Frazier v. Drake

• Citation: 357 P.3d 365,131 Nev. Adv. Op. 64
• Decision Date: 03 September 2015
• Docket Number: No. 61775.,61775.
• Parties: Anika FRAZIER, Individually; and Randy Keys, Individually, Appellants, v. Patrick DRAKE, Individually; and MS Concrete Company, Inc., Respondents.
• Court: Court of Appeals of Nevada

357 P.3d 365

131 Nev. Adv. Op. 64

Anika FRAZIER, Individually; and Randy Keys, Individually, Appellants

v.Patrick DRAKE, Individually; and MS Concrete Company, Inc., Respondents.

No. 61775.

Court of Appeals of Nevada.

Sept. 3, 2015.

Greenman Goldberg Raby & Martinez and Aubrey Goldberg, Las Vegas; Walsh & Friedman, Ltd., and Robert J. Walsh, Las Vegas, for Appellants.

Hall Jaffe & Clayton, LLP, and Steven T. Jaffe and Ashlie L. Surur, Las Vegas, for Respondents.

Before GIBBONS, C.J., TAO and SILVER, JJ.

OPINION

PER CURIAM:

This matter arises from a personal injury action initiated by appellants following a motor vehicle accident in which their vehicle was rear-ended by a semitrailer truck driven and owned by respondents. A jury trial of appellants' claims resulted in a verdict in respondents' favor, and the district court later denied appellants' motion for a new trial. The district court further awarded respondents attorney fees and costs, the latter of which included an award of expert witness fees.

In this appeal, we are presented with two novel issues. First, we must determine whether a district court abuses its discretion, in awarding attorney fees when parties fail to improve upon rejected offers of judgment at trial, but the district court concludes that all of the Beattie v. Thomas, 99 Nev. 579, 668 P.2d 268 (1983), factors other than the reasonableness of the requested fees favor the parties who rejected the offers of judgment. Second, we address the considerations that a district court must weigh in deciding whether to award expert witness fees as costs in excess of NRS 18.005(5)'s $1,500 per-expert presumed maximum and, if such an award is to be made, in determining what amount constitutes a reasonable award beyond this statutory ceiling.

Before reaching these issues, however, we must first evaluate whether the district court properly instructed the jury on sudden emergencies. The three sudden emergency instructions at issue here all stated that the jury could find that respondents were not negligent if they were suddenly placed in a position of peril through no fault of their own and acted as reasonably prudent people would upon being confronted with that emergency. We must also determine if a new trial was warranted because the jury disregarded instructions regarding the applicable standard of care. Because evidence was presented indicating that bees flew into the cabin of respondents' truck, and one bee landed on the eye of the driver, these facts could allow the jury to infer that a sudden emergency occurred and that respondents were not negligent. Thus, the district court did not abuse its discretion by giving the sudden emergency jury instructions. We further conclude that the jury's verdict does not demonstrate that the jury disregarded the given instructions. We therefore affirm the judgment on the jury verdict and the denial of appellants' motion for a new trial.

Turning to the award of attorney fees, the reasonableness of the fees requested cannot, by itself, outweigh the other three Beattie factors. As a result, we conclude the court abused its discretion by awarding attorney fees to respondents based on the rejected offers of judgment, and we reverse that award. Finally, with regard to the expert witness fees award, we note that the Nevada Supreme Court has provided only limited guidance on this issue. Thus, we adopt factors to guide the district courts in assessing the reasonableness of such requests and whether the circumstances surrounding the expert's testimony require an award in excess of NRS 18.005(5)'s per-expert presumptive maximum. Here, the district court provided only limited justification for its decision to award expert witness fees in excess of $1,500 per expert and offered no explanation for how it arrived at the amount of expert witness fees awarded. We therefore reverse the award of expert witness fees as costs and remand this matter to the district court for further proceedings consistent with this opinion.

BACKGROUND

Respondent Patrick Drake was an employee of respondent MS Concrete Company, Inc. On the day of the incident, Drake was driving an MS Concrete semitrailer truck on a major road in North Las Vegas. As he was driving, bees flew into the truck's cabin,¹ and one bee purportedly landed on his eye. While Drake attempted to remove the bee from his eye, he failed to observe a stoplight and rear-ended appellants Anika Frazier and Randy Keys, whose vehicle was stopped at the light. Frazier and Keys (collectively referred to as Frazier, except where the context requires otherwise) suffered injuries in the accident and subsequently initiated the underlying personal injury action against Drake and MS Concrete (collectively referred to as Drake).

Approximately one month before trial, and nearly three years after the complaint was filed, Drake made an offer of judgment to each appellant pursuant to NRCP 68 and NRS 17.115. Frazier and Keys each rejected the offers, which were for $50,001 and $70,001, respectively.

During the trial, Drake presented his defense that the bee landing on his eye constituted a sudden emergency rendering him unable to avoid the accident. Based on this defense, Drake sought to have the jury instructed that, if it found that the bee landing on his eye constituted a sudden emergency, he only had a duty of care equal to that of a reasonable person faced with the same situation. Over Frazier's objections, the court instructed the jury on sudden emergencies,² and the jury ultimately found in favor of Drake, Frazier then moved for a new trial, arguing that the sudden emergency instructions should not have been given and that the jury ignored the court's instruction regarding Drake's standard of care in reaching its verdict. Drake opposed this motion, which the district court ultimately denied.

In addition, Drake moved for attorney fees and costs, citing Frazier's and Keys' failure to improve upon the offers of judgment at trial and Drake's status as a prevailing party. Drake's motion sought both general costs and $107,635.73 in fees for five expert witnesses. Frazier opposed the motion, arguing that awarding attorney fees was not proper under the Beattie factors and that the requested costs, particularly the expert witness fees, were excessive. Ultimately, the district court granted Drake's motion in part. Despite finding that three of the four Beattie factors weighed in favor of Frazier, the district court nonetheless awarded Drake all of his requested attorney fees. The court also awarded Drake his general costs but reduced the award for expert witness fees as costs to $47,400, as it found some of the fees to be unreasonable and excessive. In total, the court awarded Drake $144,808.59 in attorney fees, general costs, and expert witness fees. Following the entry of judgment on the jury verdict, this appeal followed.³

ANALYSIS

Our examination of the issues presented in this appeal begins with Frazier's challenges to the judgment on the jury verdict and the denial of her new trial motion, which focus on the district court's decision to give the three sudden emergency jury instructions, and her argument that the jury disregarded the standard of care instructions. We then turn to Frazier's challenge to the award of attorney fees to Drake, based on Frazier's and Keys' rejections of the offers of judgment. Lastly, we conclude by addressing the award of expert witness fees to Drake.

District court decisions regarding whether to give a particular jury instruction, grant a new trial motion, and award attorney fees and costs are reviewed for an abuse of discretion. Wyeth v. Rowatt, 126 Nev. 446, 464, 244 P.3d 765, 778 (2010) (jury instructions); Ringle v. Bruton, 120 Nev. 82, 94, 86 P.3d 1032, 1040 (2004) (new trial motions); LaForge v. State, Univ. & Cmty. Coll. Sys. of Nev., 116 Nev. 415, 423, 997 P.2d 130, 136 (2000) (attorney fees); Bobby Berosini, Ltd. v. PETA, 114 Nev. 1348, 1352, 971 P.2d 383, 385 (1998) (costs). While the abuse of discretion standard is generally deferential, the reviewing court will not defer to a district court decision that is based on legal error. AA Primo Builders, LLC v. Washington, 126 Nev. 578, 589, 245 P.3d 1190, 1197 (2010).

Sudden emergency instructions

Frazier first challenges the district court's decision to give the jury three sudden emergency instructions. In particular, she contends the sudden emergency doctrine should not have been applied because Drake created or contributed to the emergency by failing to apply his brakes when the bees flew in his cab window. In response, Drake argues the sudden emergency instructions were proper because the bees flying in his window, and particularly one bee landing on his eye, created a sudden emergency that prevented him from avoiding the collision.

In an ordinary negligence action, a plaintiff must demonstrate, among other things, that the defendant breached a duty of care owed to the plaintiff. DeBoer v. Senior Bridges of Sparks Family Hosp., Inc., 128 Nev. ––––, ––––, 282 P.3d 727, 732 (2012). Under a general negligence standard, a party who owed a duty of care must “exercise reasonable care to avoid foreseeable harm” to the party to whom that duty is owed. Butler ex rel. Biller v. Bayer, 123 Nev. 450, 464, 168 P.3d 1055, 1065 (2007). One defense to a negligence claim is the sudden emergency doctrine, which allows a defendant to argue he was not negligent insofar as he was confronted with a sudden emergency that did not arise due to his own negligence and he acted as a reasonably prudent person would upon being confronted with that emergency. See generally Posas v. Horton, 126 Nev. 112, 228 P.3d 457 (2010).

In Posas, the Nevada Supreme Court discussed the circumstances under which the sudden emergency doctrine may be applied. See id. In addressing this issue, the Posas court recognized that “a sudden emergency occurs when an unexpected condition confronts a party exercising reasonable care.” Id....