Nevada Supreme Court Update: Significant Change to Nevada Premises Liability Law

In Foster v. Costco,128 Nev. Adv. Op. 71 (Dec. 27, 2012), Nevada’s highest appellate court has made a significant change to Nevada premises liability law.

The Nevada Supreme Court has held that “the open and obvious nature of a dangerous condition does not automatically relieve a landowner from the general duty of reasonable care.”  Prior to this ruling, defendants in premises liability cases routinely prevailed on summary judgment by arguing that they had not breached their duty of care as a matter of law where the dangerous condition was open and obvious.  The Court’s holding in Foster changes this result, and will likely make it significantly more difficult for a defendant to prevail on summary judgment when a dangerous condition is open and obvious.

The Court presents Foster as a logical next step in Nevada law on premises liability.  In reaching its decision, the Court adopts the rule set forth in the Restatement (Third) of Torts: Physical and Emotional Harm, § 51, just as it has in the past adopted the rules on this topic from previous iterations of the Restatement.

The Court also presents its decision as a modernization of Nevada’s tort law. It traces the history of the open and obvious doctrine, including mid-twentieth century criticisms that the doctrine was too harsh.  The Court then discusses the “distraction exception” to the open and obvious rule that developed in response to these criticisms.  Ultimately, the Court cites with favor the reasoning of the Second Circuit in Michalski v. Home Depot, Inc., 225 F.3d 113 (2d Cir. 2000), which found that “even obvious dangers may create a foreseeable risk of harm and consequently give rise to a duty to protect or warn on the part of the landowner.” The Court concludes that, under the new rule it is adopting, “landowners bear a general duty of reasonable care to all entrants, regardless of the open and obvious nature of dangerous conditions.”

Finally, the Court makes clear that the open and obvious nature of a danger is to be considered as a factor in determining whether a defendant employed reasonable care and in determining the comparative fault of the plaintiff.

New Procedures for the Ninth Circuit in 2013

The Ninth Circuit Court of Appeals has changed two of its procedures so as to rely more heavily on its Appellate ECF system. The Court sent out an e-mail blast on January 1 with the news. The basic changes to the Court’s appellate rules and procedures are highlighted below.

No more telephonic requests for extensions of time.  In place of telephonic requests, parties requesting extensions of time to file briefs can request an extension of 30 days through the Appellate ECF system. The filing type will be titled “File a Streamlined Request to Extend Time to File Brief.” Like the telephonic requests, the streamlined request can only be made if no previous requests for extension have been made, the request must be made on or before the brief’s due date, and any subsequent extension requests must be made by motion.  The Ninth Circuit indicates that these streamlined requests will be “routinely approved.”

Parties must file their excerpts of record electronically starting March 1, 2013.  Parties who can are “strongly encouraged” to submit excerpts electronically starting immediately. Excerpts should be filed electronically on the same day as the brief.  The procedure will mirror the current system for briefs. The court will issue an order directing the filing party to file paper excerpts on the court, but the party need only serve paper copies of the excerpts on other parties to the appeal if they are not registered for Appellate ECF.

Links to the specifics:

Extensions of time http://www.ca9.uscourts.gov/content/view.php?pk_id=0000000638

Filing of Excerpts of Record http://www.ca9.uscourts.gov/datastore/general/2012/12/26/electronic_excerpts_final.pdf.