Strategies, Challenges, and Answers

The Nevada Supreme Court Overturns Wrongful Death Judgment Against Cow’s Owner. Facts Prevail Over Attorney Errors.

Michael Adams died when his car hit a cow belonging to Susan Fallini.  Nevada Law Blog readers know from this earlier post that Nevada Is An Open Range State.  Ms. Fallini asserted the “Open Range” defense pursuant to NRS 568.360 claiming the total defense that is available to her under that statute.

NRS 568.360  Duties of owners of domestic animals with respect to domestic animals upon highway.

  1. No person, firm or corporation owning, controlling or in possession of any domestic animal running on open range has the duty to keep the animal off any highway traversing or located on the open range, and no such person, firm or corporation is liable for damages to any property or for injury to any person caused by any collision between a motor vehicle and the animal occurring on such a highway.
  2. Any person, firm or corporation negligently allowing a domestic animal to enter within a fenced right-of-way of a highway is liable for damages caused by a collision between a motor vehicle and the animal occurring on the highway.

The facts seemed to confirm the viability of Ms. Fallini’s “Open Range” defense.  NHP investigators found that the auto vs. cow accident happened on “Open Range”.  Even a memorial web site set up by Mr. Adams family referenced the fact that the incident happened on “Open Range” land. 

But when the Adams’ attorney sent Requests for Admission under NRCP Rule 36 stating that the accident did not happen on “Open Range” land.  When Fallini’s attorney did not respond, the rules provide that this fact, that seemed to contradict the evidence, was deemed admitted.  Based on this discovery failure of Ms. Fallini’s attorney, judgment was entered in favor of Mr. Adam’s family.

Ms. Fallini got a new attorney though.  The new attorney filed a Motion to Set Aside the Wrongful Death Judgment based on fraud.  NRCP Rule 60(b).  Subsequently, the District Court set aside the Judgment and dismissed the Wrongful Death suit of the Adams’ family based on the “Open Range” Doctrine.

The Estate appealed the outcome and here is where the Nevada Supreme Court got involved.  Estate of Adams vs. Fallini, 132 Nev. Adv. Op. 81 (Dec. 29, 2016).

The Nevada Supreme Court upheld the determination that despite the procedural error of Ms. Fallini’s first attorney, the facts should prevail.  This ruling not only reinforces Nevada’s position on its “Open Range” defense, it also strengthens Nevada’s position that cases should be decided on the facts and not on the procedure.

It is well settled policy in Nevada that cases should be decided on their merits, rather than adjudicated as a result of a procedural error.  La-Tex Partnership v. Deters, 111 Nev. 471, 476 (1995) (citing Ogle v. Miller, 87 Nev. 573,577 (1971)).

In Hotel Last Frontier Corporation v. Frontier Properties, Inc., 79 Nev. 150 (1963), the Supreme Court of Nevada overturned a District Court Order denying a motion to set-aside a default judgment. The Supreme Court explained:

Finally we mention, as a proper guide to the exercise of discretion, the basic underlying policy to have each case decided upon its merits.  In the normal course of events, justice is best served by such a policy.  Because of this policy, the general observation may be made that an appellate court is more likely to affirm a lower court ruling setting aside a default judgment than it is to affirm a refusal to do so.  In the former case a trial upon the merits is assured, whereas in the latter it is denied forever.  (Emphasis added).  Hotel Last Frontier Corporation, 79 Nev. at 155.

Additionally, in Scrimer v. Eighth Judicial District Court, 116 Nev. 507, 998 P.2d 1190 (2000), the Nevada Supreme Court re-affirmed the policy of adjudicating cases on their merits when it overturned a District Court Order that quashed service of summons due to the plaintiff’s failure to serve the summons within 120 days from the date of filing provided by NRCP 4(i).  The Supreme Court noted, “when making a determination under NRCP 4(i), the district court should recognize that ‘good public policy dictates that cases be adjudicated on their merits.’”  Scrimer, at 517, 998 P.2d at 1196. (citing Kahn v. Orme, 108 Nev. 510, 516 (1992)) (Emphasis added).

Nevada’s Open Range law is alive and well.  Facts should prevail over procedural errors.  If you need further information on these important topics, please don’t hesitate to contact Michael C. Mills of Bauman, Loewe, Witt & Maxwell at 702-240-6060 x 114 or contact him by email at

About Michael Mills

Mr. Mills practices in the area of civil litigation and appeals, with particular experience in matters involving trucking liability, insurance defense, insurance coverage, premises liability, products liability and defense of personal injury. Mr. Mills is a member of the Trucking Insurance Defense Association, the Defense Research Institute Trucking Committee and the Nevada Motor Transport Association. Mr. Mills is licensed to practice before the Nevada Supreme Court and the Utah Supreme Court. He is also licensed to appear before the United States Supreme Court, the U.S. District Courts for the Districts of Nevada and Utah, as well as the U.S. Court of Appeals for the Ninth Circuit. Mr. Mills has created 3 Blogs for the benefit of the insurance industry. He serves as editor and publisher of the Nevada Insurance Law Blog, the Nevada Coverage and Bad Faith Blog and the Nevada Trucking Law Blog.

Find Mike Mills on Google+