Elements of Nevada's Theories of Liability

Elder Abuse

 

Elder Abuse

Elements

NRS 41.1395Action for damages for injury or loss suffered by older or vulnerable person from abuse, neglect or exploitation; double damages; attorney’s fees and costs.

1. Except as otherwise provided in subsection 3,

  • if an older person or a vulnerable person suffers a personal injury or death that is caused by abuse or neglect or
  •  suffers a loss of money or property caused by exploitation,
  • the person who caused the injury, death or loss is liable to the older person or vulnerable person for two times the actual damages incurred by the older person or vulnerable person.

2. If

  • it is established by a preponderance of the evidence that a person who is liable for damages pursuant to this section
  • acted with recklessness, oppression, fraud or malice,
  • the court shall order the person to pay the attorney’s fees and costs of the person who initiated the lawsuit.

 

3. The provisions of this section do not apply to a person who caused injury, death or loss to a vulnerable person if he did not know or have reason to know that the harmed person was a vulnerable person.

4. For the purposes of this section:

 

Definitions

4. For the purposes of this section ( NRS 41.1395):

(a) “Abuse” means willful and unjustified:

(1) Infliction of pain, injury or mental anguish; or

(2) Deprivation of food, shelter, clothing or services which are necessary to maintain the physical or mental health of an older person or a vulnerable person.

(b) “Exploitation” means any act taken by a person who has the trust and confidence of an older person or a vulnerable person or any use of the power of attorney or guardianship of an older person or a vulnerable person to:

(1) Obtain control, through deception, intimidation or undue influence, over the money, assets or property of the older person or vulnerable person with the intention of permanently depriving the older person or vulnerable person of the ownership, use, benefit or possession of his money, assets or property; or

(2) Convert money, assets or property of the older person with the intention of permanently depriving the older person or vulnerable person of the ownership, use, benefit or possession of his money, assets or property.

Ê As used in this paragraph, “undue influence” does not include the normal influence that one member of a family has over another.

(c) “Neglect” means the failure of a person who has assumed legal responsibility or a contractual obligation for caring for an older person or a vulnerable person, or who has voluntarily assumed responsibility for his care, to provide food, shelter, clothing or services within the scope of his responsibility or obligation, which are necessary to maintain the physical or mental health of the older person or vulnerable person. For the purposes of this paragraph, a person voluntarily assumes responsibility to provide care for an older or vulnerable person only to the extent that he has expressly acknowledged his responsibility to provide such care.

(d) “Older person” means a person who is 60 years of age or older.

(e) “Vulnerable person” means a person who:

(1) Has a physical or mental impairment that substantially limits one or more of the major life activities of the person; and

(2) Has a medical or psychological record of the impairment or is otherwise regarded as having the impairment.

Ê The term includes, without limitation, a person who is mentally retarded, a person who has a severe learning disability, a person who suffers from a severe mental or emotional illness or a person who suffers from a terminal or catastrophic illness or injury.

Example Cases

Plaintiffs’ tenth claim for relief for elder exploitation under N .R.S. 41.1395 alleges that the defendant “gained the trust and confidence of plaintiffs, who [d]efendant knew were all over 60 years old … [and] convert [ed][p]laintiffs’ property and money, though financed, with the intent to permanently deprive [p]laintiffs of ownership, use, benefit, or possession of their property and money, [and] depriv[ed][p]laintiffs of the information about what their loan would actually cost.” (Doc. # 1, compl., ¶ 128). The court agrees that the plaintiffs have sufficiently pled their claim for relief for elder exploitation, and that the defendant has been given sufficient notice as to the basis of the claim. Accordingly, the court denies the defendant’s motion to dismiss the tenth claim.

Jung v. BAC Home Loans Servicing, LP, 2:10-CV-2236 JCM GWF, 2011 WL 2462248 (D. Nev. June 17, 2011)

Damages

Defenses

We can see no reason to find that delaying or withholding insurance policy benefits of an elderly person should constitute a separate tort of exploitation. While neither side has turned up any case explicitly dealing with a violation of Nev.Rev.Stat. 41.1395, we suspect that the provision seeks to punish behavior very different from that of Defendant Johnson’s in this case. Despite Plaintiffs’ arguments to the contrary, this case is an insurance policy case where the proper Defendant, as conceded by Plaintiffs, is the insurance company, not the individual claims adjuster, and therefore Defendant Johnson shall be dismissed from this case.

DeRuise v. Progressive Cas. Ins. Co. Inc., 3:11-CV-00136-ECR, 2011 WL 3651297 (D. Nev. Aug. 17, 2011)
 
 
 
 

NRS 41.1395

NRS 41.1395