So you’re out and about, having a nice day, and before you know it, your feet are flying out from beneath you and you’re lying face up on the ground. Maybe it happened because of a puddle in a grocery store. Maybe it was because of a slick casino floor, or an uneven surface in a parking garage, or water around a hotel pool. In the moments after a fall, you’re probably thinking about whether you’re hurt, what just happened, and whether anyone saw it—not who is legally at fault. But that question can become important quickly. Maybe you’re thinking to yourself, “Well, I wasn’t looking where I was going. This is on me.” Maybe you’re a clumsy person and you fall all the time. I know I do. But it’s ok to be clumsy or careless—a lot of people are. It’s not ok for property owners to allow hazardous conditions to exist that might cause someone to fall. Nevada recognizes that, and allows injured people to recover compensation in many cases even when they share some responsibility for their fall. If you’ve been hurt in a slip, trip, or fall here in Las Vegas, an experienced Las Vegas premises liability attorney can help you understand your rights and pursue the compensation you deserve.
Nevada follows a modified comparative negligence rule. In plain terms, that means you can still recover compensation even if you were partly responsible for your fall. Under NRS 41.141, your recovery is reduced by your percentage of fault, as long as you are not more than 50% at fault. Let’s say you suffered $100,000 in damages. If you’re found 20% responsible for the accident, your recovery would be reduced to $80,000.
That means a property owner can’t escape responsibility simply by blaming you for not looking where you were going, even if there was an obvious hazard that you should have seen. In Foster v. Costco Wholesale Corp (2012), a customer tripped over a pallet in a Costco aisle. Costco argued that the pallet was open and obvious and that the customer therefore could not recover. But the Nevada Supreme Court explained that an obvious hazard does not automatically eliminate a property owner’s duty to act reasonably. The jury can also consider whether the property owner should have anticipated that someone might encounter the danger and whether the injured person exercised reasonable care for their own safety.
Basically, your responsibility to watch where you are walking does not mean property owners get a free pass. Property owners have a responsibility to keep their property reasonably safe. So let’s get into what that responsibility entails.
One of the biggest questions in a slip-and-fall case is whether the property owner knew or should have known about the hazard. There are two ways to establish this: actual notice and constructive notice. Actual notice is straightforward—it means the owner or an employee actually knew about the spill, debris, or other dangerous condition. Constructive notice is different. It means the hazard existed under circumstances where the owner should have discovered it.
Sprague v. Lucky Stores, a 1993 Nevada Supreme Court decision, is a good example. A customer slipped on a grape while walking through the produce aisle in a grocery store. There was no evidence that the store knew about the grape that caused the fall. But there was evidence that produce regularly ended up on the floor, creating a recurring slipping hazard. The Nevada Supreme Court held that a jury could find that the store had constructive notice because the problem happened frequently enough that the store should have recognized the ongoing risk, and taken reasonable measures such as providing skid mats to counter the “continuous spillage of produce.”
The point is that a property owner does not necessarily need to have been warned about the exact hazard that caused your fall. Depending on the circumstances, evidence that similar hazards happened regularly—or that the dangerous condition existed long enough that someone should have discovered it—may be enough to establish constructive notice.
It’s Halloween night. You’re all dressed up in your favorite costume and you head over to your neighbor’s house for some trick-or-treating. You knock on his door, but when he opens it, he just sighs and says, “You’re 45 years old, Jim, I’m not giving you any candy.” At this point, there is only one thing left to do—you have to come back later that night to TP his house. You sneak into the backyard armed with toilet paper, but before you can enact your plan, you step into a large hole in the lawn and you break your ankle.
You might assume that being a trespasser automatically means you can’t recover for your injuries. But that is not necessarily the case. Nevada’s trespasser statute, NRS 41.515, generally provides that property owners do not owe a duty of reasonable care to trespassers, but there are certain exceptions. For one, a property owner cannot willfully or wantonly cause harm to the trespasser. For another, if the property owner discovers the trespasser’s presence in a place of danger on the premises, he must exercise reasonable care to prevent harm to the trespasser.
That distinction could matter in our Halloween example. Suppose your neighbor knew about the large hole in the backyard. Suppose he was watching you from the window, and saw you approaching the area of the hole. If your neighbor has a reasonable opportunity to warn you about the danger but says nothing, those circumstances could become important to the question of whether reasonable care was exercised to prevent your injury. Alternatively, suppose the hole was created by your neighbor to act as a booby trap just for you. The court may find that your neighbor willfully or wantonly caused you harm. The fact that you were trespassing—and even the fact that you were there to prank the homeowner—would certainly be relevant, but would not necessarily end the inquiry.
Courts are even more sympathetic towards trespassers when those trespassers are children. NRS 41.515(2)(c). We call this the attractive nuisance doctrine. The classic example of an attractive nuisance is a swimming pool. We live in Vegas. It’s hot, and it’s dry. If a kid sees a sparkling blue swimming pool in someone’s backyard and it’s 115 degrees outside, how can she resist jumping in to cool off? If there’s no locked gate and nothing keeping the kid from getting to the pool, the homeowner could be liable if the kid ends up hurting herself or drowning. The basic idea is that kids are curious, and they don’t always appreciate danger the way adults do. If a dangerous condition on someone’s property is likely to attract children, the law may require the property owner to take reasonable precautions to keep them safe—no matter how many times they’ve told the neighborhood kids to stay off their lawn.
Did you trip and fall on a sidewalk? Or maybe at a public school? If you were injured on government-owned property, don’t assume the same rules apply as they would if you slipped at a grocery store or a casino. Pursuant to NRS 41.031, the State of Nevada has waived its sovereign immunity and you can sue it just like you would sue any other entity, but certain limitations apply. For example, under NRS 41.033, you can’t hold a government entity liable for failing to inspect for hazards or failure to discover hazards.
A case involving a Clark County school shows just how important notice can be when you are injured on government property. In Nardozzi v. Clark County School District (1992), a woman slipped and fell on a wet floor at the entrance of Tomiyasu Elementary School on a rainy day, breaking her ankle in several places. She argued that the school district should have taken reasonable precautions to keep the entrance dry. The school district, however, denied knowing that the floor was wet and relied on NRS 41.033, which protects a governmental entity from liability if the entity simply failed to inspect for or discover a hazardous condition. Remember several paragraphs ago when we were talking about constructive notice? That doesn’t apply here. As the Nevada Supreme Court put it in a related 1993 case, constructive notice “will not do” against a government entity — the law requires proof of actual, express knowledge of the hazard. If you’re dealing with a government entity, you need them to have actual knowledge of the dangerous condition if you want your lawsuit to succeed.
Another thing to keep in mind when you are suing the government is that your recovery may be limited. Under NRS 41.035, your award for damages may not exceed $200,000.
If you’ve slipped and fallen because of something that shouldn’t have been there, it’s a good idea to contact an attorney as soon as possible. While Nevada generally gives you two years to file a personal injury claim under NRS 11.190(4)(e), you don’t want to wait that long to preserve the evidence.
If you can, report the incident, ask for a copy of the incident report, and take photos of the dangerous condition before it is cleaned up or repaired. Get contact information for anyone who witnessed the fall, and keep the shoes you were wearing.
Your attorney should also send a preservation letter to the property owner, demanding that the relevant evidence be preserved. This may include surveillance footage, internal memos, maintenance records, and more. Surveillance footage is often automatically overwritten after a short period of time; a timely preservation letter can keep that from happening. The sooner you document what happened and get legal advice, the better chance you have of preserving the evidence and protecting your rights.
Our team is ready to help you understand your rights and pursue the compensation you deserve. Learn more about slip and fall accidents and how Nevada law applies to your situation.
If you’ve been hurt in a slip, trip, or fall in Las Vegas, you don’t have to face the process alone. Carter Cullen has represented injured Nevadans since 1985, and we can help you gather the evidence you need and pursue full compensation for your injuries. Contact us today for a free, confidential consultation. We handle every case on a contingency fee basis, so there is no cost to you unless we win.
A wet floor sign does not automatically mean the property owner is off the hook. It is simply one factor in determining whether the owner acted reasonably and whether you exercised reasonable care for your own safety.
You don’t need to prove that the store actually knew about the hazard. You just have to prove that the hazard was there long enough, or occurred frequently enough, that the store should have discovered and addressed it. Evidence that can help includes surveillance footage, employee statements, prior incident reports, and inspection and cleaning logs
Yes! Reporting your fall creates a record of what happened and puts the property owner on notice of potential litigation. This helps ensure that evidence is preserved while it is still fresh.
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