Grosjean v. Imperial Palace, Inc., 44542.

Citation212 P.3d 1068
Case DateJuly 30, 2009
CourtSupreme Court of Nevada
212 P.3d 1068
James GROSJEAN, Appellant/Cross-Respondent,
IMPERIAL PALACE, INC., and Donnie Espensen, Respondents/Cross-Appellants.
No. 44542.
Supreme Court of Nevada.
July 30, 2009.

[212 P.3d 1071]

Nersesian & Sankiewicz and Thea Marie Sankiewicz and Robert A. Nersesian, Las Vegas, for Appellant/Cross-Respondent.

Cooper Levenson April Niedelman Wagenheim, P.A., and Jerry S. Busby, Las Vegas, for Respondent/Cross-Appellant Imperial Palace, Inc.

Lewis Brisbois Bisgaard & Smith LLP and David L. Thomas, Las Vegas, for Respondent/Cross-Appellant Donnie Espensen.

[212 P.3d 1072]

Potter Law Offices and Cal J. Potter III and Lawrence W. Freiman, Las Vegas, for Amicus Curiae Nevada Trial Lawyers Association.



By the Court, DOUGLAS, J.:

In this appeal and cross-appeal, we address whether qualified immunity can extend to shield private actors from civil liability in a 42 U.S.C. § 1983 action and, if not, whether alleged evidentiary errors and attorney misconduct that occurred during trial on the § 1983 claim warrant a new trial. In addition to the qualified immunity and alleged trial error issues, we decide whether punitive damages were properly presented to the jury and, if so, whether its subsequent award was supported by the evidence. Finally, we determine whether previously dismissed state law claims should be reinstated against the same private actors against whom a judgment was entered on the § 1983 cause of action, when both the state law- and federal law-based claims were grounded on the same conduct, an allegedly illegal detention.

First, with regard to the private actor cross-appellants' assertion that the § 1983 claim against them should have been dismissed on qualified immunity grounds, after examining policy considerations underlying the qualified immunity doctrine on the disputed facts, we are not persuaded that such immunity extends to protect private actors. Thus, the district court properly refused to dismiss those claims.

Next, addressing cross-appellants' concern that allegedly erroneous evidentiary rulings and attorney misconduct led to the jury's verdict against them, we conclude that the evidentiary rulings in question were within the district court's considerable discretion and that the attorney misconduct in this case, while prevalent, did not override the jury's verdict, which was based on substantial evidence in the damages phase of the trial.

As for the argument on cross-appeal that the district court improperly allowed the punitive damages request to be presented to the jury, even though the punitive damages request was grounded on a state statute and all of the pertinent state law claims had been dismissed, we conclude that the district court properly allowed the request to go forward, as the state standard conforms to federal law requirements governing punitive damage awards in § 1983 actions. With regard to the punitive damages awarded, we conclude that the jury's $500,000 award was a result of continued attorney misconduct, including a "golden rule" violation and improper emotional arguments, such that a new trial is warranted as to punitive damages.

Finally, addressing the appeal, which challenges the dismissal of certain state law claims, because appellant already recovered damages for identical conduct under § 1983, he is precluded from recovering additional damages for that injury under state law-based theories. In particular, because the common law torts for which he seeks to recover coincide substantially with the § 1983 action that he was allowed to maintain and for which a money judgment was entered in his favor, he may not again recover damages for that conduct, and thus we need not further review the district court's decision to dismiss the state law claims against Imperial Palace. Accordingly, we affirm the compensatory damages portion of the district court's judgment, reverse the punitive damages portion, and remand for a new trial on punitive damages only.


The complaint

This matter arose from an incident at Imperial Palace casino in Las Vegas, Nevada, when casino security personnel and two Gaming Control Board (GCB) agents detained appellant James Grosjean because he matched the description of a person in whom another GCB agent was interested. According to the complaint later filed in the district

212 P.3d 1073

court, even though Grosjean was "undertaking no suspicious activity," he was offensively touched, handcuffed, searched, and detained by Imperial Palace security officers.2 In a proposed amendment to that complaint, Grosjean maintained that the two GCB agents instructed Imperial Palace security staff to detain him, despite lacking reasonable suspicion to do so. According to Grosjean, during the course of his detention, the GCB agents were informed by a third GCB agent that Grosjean was not the suspect for whom the GCB was looking and that he should be released. Nevertheless, Grosjean asserted, the detention continued so that the items removed from Grosjean's person during the patdown search could be further examined.

The relevant allegations in the complaint asserted that the detention was executed without reasonable suspicion and named as a defendant Imperial Palace, among others. Grosjean sought compensatory and punitive damages for false imprisonment, conspiracy, and battery. Later, Grosjean filed a motion that asked, among other things, for leave to amend the complaint to add a claim for federal civil rights violations under 42 U.S.C. § 1983 against, among others, Imperial Palace and Imperial Palace's security supervisor, respondent/cross-appellant Donnie Espensen.

Pretrial motions

As the case proceeded in the district court, the court granted Imperial Palace's motion to dismiss the state law claims against it, determining that Imperial Palace was entitled to discretionary-function immunity. Thereafter, the district court allowed Grosjean leave to amend the complaint to add a federal law civil rights claim under 42 U.S.C. § 1983 against Imperial Palace and Espensen. Although Imperial Palace and Espensen subsequently moved to dismiss and for summary judgment as to that claim, arguing that it was entitled to qualified immunity from § 1983 liability, the district court denied the motion. Thus, the matter proceeded on the remaining claims, including the § 1983 claims against Imperial Palace and Espensen.

Upon Imperial Palace's motion, the district court bifurcated the case as it related to Imperial Palace, and the case went to trial against Imperial Palace and Espensen on the only claims remaining against them, the § 1983 claims.

The trial on Grosjean's § 1983 claims

During the trial, testimony revealed that Grosjean was detained by Imperial Palace security personnel because he matched the description of a suspect being pursued by GCB agent Paul Stolberg. Grosjean testified that an Imperial Palace security guard instructed him to stop, and when Grosjean kept walking, the security guard grabbed his arm, "kind of pushed [Grosjean's] face into the side [of] the wall," and handcuffed him. After being escorted to a security office, Grosjean was searched. The search revealed that Grosjean was wearing two pairs of pants containing a large sum of money (mostly $100 bills), chips from various casinos, and two sets of identification, one bearing a false identity.

Espensen testified that because the GCB agents on the premises had not been able to reach agent Stolberg, they asked Espensen to delay Grosjean without letting Grosjean know of the GCB's involvement. Espensen explained to Grosjean that he would be let go if it was confirmed that he was not a suspect. Upon Espensen's return to the surveillance room, a GCB agent advised that he had reached agent Stolberg, who instructed the agents to release Grosjean, but because the agents wished to examine the contents of Grosjean's pockets more closely, Grosjean was not immediately released. According to Espensen, because the agents did not want to reveal their involvement, Espensen suggested that they act as though they were Imperial Palace employees. The GCB agents did so, and after viewing Grosjean's belongings, they left the room. Testimony

212 P.3d 1074

indicated that Grosjean ultimately was detained for approximately 20 minutes beyond when the agents had been instructed to release him.

On redirect examination of Grosjean, Grosjean's attorney posed a rhetorical question, "We know Don Espensen can lie, don't we?" Imperial Palace objected to the question as being argumentative, and the court sustained the objection. While Imperial Palace's expert witness was testifying on direct examination about the reasonableness of Grosjean's detention, Grosjean's attorney commented that "[p]olice officers always say, `I didn't violate the Fourth Amendment,' even when they're violating it, and we know that." The court asked Grosjean's attorney whether he was arguing or objecting, to which the attorney responded that he was objecting to the form of the question asked of the expert. The court sustained the objection.

After the jury was excused, Imperial Palace orally moved for an NRCP 41(b) involuntary dismissal as to Grosjean's request for punitive damages, explaining that, because all of the state law tort claims had been dismissed, there was no basis to support Grosjean's request, which was grounded on a state statute, NRS 42.005. The court deferred ruling on the motion. When the jury returned to the courtroom, the court issued the jury instructions, including that the jury may, at its discretion, award punitive damages if it found, by clear and convincing evidence, fraud, oppression, or malice with respect to the conduct upon which the jury based any finding of liability.

Closing arguments followed, during which Grosjean's attorney explained to the jury that its decision was so important because it would give parties in the same position as...

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