Month: November 2015

When is an employer liable for an employee’s criminal conduct?

Posted on by Jeff Jaeger

Anderson v. Mandalay Corp. (Nev. Supreme Ct. – Oct. 15, 2015)

NRS 41.745(1)(c) makes employers vicariously liable for employees’ intentional torts if a plaintiff can show the intentional conduct was reasonably foreseeable under the facts and circumstances of the case considering the nature and scope of the employee’s employment. The issue is whether it was reasonably foreseeable that an employee would rape a hotel guest.

Anderson and her husband sued Mandalay Bay Resort and Casino (Mandalay) after Gonzalez, a Mandalay employee, raped Anderson in her hotel room at Mandalay. Anderson and her husband asserted claims against Mandalay for negligent hiring, vicarious liability, and loss of consortium. During discovery, Anderson asked for leave to amend her complaint to add claims for negligent security, retention, and supervision. Mandalay sought summary judgment, and at the summary judgment hearing, Anderson’s counsel abandoned all claims except the vicarious liability claim. The district court granted Mandalay’s motion for summary judgment, concluding Mandalay was not vicariously liable for Gonzalez’s criminal act. The district court also denied, as futile, Anderson’s motion to amend her complaint. Anderson appealed.

Anderson came to Las Vegas on September 8, 2008, to attend a trade show on behalf of her employer. She checked into room 8916 at Mandalay. After performing some work-related duties, she and her coworkers went out for dinner and drinks. Anderson became intoxicated and returned to Mandalay around 2 a.m. on September 9, 2008. Surveillance footage shows that she and Gonzalez shared an elevator; both exited on the eighth floor. Anderson entered her room, shut the door behind her, and went to sleep.

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When is the losing party entitled to a new trial because of attorney misconduct?

Posted on by Jeff Jaeger

Michaels v. Pentair Water Pool & Spa (Nev. Ct. App. – Oct. 1, 2015)

This case arose from allegations of attorney misconduct in a products liability trial involving swimming pool filters. After the jury rendered a verdict in favor of the manufacturer, the plaintiff filed a post-trial motion seeking a new trial based upon alleged misconduct committed by the manufacturer’s attorney. The district court denied the motion, but failed to make the detailed findings required by the Supreme Court of Nevada.

The Supreme Court of Nevada recently issued two opinions clarifying how claims of attorney misconduct must be handled both by the district court and subsequently on appeal.  In this matter, the Court of Appeals of Nevada summarized those recent developments and provided guidance to district courts tasked with resolving claims of misconduct.

Pentair Water Pool and Spa, Inc. (Pentair), manufactures various models of swimming pool filters for both commercial and residential swimming pools, including the Nautilus FNS filter. In 2006, Michaels purchased a Nautilus FNS filter for use in his backyard swimming pool. Michaels had owned his swimming pool for 27 years, and when his previous filter canister malfunctioned, he integrated the FNS canister into his preexisting filter system. Like many other homeowners, Michaels connected his pool filter system to an automatic timer that could be programmed to turn the system off at night and on again during the day. On July 1, 2008, the filter system was turned off but Michaels manually turned it on in anticipation of guests arriving. The FNS filter canister exploded, and pieces struck Michaels in the left eye and ruptured his eyeball, which had to be removed and replaced with a prosthesis. Thereafter, Michaels initiated the underlying action and sought damages based on his injuries. While Michaels asserted several claims for relief, only the products liability claim was the subject of the appeal.

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Are limits on medical malpractice awards unconstitutional?

Posted on by Jeff Jaeger

Tam v. Eighth Jud. Dist. Ct. (Nev. Supreme Ct. – Oct. 1, 2015)

NRS 41A.035 (2004) limits the recovery of a plaintiff’s noneconomic damages in a health-care provider’s professional negligence action to $350,000. The issues are whether the statute violates a plaintiff’s right to trial by jury, whether the cap applies separately to each cause of action, and whether the statute applies to medical malpractice actions.

After the death of Charles Thomas Cornell, Jr, Sherry Cornell, individually and as administrator of Charles’s estate, filed a complaint alleging, among other causes of actions, professional negligence and medical malpractice. The complaint named numerous defendants, including Stephen Tam, M.D.

Charles had several chronic medical conditions. However, Cornell alleged that Charles died after receiving care from the defendants, who discharged him without medications or prescriptions for essential medications, including insulin, to treat his diabetes. Consequently, the complaint alleged that Charles died because he did not have access to insulin.

The district court dismissed several of the defendants and numerous claims from the action, and the remaining claims for trial fell within the definition of medical malpractice as set forth in NRS 41A.009. Relevant to this matter is that Dr Tam filed an omnibus motion in limine requesting in part that the plaintiffs’ noneconomic damages be limited to $350,000 as a whole pursuant to NRS 41A.035 (2004).

The district court denied this motion finding that NRS 41A.035 was unconstitutional, as it violated a plaintiff’s constitutional right to trial by jury. The district court also found that the cap in NRS 41A.035 did not apply to the case as a whole but that a separate cap applied to each plaintiff for each of the defendants. In addition, the district court found that the cap in NRS 41A.035 did not apply to medical malpractice claims. Dr. Tam petitioned the Supreme Court of Nevada for a writ of mandamus compelling the district court to vacate its order denying his motion in limine.

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When is an attorney personally liable for the attorney fees and costs an opponent incurs?

Posted on by Jeff Jaeger

Watson Rounds v. Eighth Jud. Dist. Ct. (Nev. Supreme Ct. – Sep. 24, 2015)

NRS 7.085 allows a district court to make an attorney personally liable for the attorney fees and costs an opponent incurs when the attorney files, maintains, or defends a civil action that is not well-grounded in fact or is not warranted by existing law or by a good-faith argument for changing the existing law. The issues are whether (1) Nevada Rule of Civil Procedure NRCP 11 supersedes NRS 7.085, and (2) the district court abused its discretion in sanctioning the law firm under NRS 7.085.

FortuNet, Inc., is a gaming company that leases bingo equipment to casinos. In 2011, FortuNet filed the initial version of its complaint in an action against former FortuNet employees and an entity they created; the claims centered on allegations that the employees breached various duties to FortuNet and improperly used FortuNet’s intellectual property. FortuNet later retained Watson Rounds, P.C. (Watson), as its new counsel, and Watson prepared a second amended complaint adding Bruce Himelfarbl and Himelfarb & Associates, LLC (collectively Himelfarb), as defendants. All claims against Himelfarb derived from an alleged kickback scheme and the alleged theft of FortuNet’s intellectual property.

Each of FortuNet’s claims against Himelfarb survived summary judgment. The parties proceeded to trial, but before the jury entered a verdict, the district court dismissed several of FortuNet’s claims against Himelfarb for lack of evidence under NRCP 50(a). FortuNet also voluntarily dismissed several other claims against Himelfarb. The remaining claims against Himelfarb made it to the jury, which had the option of finding that Himelfarb was involved in the kickback scheme, the theft of FortuNet’s intellectual property, both, or neither. The jury rejected FortuNet’s claims against Himelfarb, found for Himelfarb on its counterclaims, and specifically asked the district court if it could include Himelfarb’s attorney fees when calculating the damages Himelfarb suffered from FortuNet’s breach of the implied covenant of good faith and fair dealing. The district court instructed the jury that it could not add attorney fees because such fees, if any, would be assessed posttrial.

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