The Elements for the Claim of Bailment

In Nevada, the elements for the claim of  Bailment are:

  1. On [DATE], Plaintiff was a patron of Defendants’ business [NAME OF BUSINESS];
  2. On [DATE], Plaintiff placed [DESCRIBE PROPERTY] (the “Property”) in Defendants’ exclusive possession or control;
  3. On [DATE], Defendants [FOR HIRE OR GRATUITOUSLY] accepted exclusive control of Plaintiff’s Property;
  4. Defendants agreed to keep the Property for Plaintiff and was entrusted with care and custody of the Property;
  5. Plaintiff and Defendants created a bailment when Plaintiff placed [ITS/HIS/HER] valuable Property with Defendants;
  6. Defendants owed Plaintiff a duty to return the Property to Plaintiff without damage or loss;
  7. Defendants breached their duty to Plaintiff;
  8. Plaintiff has suffered damages; and
  9. Plaintiff is entitled to an award of attorney fees and costs as damages.

What are Reliance Damages in Nevada?

What are Reliance Damages in Nevada?

Reliance damages reimburse the plaintiff for any costs – monetary or otherwise – that plaintiff incurred in preparing to perform or performing her part of the contract.  They are sometimes called out-of-pocket damages.  An award of reliance damages puts the plaintiff in the position she would have been in had she never contracted with the defendant.

It is generally established that where there is a breach of a valid contract, the injured party may seek reliance expenses or losses as an alternative to expectancy damages.[1]  Reliance damages include “expenditures made in preparation for performance or in performance, less any loss that the party in breach can prove with reasonable certainty the injured party would have suffered had the contract been performed.”[2]  However, recovery under reliance damages theory may not exceed the full contract price.[3]  Further, reliance damages may not exceed what would be awarded as expectancy damages.[4]  Recovery for reliance loss is based on net reliance loss; therefore, any benefit the injured party gains in reliance is credited to the defendant’s liability.[5]

Although Nevada law on reliance damages is limited, Perry v. Jordan,[6]  provides some insight.  The breaching party sold her clothing store to plaintiff and entered into a management contract whereby breaching party agreed to continue managing the clothing store for one year, train her replacement, and receive a salary of $5,000 per month.[7]  After six months, the breaching party abandoned the store, leaving the plaintiff to operate at a loss and eventually close the store.[8]  Plaintiff requested and the Court awarded reliance damages along with the return of the $5,000 per month received by the breaching party.[9]

 

[1] See Dobbs, § 12.2(1) at 50; Restatement (Second) of Contracts § 349.

[2] Restatement (Second) of Contracts § 349.

[3] Id. at cmt. a.

[4] See Dobbs, supra, § 12.2(2) at 56.

[5] Id.

[6] Perry v. Jordan, 111 Nev. 943, 900 P.2d 335 (1995).

[7] Id. at 337.

[8] Id.

[9] Id. at 338.

The Elements for the Claim of Attractive Nuisance

In Nevada, the elements for the claim of Attractive Nuisance are:

  1. Defendants owned or were in lawful possession of real property known as [ADDRESS] (the “Property”);
  2. Defendants knew that young children are likely to trespass on the Property;
  3. Defendants knew or should have known the condition of the Property involves unreasonable risk of death or serious bodily harm to trespassing children;
  4. Trespassing children, because of their youth, do not discover the condition or realize the risk involved in intermeddling in the condition or in coming within the area made dangerous by the condition;
  5. The utility of maintaining the condition to Defendants and the burden of eliminating the danger are slight as compared to the risk to young children;
  6. Defendants failed to exercise reasonable care to eliminate the danger or otherwise to protect the children;
  7. Plaintiff has suffered damages; and
  8. Plaintiff is entitled to an award of attorney fees and costs as damages.

The Elements for the Claim of Undue Influence

In Nevada, the elements for the claim of Undue Influence are:

  1. At all times relevant hereto, Defendants enjoyed a confidential relationship with [TESTATOR];
  2. [ALTERNATIVE] [TESTATOR]’s physical condition affected [HIS/HER] ability to withstand Defendants’ undue influence
  3. [ALTERNATIVE] [TESTATOR]’s mental condition affected [HIS/HER] ability to withstand Defendants’ undue influence;
  4. Defendants unduly influenced [TESTATOR] and unduly influenced [HIS/HER] decisions;
  5. [TESTATOR] made dispositions regarding [HIS/HER] property while under Defendants’ undue influence;
  6. The unnaturalness of [TESTATOR]’s disposition demonstrates an unbalanced mind or a mind easily susceptible to undue influence;
  7. Defendants’ demands and importunities affected [TESTATOR] and [HIS/HER] decision making, taking into consideration the time, place, and surrounding circumstances;
  8. Plaintiff has suffered damages; and
  9. Plaintiff is entitled to an award of attorney fees and costs as damages.

The Elements for the Claim of Trade Dress Infringement of Product, Unfair Competition and Deceptive Trade Practices (NRS 598.0915)

The elements for the claim of Trade Dress Infringement of Product, Unfair Competition and Deceptive Trade Practices (NRS 598.0915) are:

  1. Plaintiff has used the words and mark [DESCRIBE] in conjunction with the sale of the goods and services [DESCRIBE] since [DATE] in [GEOGRAPHIC AREA] (the “Mark”);
  2. The Mark is distinctive and a “famous mark”;
  3. Defendants’ acts as alleged herein have diluted and will, unless enjoined, continue to dilute and are likely to dilute the distinctive quality of the Mark;
  4. Defendants’ acts constitute infringement, misappropriation, false representation as to affiliation, misuse of Plaintiff’s product trade dress, unfair competition, and unjust enrichment of Defendants; all in violation of Plaintiff’s rights at common law and under the law of the State of Nevada;
  5. Defendants’ acts have harmed Plaintiff’s reputation, severely damaged Plaintiff’s goodwill, and upon information and belief, have diverted sales from Plaintiff;
  6. Defendants’ acts have caused and will continue to cause great and irreparable injury to Plaintiff and, unless said acts are restrained by this Court, Plaintiff will continue to suffer great and irreparable injury;
  7. Plaintiff has no adequate remedy at law;
  8. Plaintiff has suffered damages; and
  9. Plaintiff is entitled to an award of attorney fees and costs as damages.

The Elements for the Claim of Trespass to Chattel

In Nevada, the elements for the claim of Trespass to Chattel are:

  1. Plaintiff owns or has the exclusive right to possess certain chattel described as [DESCRIBE] (the “Property”);
  2. Defendants have intentionally used or intermeddled with the Property;
  3. Defendants have intentionally dispossessed Plaintiff of the Property;
  4. Defendants invaded the Property, damaging [ITS/HIS/HER] condition, quality, or value;
  5. Defendants deprived Plaintiff of the use of the Property for a substantial time;
  6. Defendants harmed the Property;
  7. Plaintiff has suffered damages; and
  8. Plaintiff is entitled to an award of attorney fees and costs as damages.

The Elements for the Claim of Federal Trademark or Service Mark Dilution

The elements for the claim of Federal Trademark or Service Mark Dilution are:

  1. On [DATE], the United States Patent and Trademark Office granted Plaintiff’s Registration Number _________, Serial Number _________ for the words and mark [DESCRIBE] as granted for the goods and services: [DESCRIBE] (the “Mark”);
  2. The Mark is distinctive and a “famous mark” within the meaning of Section 43(c) of the Lanham Act, 15 U.S.C. § 1125(c);
  3. The Mark became distinctive and famous prior to the Defendants’ acts as alleged herein;
  4. Defendants’ acts as alleged herein have diluted and will, unless enjoined, continue to dilute and are likely to dilute the distinctive quality of the Mark;
  5. [ALTERNATIVE] Defendants’ acts as alleged herein have tarnished and will, unless enjoined, continue to tarnish, and are likely to tarnish the Mark by undermining and damaging the valuable goodwill associated therewith;
  6. Defendants’ acts as alleged herein are intentional and willful in violation of Section 43(c)(1) of the Lanham Act, and have already caused Plaintiff irreparable damage and will, unless enjoined, continue to so damage Plaintiff, who has no adequate remedy at law;
  7. Plaintiff is entitled to, among other relief, an award of actual damages, Defendants’ profits enhanced damages and profits, reasonable attorney fees and costs of the action under Sections 34 and 35 of the Lanham Act, 15 U.S.C. 15 U.S.C. §§ 1116, 1117, together with pre-judgment and post-judgment interest;
  8. Plaintiff has suffered damages; and
  9. Plaintiff is entitled to an award of attorney fees and costs as damages.

The Elements for the Claim of Writ of Mandamus

In Nevada, the elements for the Claim of Writ of Mandamus are:

  1. When a government body fails to perform an act “the law especially enjoins as a duty resulting from an office, trust or station” or acts in an arbitrary or capricious manner, a writ of mandamus shall issue to correct the action; NRS 34.160;  See also Int’l Game Tech;, Inc; v; Second Judicial Dist;, 179 P.3d 556, 558 (2008);
  2. [GOVERNMENT BODY] acted arbitrarily and capriciously by performing or failing to perform the acts described above;
  3. [GOVERNMENT BODY]’s arbitrary and capricious actions justify this Court’s issuance of a Writ of Mandamus directing [GOVERNMENT BODY] to take the following action: [DESCRIBE]; and
  4. As a result of Defendants’ arbitrary and capricious actions, Plaintiffs have been forced to retain legal counsel to pursue this action and they are therefore entitled to an award of damages, costs of suit and attorneys’ fees pursuant to NRS 32.270.

The Elements for the Claim of Animal Trespass

In Nevada, the elements for the claim of Animal Trespass are:

  1. Defendants owned a [NON-HOUSEHOLD PET ANIMAL] described as _________ (the “Animal”);
  2. Defendants owed Plaintiff a duty to control the Animal;
  3. On or about [DATE], the Animal trespassed on Plaintiff’s property, causing damage (the “Trespass”);
  4. The Trespass was reasonably foreseeable;
  5. Defendants breached their duty of due care by failing to control the Animal;
  6. Plaintiff has suffered damages; and
  7. Plaintiff is entitled to an award of attorney fees and costs as damages.