev. 75, 423 P.2d 398 (1967); Yada v. Simpson, 112 Nev. 254, 913 P.2d 1261; Wright v. Starr, 42 Nev. 441, 179 P. 877 (1919);  Prosser and Keeton on Torts, § 10 at 43 (5th ed. 1984).

 

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Elements for the Claim of Negligence in Nevada

In Nevada, the elements for a claim of negligence are:

  1. Defendant owed a duty of care to plaintiff;
  2. Defendant breached that duty;
  3. The breach was the legal cause of plaintiff’s injuries; and
  4. Plaintiff suffered damages.

Turner v. Mandaly Sports Entm’t, LLC, 124 Nev. 213, 180 P.3d 1172 (2008); Scialabba v. Brandise Construction Co., 112 Nev. 965, 921 P.2d 928 (1996); Perez v. Las Vegas Med. Ctr., 107 Nev. 1, 4, 805 P.2d 589 (1991).  Negligence is the failure to exercise that degree of care which an ordinarily careful and prudent person would exercise under the same or similar circumstances.  NEVADA JURY INSTRUCTIONS 4.02; NEVADA JURY INSTRUCTIONS 4.03; BAJI 3.10.

 

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Elements of Defense of Unilateral Mistake in Nevada

In Nevada, the defense of unilateral mistake is available where:

  1. Mistake made by one party at the time of formation of a contract concerning a vital fact upon which they based their bargain;
  2. The mistake materially and adversely alters the contract;
  3. That party does not bear the risk of mistake; and
  4. The other party has reason to know of the mistake or caused it.

Unilateral Mistake may allow a party to a contract to obtain relief from that agreement.  Home Savers, Inc. v. United Sec. Co., 103 Nev. 357, 358-59, 741 P.2d 1355, 1356-57 (1987) (adopting Restatement (Second) of Contracts § 153 (1981)).  It occurs when one party makes a mistake as to a basic assumption of the contract, that party does not bear the risk of mistake, and the other party has reason to know of the mistake or caused it.  Id.

Elements of the Defense of Mutual Mistake

In Nevada, the defense of mutual mistake (or bilateral mistake) is available where:

  1. Mistake made by both parties at the time of formation of a contract concerning a vital fact upon which they based their bargain;
  2. The mistake materially and adversely alters the contract; and
  3. Conscious ignorance cannot support a mutual mistake defense.

In re Irrevocable Trust Agreement of 1979, 130 Nev. Adv. Op. 63 (Nev. 2014); Gramanz v. Gramanz, 113 Nev. 1, 8, 930 P.2d 753, 758 (1997).

 

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Elements for a Claim of Defamation Per Se in Nevada

In Nevada, the elements for a claim of defamation per se are:

  1. Defendants, and each of them, made at least one false statement of fact to a third party concerning Plaintiff (each a “Defamatory Statement”);
  2. Each Defamatory Statement constitutes a non-privileged publication to a third party;
  3. [ALTERNATIVE] Defendants, and each of them, made at least one false and Defamatory Statement of fact to a third party that Plaintiff contracted a loathsome disease;
  4. [ALTERNATIVE] Defendants, and each of them, made at least one false and Defamatory Statement to a third party that Plaintiff was unchaste;
  5. [ALTERNATIVE] Defendants, and each of them, made at least one false and Defamatory Statement to a third party that would tend to injure the Plaintiff in [ITS/HIS/HER] trade, business, profession, or office;
  6. [ALTERNATIVE] Defendants, and each of them, made at least one false and Defamatory Statement to a third party that Plaintiff lacks fitness for a particular business or profession;
  7. [ALTERNATIVE] Defendants, and each of them, made at least one false and Defamatory Statement to a third party that Plaintiff committed sexual assault;
  8. Defendants either knew each Defamatory Statement was false and that Defendants defamed Plaintiff, acted in reckless disregard of the truth, or acted negligently in failing to ascertain the truth;
  9. Plaintiff has suffered damages;
  10. Plaintiff is entitled to an award of punitive damages; and
  11. Plaintiff is entitled to an award of attorney fees and costs as damages.

To constitute defamation per se, the statement must fall into one of four categories: “(1) that the plaintiff committed a crime; (2) that the plaintiff has contracted a loathsome disease; (3) that a woman is unchaste; or, (4) the allegation must be one which would tend to injure the plaintiff in his or her trade, business, profession or office.”  Nev. Indep. Broad. Corp., 99 Nev. 404, 409, 664 P.2d 337, 341.  Additionally, the defamatory comments must imply a “habitual course of similar conduct, or the want of the qualities or skill that the public is reasonably entitled to expect.”  See Restatement (Second) of Torts § 573 cmt. d (1977).  With per se liability, the plaintiff is entitled to presumed, general damages.  Nev. Indep. Broad., 99 Nev. 404, 409, 664 P.2d 337, 341.  If the defamation tends to injure the plaintiff in his or her business or profession, it is deemed defamation per se, and damages will be presumed. Chowdhry v. NLVH, Inc., 109 Nev. 478, 483, 851 P.2d 459,462 (1993); see also Nev. Ind. Broad. v. Allen, 99 Nev. 404, 409, 664 P.2d 337, 341 (1983); Carey v. Piphus, 435 U.S. 247, 262 n.18, 98 Sup.Ct. 1042, 1052 n.18, (U.S. 1978); Fallon Min. Co., Inc. v. Caddell, 77 Fed. Appx. 416, 9th Cir. (2003); Bonjovi v. Sullivan, 122 Nev. 556, 138 P.3d 433 (Nev. 2006); Burns v. Mayer, 175 F. Supp. 2d 1259 (D. Nev. 2001); Switzer v. Rivera, 174 F. Supp. 2d 1097 (D. Nev. 2001); Branda v. Sanford, 97 Nev. 643, 646, 637 P.2d 1223, 1225 (1981); Williams v. Univ. Med. Ctr. So. Nev., 688 F. Supp. 2d 1134 (D. Nev. 2010); W. Page Keeton, et al Prosser & Keaton On the Law of Torts § 112, at 788 (5th Ed. 1984).

 

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The Defense of Mitigation of Damages in Nevada

In Nevada, a plaintiff must take reasonable steps mitigate damages, which means to minimize the effects and loss related to his or her injuries/damages.  Dillard’s Dep’t Stores, Inc. v. Beckwith, 989 P.2d 882, (Nev. 1999); NRS 118.175; James Hardie Gypsum (Nevada), Inc. v. Inquipco, 112 Nev. 1397, 929 P.2d 903 (1996) (“As a general rule, a party cannot recover damages for loss that he could have avoided by reasonable efforts.” Conner v. S. Nevada Paving, Inc., 103 Nev. 353, 355, 741 P.2d 800, 801 (1987) (citation omitted). “[T]he rule den[ies] recovery for losses which could have been prevented by the . . . expenditures of plaintiff. . . .” Valencia v. Shell Oil Co., 147 P.2d 558, 561 (Cal. 1944). In order to recover loss of use damages, the plaintiff must “show diligence in getting the car repaired as early as reasonably possible.” Rownstein v. Bernhard & Turner Auto. Co., 180 N.W. 282, 284 (Iowa 1920). “[T]he trial court’s role, as trier of fact, is to determine the reasonable period of repair.” Airborn, Inc. v. Denver Air Ctr., Inc., 832 P.2d 1086, 1091 (Colo. Ct. App. 1992)).

 

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Deficiency Judgments in Nevada

In order to claim a deficiency judgment, a party must follow NRS 40.455, NRS 457, and NRS 459.  Specifically, a party must:

  1. Application by judgment creditor or beneficiary of trust within 6 months after the date of foreclosure sale or trustee sale per NRS 107.080. (NRS 40.455);
  2. Showing that there is a deficiency. (NRS 40.457);
  3. Hearing must be held before making award and evidence shall be heard regarding fair market value of the property as of the date of the foreclosure/sale. (NRS 40.459)   ; and
  4. Deficiency judgment shall be lesser of amount owed minus the fair market value, or the amount owed minus the actual sales price of property (plus interest from date of sale).

See elements for other claims at the Nevada Law Library