1 1 1 CASE NO. ========================================================== IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR THE COUNTY OF WASHOE ========================================================== Plaintiff v. Defendant ========================================================== TRIAL BRIEF OF PLAINTIFF ========================================================== NEAL HARKNETT, ESQ. Reno Law Associates Casazza Dr, Reno, Nevada 0 Attorney for Plaintiff May, 1-1-
1 TABLE OF CONTENTS I. Table of Authorities.. II. III. Statement of Facts... Arguments and Authorities.. A. Plaintiff is entitled to relief based upon... B. Negligent hiring, training and supervision of employee who commits negligent acts.... C. Negligence as defined by Nevada Revised Statute IV. Conclusion... 1 1 - -
1 TABLE OF AUTHORITIES Nevada Revised Statutes. N.R.S. 1. (0).. Evans v. Southwest Gas, Nev. 0, P.d ().. National Convenience Stores, Inc. v Fantauzzi, Nev., P.d ()... Hall v SSF, Inc., Nev., 0 P.d (). 1 1 - -
1 1 1 STATEMENT OF FACTS On November 1, 0, at approximately :00 p.m., the ( Plaintiff ), Jane Healy was involved in an automobile accident with ( Defendant ) Charles Lee Raymond, an employee of the ( Defendant ), Allegretti & Sons. The Plaintiff alleges that the Defendant Raymond Charles caused through his negligence while driving intoxicated, served as the primary causation of the accident at issue. Pursuant to Rule of the Federal Rules of Civil Procedure for the reason that there is no substantial controversy as to any material fact and that Plaintiff is entitled to judgment against Defendant as a matter of law. 1. On April, 0 the date of the accident, the Defendant Raymond Charles an employee of the Defendant Allegretti & Sons stopped at Red's Tavern, and stayed for approximately an hour.. On April, 0 the Defendant Raymond Charles, while on duty for Allegretti & Sons delivering a transmission to a customer. Raymond stopped and consumed five drinks within the timespan of approximately minutes, to 1 hour at the establishment Red s Tavern. The bartender employed by the tavern witnessed the Defendant begin to leave the tavern in an intoxicated state, and another patron of the tavern allegedly said Man, is that guy loaded. Prior to the Defendant leaving the tavern.. Plaintiff alleges the Defendant negligently drove in his automobile while intoxicated, which placed other drivers on the road at risk of the defendant causing a collision, and Plaintiff asserts this intoxication served as contributory negligence in the automobile collision with the Defendant.. Plaintiff alleges that the Defendant also caused the Plaintiff to miss a promotional opportunity in her company, which caused additional loss of her yearly salary of $,000.00, with another potential raise of $1,000.00 per year. Plaintiff seeks actual damages of $0,000.00 for Plaintiffs injuries, and any and all punitive damages associated with loss of revenue due to inability to work because of injuries.. Plaintiff calls for her to justifiably be compensated for lost salary and wages for the period beginning April, 0, as well as any salaries in arrearage, along with timely payment of the hospital fees incurred by the plaintiff do to serious - -
1 1 1 injuries sustained during the vehicle accident. Plaintiff also request timely recovery of any damages for the vehicle she has been driving, and Plaintiff calls for a fair court assessment to recover lost wages from future promotions and inability to work.. Defendant(s) and or authorized legal representatives are to provide Plaintiff s legal counsel with copies of witnesses, witness reports, police reports, as well as information about said witnesses including phone number, address, email, etc. These documents are to be provided freely without any interference. ARGUMENTS AND AUTHORITIES A. PLAINTIFF IS ENTITLED TO RELIEF BASED UPON In the case of Evans v. Southwest Gas, Nev. 0, P.d (). Similarities abound in the case at hand, such as whether employer is vicariously liable the accident, as Mr. Raymond was out driving while allegedly performing duties for the company he was employed for. The Appellant was injured when the school bus she was driving collided with a van owned by respondent Southwest Gas and operated by its employee, Russell Stokes. Evans who was. Issue: Do employers share vicarious liability for the negligent acts of an employee that result in an accident causing injury to others? Rule: The case of Molino v. Asher, Nev.,, P.d, 0 (0). Involved an action to recover damages for personal injuries sustained by Appellant, who was struck by another car driven by her co-employee of Southwest. Complaint alleges negligence of the co-employee as the proximate cause of Molino's injury and damage, and also seeks to impose liability upon Respondent s husband. Similarities abound to the Healy case as under the court held that liability of other persons for negligence is defined under NRS. 1.0 there is potential liability for entities and family for any damages proximately resulting from such negligence or willful misconduct, and such negligent or willful misconduct shall be imputed to the owner of the motor vehicle for all purposes of civil damages. Analysis: In relation to the issue, do employers share vicarious liability for the negligent acts of an employee that result in an accident causing injury and damages. Under the - -
1 1 1 case Molino v. Asher, the court held that under NRS. 1.0 The language provides that a family member, and potentially other entities can be held liable for negligent acts committed by a family member or another person. In similarity to the Healy case this statute and case law support that persons/entities share vicarious liability for any negligent acts by a family member and is potentially interpreted to include employees. Conclusion: Southwest shares vicarious liability for Stokes' acts. Therefore, it was error to grant Southwest's motion for summary judgment on the issue of liability. The present case is similar in that Allegretti & Sons allegedly shares vicarious liability for the negligent act of Raymond Charles when his vehicle struck and injured the Plaintiff. Further, in the case of National Convenience Stores v. Fatauzzi, Nev., P.d (). Similarities abound in the case at hand, this case concerns an accident which occurred on March,, in Las Vegas. While driving to the store an employee of Stop N' Go Markets of Nevada, David Wagner became engaged in erratic driving characterized by witnesses as a drag race. Wagner's car went out of control, and collided head-on with another vehicle killing and injuring 1, Issue: Does the negligent act of Wagner s excessive speeding while on company duty, make his employer vicariously liable, for the accident and/or any damages or injuries? Rule: The case Wells, Inc. v. Shoemake, Nev.,, P.d 1, (). In similarity to the Healy case. The case happened near the City of Las Vegas, County of Clark, State of Nevada. On December,, William Long was employed by defendant, Wells Inc., as a truck driver. Kenneth C. Shoemake, was involved in a collision with the truck driven by William Long, who was acting within the scope of his employment as a truck driver for the defendant, Wells, Inc. Shoemake suffered a badly crushed chest and internal injuries and also suffered head injuries. As a further direct and proximate result of the negligence of defendants as aforesaid this Plaintiff was thrown violently from the said vehicle suffering several injuries, and killing Kenneth. The Supreme Court of Nevada held that Wells Inc. is vicariously liable for their driver s negligence. Analysis: In similarity to the Healy case, and in answering the issue of whether the employer is vicariously liable for an employee driver s negligence while driving. The - -
1 1 1 case Wells, Inc. v. Shoemake, supports this as in this incident similarly to both the Healy and the Wells case a person was injured due to the negligence of another driver. The Supreme Court of Nevada held that Wells Inc. is vicariously liable for their driver s negligence, this shows that there is a good probability that the case law from Wells, Inc. v. Shoemake, and Molino v. Asher. Supports that a person/entity is vicariously liable for any negligent acts done by person under their employ, or by relation. Conclusion: The court opinion allows the employer to be vicariously liability based on employee's assertion that, on his day off, he was going to do some work for his employer when the accident happened. B. NEGLIGENT HIRING, TRAINING AND SUPERVISION OF EMPLOYEE WHO COMMITS NEGLIGENT ACTS. In the case of Hall v. SSF Inc., Nev., 0 P.d () Appellant filed complaint against respondents alleging causes of action, including negligent training, supervision, and retention of employees. The Appellant was attacked by the doorman for a club issues arose about a cover fee and doormen began escorting the group from the club. The doorman allegedly believed he was in danger and struck out in self-defense. This dislocated the Appellants jaw Appellant claims doorman acted negligently and club is liable for the doorman s actions. Issue: Is the employer liable for the negligent assault of another person by their employee? Rule: Under the case Connes v. Molalla Transport System, Inc., 1 P.d 1, 1 (Colo.) A hotel clerk who was assaulted by truck driver, brought action against truck driver's employer. Accordingly, The Supreme Court of Colorado held that negligent hiring theory has imposed liability in cases where employee s commit an intentional tort, outside the scope of employment, against the customer of a particular employer or other persons, where the employer either knew or should have known that the employee was violent or aggressive, or that the employee might engage in injurious conduct toward third persons. Analysis: The issue of whether the employer is liable for the negligent actions of an employee that could cause a tort, is supported further under Connes v. Molalla Transport System, Inc., where the Supreme Court of Colorado held that negligent hiring theory has - -
1 1 1 imposed liability in cases where employee s commit an intentional tort, the case also supports that in relation to the Healy case the employer should have known that an employee has aggressive, and or self-destructive tendencies. And regarding the issue of whether Respondent tortuously hit the Appellant, it was certainly relevant on the issue of negligent training, supervision, and retention. In the case at hand, there is a high probability that Allegretti & Sons will be held vicariously liable for the negligent actions of Defendant Charles Raymond. C. NEGLIGENCE AS DEFINED BY NEVADA REVISED STATUTE. Nevada Revised Statute NRS. 1. states, Except as otherwise provided in NRS. 1., whenever any person shall suffer personal injury by wrongful act, neglect or default of another, the person causing the injury is liable to the person injured for damages; and where the person causing the injury is employed by another person or corporation responsible for the conduct of the person causing the injury, that other person or corporation so responsible is liable to the person injured for damages. It is quite apparent from the language of the statute that Allegretti & Sons would be held vicariously liable for any and all actual and punitive damages sustained by Plaintiff due to their employee s negligence in driving while intoxicated and negligently causing an accident CONCLUSION Based on the above arguments and authorities, the language of each case supports that the employer is vicariously liable for any accident, an employee negligently causes while driving and allegedly performing duties for the company they are employed for. And that the employer is responsible for any fees associated with the injured party for any actual and/or punitive damages suffered due to the negligent actions of a company employee. We respectfully submit that you find for the Plaintiff and grant Summary Judgment. AFFIRMATION Respectfully Submitted, May, 0 Neal Harknett - -
1 Edward Sullivan, Esq. Law Office of Sullivan, and Associates Mt Rose St. Reno, Nevada 0 1 1 - -
CERTIFICATE OF MAILING 1 TO: Berning Katherine esq. From: Neal Harknett Date: Dec., 1 1 - -