Nevada Accident Claims - Nevada Lawyer - Nevada Attorney

If your Nevada accident claim goes to a jury trial, the jury will be instructed by a Nevada Judge on procedures and legal points. These are called Nevada Jury Instructions. The instructions may define negligence or tell the jurors how they must decide if they find certain facts to be true. Jury instructions can be critical to a case. Sometimes, the Las Vegas Attorneys litigating your accident claim will argue over which Jury Instructions are used in the case. Below are samples from actual Nevada Jury Instructions. Different instructions may be used in your case and these are only provided to illustrate the possible Jury Instructions which could be used in your Nevada personal injury lawsuit.

This material is fairly comprehensive, so you may want to read the Nevada Personal Injury Law Introduction on our home page. Also, you can get an overview of the different types of accidents such as Wrongful Death, Auto Accidents, Premises Liability, and Products Liability before you explore the numerous Jury Instructions which might be used in Nevada accident claims.

DUTY OF PHYSICIAN AND SURGEON; GENERAL PRACTITIONERS

In performing professional services for a patient, a physician or surgeon has the duty to have that degree of learning and skill ordinarily possessed by reputable physicians and surgeons, practicing in the same or a similar locality and under similar circumstances. It is his further duty to use the care and skill ordinarily exercised in like cases by reputable members of his profession, practicing in the same or a similar locality under similar circumstances, and to use reasonable diligence and his best judgment in the exercise of his skill and the application of his learning in an effort to accomplish the purpose for which he is employed. A failure to perform any such duty is negligence. (NEV J.I. 6.00; BAJI 6.00.1)

DUTY OF PHYSICIAN AND SURGEON; HOLDING OUT AS SPECIALIST

It is the duty of a physician or surgeon who holds himself out as a specialist in a particular field of medical, surgical, or other healing science, to have the knowledge and skill ordinarily possessed, and to use the care an skill ordinarily used, by reputable specialists practicing the same field. A failure to perform such duty is negligence. (NEV J.I. 6.01; BAJI 6.01.1)

DUTY OF PHYSICIAN AND SURGEON; BOARD CERTIFIED SPECIALIST

It is the duty of a physician or surgeon who is a Board Certified Specialist to have the knowledge and skill ordinarily possessed, and to use the care and skill ordinarily used, by reputable specialists practicing in the same field. A failure to perform such duty is negligence. (NEV J.I. 6.02.1)

DUTY OF PHYSICIAN AND SURGEON; MEDICAL PERFECTION NOT REQUIRED

A physician or surgeon is not necessarily negligent because he errs in judgment or because his efforts prove unsuccessful. He is negligent if his error in judgment or his lack of success is due to a failure to perform any of his duties as defined in these instructions. (NEV J.I. 6.03; BAJI 6.02.1)

DUTY OF PHYSICIAN AND SURGEON; GENERAL PRACTITIONER’S DUTY TO REFER TO SPECIALIST

It is the duty of a physician or surgeon who is a general practitioner to [refer his patient to a specialist] [recommend the assistance of a specialist] if a reputable general practitioner practicing in the same or a similar locality would do so under similar circumstances. If he fails to perform that duty and undertakes or continues to perform professional services without the aid of a specialist, it is his further duty to have the knowledge and skill ordinarily possessed, and exercise the case and skill ordinarily used, by reputable specialists in the same field. A failure to perform any such duty is negligence. (NEV J.I. 6.04; BAJI 6.04.1)

LIABILITY OF SURGEON FOR NEGLIGENCE OF ASSISTANTS AND NURSES

Regardless of who employs or pays [a nurse] [or] [an assisting surgeon] who takes part in the performance of surgery or services incidental to such surgery, if, while engaged in any such service, [the assisting surgeon] [the nurse] is under the special supervision and control of a certain surgeon in charge, so as to be his temporary servant or agent, any negligence on the part of any such assisting person, occurring while the latter is under the surgeon’s special supervision and control, is deemed in law to be the negligence of the surgeon in charge. (NEV J.I. 6.05; BAJI 6.06.1)

DURATION OF PHYSICIAN’S RESPONSIBILITY

Once a physician has undertaken to treat a patient, his employment and duty as a physician to the patient continues until [ended by consent [or request] of the patient] [or] [the physician withdraws from the case after giving the patient notice and a reasonable time to employ another doctor] [or] [the condition of the patient is such that the physician’s services are no longer reasonably required.]

A physician may limit his obligation to a patient by undertaking to treat the patient [only for a certain aliment or injury] [or] [only] [at a certain time or place.] If he so limits his employment, the physician is not required to treat his patient [for any other ailment or injury] [or] [at any other time or place]. (NEV J.I. 6.06; BAJI 6.05.1)

WHEN CONSENT TO OPERATION OR TREATMENT IS NECESSARY

It is the duty of a physician or surgeon to obtain the consent of a patient before treating or operating on him. Such consent may be express or may be implied from the circumstances. (NEV J.I. 6.07; BAJI 6.10.1)

CONSENT OF PATIENT; WHEN CONCLUSIVELY ESTABLISHED PURSUANT TO NRS 41A.110

NRS 41A.110 provides one method of proving that a patient has consented to a medical or surgical procedure. Such consent is to be deemed conclusively established if you find, by a preponderance of the evidence, that the physician did all of the following things:

1. Explained to the patient in general terms without specific details the procedure to be undertaken;
2. Explained to the patient alternative methods of treatment, if any, and their general nature;
3. Explained to the patient that there may be risks, together with the general nature and extent of the risks involved, without enumerating such risks; and
4. Obtained the signature of the patient on a statement containing an explanation of the procedure, alternative methods of treatment and the risks involved. (NEV J.I. 6.08; NRS 41A.110.1)

CONSENT OF PATIENT; WHEN IMPLIED PURSUANT TO NRS 41A.120

NRS 41A.120 sets forth one set of circumstances under which a patient will be deemed to have impliedly consented to a medical or surgical procedure. Such consent is to be implied where:

1. Pursuant to competent medical judgment the proposed medical or surgical procedure is reasonably necessary and any delay in performing such procedure could reasonably be expected to result in death, disfigurement, impairment of faculties, or serious bodily harm; and
2. A person authorized to consent is not readily available. (NEV J.I. 6.09; NRS 41A.120.1)

REALITY OF CONSENT; PHYSICIAN’S DUTY OF DISCLOSURE

Except as hereinafter explained, it is the duty of the physician or surgeon to disclose to his patient all material information to enable the patient to make an informed decision regarding the proposed operation or treatment. Material information is information which the physician knows or should know would be regarded as significant by a reasonable person in the patient’s position when deciding to accept or reject a recommended medical procedure. To be material a fact must also be one which is not commonly appreciated. There is no duty to make disclosure of risks when the patient requests that he not be so informed, or where the procedure is simple and the danger remote and commonly understood to be remote. Likewise, there is no duty to discuss minor risks inherent in common procedures, when such procedures very seldom result in serious ill effects.

However, when a procedure inherently involves a known risk of death or serious bodily harm, it is the physician’s or surgeon’s duty to disclose to his patient the possibility of such outcome and to explain in lay terms the complications that might possibly occur. The physician or surgeon must also disclose such additional information as a skilled practitioner of good standing [in the same or a similar locality] would provide under the same or similar circumstances. A physician or surgeon has no duty of disclosure beyond that required of physicians and surgeons of good standing [in the same or a similar locality] when he relied upon facts which would demonstrate to a reasonable man that the disclosure would so seriously upset the patient that the patient would not have been able to rationally weigh the risks of refusing to undergo the recommended [treatment] [operation]. Even though the patient has consented to a proposed treatment or operation, the failure of the physician or surgeon to inform the patient, as stated in this instruction, before obtaining such consent is negligent; and renders the physician or surgeon subject to liability for any injury [proximately] [legally] resulting from the [treatment] [operation], if a reasonably prudent person in the patient’s position would not have consented to the [treatment] [operation] had he been adequately informed of all the significant perils. (NEV J.I. 6.10; BAJI 6.11.1)

REALITY OF REFUSAL OF DIAGNOSTIC TESTS; PHYSICIAN’S DUTY OF DISCLOSURE

It is the duty of a physician to disclose to his patient all material information to enable the patient to make an informed decision regarding the taking or refusal to take a diagnostic test. Material information is information which the physician knows or should know would be regarded as significant by a reasonable person in the patient’s position when deciding to accept or reject the diagnostic test or procedure. To be material a fact must also be one which is not commonly appreciated. Failure of the physician to disclose to his patient all material information, including the risk to the patient if the test is refused, renders the physician liable for any injury [proximately resulting from] [the legal cause of which was] the patient’s refusal to take the test, if a reasonably prudent person in the patient’s position would not have refused the test had he been given all material information. (NEV J.I. 6.11; BAJI 6.11.5.1)

WHEN CONSENT TO AN OPERATION IS NOT NECESSARY

If, in the performance of an authorized operation, a surgeon finds an unanticipated condition, and immediate action is necessary for the preservation of the life or health of the patient, and it is impracticable to obtain consent to a further operation which the surgeon deems to be immediately necessary; it is his duty to do what the occasion demands within the usual and customary practice among surgeons in good standing [in the same or a similar locality], and no additional consent is required. (NEV. J.I. 6.13; BAJI 6.13.1)

EMERGENCY TREATMENT OR OPERATION

[Ordinarily a physician or surgeon must obtain the consent of a patient before operation on or treating him. However,] If in an emergency, as defined in these instructions, it is impossible or impracticable to obtain consent, either form the patient or someone legally authorized to consent for him, a physician or surgeon may undertake surgery or other treatment provided that what he does is within the customary practice of physicians or surgeons of good standing [in the same or a similar locality and] under similar circumstances. (NEV. J.I. 6.14; BAJI 6.14.1)

EMERGENCY DEFINED

An emergency is an unforeseen combination of circumstances creating a condition which, in the professional judgment of a physician or surgeon of good standing [in the same or a similar locality and] acting under the same or similar circumstances, requires immediate care, treatment or surgery in order to protect a person’s life or health. (NEV. J.I. 6.15; BAJI 6.15.1)

REBUTTABLE PRESUMPTION OF MEDICAL NEGLIGENCE; BASIC FACTS ESTABLISHED AS A MATTER OF LAW; JURY QUESTION AS TO PRESUMED FACT

The law provides for a rebuttable presumption that a [personal injury] [death] was caused by negligence where the [personal injury] [death] occurred under [any one or more of] the following circumstances:

[A foreign substance other than medication or a prosthetic device was unintentionally left within the body of a patient following surgery;]
[An explosion or fire originating in a substance used in treatment occurred in the course of treatment;]
[An unintended burn caused by heat, radiation or chemicals was suffered in the course of medical care;]
[An injury was suffered during the course of treatment to a part of the body not directly involved in such treatment or proximate thereto;] [or]
[A surgical procedure was performed on the wrong patient or the wrong organ, limb or part of a patient’s body].

In this action, it has been established that:

[A foreign substance other than medication or a prosthetic device was unintentionally left within the body of a patient following surgery;]
[An explosion or fire originating in a substance used in treatment occurred in the course of treatment;]
[An unintended burn caused by heat, radiation or chemicals was suffered in the course of medical care;]
[An injury was suffered during the course of treatment to a part of the body not directly involved in such treatment or proximate thereto;] [or]
[A surgical procedure was performed on the wrong patient or the wrong organ, limb or part of a patient’s body].

The effect of this rebuttable presumption is that it places upon the defendant[s] the burden of proving, by a preponderance of the evidence, that the [personal injury] [death] was not caused by negligence. (NEV. J.I. 6.16; NRS 41A.100.1)

REBUTTABLE PRESUMPTION OF MEDICAL NEGLIGENCE; JURY QUESTION AS TO BASIC FACTS; PRESUMPTION RENDERED CONCLUSIVE (SHOULD IT ARISE) BY FAILURE TO REBUT AS A MATTER OF LAW

If you find by a preponderance of the evidence that:

[A foreign substance other than medication or a prosthetic device was unintentionally left within the body of a patient following surgery;]
[An explosion or fire originating in a substance used in treatment occurred in the course of treatment;]
[An unintended burn caused by heat, radiation or chemicals was suffered in the course of medical care;]
[An injury was suffered during the course of treatment to a part of the body not directly involved in such treatment or proximate thereto;] [or]
[A surgical procedure was performed on the wrong patient or the wrong organ, limb or part of a patient’s body;] then you should also find that the [personal injury] [death] was caused by negligence. (NEV. J.I. 6.18; NRS 41A.100.)

MEDICAL NEGLIGENCE; EVALUATION OF EXPERT TESTIMONY AS TO THE STANDARD OF CARE

In this case you have heard [a] medical expert[s] express [an] opinion[s] as to the standard of professional learning, skill and care required of the defendant. To evaluate [each] such opinion, you should consider the qualifications and credibility of the witness and the reasons given for his opinion. Give [each] [the] opinion the weight to which you deem it entitled. [You must resolve any conflict in the testimony of the witnesses by weighing each of the opinions expressed against the others, taking into consideration the reasons given for the opinion, the facts relied upon the witness, his relative credibility, and his special knowledge, skill, experience, training and education.] (NEV. J.I. 6.19; BAJI 6.30.1)

LIABILITY OF PHYSICIANS, OTHERS RENDERING EMERGENCY MEDICAL CARE; GROSS NEGLIGENCE

A licensed [physician] [physician’s assistant] [nurse] who renders emergency care or assistance, gratuitously and in good faith, is not liable for any damages resulting from any act or omission, not amounting to gross negligence. (NEV. J.I. 6.20; NRS 41.505(2).1)

GROSS NEGLIGENCE DEFINED

Gross negligence is substantially and appreciably higher in magnitude and more culpable than ordinary negligence. Gross negligence is equivalent to the failure to exercise even a slight degree of care. It is materially more want of care than constitutes simple inadvertence. It is an act or omission respecting legal duty of an aggravated character, as distinguished from a mere failure to exercise ordinary care. It is very great negligence, or the absence of slight diligence, or the want of even scant care. (NEV. J.I. 6.21.1)

PATIENT’S DUTY TO FOLLOW INSTRUCTIONS

It is the duty of a patient to follow all reasonable and proper advice and instructions given him by his doctor regarding the patient’s care, activities and treatment. A doctor is not liable for any injury resulting solely from the negligent failure of the patient to follow such advice and instructions. However, fi the negligence [or gross negligence] of the doctor is [proximate] [legal] cause of injury to the patient, the contributory negligence of the patient, if any, in not following such advice and instructions, does not bar recovery by him against the doctor unless such contributory negligence was greater than the negligence [or gross negligence] of the doctor; but the total amount to which the patient would otherwise be entitled shall be reduced in proportion to the negligence attributable to the patient. (NEV. J.I. 6.22; BAJI 6.28.1)

DUTY OF A HOSPITAL

[It is the duty of a hospital, such as the defendant _______________________, to use reasonable care in furnishing a patient the care, attention and protection reasonably required by his mental and physical condition.] [It is [also] the duty of a hospital, such as the defendant ____________________, to use reasonable care in [selecting a competent medical staff] [periodically reviewing the competency of its medical staff].] The amount of caution, attention and protection required in the exercise of reasonable care depends on the known condition of the patient and his needs, and must be appropriate to that condition and those needs. The standard of reasonable care required of a hospital is the care, skill and diligence ordinarily used by hospitals generally under similar circumstances. A failure to perform any such duty is negligence. (NEV. J.I. 6.23; BAJI 6.20.1)

LIABILITY OF HOSPITAL FOR NEGLIGENCE OF PHYSICIAN OR NURSE

If you should find that the plaintiff was injured as the result of the negligence of defendant (doctor) (nurse) you then must determine whether the defendant (hospital) is liable for that negligence. If the defendant (doctor) (nurse) was employed directly by the plaintiff or by someone on the plaintiff’s behalf, the defendant (doctor) (nurse) was not the agent of defendant hospital and the hospital is not liable for the negligence, if any, of said [doctor] [nurse]. A hospital may, as an accommodation to a patient, procedure for him the services of a physician or nurse, without assuming any control over such services. Also, a hospital may, as an accommodation to both patient and [doctor] [nurse], collect form the patient for the [doctor’s] [nurse’s] [fees] [wages]. Any such accommodation on the part of the hospital does not, in and of itself, make the [doctor] [nurse] the agent of the hospital. If, however, the defendant hospital undertakes to provide [medical] [or] [surgical] [or] [nursing] services to the plaintiff by [a doctor or doctors] [a nurse or nurses] in its employ and under its control, then such person was the agent of defendant hospital and the hospital is liable for the negligence, if any, of said [doctor] [nurse], occurring within the scope of his employment. (NEV. J.I. 6.24; BAJI 6.21.1)

STRICT LIABILITY ELEMENTS

In order to establish a claim of strict liability for a defective product, the plaintiff must prove the following elements by a preponderance of the evidence:

1. That the defendant was the ______________________________ of the product;
2. That the product was defective;
3. That the defect existed when the product left the defendant’s possession;
4. That the product was used in a manner which was reasonably foreseeable by the defendant; and
5. That the defect was a [proximate] [legal] cause of the damage or injury to the plaintiff. (NEV. J.I. 7.02; BAJI 9.00.1)

DESIGN DEFECT; DEFINITION

A product is defective in its design if, as a result of its design, the product is unreasonably dangerous. (NEV. J.I. 7.03.1)

MANUFACTURING DEFECT; DEFINITION

A product is defective in its manufacture if the product differs from the manufacturer’s intended result or if the product differs from apparently identical products from the same manufacturer and, as a result of this difference, the product is unreasonably dangerous. (NEV. J.I. 7.04.1)

WARNING DEFECT; DEFINITION

A product, though faultlessly made, is defective for its failure to be accompanied by suitable and adequate warnings concerning its safe and proper use, if the absence of such warnings renders the product unreasonably dangerous. (NEV. J.I. 7.05.1)

UNREASONABLY DANGEROUS; DEFINITION

A product is unreasonably dangerous if it failed to perform in the manner reasonably to be expected in light of its nature and intended function, and was more dangerous than would be contemplated by the ordinary user having the ordinary knowledge available in the community. (NEV. J.I. 7.06.1)

MISUSE OF PRODUCT

Misuse of a product means a use which the defendant could not reasonably foresee. The mere fact that the defendant may not intend the product to be used in a certain way does not mean that using it in that way is a legal misuse of the product. If the defendant should reasonably foresee that the product may be used in a way other than intended by him, such other use is not a misuse. (NEV. J.I. 7.07.1)

ASSUMPTION OF RISK

The defendant contends that the plaintiff assumed the risk of the harm that he suffered. To establish that the plaintiff assumed this risk, the defendant must show, by a preponderance of the evidence; that:

1. The plaintiff actually knew and appreciated the particular risk or danger created by the defect;
2. The plaintiff voluntarily encountered this risk while realizing the danger; and
3. The plaintiff’s decision to voluntarily encounter the known risk was unreasonable.

A person who thus assumes the risk is not entitled to recover for damages which resulted from the danger to which he exposed himself. (NEV. J.I. 7.08.1)

SLANDER; ELEMENTS

In order to establish a claim of slander, the plaintiff must prove the following elements:

1. That the defendant made a false and defamatory oral communication concerning the plaintiff;
2. That the communication was published to a third party;
3. That the defendant either knew the communication was false and that it defamed the plaintiff [,] [or] acted in reckless disregard of these matters [, or acted negligently in failing to ascertain them]; and,
4. That the publication of the communication was a [proximate] [legal] cause of special damages to the plaintiff [or that the defamatory communication constituted slander per se]. (NEV. J.I. 8.02.1)

SLANDER PER SE; DEFINITION

“Slander per se” refers to certain slanderous communications which subject a defendant to liability without any showing that the publication of the communication was a [proximate] [legal] cause of special damages to the plaintiff. A slanderous communication constitutes slander per se if it:

[imputes to the plaintiff the commission of a crime;]
[imputes to the plaintiff the contraction of a loathsome disease;]
[imputes unchastity to the plaintiff;] [or]
[would tend to injure the plaintiff in his trade, business, profession, or office.] (NEV. J.I. 8.03.1)

LIBEL; ELEMENTS

In order to establish a claim of libel, the plaintiff must prove the following elements:

1. That the defendant made a false and defamatory written or printed communication concerning the plaintiff;
2. That the communication was published to a third party;
3. That the defendant either knew the communication was false and that it defamed the plaintiff [,] [or] acted in reckless disregard of these matters [, or acted negligently in failing to ascertain them]; and,
4. That the publication of the communication was a [proximate] [legal] cause of special damages to the plaintiff [or that the defamatory communication constituted libel per se]. (NEV. J.I. 8.04.1)

LIBEL PER SE; DEFINITION

“Libel per se” refers to certain libelous communications which subject a defendant to liability without any showing that the publication of the communication was a [proximate] [legal] cause of special damages to the plaintiff. A libelous communication constitutes libel per se if its defamatory meaning is apparent from the communication itself and without reference to extrinsic facts. In determining whether a communication constitutes libel per se, the words used are to be given the plain and natural meaning that they would normally convey to those to whom they were directed, in light of the circumstances under which the works were used. (NEV. J.I. 8.05.1)

DEFAMATORY COMMUNICATION; DEFINITION

A communication is defamatory if it tends so to harm the reputation of the plaintiff as to lower him in the estimation of the community or to deter third persons from associating or dealing with him. (NEV. J.I. 8.06.1)

EXPRESSIONS OF OPINION

A defamatory communication may consist of a statement of fact or of a statement in the form of any opinion, but a statement in the form of an opinion is actionable only if it implies the allegation of undisclosed defamatory facts as the basis for the opinion. (NEV. J.I. 8.07.1)

PUBLICATION; DEFINITION

Publication of a defamatory matter is its communication intentionally or by a negligent act to one other than the person [or persons] defamed.

[No publication takes place by virtue of the communication of defamatory matter by one corporate officer, agent, or employee to another corporate officer, agent, or employee in the regular course of the corporation’s business.]

[One who intentionally and unreasonably fails to remove defamatory matter that he knows to be exhibited on property in his possession or under his control is subject to liability for its continued publication.] (NEV. J.I. 8.08.1)

RECKLESS DISREGARD; DEFINITION

A defamatory communication is made in reckless disregard of its falsity if the defendant entertained serious doubts as to the truth of the communication or had a high degree of awareness of the communication’s probably falsity. (NEV. J.I. 8.09.1)

SPECIAL DAMAGES; DEFINITION

As used in these instructions, the phrase “special damages” means damages that flow directly from the injury to reputation caused by the defamation; not from the more general effects of the defamation. (NEV. J.I. 8.10.1)

PERSONAL INJURY AND PROPERTY DAMAGE; INTRODUCTORY

In determining the amount of losses, if any, suffered by the plaintiff as a [proximate] [legal] result of the accident in question, you will take into consideration the nature, extent and duration of the injuries [or damage] you believe from the evidence plaintiff has sustained, and you will decide upon a sum of money sufficient to reasonably and fairly compensate plaintiff for the following items: _____________________.(NEV. J.I. 10.00.1)

PERSONAL INJURY AND PROPERTY DAMAGE; INTRODUCTORY (ADMITTED LIABILITY)

The defendant has admitted liability for the plaintiff’s personal injuries [and property damage] [proximately] [legally] caused by the accident in question.

[A proximate cause of an injury [or damage] is a cause which, in natural and continuous sequence, produces the injury [or damage], and without which the injury [or damage] would not have occurred.]

[A legal cause of an injury [or damage] is a cause which is a substantial factor in bringing about the injury] [or damage].

In determining the amount of losses, if any, suffered by the plaintiff as a [proximate] [legal] result of the accident in question, you will take into consideration the nature, extent and duration of the injuries [or damage] you believe from the evidence plaintiff has sustained, and you will decide upon a sum of money sufficient to reasonably and fairly compensate plaintiff for the following items: ______________________. (NEV. J.I. 10.01.1)

PERSONAL INJURY; MEDICAL EXPENSES

The reasonable medical expenses plaintiff has necessarily incurred as a result of the accident [and the medical expenses which you believe the plaintiff is reasonably certain to incur in the future as a result of the accident]. (NEV. J.I. 10.02.1)

PERSONAL INJURY; LOSS OF EARNINGS

Plaintiff’s loss of earnings from the date of the accident to the present [and the loss of earnings which you believe the plaintiff is reasonably certain to experience in the future as a result of the accident]. (NEV. J.I. 10.03.1)

PERSONAL INJURY; PAIN AND SUFFERING

The physical and mental pain, suffering, anguish and disability endured by the plaintiff from the date of the accident to the present [and the physical and mental pain, suffering, anguish and disability which you believe plaintiff is reasonably certain to experience in the future as a result of the accident]. (NEV. J.I. 10.04.1)

PERSONAL INJURY; PAIN AND SUFFERING; NO DEFINITE STANDARD

No definite standard [or method of calculation] is prescribed by law by which to fix reasonable compensation for pain and suffering. Nor is the opinion of any witness required as to the amount of such reasonable compensation. [Furthermore, the argument of counsel as to the amount of damages is not evidence of reasonable compensation.] In making an award for pain and suffering, you shall exercise your authority with calm and reasonable judgment and the damages you fix shall be just and reasonable in the light of the evidence. (NEV. J.I. 10.05; BAJI 14.13.1)

PERSONAL INJURY; AGGRAVATION OF PREEXISTING CONDITION

A person who has a condition or disability at the time of an injury is not entitled to recover damages therefor. However, he is entitled to recover damages for any aggravation of such preexisting condition or disability [proximately] [legally] resulting from the injury. This is true even if the person’s condition or disability made him more susceptible to the possibility of ill effects than a normally healthy person would have been, and even if a normally healthy person probably would not have suffered any substantial injury. Where a preexisting condition or disability is so aggravated, the damages as to such condition or disability are limited to the additional injury caused by the aggravation. (NEV. J.I. 10.06; BAJI 14.65.1)

LOSS OF USE OF PERSONAL PROPERTY

Damage to plaintiff as a result of being deprived of the use of his [automobile] [property] during the time reasonably necessary for repairing the damage [proximately] [legally] resulting from the accident. In determining that amount you may consider the reasonable rental value of the [automobile] [property] for the period of time just mentioned. (NEV. J.I. 10.11; BAJI 14.22.1)

WRONGFUL DEATH; HEIR AS PLAINTIFF; INTRODUCTORY Plaintiff[s] _______________________________________________ [is] [are] the heir[s] of ______________________________________, deceased. In determining the amount of losses, if any, suffered by [one or more of] the heir[s] as a [proximate] [legal] result of the death of ________________________________, you will decide upon a sum of money sufficient to reasonably and fairly compensate [each] such heir for the following items:______________________. (NEV. J.I. 10.12.1)

WRONGFUL DEATH OF ADULT; HEIR AS PLAINTIFF; LOSS OF PROBABLE SUPPORT, COMPANIONSHIP, SOCIETY, COMFORT AND CONSORTIUM

The heir’s loss of probably support, companionship, society, comfort and consortium. In determining the loss, you may consider the financial support, if any, which the heir would have received from the deceased except for his death, and the right to receive support, if any, which the heir has lost by reason of his death.

[The right of one person to receive support from another is not destroyed by the fact that the former does not need the support, nor by the fact that the latter has not provided it.]

You may also consider:

1. The age of the deceased and of the heir;
2. The health of the deceased and of the heir;
3. The respective life expectancies of the deceased and of the heir;
4. Whether the deceased was kindly, affectionate or otherwise;
5. The disposition of the deceased to contribute financially to support the heir;
6. The earning capacity of the deceased;
7. His habits of industry and thrift; and
8. Any other facts shown by the evidence indicating what benefits the heir might reasonably have been expected to receive from the deceased had he lived.

With respect to life expectancies, you will only be concerned with the shorter of two, that of the heir whose damages you are evaluating or that of the decedent, as one can derive a benefit from the life of another only so long as both are alive. (NEV. J.I. 10.13; BAJI 14.50 NRS 41.085(4).1)

WRONGFUL DEATH OF CHILD; HEIR AS PLAINTIFF; LOSS OF PROBABLE SUPPORT, COMPANIONSHIP, SOCIETY AND COMFORT

The heir’s loss of probable support, companionship, society and comfort. In determining that loss you may consider not only the benefits that the heir was reasonably certain to have received form the earnings and services of [his] [her] child during the child’s minority, but also the support and financial benefit which it is reasonably certain the heir would have received from the child after the latter’s majority and during the period of their common life expectancy.

You may consider also what loss, fi any, the heir was suffered, and will suffer in the future with reasonable certainty, by being deprived of the love, companionship, comfort, affection, society, solace or moral support of the child. As an offset against the factors of loss mentioned, you should take into consideration what it would have cost the heir to support and educate the deceased child, had [he] [she] lived. In weighing these matters, you may consider:

1. The age of the deceased and of the heir;
2. The state of health and physical condition of the deceased and of the heir as it existed at the time of death and immediately prior thereto;
3. Their station in life;
4. Their respective life expectancies as shown by the evidence;
5. The disposition of the deceased, whether it was kindly, affectionate, or otherwise;
6. Whether or not [he] [she] showed a likelihood of contributing to the support of the heir;
7. The earning capacity, if any, of the deceased; and
8. All other facts in evidence that throw light upon the question of what benefits the heir might reasonably have been expected to receive from the deceased child had [he] [she] lived.

With respect to the matter of life expectancy, you must keep this point in mind: the prospective period of time that will be of concern to you if you decide in favor of [any] [the] heir is only the shorter of the two life expectancies, that of such heir or that of the deceased child, as one can derive a benefit form the life of another only so long as both are alive. (NEV. J.I. 10.14; BAJI 14.52; NRS 41.085(4).1)

WRONGFUL DEATH; HEIR AS PLAINTIFF; GRIEF OR SORROW

Any grief or sorrow suffered by the heir [and any grief or sorrow reasonably certain to be experienced by the heir in the future]. (NEV. J.I. 10.15; NRS 41.085(4).1)

WRONGFUL DEATH; HEIR AS PLAINTIFF; PAIN, SUFFERING, OR DISFIGUREMENT OF THE DECEDENT

If, under the court’s instructions, you find that [one or more of] the heir[s] is entitled to a verdict, you must also award to such heir[s] as damages an amount representing the pain and suffering [and disfigurement], if any, experienced by the decedent and [proximately] [legally] caused by the act or omission upon which you base you finding of liability. (NEV. J.I. 10.16; NRS 41.085(4).1)

WRONGFUL DEATH; HEIR AS PLAINTIFF; GRIEF, SORROW, PAIN, SUFFERING, DISFIGUREMENT; NO DEFINITE STANDARD

No definite standard [or method of calculation] is prescribed by law by which to fix reasonable compensation for grief or sorrow [or pain and suffering] [and disfigurement]. Nor is the opinion of any witness required as to the amount of such reasonable compensation. [Furthermore, the argument of counsel as to the amount of damages is not evidence of reasonable compensation.] In making an award for grief or sorrow [and] [,] [pain and suffering] [and disfigurement] you shall exercise your authority with clam and reasonable judgment and the damages you fix shall be just and reasonable in light of the evidence. (NEV. J.I. 10.17; BAJI 14.13.1)

WRONGFUL DEATH; PERSONAL REPRESENTATIVE AS PLAINTIFF; SPECIAL DAMAGE AND PENALTIES

Plaintiff ___________________ is the personal representative of_____________________, deceased. If, under the court’s instructions, you find that plaintiff _____________________ is entitled to a verdict against the defendant, you must then award him damages in an amount that will reasonably compensate the estate for any special damages, such as medical expenses, which the decedent incurred before his death, and funeral expenses, provided that you find that such damages were actually suffered by the estate and were [proximately] [legally] caused by the act or omission upon which you base your finding of liability. [Plaintiff ________________________________ is also entitled to recover, on behalf of the estate, any penalties that the decedent would have recovered if he had lived.] (NEV. J.I. 10.18; NRS 41.085(5).1)

PERSONAL INJURY AND PROPERTY DAMAGE; CLOSING INSTRUCTION

Whether any of these elements of damage have been proven by the evidence is for you to determine. Neither sympathy nor speculation is a proper basis for determining damages. However, absolute certainty as to the damages is not required. It is only required that plaintiff prove each item of damage by a preponderance of the evidence. (NEV. J.I. 10.19.1)

PUNITIVE DAMAGES; RECOVERY AND MEASURE

If you find that plaintiff suffered damage as a [proximate] [legal] result of the conduct of the defendant, and upon which conduct you base a finding of liability, you may then consider whether you should award punitive or exemplary damages against defendant [______________________ only], for the sake of example and by way of punishment. You may in your discretion award such damages, if, but only if, you find by a preponderance of the evidence that said defendant was guilty of [oppression] [fraud] [or] [malice] in the conduct upon which you base your finding of liability.

[“Malice” means conduct which is [intended by the defendant to cause injury to the plaintiff] [or] [carried on by the defendant with a conscious disregard for the] [rights] [or] [safety] of others.]

[“Oppression” means subjecting a person to cruel and unjust hardship in conscious disregard of that person’s rights.]

[“Fraud” means an intentional misrepresentation, deceit, or concealment of a material fact known to the defendant with the intention, on the part of the defendant, of thereby depriving a person of property or legal rights or otherwise causing injury.]

The law provides no fixed standards as to the amount of such punitive damages, but leaves the amount to the jury’s sound discretion, exercised without passion or prejudice. In arriving at any award of punitive damages, you are to consider the following:

1. The reprehensibility of the conduct of the defendant;
2. The amount of punitive damages which will have a deterrent effect on the defendant in the light of defendant’s financial condition. (NEV. J.I. 10.20; BAJI 14.71.1)

PUNITIVE DAMAGES; DEFINITION OF CONSCIOUS DISREGARD OF RIGHTS OR SAFETY OF OTHERS

A person acts with conscious disregard of the rights or safety of others when [he] [she] is aware of the probable dangerous consequences of [his] [her] conduct and willfully and deliberately fails to avoid those consequences. (NEV. J.I. 1021; BAJI 14.72.1)

Read the previous section on Nevada Jury Instructions.