Wynn Las Vegas, LLC v. O'Connell

• Court: Nevada Court of Appeals
• Writing for the Court: Silver
• Decision Date: 30 August 2018
• Docket Number: No. 70583,70583
• Citation: Wynn Las Vegas, LLC v. O'Connell, No. 70583 (Nev. App. Aug 30, 2018)
• Parties: WYNN LAS VEGAS, LLC, D/B/A WYNN LAS VEGAS, Appellant, v. YVONNE O'CONNELL, AN INDIVIDUAL, Respondent.

WYNN LAS VEGAS, LLC, D/B/A WYNN LAS VEGAS, Appellant, v. YVONNE O'CONNELL, AN INDIVIDUAL, Respondent.

No. 70583

COURT OF APPEALS OF THE STATE OF NEVADA

August 30, 2018

ORDER OF AFFIRMANCE

Wynn Las Vegas, LLC, appeals from a final judgment in a tort action.¹ Eighth Judicial District Court, Clark County; Carolyn Ellsworth, Judge.

Yvonne O'Connell slipped and fell while walking through the front atrium in Wynn's resort.² She later sued Wynn for negligence claiming that Wynn had constructive notice of the substance she slipped on and did not clean it in a timely manner. As a result, O'Connell claimed Wynn was liable for her injuries. A jury trial was held and a verdict was returned in favor of O'Connell for $400,000 with $150,000 for past pain and suffering and $250,000 for future pain and suffering. The jury found Wynn was 60 percent at fault and O'Connell was 40 percent at fault so her award was reduced to $240,000.

After the verdict, Wynn filed a renewed motion for judgment as a matter of law or, in the alternative, a request for a new trial. The district court denied Wynn's motion and Wynn appeals.

O'Connell provided sufficient evidence for the jury to find Wynn had constructive notice of the substance on its floor

Wynn contends that constructive notice is limited by Nevada law to whether a hazardous condition was a continual or recurring condition at a business. It further argues that regardless of the standard, O'Connell did not provide sufficient evidence to show Wynn had constructive notice. O'Connell argues that Wynn is attempting to too narrowly limit Nevada's standard for constructive notice. She further counters that she provided sufficient evidence to support her claim.

Standard of review

"This court reviews de novo a district court's denial of a motion for judgment as a matter of law." Wyeth v. Rowatt, 126 Nev. 446, 460, 244 P.3d 765, 775 (2010). "This court applies the same standard on review that is used by the district court." Nelson v. Heer, 123 Nev. 217, 223, 163 P.3d 420, 424 (2007), Thus, this court "must view the evidence and all inferences in favor of the nonmoving party. To defeat the motion, the nonmoving party must have presented sufficient evidence such that the jury could grant relief to that party." Id. at 222-23, 163 P.3d at 424 (footnotes omitted),

Nevada's negligence caselaw supports finding constructive notice based on the circumstances

"The owner or occupant of property is not an insurer of the safety of a person on the premises, and in the absence of negligence, no liability lies." Sprague v. Lucky Stores, Inc., 109 Nev. 247, 250, 849 P.2d 320, 322 (1993), "An accident occurring on the premises does not of itself establish negligence." Id. "Yet, a business owes its patrons a duty to keep the premises in a reasonably safe condition for use." Id. If the "foreign substance on the floor causes a patron to slip and fall, and the business owner or one of its agents caused the substance to be on the floor, liability will lie, as a foreign substance on the floor is usually not consistent with the standard of ordinary care." Id. "Where the foreign substance is the result of the actions of persons other than the business or its employees, liability will lie only if the business had actual or constructive notice of the condition and failed to remedy it." Id. at 250, 849 P.2d at 322-23. Whether there was constructive notice of a hazardous condition is "a question of fact properly left for the jury." Id. at 250-51, 849 P.2d at 323 (noting that a jury may find a defendant was on constructive notice of a hazardous condition based on "the virtually continual debris on the produce department floor").

Ultimately, a business owner owes a duty of reasonable care to its patrons. See Foster v. Costco Wholesale Corp., 128 Nev. 773, 780-81, 291 P.3d 150, 155-56 (2012). "[T]he overriding factor is whether the land owner or occupier has acted reasonably toward the plaintiff under the circumstances." Billingsley v. Stockmen's Hotel, Inc., 111 Nev. 1033, 1037, 901 P.2d 141, 144 (1995). A land owner may be liable for open and obvious dangerous conditions on the land. Foster, 128 Nev. at 781, 291 P.3d at 156. Additionally, a business owner has a duty to inspect for latent defects. Twardowski v. Westward Ho Motels, Inc., 86 Nev. 784, 788, 476 P.2d 946, 948 (1970).

Based on the foregoing, we conclude that under Nevada caselaw constructive notice can be based on the circumstances of the case, which are appropriate to consider in light of whether a business owner exercised its duty of reasonable care to its patrons. See Foster, 128 Nev. at 781-82, 291 P.3d at 156-57. Moreover, Nevada caselaw demonstrates that whether a business had constructive notice is an issue for the trier of fact. See Sprague, 109 Nev. at 250, 849 P.2d at 323.³ Thus, we conclude that the district court did not err by allowing the jury to consider whether Wynn had constructive notice based on the circumstances of this case.⁴

The evidence in this case was sufficient to support the jury's verdict for O'Connell

O'Connell testified that she was walking in Wynn's atrium when she slipped and fell on a liquid substance. During trial, she presented evidence about the character of the substance on the floor. O'Connell testified that it was about seven feet long and about a three foot area of the substance was dried, sticky, and showed dirty footprints.⁵ Yanet Elias, an assistant manager for Wynn who responded to O'Connell's fall, also testified that she saw part of the substance and described it as sticky like honey or syrup.

Wynn pointed out that if the jury did not know what the substance was, it could not determine how long it would take to dry. It is possible that the substance was originally sticky like honey or syrup, and may not have been drying on the floor long enough to put Wynn on constructive notice. On the other hand, the jury can consider the circumstances such as what the substance looked like, its size, and any other indications of its character. See Billingsley, 111 Nev. at 1037, 901 P.2d at 144 (stating that when deciding if a landowner "has acted reasonably, a court may consider circumstantial factors"). Also, a pooled or sticky substance seven feet long could be perceived as an open and obvious condition that a business owner has a duty to discover. See Foster, 128 Nev. at 782, 291 P.3d at 156.⁶

Thus, we conclude there was sufficient evidence that the substance had been on the floor for a certain length of time, which would be a circumstance to consider in determining whether Wynn should have discovered it.

There was also testimony about whether Wynn conducted a reasonable inspection. Elias testified that she did not know the last time the area was checked. She also testified that she did not know how long it would take a porter to check the atrium, which was part of a larger area that porters were required to inspect. She added that it would depend on whether one or two porters were working that day. Reviewing the evidence in favor of the nonmoving party, O'Connell, we conclude that because Wynn could not say when it last inspected the area nor how often the atrium was checked, there was sufficient evidence for a jury to find Wynn did not conduct a reasonable inspection.

Accordingly, we conclude that based on the circumstances of the partially dried substance and Wynn's lack of evidence of its inspections, there was sufficient evidence for the jury to find Wynn had constructive notice of the substance on its floor.

The district court properly allowed the jury to consider the testimony of O'Connell's treating physicians in assessing damages and causation

In its motion for judgment as a matter of law, Wynn did not raise its issues with O'Connell's treating physicians testifying about causation and damages. Accordingly, we will not review it as part of Wynn's renewed motion for judgment as a matter of law. See Lehtola v. Brown Nev. Corp., 82 Nev. 132, 136, 412 P.2d 972, 975 (1966) (concluding that without a motion for directed verdict, the district court could not consider a post-verdict motion on the matter). Instead, we will consider it as part of Wynn's alternative motion for a new trial. See NRCP 59(a)(7) (authorizing a new trial on grounds of "[e]rror in law occurring at the trial and objected to by the party making the motion").

Standard of review

We review "the district court's grant or denial of a motion for a new trial under an abuse of discretion standard." Krause Inc. v. Little, 117 Nev. 929, 933, 34 P.3d 566, 569 (2001). We will not overturn the district court's judgment "absent a palpable abuse of discretion." Id. "[T]he district court may grant a new trial if the prevailing party committed misconduct that affected the aggrieved party's substantial rights." Gunderson v. D.R. Horton, Inc., 130 Nev. 67, 74, 319 P.3d 606, 611 (2014); see also NRCP 59(a)(2). "Additionally, . . . when deciding a motion for a new trial, the district court must make specific findings, both on the record during oral proceedings and in its order, with regard to its application of the standards described [in Lioce] to the facts of the case[ ] before it." Lioce v. Cohen, 124 Nev. 1, 19-20, 174 P.3d 970, 982 (2008).⁷

The district court did not abuse its discretion by admitting testimony from O'Connell's treating physicians for causation and damages

The evidence apportioned O'Connell's preexisting and subsequent injuries

Wynn argues that O'Connell is not entitled to any damages—past or future pain and suffering—because she did not apportion between her preexisting medical conditions, the injuries from her February 2010 fall at Wynn, and any injuries from a subsequent fall in July 2010.

In a negligence action, when a plaintiff has preexisting medical conditions and additional injuries occur after the event at issue, causation and damages are a question of weight and credibility left to the jury. See Fox, 91 Nev. at 221, 533 P.2d at 468 (concluding...