Foster v. Costco Wholesale Corporation, 128 Nev. Adv. Op. 71 (Dec. 27, 2012)

Before Justices Cherry, Pickering and Hardesty. Opinion by Chief Justice Cherry.
In this appeal, the Court considered a landowner’s duty of care to entrants on the landowner’s property in a negligence suit. The Appellant, Foster, tripped and fell over a wooden pallet at a Costco warehouse store, and sustained several injuries from the fall. The pallet had been positioned in an isle of the warehouse by a Costco employee, and there were no barricades placed to warn customers or to prevent them from entering the isle where the pallets were. Foster testified that he tried to walk around the pallet, but caught his foot on a corner of the pallet that was apparently concealed by the boxes on top of the pallet. Costco moved for summary judgment and the district court granted summary judgment, holding that Costco had not breached its duty of care because the hazard created by the pallet was open and obvious to Foster. In reaching this conclusion, the district court relied on Gunlock v. New Frontier Hotel, 78 Nev. 182, 379 P.2d 682 (1962), in which the Nevada Supreme Court held that a landowner “is not liable for an injury to an invitee resulting from a danger which was obvious or should have been observed by the exercise of reasonable care.” The court examined the history of the “open and obvious” doctrine, recognizing that the Nevada Supreme Court had held after Gunlock that “determinations of liability should primarily depend upon whether the owner or occupier of land acted reasonably under the circumstances.” The Court then explicitly adopted the rule from the Restatement (Third) of Torts, holding that landowners bear a general duty of reasonable care to all entrants, regardless of the open and obvious nature of the dangerous condition, or put another way, that the open and obvious nature of a dangerous condition does not automatically relieve a landowner from the general duty of reasonable care. Instead, the fact that a dangerous condition may be open and obvious bears on the assessment of whether reasonable care was exercised by the landowner. The analysis of the landowner’s exercise of reasonable care must be conducted with regard to the foreseeability and gravity of the harm, and the feasibility and availability of alternative conduct that would have prevented the harm. In the circumstances of this case, the Court stated that the fact finder must take into account circumstances such as whether the nearby displays were distracting and whether the landowner has reason to suspect that the entrant would proceed despite a known or obvious danger. The Court further held that the open and obvious nature of the danger could be a factor in the reasonable care assessment of the entrant’s actions when apportioning comparative fault. The Court reversed the district court’s decision on summary judgment, holding that liability could not properly be decided as a matter of law on the facts presented pursuant to the standard adopted by the court because there was evidence that the danger of the pallet in the isle was not open and obvious to Foster, as the dangerous corner may have been blocked from his sight. Reversed and remanded. (Megan Starich, Associate in the Reno office of McDonald Carano Wilson LLP.)

FGA Inc., v. Giglio, 128 Nev. Adv. Op. 26 (June 14, 2012)

Before Justices Douglas, Hardesty and Parraguirre. Opinion by Justice Douglas.
In this appeal from a jury verdict in a tort action, the Court considered whether the “mode of operation” approach to premises liability, under which the plaintiff does not have to prove the defendant’s knowledge of a particular hazardous condition if the plaintiff can prove that the nature of the defendant’s business tends to create a substantial risk of the type of harm the plaintiff suffered, extends beyond the self-service context. In answering the question in the negative, the Court held that because the mode of operation approach is premised on the idea that business owners should be held responsible for the risks that their choice to have customers serve themselves creates, the mode of operation approach does not extend to “sit-down” restaurants. The Court found no reason to extend mode of operation liability to such sit-down restaurants absent a showing that their owners created an increased risk of a potentially hazardous condition by having their customers perform tasks that are traditionally carried out by employees. Additionally, the Court addressed issues regarding the general verdict rule and rulings on the admissibility of evidence of pre-existing conditions, alcohol consumption, and testimony to correct erroneous statements. Of particular importance, the Court held that the general verdict rule (which provides that if a jury renders a general verdict for one party, and no party requests interrogatories, an appellate court will presume that the jury found every issue in favor of the prevailing party) does not apply when there are multiple factual theories supporting a single legal theory of recovery. As a result, the appellant in this case was able to obtain reversal of the judgment on the jury verdict based on errors that affected only the mode of operation basis for the finding of negligence, despite evidence in the record from which a jury could have concluded that an employee of the restaurant was directly responsible for the spilled substance. Reversed and remanded. (Anthony L. Carano, Associate in the Reno office of McDonald Carano Wilson LLP.)

Webb v. Shull, 128 Nev. Adv. Op. 8 (March 1, 2012)

Before Justices Douglas, Hardesty, and Parraguirre. Opinion by Justice Hardesty.
In this appeal and cross-appeal, the Court addressed whether proof of a mental state was necessary for an award of treble damages under NRS 113.150, which requires sellers of property to disclose known defects. Based on the plain language of NRS 113.150, the Court held that an award of treble damages under that statute was remedial, not punitive, and did not require any evidence of intent or other heightened mental state. The Court also considered a challenge to the district court’s determination regarding alter ego liability of one of the respondent; however, stating that the district court’s record was unclear and the district court made factual findings at odds with its denial of liability, the Court reversed and remanded for the district court to make factual findings and conclusions of law regarding alter ego liability. Affirmed in part, vacated in part, and remanded. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)

Café Moda v. Palma, 128 Nev. Adv. Op. 7 (March 1, 2012)

Before Justices Douglas, Hardesty, and Parraguirre. Opinion by Justice Parraguirre.
In this appeal, the Court addressed NRS 41.141, Nevada’s comparative negligence statute, and whether it allowed for the apportionment of a damages award between negligent and intentional tortfeasors. Concluding that NRS 41.141 is ambiguous and turning to the legislative history and intent, the Court determined that “negligence” in the statute meant “fault”. As such, liability could be apportioned between negligent and intentional tortfeasors. The negligent tortfeasor was severally liable up to the level of fault found by the jury; the intentional tortfeasor was jointly and severally liable for the entire amount of damage. Reversed and remanded for the district court to enter a modified judgment. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson.)

Estate of Smith v. Mahoney’s Silver Nugget, 127 Nev. Adv. Op. 76 (November 23, 2011)

Before Justices Saitta, Hardesty, and Parraguirre. Opinion by Justice Parraguirre.
In this appeal from the grant of summary judgment in a wrongful death case, the Court reviewed the process for determining the legal duty of an innkeeper when a person is injured or killed by a third party on the innkeeper’s premises under NRS 651.015. The deceased, Smith, punched another patron of the Silver Nugget and a third patron fatally shot Smith in retaliation. Resolving an apparent conflict between NRS 651.015 and the Court’s decision in Doud v. Las Vegas Hilton Corp., 109 Nev. 1096 (1993), the Court concluded that NRS 651.015 requires a district court to determine duty as a matter of law by considering the foreseeability of the wrongful act and a jury must determine proximate cause by considering the foreseeability of the injury or consequences of the wrongful act. The Court then addressed the two methods of determining the foreseeability of a wrongful act set forth in NRS 651.015: (1) failure to exercise due care (2) prior similar acts. The “failure to exercise due care” approach allows for consideration of the totality of the circumstances as applied in Doud; it allows a Court to impose a duty despite the absence of prior similar wrongful acts if the “innkeeper’s outright failure to take reasonable precautions to protect its patrons” increased the likelihood of the wrongful act. The Court also attempted to clarify the extent of similarity required to establish a duty based on prior similar acts. Noting that the Legislature intended courts to have some discretion in considering the similarity of wrongful acts, the Court stated that whether acts are similar is, at least in part, determined by looking at whether the acts implicated similar security concerns. Because there had been no prior security incidents involving serious injury or concealed handguns at the Silver Nugget, the Court affirmed the district court’s conclusion that the shooting here was not foreseeable in a manner that created a duty on the part of the Silver Nugget. Affirmed. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson).