FCH1, LLC, A NEVADA LIMITED LIABILITY COMPANY, F/K/A FIESTA PALMS, LLC, A NEVADA LIMITED LIABILITY COMPANY D/B/A THE PALMS CASINO RESORT, Appellant,
ENRIQUE RODRIGUEZ, AN INDIVIDUAL, Respondent
Appeal from a district court judgment following a bench trial in a tort action. Eighth Judicial District Court, Clark County; Jessie Elizabeth Walsh, Judge.
Lemons, Grundy & Eisenberg and Robert L. Eisenberg, Reno, for Appellant.
Hutchison & Steffen, LLC, and Michael K. Wall, Las Vegas, for Respondent.
BEFORE PICKERING, HARDESTY and CHERRY, JJ.
At issue is the alleged negligence of Palms Casino Resort in allowing promotional actors to toss souvenirs into a crowd of patrons watching a televised sporting event at the casino's sports bar. Specifically, we must decide whether to extend the limited-duty rule that this court established in Turner v. Mandalay Sports Entertainment, 124 Nev. 213, 220-21, 180 P.3d 1172, 1177 (2008), to these facts. We decline to do so, and thus hold there was no error in the district court's refusal to find, as a matter of law, that Palms owed no duty of care. Nonetheless, a new trial is warranted due to evidentiary errors that affected the outcome of the proceeding below.
Respondent, Enrique Rodriguez, sued the Palms Casino Resort to recover damages for the knee injury he suffered while sitting in its " Sportsbook" bar watching Monday Night Football on television. The injury occurred when another patron dove for a sports souvenir that Brandy Beavers, an actress paid by the Palms to dress as a cheerleader for the Monday Night Football event, had tossed into the group. Rodriguez sued Palms on a theory of negligence.
The matter was tried before the court in a bench trial. Over objection by Palms, the district court permitted several of Rodriguez's treating physicians to testify to the nature and severity of his condition, its causes, and the appropriateness of treatment, both rendered to and recommended for him. It then struck the testimony of Palms' experts on security and crowd control, and economics because they failed to " opine that their opinions were given to a reasonable degree of professional probability." Ultimately, the district court determined that Palms was liable as a matter of law and awarded Rodriguez $6,051,589 in damages. This appeal followed.
The parties and the district court assumed that Rodriguez's claim was based on a theory of premises liability, namely that the Palms had increased the risk posed to Rodriguez by not stopping the promotional actors' souvenir-tossing. This is a somewhat unusual application of the doctrine, because alleged negligent conduct and not a condition on the Palms' land caused the injury, perhaps settled upon because the employment status of the women doing the tossing could not be established below. But this court has not limited premises liability to circumstances where a condition on the land caused an injury, see, e.g., Estate of Smith v. Mahoney's Silver Nugget, Inc., 127 Nev.
__, __, 265 P.3d 688, 692 (2011); Basile v. Union Plaza Hotel & Casino, 110 Nev. 1382, 1384, 887 P.2d 273, 275 (1994); Gott v. Johnson,
79 Nev. 330, 332, 383 P.2d 363, 364 (1963), and the Restatement sanctions such an application where the landowner has acted to increase the risk posed to entrants. See Restatement (Third) of Torts: Phys. & Emot. Harm § 51(a) (2012). In any case, because the district court and both parties ...