Las Vegas Jury Awards $15 Million After Disabled Rider Chokes to Death on a Paratransit Bus

On July 29, 2011, Harvey Chernikoff boarded a First Transit paratransit bus in Las Vegas for his usual ride to a workshop where he had a job. Harvey was 51, intellectually disabled, and the only passenger that morning. He sat in the first seat, about four feet behind the driver. Somewhere along the route he began choking on a sandwich. He could not speak. He reached toward the driver, then slid down into the aisle.

First Transit's own rules told the driver to scan the interior mirror and check on riders every few seconds. The driver did not. Minutes passed before he noticed Harvey slumped in the aisle. When he finally stopped, he radioed dispatch instead of calling 911, and he had no idea how to clear an airway. First Transit had decided not to teach its drivers CPR or the Heimlich maneuver, a choice that saved the company roughly $88 per driver in training time.

Harvey's parents, Jack and Elaine Chernikoff, sued First Transit and the bus driver for negligence. Benjamin Cloward, then with the firm Cloward Hicks & Brasier, served as lead trial counsel for the family, with Atlanta attorney Charles Allen as co-counsel. Richard Harris of the Richard Harris Personal Injury Law Firm joined as co-counsel and assisted at trial, and the firm's Seth Little helped develop the case during discovery. They argued that a common carrier owes a heightened duty to monitor and protect its passengers, and that the duty grows when the company knows a rider is disabled. An emergency room physician testified that the Heimlich maneuver and CPR would have saved Harvey's life. First Transit denied liability and, according to the family's lawyers, rejected settlement demands.

On February 29, 2016, after a trial in Clark County District Court, the jury deliberated for less than half an hour. It returned a verdict of $15 million: $7.5 million for Harvey's pain and suffering and $7.5 million to his parents for the loss of their son.

First Transit appealed. In an August 2019 opinion, the Nevada Supreme Court initially sided with the company on a jury instruction question and reversed. The Chernikoffs petitioned for rehearing. The court granted it, vacated the 2019 opinion, and heard argument again in July 2020. This time it held that First Transit had waived its objections to the instructions, having proposed a common carrier instruction itself, and that the $15 million award was supported by substantial evidence and did not shock the conscience.

The court issued an amended order affirming the district court's judgment and directing the verdict to stand.