Workers’ comp after suicide
In an unanimous decision written by Justice Ron Parraguirre, the Nevada Supreme Court ruled that death benefits can be given in certain instances of suicide, specifically, if an injured employee commits suicide as a result of an on-the-job injury. Parraguirre called it a "chain of causation" test--the appeals officer said "death benefits were not available to the family because the suicide was a deliberate decision and was not an act of insanity." The Supreme Court sent the case back to the hearing officer to consider the standard Parraguirre referred to, which would allow survivors a greater chance of recovering death benefits of a relative who commits suicide after a job injury.[9]
Nevada Court Gives Police Power
Citing a 7-2 U.S. Supreme Court decision, the Nevada Supreme Court threw out a District Court's ruling and broadened the authority of police to conduct searches of vehicles. The lower court had found that an officer was outside of the limits of the law by detaching a center console in a man's car, finding a handgun and three bags of marijuana. Justice Ron Parraguirre wrote the opinion, saying "the latest opinion marks a 'retreat' from the earlier state high court ruling, and relies instead on the U.S. Supreme Court's 1991 Florida v. Jimeno decision that said the 'totality of circumstances' must be considered in determining whether a vehicle search was proper." According to the U.S. Supreme Court's opinion, the Jimeno case focused on "'objectively reasonable' in finding that a suspect's permission to let an officer search the interior of his car also extended to a closed paper bag on the floorboards."[10]
Las Vegas vs. The Eighth Judicial District Court of Nevada (2006)
Before the Court En Banc, and over the dissent of Justices Rose and Maupin, Justice Parraguirre concurred with the majority opinion, which ruled that a Las Vegas erotic dancing municipal code 6.35.100(1), which prohibited dancers from fondling and caressing patrons, was neither unconstitutionally vague or overbroad. The court held (1) the ordinance is not constitutionally vague (2) fondling, caressing, and erotic dance is not per se expressive conduct (3) regulating exotic dance is content neutral (4) the ordinance is not constitutionally overbroad (5) municipal courts “have jurisdiction to consider the constitutionality of misdemeanor laws in proceedings attendant to enforcement of those laws.
In contrast, the dissent, authored by Justice Rose, and joined by Justice Maupin, argues that the ordinance is void for vagueness because the ordinance does not give “a person of ordinary intelligence notice as to the touching that does not fall within the definition of ‘sexual conduct,’ but is nevertheless prohibited.” In addition, the dissent argues (1) the ordinance fails to prevent arbitrary and discriminatory enforcement (2) the ordinance gives no specific guidelines for determining when touching has become permitted, and (3) the law gives law enforcement great discretion in interpreting and enforcing the ordinance.
QUOTES FROM THE MAJORITY'S DECISION
- ON THE BALANCE BETWEEN FIRST AMENDMENT AND PURPOSE OF THE ORDINANCE: “The purpose of Las Vegas' ordinances regulating erotic dance establishments is to curb the negative secondary effects that may result from such establishments- e.g., increased prostitution, the spread of sexually transmitted diseases, drug and alcohol offenses, fraud, and other criminal activity-while balancing the arguable protection of erotic dance under the First Amendment.”
- ON WHY THE ORDINANCE IS NOT UNCONSTITUTIONALLY VAGUE: “With the above purpose and definitions as context, LVMC 6.35.100(I) prohibits fondling and caressing between dancers and patrons with the intent to sexually arouse or excite. This construction adequately puts dancers and patrons on notice as to what conduct is prohibited. Further, this construction permits touching that is not intended to sexually arouse or excite. Therefore, accidental or incidental touching would not be prohibited under the ordinance.”
- ON WHY THE ORDINANCE PROVIDES AN ADEQUATE STANDARD FOR LAW ENFORCEMENT TO FOLLOW: “The above construction also provides an adequate standard for law enforcement because officers will know that, in order to prosecute someone for violating the ordinance, the prosecutor must prove that the dancer or the patron fondled or caressed the other with the intent to sexually arouse or excite. Because LVMC 6.35.100(I), viewed in its appropriate context, provides adequate notice of the prohibited conduct and provides adequate law enforcement standards, it is not unconstitutionally vague.”
- ON WHY FONDLING, CARESSING, AND EROTIC DANCE IS NOT PER SE EXPRESSIVE CONDUCT: “At the outset, we note that there is no First Amendment issue in prohibiting fondling and caressing in a general sense. Neither action is per se expressive conduct that communicates. Arguably, erotic dance is expressive conduct that communicates, which could be deserving of some level of First Amendment protection. If that is so, fondling and caressing may be protected expressive conduct when part of an erotic dance.”
- ON WHY REGULATING EROTIC DANCE IS CONTENT NEUTRAL: "We conclude that the ordinances regulating erotic dance establishments in general, and LVMC 6.35.100(I) in particular, are aimed at curbing the negative secondary effects of erotic dancing and not at the expressive conduct itself. Therefore, LVMC 6.35.100(I) is content-neutral."
- ON WHY THE ORDINANCE IS NARROWLY TAILORED: “By prohibiting only fondling and caressing with the intent to sexually arouse or excite, LVMC 6.35.100(I) is narrowly tailored to further the City's interests in preventing acts of prostitution, the spread of sexually transmitted diseases, drug and alcohol offenses (such as the inconspicuous sale of drugs possible when a dancer and patron fondle and caress each other during a dance), and acts of fraud.”
- ON JUDICIAL DEFERENCE TO THE LEGISLATURE: “‘[J]udges should not supplant the legislature's role in developing the most appropriate methods for achieving government purposes.’ Although various other regulations may be possible in this case, LVMC 6.35.100(I) is narrowly tailored to achieve the City's purposes.”
- ON WHY THE ORDINANCE IS NOT UNCONSTITUTIONALLY OVERBROAD: “We therefore conclude that, even though LVMC 6.35.100(I) reaches arguably expressive conduct that communicates-fondling and caressing as part of an erotic dance-which may be protected by the First Amendment, the City may still proscribe such conduct by the legitimate time, place, and manner restrictions embodied in LVMC 6.35.100(I). Therefore, because LVMC 6.35.100(I) only reaches conduct that the City has legitimately proscribed, the ordinance is not unconstitutionally overbroad.”
Las Vegas vs. The Eighth Judicial District Court of Nevada (2006)
Before the Court En Banc, and over the dissent of Justices Rose and Maupin, Justice Parraguirre concurred with the majority opinion, which ruled that a Las Vegas erotic dancing municipal code 6.35.100(1), which prohibited dancers from fondling and caressing patrons, was neither unconstitutionally vague or overbroad. The court held (1) the ordinance is not constitutionally vague (2) fondling, caressing, and erotic dance is not per se expressive conduct (3) regulating exotic dance is content neutral (4) the ordinance is not constitutionally overbroad (5) municipal courts “have jurisdiction to consider the constitutionality of misdemeanor laws in proceedings attendant to enforcement of those laws.
In contrast, the dissent, authored by Justice Rose, and joined by Justice Maupin, argues that the ordinance is void for vagueness because the ordinance does not give “a person of ordinary intelligence notice as to the touching that does not fall within the definition of ‘sexual conduct,’ but is nevertheless prohibited.” In addition, the dissent argues (1) the ordinance fails to prevent arbitrary and discriminatory enforcement (2) the ordinance gives no specific guidelines for determining when touching has become permitted, and (3) the law gives law enforcement great discretion in interpreting and enforcing the ordinance.
QUOTES FROM THE MAJORITY'S DECISION
- ON THE BALANCE BETWEEN FIRST AMENDMENT AND PURPOSE OF THE ORDINANCE: “The purpose of Las Vegas' ordinances regulating erotic dance establishments is to curb the negative secondary effects that may result from such establishments- e.g., increased prostitution, the spread of sexually transmitted diseases, drug and alcohol offenses, fraud, and other criminal activity-while balancing the arguable protection of erotic dance under the First Amendment.”
- ON WHY THE ORDINANCE IS NOT UNCONSTITUTIONALLY VAGUE: “With the above purpose and definitions as context, LVMC 6.35.100(I) prohibits fondling and caressing between dancers and patrons with the intent to sexually arouse or excite. This construction adequately puts dancers and patrons on notice as to what conduct is prohibited. Further, this construction permits touching that is not intended to sexually arouse or excite. Therefore, accidental or incidental touching would not be prohibited under the ordinance.”
- ON WHY THE ORDINANCE PROVIDES AN ADEQUATE STANDARD FOR LAW ENFORCEMENT TO FOLLOW: “The above construction also provides an adequate standard for law enforcement because officers will know that, in order to prosecute someone for violating the ordinance, the prosecutor must prove that the dancer or the patron fondled or caressed the other with the intent to sexually arouse or excite. Because LVMC 6.35.100(I), viewed in its appropriate context, provides adequate notice of the prohibited conduct and provides adequate law enforcement standards, it is not unconstitutionally vague.”
- ON WHY FONDLING, CARESSING, AND EROTIC DANCE IS NOT PER SE EXPRESSIVE CONDUCT: “At the outset, we note that there is no First Amendment issue in prohibiting fondling and caressing in a general sense. Neither action is per se expressive conduct that communicates. Arguably, erotic dance is expressive conduct that communicates, which could be deserving of some level of First Amendment protection. If that is so, fondling and caressing may be protected expressive conduct when part of an erotic dance.”
- ON WHY REGULATING EROTIC DANCE IS CONTENT NEUTRAL: "We conclude that the ordinances regulating erotic dance establishments in general, and LVMC 6.35.100(I) in particular, are aimed at curbing the negative secondary effects of erotic dancing and not at the expressive conduct itself. Therefore, LVMC 6.35.100(I) is content-neutral."
- ON WHY THE ORDINANCE IS NARROWLY TAILORED: “By prohibiting only fondling and caressing with the intent to sexually arouse or excite, LVMC 6.35.100(I) is narrowly tailored to further the City's interests in preventing acts of prostitution, the spread of sexually transmitted diseases, drug and alcohol offenses (such as the inconspicuous sale of drugs possible when a dancer and patron fondle and caress each other during a dance), and acts of fraud.”
- ON JUDICIAL DEFERENCE TO THE LEGISLATURE: “‘[J]udges should not supplant the legislature's role in developing the most appropriate methods for achieving government purposes.’ Although various other regulations may be possible in this case, LVMC 6.35.100(I) is narrowly tailored to achieve the City's purposes.”
- ON WHY THE ORDINANCE IS NOT UNCONSTITUTIONALLY OVERBROAD: “We therefore conclude that, even though LVMC 6.35.100(I) reaches arguably expressive conduct that communicates-fondling and caressing as part of an erotic dance-which may be protected by the First Amendment, the City may still proscribe such conduct by the legitimate time, place, and manner restrictions embodied in LVMC 6.35.100(I). Therefore, because LVMC 6.35.100(I) only reaches conduct that the City has legitimately proscribed, the ordinance is not unconstitutionally overbroad.”
Chanos vs. Nevada Tax Commission (2008)
Justice Parraguirre concurred in a unanimous opinion that voided the Nevada Tax Commission’s decision to grant a taxpayer a refund of use taxes because the commission violated Nevada’s Open Meeting Law. The decision requires the Nevada Tax Commission to deliberate, vote, and receive nonconfidential evidence in open session during its proceedings. The Court further held that the exception to the Open Meeting Law only allows the Tax Commission to close a session, upon a taxpayer’s request, for the limited purpose of receiving evidence, questioning witnesses, and hearing arguments concerning confidential information.
QUOTES FROM THE DECISION
- ON THE OPEN MEETING LAW: “Meetings of public bodies should be open whenever possible to comply with the spirit of the Open Meeting Law.”
- ON THE EXCEPTIONS TO THE OPEN MEETING LAW: “Because exceptions to the Open Meeting Law must be construed narrowly to favor openness and public bodies should meet openly whenever possible, we recognize that exceptions to the Open Meeting Law only extend to portions of a proceeding specifically, explicitly, and definitely excepted by statute.”
- ON THE CONSEQUENCE OF AN OVERBROAD INTERPRETATION OF THE EXCEPTION TO THE OPEN MEETING LAW: “[An] overbroad interpretation of the statutory exception would eviscerate the Open Meeting Law’s mandate that public bodies deliberate and vote in public meetings.”
ASAP Storage, Inc. et al. vs. The City of Sparks
Before the Court En Banc, Justice Mark Gibbons authored the unanimous opinion, which ruled that even though Nevada has a rich history in protecting private property rights, a City’s decision to barricade streets and to deny owners entrance into their property for 48 hours during a flood was not a “taking” of private property under the Nevada Constitution. The Court held (1) the “takings” clause of Nevada’s Constitution extends not only to real property, but also to personal property (2) the city’s interference with appellant’s property did not constitute a “takings” because the city only temporarily interfered with the property and never appropriated or physically occupied the property during the flood (3) the government is immune from negligence that is related to preparing for and handling emergencies, but not pre-emergency negligence.
QUOTES FROM THE OPINION
- ON NEVADA’S “TAKINGS” STANDARD: “The Nevada Constitution states that ‘[p]rivate property shall not be taken for public use without just compensation having been first made, or secured, except in cases of war, riot, fire, or great public peril, in which case compensation shall be afterward made.’”
- ON WHY PERSONAL PROPERTY IS COVERED BY THE “TAKINGS” CLAUSE: “Specifically, that provision broadly applies to all types of privately owned “property” and includes no language to justify excluding personal property from its scope. Further, to define “private property” as not applying to personal property is not a reasonable alternative interpretation.”
- ON THE ACKNOWLEDGMENT OF EXPANSIVE INDIVIDUAL PROPERTY RIGHTS BY THE COURT: “To construe Nevada’s takings clause in that way would *** undermine the spirit of that provision, which we recently have noted ‘contemplates expansive property rights’ and provides the foundation of Nevada’s ‘rich history of protecting private property owners against government takings,’ while allowing for public safety and police powers.”
- ON THE STANDARD FOR A PHYSICAL APPROPRIATION “TAKING” OF AN INDIVIDUAL’S PRIVATE PROPERTY: “A physical appropriation by ouster occurs when the government substantially interferes with an owner’s right of access to his or her property.” However, “the duration of any such impairment plays a significant role in determining whether the impairment substantially interferes with the owner’s right to access his or her property.”
- ON WHEN THE GOVERNMENT HAS IMMUNITY FOR PRE-EMERGENCY ACTS: : “NRS 414.110(1) creates governmental immunity for emergency preparation activities as well as emergency responses. Whether a pre-emergency act is immune turns solely on whether it was undertaken by the government in preparing for an emergency. Any pre-emergency acts that are not related to such preparation are not immunized under the statute.”
Turner vs. Mandalay Sports Entertainment (2008)
In a 4-3 decision, Justice Parraguirre authored the majority opinion, over the dissents of Justices Mark Gibbons, Michael Douglas, and Michael Cherry, which concluded that a professional baseball team, which printed injury disclaimers on tickers, posted warning signs and made announcements concerning the danger of foul balls hit into the crowd, was not liable for the severe injuries caused by a foul ball that struck a patron sitting in a Beer Garden without protective screening as a matter of law. The majority expressly held that stadium owners have a limited duty to protect against injuries sustained from foul balls, and that once this duty is satisfied by providing sufficient protected seating, stadium owners have “no remaining duty to protect spectators from foul balls, which are a known, obvious, and unavoidable part of all baseball games.”
In contrast, the dissent, authored by Justice Gibbons, argued that the negligence claim should not be dismissed as a matter of law because the patron was sitting in the Beer Garden, and the Limited Duty Rule should not be applied to areas outside of the stands because the Limited Duty Rule is a very specific exception to the general standard of care principles under Nevada’s comparative negligence system.
QUOTES FROM THE MAJORITY OPINION
- ON LIMITING THE ROLE OF THE JURY THROUGH THE ADOPTION OF THE LIMITED DUTY RULE: “Recognizing the importance of establishing parameters around personal injury litigation stemming from professional baseball in Nevada, we take this opportunity to expressly adopt the limited duty rule.” “The limited duty rule establishes the totality of the duty owed by baseball stadium owners and operators to protect spectators from foul balls within the confines of the stadium.”
- ON THE ROLE OF PROXIMATE CAUSE IN FOUL BALL INJURY CASES: “Because Berrum was decided before the enactment of Nevada’s comparative negligence statute, however, and it did not thoroughly consider the issue of ‘duty,’ it provides little guidance here.”
- ON THE REQUIREMENTS OF THE LIMITED DUTY RULE: “First, the rule requires stadium owners and operators to provide a sufficient amount of protected seating for those spectators ‘who may be reasonably anticipated to desire protected seats on an ordinary occasion.’ Second, it requires stadium owners and operators to provide protection for all spectators located in the most dangerous parts of the stadium, that is, those areas that pose an unduly high risk of injury from foul balls (such as directly behind home plate).”
- ON THE REASONING OF THE LIMITED DUTY RULE: “By defining the duty of a baseball stadium owner or operator with specificity, the limited duty rule shields the stadium owner or operator from the need to take precautions that are clearly unreasonable while also establishing the outer limits of liability. In addition, “[it] serves the important purpose of limiting expensive and protracted litigation that “might signal the demise or substantial alteration of the game of baseball as a spectator sport.”
- ON THE HIGH RISK OF DANGER REQUIREMENT: “The risk of an occasional foul ball, however, does not amount to ‘an unduly high risk of injury.’ Indeed, Mrs. Turner has conspicuously failed to demonstrate that any other spectator suffered injuries as a result of errant balls landing in the Beer Garden. Thus, we conclude that she failed to establish a genuine issue of material fact as to the 51s' negligence, and the 51s were entitled to judgment as a matter of law.”
- ON THE SCOPE OF THE LIMITED DUTY RULE AND PERSONAL RESPONSIBILITY: "The dissent reasons that summary judgment is inappropriate because the limited duty rule does not extend to areas outside of the stands, such as the Beer Garden. In reaching this determination, the dissent applies the limited duty rule to the stands but then concludes that traditional negligence principles apply to other areas of the ballpark. In doing so, the dissent creates a ‘shifting or moveable duty of care,’ which is triggered by the plaintiff's unilateral and volitional decision to move between parts of the stadium. In our view, the defendant's duty should not change at the plaintiff's impulse, and only one duty of care should apply with respect to the general ‘peril of objects leaving the playing field.’”
- THE ROLE OF THE JURY IN DETERMINING DUTY AND ASSUMPTION OF RISK: "Several other courts that have recognized duty as a legal question also have recognized that the primary implied assumption of risk doctrine merely ‘goes to the initial determination of whether the defendant's legal duty encompasses the risk encountered by the plaintiff.’ These courts treat the doctrine as a part of the initial duty analysis, rather than as an affirmative defense to be decided by a jury. In our opinion, this is a better application of the doctrine, and one that makes it compatible with our comparative negligence statute. Accordingly, we overrule Mizushima to the extent that it held that the primary implied assumption of risk doctrine was abolished by our comparative negligence statute. Whether that doctrine bars a plaintiff's claim should be incorporated into the district court's initial duty analysis, and therefore it should not be treated as an affirmative defense to be decided by a jury.”
QUOTES FROM THE DISSENTING OPINION
- PUBLIC POLICY REASONING FOR NOT EXPANDING LIMITED DUTY RULE: “Since Mrs. Turner was sitting in the Beer Garden and not in the stands at the time of her injury, the limited duty rule should not apply. As the New Jersey Supreme Court recognized, to apply the limited duty rule ‘to [an] entire stadium would convert reasonable protection for owners to immunity by virtually eliminating their liability for foreseeable, preventable injuries to their patrons even when the fans are no longer engaged with the game.’ Thus, ‘[b]ecause principles of fairness, and by implication public policy, support the application of traditional tort concepts to areas outside of the stands,’ we should not expand the scope of the limited duty rule past the stands. Instead, the limited duty rule is a very specific, historically based exception to the general rule that traditional negligence standard of care principles apply under Nevada's comparative negligence system.”
Silver State Electric Supply Co. vs. The State of Nevada ex rel. Department of Taxation (2007)
Sitting En Banc, Justice Parraguiree concurred with a unanimous opinion (Justices Michael Cherry and Nancy Saitta did not participate), authored by Justice Mark Gibbons, which upheld a Nevada Department of Taxation regulation that requires a person, before seeking judicial review of a final tax determination, to pay the amount of the determination or enter into a written agreement with the Tax Department to do so. The Court held that the regulation did not deprive the Plaintiff of its right to equal protection or exceed its statutory authority by requiring written agreements to pay taxes in installments be personally guaranteed by a responsible person.”
QUOTES FROM THE MAJORITY OPINION
- ON THE REQUIREMENTS OF SEEKING JUDICIAL REVIEW ON TAX DETERMINATIONS: "NRS 360.395 provides, (1) Before a person may seek judicial review pursuant to NRS 233B.130 from a final order of the Nevada Tax Commission upon a petition for redetermination, he must:(a) Pay the amount of the determination; or(b) Enter into a written agreement with the Department establishing a later date by which he must pay the amount of the determination. (2) If a court determines that the amount of the final order should be reduced or that the person does not owe any taxes, the Department shall credit or refund any amount paid by the person that exceeds the amount owed, with interest determined in accordance with NRS 360.2935."
- ON EQUAL PROTECTION: “When a party contends that a statute violates its equal protection rights but does not allege the involvement of a suspect class or fundamental right, the statute is constitutional if the classification scheme created by that statute is rationally related to furthering a legitimate state interest. NRS 360.395 protects the state's legitimate interest in securing the payment of taxes. As these taxes fund public services, the payment requirement rationally relates to furthering the state's ability to do so. For these reasons, we conclude that NRS 360.395 does not deprive Silver State of its right to equal protection; before seeking judicial review, its terms must be complied with.”
- 0N DEFERENCE T0 THE TAX COMMISSION’S INTERPRETATION: “The Tax Commission has authority to adopt regulations to carry out the mandates of NRS 360.395. Accordingly, the Tax Commission implemented NAC 360.452 to regulate the type of ‘written agreement’ that the statute allows the Tax Department to enter into. In so doing, it was required to interpret the statute. We will defer to the Tax Commission's interpretation of NRS 360.395 if that interpretation is within the provision's statutory language. We note that the Legislature's acquiescence to the Tax Commission's reasonable statutory interpretation by not modifying the statute indicates that the interpretation accords with legislative intent.”
- ON EXCEEDING STATUTORY AUTHORITY: “NAC 360.452 does not exceed statutory authority. The Legislature granted the Tax Department the authority to collect taxes by written agreements, and NAC 360.452 directly relates to such written agreements. Also, the Legislature has not modified the statutory provision allowing for written agreements since the Tax Commission adopted the regulation. Consequently, Silver State was required to comply with this regulation in entering into any NRS 360.395 agreement with the Department, and its failure to do so properly resulted in the district court's dismissal of its petition for judicial review.”
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