FCH1, LLC v. Rodriguez

• Decision Date: 05 June 2014
• Docket Number: No. 59630.,59630.
• Citation: 326 P.3d 440,130 Nev. Adv. Op. 46
• Parties: FCH1, LLC, A Nevada Limited Liability Company, f/k/a Fiesta Palms, LLC, A Nevada Limited Liability Company d/b/a the Palms Casino Resort, Appellant, v. Enrique RODRIGUEZ, an Individual, Respondent.
• Court: Nevada Supreme Court

326 P.3d 440

130 Nev. Adv. Op. 46

FCH1, LLC, A Nevada Limited Liability Company, f/k/a Fiesta Palms, LLC, A Nevada Limited Liability Company d/b/a the Palms Casino Resort, Appellant,

v.Enrique RODRIGUEZ, an Individual, Respondent.

No. 59630.

Supreme Court of Nevada.

June 5, 2014.

Lemons, Grundy & Eisenberg and Robert L. Eisenberg, Reno, for Appellant.

Hutchison & Steffen, LLC, and Michael K. Wall, Las Vegas, for Respondent.

BEFORE PICKERING, HARDESTY and CHERRY, JJ.

OPINION

By the Court, PICKERING, J.:

At issue is the alleged negligence of Palms Casino Resort in allowing promotional actors to toss souvenirs into a crowd of patrons watching a televised sporting event at the casino's sports bar. Specifically, we must decide whether to extend the limited-duty rule that this court established in Turner v. Mandalay Sports Entertainment, 124 Nev. 213, 220–21, 180 P.3d 1172, 1177 (2008), to these facts. We decline to do so, and thus hold there was no error in the district court's refusal to find, as a matter of law, that Palms owed no duty of care. Nonetheless, a new trial is warranted due to evidentiary errors that affected the outcome of the proceeding below.

I.

Respondent, Enrique Rodriguez, sued the Palms Casino Resort to recover damages for the knee injury he suffered while sitting in its “Sportsbook” bar watching Monday Night Football on television. The injury occurred when another patron dove for a sports souvenir that Brandy Beavers, an actress paid by the Palms to dress as a cheerleader for the Monday Night Football event, had tossed into the group.¹ Rodriguez sued Palms on a theory of negligence.

The matter was tried before the court in a bench trial. Over objection by Palms, the district court permitted several of Rodriguez's treating physicians to testify to the nature and severity of his condition, its causes, and the appropriateness of treatment, both rendered to and recommended for him. It then struck the testimony of Palms' experts on security and crowd control, and economics because they failed to “opine[ ] that their opinions were given to a reasonable degree of professional probability.” Ultimately, the district court determined that Palms was liable as a matter of law and awarded Rodriguez $6,051,589 in damages. This appeal followed.

II.

The parties and the district court assumed that Rodriguez's claim was based on a theory of premises liability, namely that the Palms had increased the risk posed to Rodriguez by not stopping the promotional actors' souvenir-tossing. This is a somewhat unusual application of the doctrine, because alleged negligent conduct and not a condition on the Palms' land caused the injury, perhaps settled upon because the employment status of the women doing the tossing could not be established below. But this court has not limited premises liability to circumstances where a condition on the land caused an injury, see, e.g., Estate of Smith v. Mahoney's Silver Nugget, Inc., 127 Nev. ––––, ––––, 265 P.3d 688, 692 (2011); Basile v. Union Plaza Hotel & Casino, 110 Nev. 1382, 1384, 887 P.2d 273, 275 (1994); Gott v. Johnson, 79 Nev. 330, 332, 383 P.2d 363, 364 (1963), and the Restatement sanctions such an application where the landowner has acted to increase the risk posed to entrants. See Restatement (Third) of Torts: Phys. & Emot. Harm § 51(a) (2012). In any case, because the district court and both parties analyzed the claim as one based on premises liability, we follow suit.

Generally a premises owner or operator owes entrants a duty to exercise reasonable care, Foster v. Costco Wholesale Corp., 128 Nev. ––––, ––––, 291 P.3d 150, 152 (2012), but courts may limit that duty. See Restatement (Second) of Torts § 496C cmt. d (1965); Restatement (Third) of Torts: Phys. & Emot. Harm § 7(b) (2010); see also Turner v. Mandalay Sports Entm't, L.L.C., 124 Nev. 213, 220–21, 180 P.3d 1172, 1177 (2008). Typically, courts make such limitations in “the sports setting” as this court had occasion to do in Turner. See Nalwa v. Cedar Fair, L.P., 55 Cal.4th 1148, 150 Cal.Rptr.3d 551, 290 P.3d 1158, 1162 (2012). Palms analogizes the circumstances surrounding Rodriguez's injury to those in Turner, as well as those in similar cases cited in an annotation we relied upon in Turner: Pira v. Sterling Equities, Inc., 16 A.D.3d 396, 790 N.Y.S.2d 551, 552 (2005); Harting v. Dayton Dragons Prof'l Baseball Club, L.L.C., 171 Ohio App.3d 319, 870 N.E.2d 766 (2007); Loughran v. The Phillies, 888 A.2d 872 (Pa.Super.Ct.2005).

In Turner, a foul ball struck a baseball game attendee in the face while she sat in Cashman Fields' unfenced “Beer Garden.” Turner, 124 Nev. at 216, 180 P.3d at 1174. We held that the duty the stadium's owners and operators owed an attendee was limited to providing covered seating and otherwise protecting her from “unduly high risk of injury,” and that a foul ball did not pose such a risk because it was a “known, obvious, and unavoidable part of all baseball games.” Id. at 216–19, 180 P.3d at 1174–76. In adopting this rule, this court acted as had many others—there is a well-established and long-standing body of case law similarly limiting the duty owed by baseball stadium owners and operators to game attendees. See W. Page Keeton et al., Prosser and Keeton on the Law of Torts § 68, at 485 (5th ed.1984).

The foreign cases relied upon by Palms are part of this body of law. Thus, in Pira the plaintiff was struck by a baseball that a player “tossed casually to fans as a souvenir ... after he completed his pre-game warmup routine.” Pira, 790 N.Y.S.2d at 551. The New York court granted summary judgment because “the plaintiff failed to raise a triable issue of fact as to whether the defendants unreasonably increased the inherent risks to spectators associated with the game of baseball.” Id. at 552. In Loughran, the plaintiff was hit by a baseball thrown into the stands by a player after the player had caught it for the last out. Loughran, 888 A.2d at 874. The appellate court upheld the trial court's grant of summary judgment because “[c]ountless Pennsylvania court cases [had] held that a spectator at a baseball game assumes the risk of being hit by batted balls, wildly thrown balls, foul balls, and in some cases bats.” Id. at 876. And in Harting, the plaintiff was struck by a foul ball while she was “distracted by the antics” of a costumed mascot chicken. Harting, 870 N.E.2d at 770. The Ohio court applied the limited-duty rule because the plaintiff “understood the risks associated with being a spectator at a baseball game, and management for the [baseball team] made numerous announcements designed to warn patrons of the possible dangers inherent in the sport.” Id. at 770–71.

In sum, though the facts vary slightly among these cases, the question in each was the extent to which a baseball stadium owner or operator has a duty to protect game attendees from errant baseballs and bats, and each holding was limited to the specific facts in issue. See Turner, 124 Nev. at 216–19, 180 P.3d at 1174–76; Pira, 790 N.Y.S.2d at 551; Harting, 870 N.E.2d at 768–69; Loughran, 888 A.2d at 877. Thus they do not control the circumstances at hand in any obvious way; Rodriguez's injury occurred while he watched a televised sporting event at a bar, not while he attended a live game at a stadium, and he was hit by a third-party patron diving for promotional gear, not a piece of sporting equipment involved in the game itself.

Courts in other jurisdictions have extended the “primary-assumption-of-the-risk,” “limited-duty,”or “no duty” doctrine—the names are used interchangeably, see Turner, 124 Nev. at 218, 180 P.3d at 1176 (“limited duty”); Harting, 870 N.E.2d at 768–69 (“primary assumption of risk”); Loughran, 888 A.2d 872 (“no duty”)—from these limited circumstances to other recreational activities “involving an inherent risk of injury to voluntary participants ... where the risk cannot be eliminated without altering the fundamental nature of the activity.” See, e.g., Nalwa, 150 Cal.Rptr.3d 551, 290 P.3d at 1163. Palms claims that “tossing souvenirs to audiences at sporting events and other entertainment venues is a very common, well-accepted activity,” and suggests that therefore the risk associated with such promotional tossing cannot be eliminated without altering the fundamental nature of the underlying sporting or entertainment event. But, even assuming that this court was willing to extend the Turner doctrine to all recreational activities involving an inherent risk of injury, we cannot agree that any risk of injury inheres in the underlying activity Rodriguez engaged in here, namely attending a televised sporting event at a casino sports bar.

“[M]any spectators prefer to sit where their view of the game is unobstructed by fences or protective netting and the proprietor of a ball park has a legitimate interest in catering to these desires.” Benejam v. Detroit Tigers, Inc., 246 Mich.App. 645, 635 N.W.2d 219, 222–23 (Mich.Ct.App.2001) (quotation marks omitted). A stadium owner or operator cannot eliminate the risk errant balls might pose to spectators in such seating without fundamentally altering the game: a batter cannot predict the flight of a ball, so an owner or operator can only remove the risk that a struck ball might fly foul into uncovered seating by prohibiting all batting; and, the hope of retrieving a baseball as a souvenir has “become inextricably intertwined with a fan's baseball experience.” Loughran, 888 A.2d at 876. The risk involved in riding in bumper cars, the activity to which the California Supreme Court extended the limited-duty rule in Nalwa, is inherent because “[t]he point of the bumper car is to bump.” Nalwa, 150 Cal.Rptr.3d 551, 290 P.3d at 1164. And, “[i]mposing liability would have the likely effect of the amusement park either eliminating the ride altogether or altering its character to such a degree ... that the fun of bumping would be eliminated.... Indeed, who would...