Sweet v. Harrah's Las Vegas, Inc.
| Decision Date | 27 December 2016 |
| Docket Number | No. 65556,65556 |
| Parties | CONNIE SWEET, Appellant, v. HARRAH'S LAS VEGAS, INC., A NEVADA CORPORATION, Respondent. CONNIE K. SWEET, Appellant, v. HARRAH'S LAS VEGAS, INC., A NEVADA CORPORATION, Respondent. |
| Court | Nevada Court of Appeals |
This is an appeal from a jury verdict, a district court order denying a motion for a new trial, and a district court order. denying a motion for relief from judgment. Eighth Judicial District Court, Clark County; Timothy C. Williams, Judge.
While visiting Harrah's Las Vegas, Appellant Connie Sweet slipped and fell on what she describes as a large pool of liquid that had spilled onto a marble floor. She sued Harrah's for negligence, claiming Harrah's failed to properly inspect, maintain, and clean its floors in a manner so that its premises were reasonably safe for patrons. The case proceeded to trial, and the jury returned a verdict for Harrah's. Sweet timely moved for a new trial under Nevada Rule of Civil Procedure (NRCP) 59, which the district court denied. Sweet appealed both the denial of the new trial and the jury verdict to this court.
During the pendency of that appeal, Sweet learned of a different slip and fall suit against Harrah's, from which she garnered new information concerning her own case. Sweet again moved for a new trial, this time alleging fraud upon the court under NRCP 60(b), and the district court again denied relief. Sweet thereafter appealed the district court's ruling and this court consolidated Sweet's appeals.1
Sweet contends that she is entitled to a new trial under NRCP 59 for three reasons: (1) the district court erred when it excluded some of her proposed rebuttal evidence relating to the slip-resistant properties of certain cleaning products, resulting in the jury having heard false testimony; (2) the jury was incorrectly instructed; and (3) counsel for Harrah's committed attorney misconduct during the trial. This court reviews the denial of a motion for new trial for an abuse of discretion. Lioce v. Cohen, 124 Nev. 1, 20, 174 P.3d 970, 982 (2008) (citing Langon v. Matamoros, 121 Nev. 142, 143, 111 P.3d 1077, 1078 (2005)).
The district court did not err in excluding the Material Safety Data Sheets
The district court excluded Material Safety Data Sheets (MSDS) regarding the chemicals V2 and V3 because Sweet did not identify them before trial as required by NRCP 16.1(a)(3). We review a district court's decision to admit or exclude evidence for abuse of discretion, and its decision will not be overturned "absent a showing of palpable abuse[.]" Nevada Power Co. v. 3 Kids LLC, 129 Nev. 436, 444, 302 P.3d 1155, 1160 (2013) (quoting M.C. Multi-Family Dev., LLC v. Crestdale Assoc., Ltd., 124 Nev. 901, 913, 193 P.3d 536, 544 (2008)).
In reviewing the record, we are concerned about some of the events that occurred during discovery. A plausible case can be made that Harrah's was less than forthcoming during pre-trial discovery. In response to interrogatories which directly requested information about Harrah's safety procedures, Harrah's produced documents which only identified V2 and V3 as cleaning agents, without referring to their non-slip qualities. Harrah's then produced an NRCP 30(b)(6) witness who was woefully ignorant regarding the areas of inquiry specifically outlined by Sweet in her 30(b)(6) notice.
Furthermore, the testimony of some of Harrah's witnesses regarding V2 appeared to change between the time of their depositions and the time of trial. Had Sweet sought timely pre-trial intervention from the discovery commissioner, we would likely approve of her intervention in this matter on appeal. Had the district court been asked to strike the trial testimony of Harrah's employees because of their failure to completely disclose their opinions during their deposition prior to proffering them at trial and granted that request, we would likely have affirmed the district court. But Sweet sought no such relief, and therefore neither of these questions is before us.
Rather, the question here is whether the district court palpably abused its discretion when it excluded the MSDS; We cannot conclude that it did. Sweet conceded that she did not technically comply with the deadlines imposed by NRCP 16.1(a)(3), and we cannot conclude that the district court abused its discretion by enforcing a deadline expressly imposed by the NRCP.
Sweet argues that her non-compliance should be excused because Harrah's ambushed her by failing to provide adequate discovery responses regarding V2 and V3. But a marble porter at Harrah's, Carol Frank, testified during her pre-trial deposition that she believed that V2 had slip-resistant qualities by itself, and she identified the basis for this belief as the label of the V2 bottle. Sweet concedes that the V2 bottle characterizes V2 as having such qualities. As Sweet notes, the bottle label appears to be contradicted by the manufacturer's own MSDS data sheets, but we have no way of reconciling this discrepancy based on the appellate record alone.
Furthermore, Sweet was allowed to introduce evidence (through Thomas Jennings, for example) that V2 by itself had no slip-resistant qualities. Moreover, on cross-examination, Sweet was able to demonstrate that Frank's belief in V2's slip-resistant qualities arose from tenuous grounds, as she readily conceded. Therefore, we cannot conclude that an abuse of discretion occurred warranting reversal.
The district court did not abuse its discretion by giving jury instruction 28
Sweet argues that the district court incorrectly instructed the jury in instruction 28, which Sweet contends did not represent an accurate statement of Nevada law.
This court reviews a district court's decision to give a jury instruction for abuse of discretion. Skender v. Brunsonbuilt Constr. & Dev. Co., 122 Nev. 1430, 1435, 148 P.3d 710, 714 (2006). However, we review de novo whether "a proffered instruction is an incorrect statement of the law." Cook v. Sunrise Hosp. & Med. Ctr., 124 Nev. 997, 1003, 194 P.3d 1214, 1217 (2008) (footnote omitted). If a jury instruction is a misstatement of the law, it only warrants reversal if it caused prejudice and "but for the error, a different result may have been reached." Id. at 1006, 194 P.3d at 1219 (footnote omitted); see Allstate Ins. Co. v. Miller, 125 Nev. 300, 319, 212 P.3d 318, 331 (2009).
Here, our review of the matter is complicated by the fact that the district court settled the jury instructions in some kind of off-the-record colloquy (the trial record doesn't clearly specify the precise procedure used), which was not memorialized. Furthermore, Sweet neither objected to the procedure for settling jury instructions, nor sought to memorialize the substance of any off-the-record discussions when the court came back into session.
When the district court resumed proceedings on the record, Sweet noted that she objected to instruction no. 28, but failed to explain or set forth any basis for the objection; this was an incomplete objection. See Carson Ready Mix, Inc. v. First Nat'l Bank of Nev., 97 Nev. 474, 475-77, 635 P.2d 276, 276-78 (1981) ().
Furthermore, the record is silent as to whether Sweet ever proposed an alternative instruction of her own in lieu of instruction no. 28. The record does indicate that (at some unknown point in time) Sweet proposed an instruction that the district court accepted and gave as instruction no. 27; whether this was submitted as an alternative to instruction no. 28, or completely independent of it, is unclear from the record. But the record does indicate that the district court considered instructions 27 and 28 to complement each other and address the same legal standard.
In the absence of a clear and complete objection, our review of the matter is limited to determining whether "plain error" occurred. See NRCP 51(d) (). On appeal, Sweet asserts that jury instruction no. 28 is incomplete and fails to track the Nevada pattern jury instruction regarding premises liability. But courts are not required to mechanically give the pattern instructions. See Wyeth v. Rowatt, 126 Nev. 446, 464, 244 P.3d 765, 778 (2010) ().
Sweet also asserts that jury instruction no. 28 is incomplete, and viewed in isolation, instruction no. 28 does appear to incompletely state Nevada premises liability law. See Sprague v. Lucky Stores, Inc., 109 Nev. 247, 250, 849 P.2d 320, 322-23 (1993). However, jury instructions cannot be read in isolation but must be read in conjunction with all of the other instructions given by the district court, because that is how the jury heard them. See D & D Tire v. Ouellette, 131 Nev. ___, ___, 352 P.3d 32, 38 (2015) ().
This is especially so when the district court below considered instructions 27 and 28 to complement each other. When all of the instructions are read together, they do not misstate the law of premises liability; in particular, instruction 27 provides additional definition, and instructions 27 and 28, taken together, do not misstate the law such that we can say that "plain error" occurred. Therefore, the district court did not commit plain error when it gave jury instruction 28 along with the other instructions. The district court did not abuse its discretion by denying the motion for a new trial due to attorney misconduct
Sweet contended to the...
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