Harrah's Laughlin, Inc. v. Swanson C/W 57019

 the negligence per se claim, the jury returned a verdict in Swanson's favor
on the general negligence claim.
Harrah's then moved for a judgment notwithstanding the
verdict, or in the alternative, for a new trial, and the district court denied
the motion. Following the denial of Harrah's motion, Swanson made a
motion to recover her attorney fees and costs, which was granted.
Harrah's now appeals the jury's verdict, the district court's denial of its
motion, and the order granting Swanson's motion for attorney fees and
costs. The issues on appeal are: (1) whether this court lacks jurisdiction to
review Harrah's substantial evidence issues because they were not
properly preserved, and (2) whether the jury's verdict was based on
mistake, passion, or prejudice.'
Preservation of issues under NRCP 50(a) and NRCP 50(b)
Swanson contends that Harrah's substantial evidence
arguments were not properly preserved for appeal. Specifically, Swanson
argues that because Harrah's failed to raise the substantial evidence
issues in its NRCP 50(a) motion for judgment as a matter of law, it cannot
then raise them in its NRCP 50(b) motion for judgment notwithstanding
the verdict or in an NRCP 59 motion for a new trial.
Harrah's responds that although it did not raise substantial
evidence issues in its NRCP 50(a) motion, its arguments can still be
1 Harrah's also asserts that the district court abused its discretion in
instructing the jury regarding Harrah's standard of care and in allowing
Swanson to argue that a violation of the International Building Code was
evidence of negligence. We, however, determine that these arguments
lack merit.
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reviewed because plain error is evident from the record and there is a
showing of manifest injustice. 2
NRCP 50(a) permits a party to move for judgment as a matter
of law after the nonmoving party has been heard on a dispositive issue. If
a party's NRCP 50(a) motion is subsequently denied and the jury's verdict
is not in the moving party's favor, the party may then renew its motion
and request judgment as a matter of law. NRCP 50(b). The language of
NRCP 50(b) clearly states that the motion for a judgment as a matter of
law may only be "renewed" after the jury has returned a verdict.
Therefore, "[a] party may not gamble on the jury's verdict and then later,
when displeased with the verdict, challenge the sufficiency of the evidence
to support it." Price v. Sinnott, 85 Nev. 600, 607, 460 P.2d 837, 841 (1969).
At issue in this case is whether we have jurisdiction to review
Harrah's arguments regarding whether there was substantial evidence to
support the jury's verdict, which found Harrah's negligent and liable for
damages. Generally, this court does not have jurisdiction to review
2 Harrah's notes that it also moved for a new trial pursuant to NRCP
59 and for relief from judgment pursuant to NRCP 60. Harrah's
arguments in support of its NRCP 60(b) motion are not of the type
contemplated in the drafting of NRCP 60. See Nevada Indus. Dev., Inc. v.
Benedetti, 103 Nev. 360, 364, 741 P.2d 802, 805 (1987) ("The salutary
purpose of Rule 60(b) is to redress any injustices that may have resulted
because of excusable neglect or the wrongs of an opposing party.").
Harrah's arguments focus on the legal elements of negligence and the
evidence presented in support thereof. Relief pursuant to NRCP 60(b) is
therefore inappropriate. Similarly, under NRCP 59(a), there is no
provision for a new trial on the basis that the jury's verdict was not
supported by substantial evidence. Therefore, we may only review the
district court's denial of Harrah's motion for a new trial based on its
assertion that the jury's verdict was based on passion or prejudice.
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• 41144 ,-1,L , •
sufficiency-of-the-evidence arguments that were not properly raised in
serial NRCP 50(a) and NRCP 50(b) motions. Price, 85 Nev. at 606-07, 460
P.2d at 841; see also Unitherm Food Sys., Inc. v. Swift-Eckrich, Inc., 546
U.S. 394, 400-01 (2006). The only exception to this jurisdictional bar is if
"there is plain error in the record or if there is a showing of manifest
injustice." Avery v. Gilliam, 97 Nev. 181, 183, 625 P.2d 1166, 1168 (1981)
(internal quotations omitted).
Harrah's moved for judgment as a matter of law, pursuant to
NRCP 50(a). The subject of the motion, however, focused solely on its
argument that Harrah's could not be found liable under negligence per se
for violating any portion of the Henderson Municipal Code because
Swanson was not handicapped. The NRCP 50(a) motion made no mention
of the insufficiency of the evidence presented as to Harrah's breach of its
duty as a landowner, breach of its duty to warn, the proximate cause of
Swanson's injuries, the foreseeability that someone could be injured by the
speed bump, or any of the evidence presented to support Swanson's
request for damages. Even when Harrah's brought its NRCP 50(b)
motion, it failed to make clear arguments regarding the insufficiency of
the evidence.
Swanson presented evidence to the jury that Harrah's
installed a speed bump which created a trip hazard because of its raised
sides and lack of ramping. Harrah's also offered evidence that there were
other means of ingress and egress that did not require Swanson to walk in
the driveway. Both parties presented evidence that the speed bump was
in the darkened area of the porte cochere and that it may have taken
Swanson some time to accustom her eyes to the darker area. Finally,
Swanson presented evidence of her work history and medical testimony to
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support her damages request. The facts presented do not clearly show
error or manifest injustice, which would require reversal of the verdict.
Avery, 97 Nev. at 183, 625 P.2d at 1168. Consequently, because Harrah's
failed to raise the substantial evidence issues in its NRCP 50(a) and
NRCP 50(b) motions, and because it has not shown that there is plain
error or manifest injustice, we do not have jurisdiction to review the
substantial evidence issues raised in this appeal.
Jury's award of damages for pain and suffering
Harrah's also contends that the jury acted improperly and
that the verdict was the result of mistake, passion, or prejudice because it
shocks the conscience. As a result, Harrah's contends that the district
court should have overturned the jury's verdict and granted a new trial.
We review a district court's denial of a motion for a new trial
for an abuse of discretion. Wyeth v. Rowatt, 126 Nev. , 244 P.3d
765, 775 (2010). Additionally, we will affirm a damages award that is
supported by substantial evidence. Foster v. Dingwall, 126 Nev. ,
227 P.3d 1042, 1050-51 (2010). But we will reverse or reduce an excessive
compensatory damages award that was given under the influence of
passion or prejudice and when it shocks the conscience. Hernandez v. City
of Salt Lake, 100 Nev. 504, 508, 686 P.2d 251, 253 (1984). A jury is given
wide latitude in awarding special damages. Countrywide Home Loans,
Inc. v. Thitchener, 124 Nev. 725, 737, 192 P.3d 243, 251 (2008). And
damages for pain and suffering are peculiarly within the jury's province.
Stackiewicz v. Nissan Motor Corp. in U.S.A., 100 Nev. 443, 454-55, 686
P.2d 925, 932 (1984). "[T]he mere fact that the verdict is a large one is not
conclusive that it is the result of caprice, passion, prejudice, sympathy or
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other consideration. . . ." Wells, Inc. v. Shoemake, 64 Nev. 57, 74, 177
P.2d 451, 460 (1947).
On appeal, Harrah's seeks to have this court adopt a new test
for reviewing a jury's award of damages for pain and suffering. Harrah's
submits three possible tests: the first blush test, the analogous award test,
and the multiples test. In advocating for the first blush test, Harrah's
relies on a California Supreme Court case for the proposition that an
appellate court should reverse a jury's award of damages only if at first
blush it believes that the award is shocking and "suggests passion,
prejudice or corruption on the part of the jury." Seffert v. Los Angeles
Transit Lines, 364 P.2d 337, 342 (Cal. 1961). Harrah's reliance on
California authority, however, is unnecessary. This court has long used
this language when discussing whether an award shocks the conscience.
See, e.g., Ace Truck & Equip. Rentals, Inc. v. Kahn, 103 Nev. 503, 509, 746
P.2d 132, 136 (1987), abrogated on other grounds by Bongiovi v. Sullivan,
122 Nev. 556, 583, 138 P.3d 433, 452 (2006); Forrester v. S. Pac. Co., 36
Nev. 247, 296, 134 P. 753, 769 (1913). Therefore, this standard is no
different than the current standard and we will continue to review the
jury's award to determine if it appears to be the product of passion or
prejudice. 3 Hernandez, 100 Nev. at 508, 686 P.2d at 253.
3 We have already specifically denied the application of the
analogous award test in Wyeth. 126 Nev. at n.10, 244 P.3d at 783
n.10; see also Wells, Inc., 64 Nev. at 74, 177 P.2d at 460. As to the
multiples test, Harrah's has not provided sufficient authority to allow this
court to meaningfully review the adoption of the test. See Edwards v.
Emperor's Garden Rest., 122 Nev. 317, 330 n.38, 130 P.3d 1280, 1288 n.38
(2006) (refusing to consider claims when a party failed to "cogently argue,
and present relevant authority" in support of those claims).
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Here, the jury awarded Swanson $375,000 in past pain and
suffering, and $400,000 in future pain and suffering. This court has
stated many times that the jury has wide discretion in awarding pain and
suffering damages, and that big awards will not be overturned simply
because of their size. See Countrywide Home Loans, Inc., 124 Nev. at 739,
192 P.3d at 252; Stackiewicz, 100 Nev. at 454-55, 686 P.2d at 932; Wells,
Inc., 64 Nev. at 74, 177 P.2d at 460. Swanson also points out that had the
jury been acting as a result of passion or prejudice, it would not have
found her 20 percent at fault. We agree. Had the jurors been influenced
by passion or prejudice, they would not have adjudged any fault to her.
See Guar. Nat'l Ins. Co. v. Potter, 112 Nev. 199, 207, 912 P.2d 267, 273
(1996) (explaining that if the trial court judge had been influenced by
passion or prejudice he would have awarded damages in all possible
categories). Although the award is high, the ultimate determination of
damages is within the province of the fact finder, and its decision to reduce
Swanson's award by 20 percent supports our conclusion that the award
was not reached as a result of passion or prejudice. Because Harrah's has
failed to show that the district court abused its discretion in denying its
motion for a new trial, we
ORDER the judgment of the district court AFFIRMED.
J.
Gibbons
Saitta
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cc: Hon. Douglas W. Herndon, District Judge
Craig A. Hoppe, Settlement Judge
Rands, South & Gardner/Henderson
Mario D. Valencia
Hammond & Hammond, LLP
Eighth District Court Clerk
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