A weekend in Las Vegas is seen by many as a dream vacation, one people save up for years to experience. A Sin City vacation, however, can often times have a downside. When alcohol, late nights and the adrenaline of the gaming tables take effect, a Las Vegas vacation can turn downright deadly. In July 2011, 38-year old Benjamin Hawkins was enjoying playing blackjack with a friend and his wife when he took a break to head to the restroom. The Florida man alleges that when he was in that restroom he was accosted by John Massie who hurled racial epithets at the then teacher from Gainesville. Then tragedy occurred and John Massie from Utah laid dead on the floor of O’Sheas Casino. If a relative of yours was killed and you suspect it could be a LAs Vegas wrongful death case, contact Benson and Bingham today.
The casino’s surveillance video tapes show exactly what happened. Massie walked out of the bathroom first, his hands in his front pockets, and paused. Hawkins then left the bathroom and walked over to his wife and friend at the blackjack table. Massie then approached Hawkins from behind in three steps. Somehow alerted to Massie’s approach, Hawkins turned and punched Massie. Massie hit the ground from the punch and never got up. Jack Buchanan, Benjamin Hawkins attorney, says that no assault or battery took place since his client was defending himself from Massie. If a family member was killed in a wrongful death case, and you wish to recover pain and suffering, lost work and medical bills, contact Benson and Bingham for a free legal consultation today.
Benson and Bingham was founded by cousins in 2003 to provide Las Vegas residents with the best possible Clark County personal injury and Las Vegas wrongful death representation in the state of Nevada. Our success speaks for itself – we secured over $24,000,000 for our clients in 2010 and 2011.
Yesterday, a 65-year old Las Vegas woman, Diana Chambers, was arrested on suspicion of Las Vegas DUI charges after striking a Nevada man, Shannon Newland, and his vehicle as he was filling the car with gasoline. The man is currently at University Medical Center being treated. If you have missed work, lost property or incurred medical costs due to a Nevada traffic accident, contact us today.
The accident, which occurred on Cheyenne Avenue near US95 has put Mr. Newland in critical but stable condition. While he is doing well and expected to recover, the Southern Nevada resident faces a difficult couple of months. He will likely miss significant work and need compensation for his damaged automobile and hospital costs. Ms. Chambers is currently being held in a Clark County jail and it is unknown how much insurance she carries.
Personal injury firm, Benson & Bingham has been contacted by the family of a man found in a pool of blood inside an elevator on the casino floor at the Plaza Hotel. While investigations of said matter are in their infant stages, there have been comments suggesting that the elevator may have experienced a power outage. The deceased is seen on video footage entering the elevator on the nineteenth floor. The next segment of footage displays the door opening at the casino floor with the same gentleman lying on the elevator floor suffering a broken neck, broken nose, and missing teeth. Upon being retained, Benson & Bingham shall immediately file a lawsuit and begin discovery in this wrongful death action. Of most concern is the video footage inside the elevator which has not been released.
The family contacted Benson & Bingham after having previously retained counsel who essentially did not preform any work over the past year (i.e. obtain video footage). In elevator/escalator negligence or elevator/escalator malfunction cases, it is of utmost importance to obtain and preserve all of the evidence immediately to preserve the elevator or escalators condition, as well as being able to retain engineers to inspect the elevator or escalator to determine the malfunction. Further, many witnesses to an event in a casino are likely from out of town. Their statements may play a crucial role in determining what precipitated the events surrounding the event. While most elevator/escalator cases result in broken bones, spinal injuries, hip and/or leg fractures, this family suffered a loss of a husband and father. As discovery unfolds in this matter and maintenance records are obtained with video footage, the truth will surface.
Nevada has long been a State that protects it’s own interests. That protection is evident in the case law and statutes that protect innkeepers and Nevada Casinos from liability in over serving or from kicking out intoxicated patrons who later cause harm to themselves or others. The rules for such acts are harsh as they run contrary to common law for innkeepers. The duty of reasonable care apparently ceases for bartenders who are legally supposed to stop serving drunk patrons, but may do so anyway for that extra tip or simply because of the revenue that may drop in to the bar gaming machines. Below is the most recent Nevada Law reinforcing the protection for innkeepers, and can be found at the official cite, Rodriguez v. Primadonna Co. LLC, 125 Nev. Adv. Op. No. 45 (2009).
The case law also includes reference to NRS 651.020 Eviction of disorderly persons. ”Every owner or keeper of any hotel, inn, motel, motor court, or boardinghouse or lodging house in this State shall have the right to evict from such premises anyone who acts in a disorderly manner, or who destroys the property of any such owner or keeper, or who causes a public disturbance in or upon such premises.” Obviously, what is “disorderly” is broadly construed and would likely apply to any intoxicated patron.
Appeal and cross-appeal from an Eighth Judicial District Court’s grant of summary judgment in a tort action.
On appeal, the Nevada Supreme Court affirmed the district court’s rulings. The Court based its ruling on Nevada’s rejection of dram-shop liability and extended the protections to intoxicated minors injured after a reasonable eviction. The Court also denied respondent’s motion for attorney fees and costs, which was based upon an assertion that appellant’s claim was frivolous because it was barred based on relevant legal authority. The Court further affirmed the dismissal of the cross-claim for indemnity, finding that no right to implied indemnity exists for defense fees and costs when the underlying claim is dismissed but the fault of the third party is not determined.
Factual and Procedural History
Martin Rodriguez, grandfather and guardian ad litem of Fabian Santiago brought suit against Defendant, Primadonna Company, LLC, for spinal cord injuries sustained by Fabian in an automobile accident after he was evicted from Primadonna’s property for disorderly behavior. Fabian, who was 17 at the time of the incident, and his two adult step-uncles, were drinking and engaging in disorderly conduct at the defendant’s hotel property, including multiple physical altercations with hotel guests. At the hotel security officers’ request, the three agreed to leave the hotel property.
Prior to leaving, hotel security guards escorted the three to their hotel room to retrieve their belongings. While in the room, the three men spoke to Fabian’s mother and informed her that they had been asked to leave the hotel and intended to sleep in the car. However, once in the car, the hotel security guard’s informed the three that they needed to leave the parking lot.
After exiting the hotel parking lot, Fabian’s uncle, who did not have a valid driver’s license, mistook a frontage road for the freeway and rolled his vehicle, which was traveling at approximately 80 mph. Fabian sustained severe spinal cord injuries.
Fabian’s guardian brought suit alleging that Primadonna acted negligently when it evicted Fabian and his step-uncles from its property, thereby allowing or directing Fabian, a minor, to be a passenger in a motor vehicle driven by an intoxicated driver. Primadonna filed a third-party complaint against Fabian’s mother for indemnity, seeking indemnification and contribution for fees and costs incurred to defend the action. After the close of discovery, Primadonna filed two summary judgment motions, arguing that it had a duty and right to evict disruptive patrons and it did not owe a duty to keep Fabian, a minor, on its premises and, therefore, was not liable for his injuries. The district court granted the motions and dismissed the counterclaim for indemnity. Primadonna, as the prevailing party, then filed a motion for
1 By Keith Pickardattorney’s fees and costs against Fabian’s guardian, arguing that the underlying action was frivolous. The district court denied the motion, finding that the action was based on a negligent eviction rather than the dram-shop liability bar.
Primadonna subsequently filed a second motion for summary judgment on its third-party claim for indemnity against Fabian’s mother. Primadonna argued that Fabian’s mother had an affirmative duty to protect her child from harm and that she breached that duty when she knowingly allowed him to leave the hotel with a drunk, non-licensed driver. The district court, again, dismissed the motion. The dismissal was based on the ruling that any indemnity claim against Fabian’s mother was moot in light of the summary judgment entered in favor of Primadonna.
A. Standard of Review
The Nevada Supreme Court reviews orders granted summary judgment de novo.2 The Court is reluctant to affirm summary judgment in negligence cases because negligence is generally a question of fact for the jury;3 however, if the defendant is able to show that one of the elements of plaintiff’s prima facie case is “’clearly lacking as a matter of law,’” the Court will affirm the summary judgment.4
The Court reaffirmed that Nevada hotel proprietors have a statutory right, based on N.R.S. 651.020, to evict disorderly patrons, including minors, from its premises.5 Accordingly, the Court concluded that when a hotel proprietor rightly evicts a disorderly, intoxicated patron, the hotel proprietor is not liable for any torts that an evicted patron commits after he or she is evicted, subscribing to the rationale that individuals, drunk or sober, are responsible for their torts.6 In reaffirming Nevada’s rejection of dram-shop liability, the Court further held that, while a proprietor has a duty to act reasonably under the circumstances,7 the proprietor is not required to consider a patron’s level of intoxication in order to prevent speculative injuries that could occur off the proprietor’s premises.8 Therefore, the Court concluded as a matter of law that, while Primadonna may have known that Fabian and his step-uncles were intoxicated and could
2 Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). 3 Butler v. Bayer, 123 Nev. 450, 461, 168 P.3d 1055, 1063 (2007). 4 Id. (quoting Scialabba v. Brandise Constr. Co, 112 Nev. 965, 968, 921 P.2d 928, 930 (1996)). 5 The Court cited NEV. REV. STAT. § 651.005 (2007) in noting that “premises” includes parking lots. The court also cited Hinegardner v. Marcor Resorts, 108 Nev. 1091, 1096, 844 P.2d 800, 803 (1992) indicating that the rule applies to intoxicated minors. 6 See Hinegardner, 108 Nev. at 1093, 844 P.2d at 802. 7 Billingsley v. Stockmen’s Hotel, 111 Nev. 1033, 1037, 901 P.2d 141, 144 (1995). 8 See Mills v. Continental Parking Corp., 86 Nev. 724, 725-26, 475 P.2d 673, 674 (1970).
not safely drive, Primadonna did not have a duty to arrange safer transportation, prevent an 9 intoxicated driver from driving, or prevent Fabian, a passenger, from riding with a drunk driver.
The Court affirmed the district court’s denial of attorney’s fees to Primadonna. Primadonna argued that as the prevailing party, it was entitled to recover attorney fees because the claim for injuries was frivolous and only one potential tortfeasor was sued. The Court found no authority supporting Primadonna’s proposition that the Plaintiff’s decision to sue one alleged tortfeasor and not others renders the claim frivolous. The district court may award attorney fees to a prevailing party when it concludes that the claims pursued against the prevailing party are not based upon reasonable grounds.10 In rejecting Primadonna’s argument, the Court recognized that the Plaintiff’s claim was based on reasonable grounds in that it presented a novel issue in Nevada, specifically, the potential expansion of common law liability to hotel proprietors for injuries sustained by an intoxicated minor guest after he is evicted from the premises. Therefore, the Court concluded that the district court did not abuse its discretion when it denied Primadonna’s motion for attorney fees.
D. Indemnification for attorney’s fees and costs not appropriate
The Court rejected Primadonna’s claim for indemnification for attorney fees and costs. The Court recognized that the question of whether a party for whom summary judgment has been entered may be entitled to indemnification for attorney fees and costs for defending the action is an issue of first impression in Nevada. While the Court has considered the issue of indemnification after a trial on the merits, it has not considered the issue when summary judgment has been granted. In the prior opinions after trial, the Court determined that at least some of the attorney fees and court costs incurred in defending the action may be recovered, however such recovery was limited to amounts attributed to defenses not “primarily directed toward rebutting charges of active negligence.”11 Following persuasive authority from West Virginia regarding implied indemnity, the Court adopted the rule that when a district court has disposed of the underlying liability claim, but has not established that the potential indemnitor was at fault, no right to equitable indemnity exists.12 Therefore, the Court determined that the motion for summary judgment was properly denied in the present case because implied indemnification may not be asserted without determined liability of the third party to the injured party and the showing of a nexus or special relationship between the indemnitee and proposed indemnitor.
9 In setting forth its holding, the Court cited cases from several other jurisdictions that have reached a similar conclusion, including DeBolt v. Kragen Auto Supply, Inc., 227 Cal. Rptr. 258 (Cal. Ct. App. 1986); McCall v. Villa Pizza, Inc., 636 A.2d 912 (Del. 1994). 10 NEV. REV. STAT. § 18.010(2)(b) (2007). 11 Piedmont Equip. Co. v. Eberhand Mfg., 99 Nev. 523, 529, 665 P.2d 256, 260 (1983). 12 Harvest Capital v. WV Dept. of Energy, 560 S.E.2d 509, 514 (W. Va. 2002).
In accordance with N.R.S. 651.020, proprietors have a statutory right, to evict disorderly patrons, including minors, from their premises. A hotel proprietor who rightly evicts a disorderly, intoxicated patron, is not liable for any torts that an evicted patron commits after he or she is evicted. In accordance with this holding, the Court affirmed the district court’s summary judgment in favor of Primadonna on Rodriguez’s negligence claim. Further, the Court concluded that Rodriquez’s claim was not frivolous because it introduce an issue of first impression. Accordingly, the Court affirmed the district court’s decision denying Primadonna’s motion to recover atporney fees and costs. Finally, the Court concluded that, while Primadonna’s motion for summary judgment for indemnification against Fabian’s mother was not moot, the claim could not be sustained because there was no determination of liability of a third party to the injured patron and no showing of a nexus or special relationship.
If you have been injured in a hotel or casino, contact the Nevada Law Offices of Benson & Bingham to determine if you have an accident or injury case.
Q: “My 23 yr old daughter was punched in the nose at House of Blues during a concert. Her nose was broken and I would like some legal counsel on how to possibly proceed from here.She was not drinking.”
A: It’s tough to advise given we don’t know who the defendant(s) were?Typically, it is very hard to find liability against a business simply because it happened on theirproperty. Lack of security or negligent security cases are hard to prove given the criminal act involved by a 3rd party, here the assault and battery.
Thank you for reviewing the case. As far as proving liability, on the report itself the lifeguards and security on duty had written down that it was glass that had caused the injury. It was unclear what caused the cut but the doctors at the hospital treated me for the worst case scenario. does that help my case at all?
If it was glass, it means it was not supposed to be there and naturally that makes the case better. The problem still remains in proving the hotel had notice of the glass in the pool. If enough time went by you could argue the hotel had constructive notice, but this is hard to prove–any customer could have broke some glass or eye glasses without anyone knowing. Moreover, we don’t know if it was glass–just speculation. Try calling the risk mgt dept and see if they would be willing to sport you a free visit next time.
In las vegas slip and fall injuries are prevalent at casinos. although they can happen in a variety of places, from shopping malls to grocery stores. The key tenant to a slip and fall liability is to prove that the victim had no prior knowledge that the area was unsafe and it was not an open and obvious danger.
With any slip and fall case, the victim must prove that the premise owner either created the dangerous condition or was on notice of the condition or had a reasonable time to discover the condition prior to the accident.
Q: Contracted food poisoning while on business trip to Las Vegas. Was staying at The Palms Hotel, and hosting an event there. Was there with quite a few colleagues and two of us ate the same room service lunch, and several hours later were both violently ill – right before a very important business event. EMS was called and a report was filed. What steps do we need to take next. EMS said that our systems were indeed food poisoning. I also missed all my business meetings at the conference I flew out to Las Vegas for. What should next steps be? This happened this week.
A: Dear potential Client:
Food poisoning cases are very hard to prove unless evidence is collected. Typically, the food that is poisonous is obviously not around as it was consumed. Therefore, it is necessary that lab tests are obtained to show that it was indeed food poisoning. Most often, the stools must be tested, or some other blood test to show the foreign bacteria/virus/or parasite was present. It certainly helps that both of you were in fact suffering the same type of illness after consuming the same room service type of lunch. Did you in fact have the same food, or did you order the same entree?
The next consideration is whether your damages are worthwhile in pursuing. A mere case of a few hours of sickness may not be worthwhile pursuing (albeit it is most often very painful) due to the expense of the case. We normally only represent victims who have suffered hospitalization, or very severe cases of food poisoning as the expense of the case can offset the actual damages. I would not rely on an EMT diagnosis, even though you may have had classic symptoms of poisoning.
E. coli and salmonella (amongst hundreds of pathogens that could cause illness) are very common and dangerous. It is important to figure out what strain of pathogen and then relate it to the food, if possible, and put together a case. Food borne illness is an ever-present threat that can be prevented with proper care and handling of food products, and the casino industry has its fair share of liability due to this and other preventable actions.
There are million cases of food borne diarrhea disease occur each year in the United States, costing billions in medical care and lost productivity so you are not alone!
Q: My wife, my brother and I were taking the escalator inside one of the casinos on the strip. I was exiting at the top of the escalator I noticed that my foot was being pulled into the escalator I did not see a marked safety shut off switch so at this point I began to panic as my foot was being pulled into the panel beneath the skimmer plate at the top of the casino’s escalator. In order to free myself I had to twist my leg where i could reach down to unfasten my tiva sandal in the process of doing this I tore my meniscus disk which required me to have surgery at an Orthipedic Hospital.
The casino security asked me if I was ok and I told them that I was until about 3 to 5 minutes later I could feel a sharp stabbing pain in my knee. I also saw one of the security guards pick up a broken piece of the escalator and they also took my teve which was torn into shreds so the casino had their EMT take a look and he said my knee was swollen – the next day I went to the urgent care in Arizona were they gave me some painkiller the following week I went to the knee doctor and he said I would have to have surgery on my knee. It has now been one year and seven months I only have a couple of months before my case expires. Another Las Vegas Attorney has had the case for that long and I have only received two letters from them after about a dozen phone calla that I made to them. I don’t feel as if though they have really done anything for me up this point, they said they had an offer of $25,000 and that was last month. My medical bills were around $20,000 I will be going to Las Vegas next month and I was wondering if you might be interested in taking my case over and also if I would have to pay the Other Las Vegas Attorney. Thank you for taking the time to read this!
A: It appears that your case may need to be litigated to get full value out of it. If the escalator company is found to be liable, your claim is certainly worth more. The Other Las Vegas legal firm will be able to put a lien on it for whatever his hourly rate is or 1/3 of $25K. How exactly did the escalator eat your shoe? Did you have a loose strap? In any event, we are always interested in sitting down with you. By the way, did you actually have an attorney working on your case?
Q: I slipped and fell on a large amount of liquid and hit my head on the tile at Harrah’s casino. I briefly blacked out and the hotel security had called EMTs and I was taken to ER. I was discharged apx 5 hours later told I have a concussion. I was told by both security officers that there would be no cost to me for the medical treatment before EMTs were called. I would like to know my rights and make sure my medical bills are paid. I live in Phoenix, Arizona.
- Potential Client
A: Sir: Much depends on the facts of the slip and fall; specifically, how, what, when and where did the liquid occur? Given it was a large amount of liquid it sounds like it may have been there awhile? You have two years to pursue the case, but the sooner the better for evidentiary reasons. Obviously, a head injury can be very serious due to brain swelling, and I’m sure they did a precautionary catscan at the hospital, but follow up is a great idea. Comparative negligence issues with you include whether you were intoxicated, the shoes you were wearing, etc. Call us at 702-382-9797 or respond via email with your phone number so I can contact you.