United States District Court, D. Nevada
J. Dawson, United States District Judge
before the Court is Defendant Wynn Las Vegas, LLC's
Motion for Summary Judgment (#41). Plaintiffs filed a
response in opposition (#43) to which Defendant replied
(#45). I. Facts On July 12, 2012, Plaintiffs left
Los Angeles approximately 8:00 a.m. and arrived at the Wynn
at approximately 2:00 p.m. See Defendant's Motion for
Summary Judgment, Doc. No. 41, Exhibit B, Deposition of Wendy
Derzaph, p.16:22-p.17:1; p.15:2-20. After checking into
their hotel room at the Wynn, Plaintiffs went to The Orleans
to check-in where they also had a room booked. While Elliott
and Ethan checked into their room at The Orleans, Wendy
immediately began playing slot machines and drinking
champagne. Id., p.17:25-p.18:1-17; p.19:6-11. After
they checked into the room, Elliott and Ethan went to eat
dinner while Wendy continued to play the machines.
returned to the Wynn at approximately 6:00 p.m. or 7:00 p.m.
Id., p.20:16-22. Once they arrived, Wendy went
straight to the slot machines while Elliott and Ethan went up
to the Wynn hotel room. Id., p.21:20-24. Wendy won
several jackpots over the course of the next 12 hours.
Id., p.23:24-p.25:1-17. While she was playing, she
had several more drinks of champagne. Id.,
p.26:17-p.27:1-8. She did not think she was intoxicated, but
just felt “happy.” Id.,
p.29:20-p.30:1-6. Wendy could not recall the time she went
back to the room the next morning, but she had been
"playing long enough to be tired." Id.,
p.25:18-24. She estimated that she returned to the room at
approximately 6:00 a.m. or 7:00 a.m. Id.,
p.27:18-24. Once Wendy returned to the hotel room, she was
"very tired" and immediately went to bed.
approximately 10:30 a.m. that same morning, Wendy got out of
bed to use the restroom. See, Mot. Summ. J.,
Doc. No. 41, Exhibit C, Plaintiff Wendy Derzaph's Answers
to Wynn's Firs Set of Interrogatories (Excerpt),
Id., p.11:1-7. She washed her hands and then used
the toilet which was in a separate room next to the room with
the sinks. See, Mot. Summ. J., Doc. No. 41, Exhibit D,
Plaintiff Wendy Derzaph's First Supplemental Answers to
Wynn's Firs Set of Interrogatories (Excerpt). She
saw water on the floor as she began to pull up her pants.
Id., at p.11:1-7. The next thing that she remembered
was lying on the floor having slipped or fallen backwards
striking the back of her head and neck on the
reports showed that, while dry, the bathroom floor met
industry standards when tested for slip resistance, or wet
coefficience. See, Mot. Summ. J., Doc. No. 41,
Exhibit A, Deposition of David Elliott, p.13:4-11.
However, the marble tile flooring did not meet industry
standards when wet. See, Plaintiff's
Opposition, Exhibit 2, David Elliott's May 27, 2015
Report; Exhibit 3, David Elliott's April 28, 2016
filed the present action on May 27, 2014. The remaining
claims allege negligence and loss of consortium. At the
conclusion of discovery, Defendant filed the present motion
for summary judgment asserting that when viewing the facts in
a light most favorable to Plaintiffs, insufficient evidence
exists for a reasonable trier of fact to conclude that
Defendant acted negligently.
Standard for Summary Judgment
judgment may be granted if the pleadings, depositions,
answers to interrogatories, and admissions on file, together
with affidavits, if any, show that there is no genuine issue
as to any material fact and that the moving party is entitled
to a judgment as a matter of law. See Fed.R.Civ.P.
56(a); see also Celotex Corp. v. Catrett, 477 U.S.
317, 322 (1986). The moving party bears the initial burden of
showing the absence of a genuine issue of material fact.
See Celotex, 477 U.S. at 323. The burden then shifts
to the nonmoving party to set forth specific facts
demonstrating a genuine factual issue for trial. See
Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475
U.S. 574, 587 (1986).
justifiable inferences must be viewed in the light must
favorable to the nonmoving party. See Matsushita,
475 U.S. at 587. However, the nonmoving party may not rest
upon the mere allegations or denials of his or her pleadings,
but he or she must produce specific facts, by affidavit or
other evidentiary materials as provided by Rule 56(e),
showing there is a genuine issue for trial. See Anderson
v. Liberty Lobby, Inc., 477 U.S. 242, 256 (1986). The
court need only resolve factual issues of controversy in
favor of the non-moving party where the facts specifically
averred by that party contradict facts specifically averred
by the movant. See Lujan v. Nat'l Wildlife
Fed'n, 497 U.S. 871, 888 (1990); see also
Anheuser-Busch, Inc. v. Natural Beverage Distribs., 69
F.3d 337, 345 (9th Cir. 1995) (stating that conclusory or
speculative testimony is insufficient to raise a genuine
issue of fact to defeat summary judgment). Evidence must be
concrete and cannot rely on “mere speculation,
conjecture, or fantasy. O.S.C. Corp. v. Apple Computer,
Inc., 792 F.2d 1464, 1467 (9th Cir. 1986).
“[U]ncorroborated and self-serving testimony, ”
without more, will not create a “genuine issue”
of material fact precluding summary judgment. Villiarimo
v. Aloha Island Air, Inc., 281 F.3d 1054, 1061 (9th Cir.
judgment shall be entered “against a party who fails to
make a showing sufficient to establish the existence of an
element essential to that party's case, and on which that
party will bear the burden of proof at trial.”
Celotex, 477 U.S. at 322. Summary judgment shall not
be granted if a reasonable jury could return a verdict for
the nonmoving party. See Anderson, 477 U.S. at 248.
III. Analysis To prevail in a negligence action, a
plaintiff must demonstrate “(1) the defendant owed the
plaintiff a duty of care, (2) the defendant breached that
duty, (3) the breach was the legal cause of the
plaintiff's injuries, and (4) the plaintiff suffered
damages.” DeBoer v. Sr. Bridges of Sparks Family
Hosp., 282 P.3d 727, 732 (Nev. 2012). Defendant's
negligence is generally a question of fact for the jury to
resolve, and courts are reluctant to grant summary judgment
in negligence cases. Harrington v. Syufy Enters.,
931 P.2d 1378, 1380 (Nev. 1997).
Nevada an “owner or occupier of land [is] held to the
general duty of reasonable care when another is injured on
that land.” Moody v. Manny's Auto Repair,
871 P.2d 935, 943 (Nev. 1994), superseded by statute on
other grounds. “An owner or occupant of land must
exercise ordinary care and prudence to render the premises
reasonably safe for the visit of a person invited on his
premises for business purposes.” Id. at 941.
The Nevada Supreme Court has adopted Restatement (Third)
of Torts: Physical and Emotional Harm § 51 (2012)
which imposes on “land possessors” a duty of
reasonable care to entrants on the land “in regards to
... artificial conditions on the land that pose
risks[.]” See Foster v. Costco Wholesale
Corp., 291 P.3d 150, 155 (Nev. 2012).
present action, Defendant asserts that Plaintiffs have not
produced sufficient evidence that it breached its duty of
care to Plaintiffs and that the breach caused Plaintiffs'
injuries. Defendant has amassed a weight of evidence that no
water was discovered on the floor after Plaintiff Wendy
Derzaph's accident. However, were a jury to credit her
testimony that the floor was wet just before her fall, a
reasonable trier of fact could conclude that Defendant
breached its duty of care to Plaintiffs and that the
resulting injuries were caused by the breach. Therefore, the
Court must deny Defendant's motion for summary judgment.
IT IS HEREBY ORDERED that Defendant Wynn Las Vegas, LLC's