Strategies, Challenges, and Answers

IT’S HARD TO GET ONE OVER ON THE MAN

In the recent case of Clark County School District v. Richardson Construction, Inc., 123 Nev. Adv. Op. 39 (2007), the Nevada Supreme Court reiterated its position that Nevada’s waiver of sovereign immunity would be strictly enforced.  

Sometimes, a governmental entity, such as a city or a county, will be a co-defendant in a case involving our client.  Where a governmental entity is involved, issues related to sovereign immunity must be considered.  The rule is that unless the government decides to waive sovereign immunity, it can’t be sued in court.  The Nevada Legislature has created a limited waiver of sovereign immunity in Nevada.  The limitation is that there is cap of $50,000.00 per person for claims against any governmental entity.  See N.R.S. 41.035

1062981_old_glory In the subject case, the plaintiff had sued the Clark County School District.  In the School District’s answer, it failed to include an affirmative defense based on sovereign immunity.  Had the affirmative defense been included, it would have said that the School District is protected by doctrine of sovereign immunity and that the most the Plaintiff could get would be the $50,000.00 allowed under statute. 

Because the language stating that affirmative defense was not included in the answer, the plaintiff’s attorney argued that sovereign immunity had been waived.  Plaintiff wanted to collect collect damages in excess of the $50,000.00 cap.  The Supreme Court decided that even if the sovereign immunity was not included in the answer, that the School District could not waive this statutory damage protection.  Although the plaintiff’s arguments were a worthy attempt to try to get around the cap, it was clear that the legislative intent of protecting the governmental entities would be enforced in spite of what might be considered a technical error by the attorney for the government.

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