Our Results Archive
- May 3, 2016
Judge Dismisses Bug Bite Case
Today a district court judge in Las Vegas granted summary judgment to a southern Nevada hotel sued by a guest alleging unknown insects bit her while staying at the property. The guest stayed in a room for a matter of hours during the summer. While laying on the bed, the guest claimed she was bitten by an insect. However, the guest never saw the insect in the dark and it could not later be identified by the bite marks. The guest claimed she later developed an infection from this bite and sued the hotel.
Michael Lowry was hired to defend the hotel. It is often difficult for a guest to prove a bug bite case and this case was no different. Insects are everywhere and the mere fact that a bug bites a guest does not make the hotel responsible. The guest must show the hotel had prior experience with this type of insect and knew it was a problem. However, since the guest could not identify what type of insect bit her, there was no way for her to show the hotel had any prior problems with it. Further, the hotel did not have a history of bug bites that could also meet the burden.
The guest recognized this problem and instead argued that the room she was rented was unsanitary and that her injuries were caused by bacteria in the room that entered her body through the bug bite. Bacteria are everywhere and occur naturally on human skin. The guest did not present any evidence that the bacteria causing her infection came from any particular source, let alone the hotel room.
The judge concluded the evidence the guest presented only established an injury. It did not show that the hotel had any role in causing the injury, so the case was dismissed.
- Apr 27, 2016
Lowry Defenses Mass Transit Case
A Las Vegas arbitrator has ruled that a mass transit bus company was not responsible for an accident that occurred when a pick-up truck turned in front of a bus. The bus was driving in a dedicated bus lane through an intersection, slowing for the bus stop just past the intersection. As it cleared the intersection, a pick-up truck in the lane to the bus’s left suddenly turned right, into the bus’s path. The bus driver managed to avoid a large collision, but the two vehicles still made contact.
A passenger on the bus asserted he was injured in the collision and sued the truck driver. The truck driver then sued the bus driver, arguing the entire accident was the bus driver’s fault. Michael Lowry was hired to defend the bus driver. The truck driver’s sworn testimony about how the accident happened, however, did not match the video recording from the bus showing the accident sequence. Further, the bus had the right-of-way and was traveling far less than the posted speed limit.
The arbitrator concluded the bus driver did nothing wrong and was not at fault for the accident.
- Apr 19, 2016
Judge Grants Summary Judgment Despite Alleged Spoliation
A value retail operation with a national presence hired Michael Lowry to defend it from a slip and fall lawsuit at one of its Las Vegas stores. A customer entered the store, slipped, and then fell on what may have been clear, liquid soap on the floor. During the discovery process, Mr. Lowry was able to demonstrate there was no evidence to show that the store caused the soap to be on the floor, that the store knew the soap was there before the customer fell, or that this type of spill happened so often that it was a continuous hazard.
The customer effectively conceded this point, however she argued the evidence was missing because the store failed to keep it. The fall happened just outside the view of a store security camera. The store kept a few minutes of footage before and after the fall. The customer argued this was insufficient and was effectively destroying evidence. She claimed that if more video had been kept, it might have shown when or how the spill occurred, enabling her to meet her burden of proof. She asked the court to automatically impose liability upon the store for failure to keep more video.
The judge disagreed. He concluded the customer failed to present evidence that put the store on notice of potential litigation that would have in turn triggered a duty to preserve evidence. As the judge could not determine when the duty to preserve arose, it could not be determined when the store was on notice as compared to when the video was preserved. As spoliation was not demonstrated, the judge granted summary judgment to the store.
“The argument de jure is spoliation of evidence,” remarked Mr. Lowry after the ruling was announced. “The customer was arguing that it was the store’s fault that she could not prove her claim. Thankfully the judge saw through it.”
- Mar 25, 2016
Case Dismissed; Co-Defendant Reimburses Client for All Defense Costs
A national discount retailer was sued in Las Vegas because a woman slipped and fell on ice in the parking lot near the store. The retailer hired shareholder Michael Lowry to defend the store. The retailer’s lease with the landlord expressly stated the landlord had exclusive control of the parking lot and the responsibility to maintain it. The retailer tendered its defense to the landlord per the lease, however the landlord refused to honor its obligations. The retailer also tendered its defense to the landlord’s insurance carrier per the terms of the lease requiring the retailer to be listed as an additional insured. The carrier declined because the landlord had not listed the retailer as an additional insured. Consequently, the retailer was forced to defend itself from a lawsuit about an accident in an area where it had no control. It was also forced to file a cross-claim against the landlord for breach of contract.
After discovery was completed, Mr. Lowry sought summary judgment both against the claimant and the landlord. The plaintiff lacked any evidence to demonstrate the retailer caused the ice to form, had actual knowledge that the ice was present, or that ice formed in this location so frequently as to be a continuous hazard. Before the motion could be heard, the plaintiff agreed to voluntarily dismiss the retailer without any indemnity payment. As to the landlord, it agreed to reimburse the retailer for all of its costs and expenses incurred defending the case. At the end of the file, the retailer’s net exposure was reduced to zero.
“It was quite frustrating to go through this case given the contractual obligations,” said Mr. Lowry. “In the end, the landlord did the right thing though and the client was restored to where it should have been.”
- Mar 15, 2016
Judge Dismisses Case for Discovery Abuses
This morning a local court dismissed a personal injury lawsuit against a local mass transit company due to the plaintiff’s refusal to meet his discovery obligations. The transit company’s vehicle was side-swiped by another car, who then fled the scene. One of the transit company’s passengers claimed he was injured and sued the transit company. Michael Lowry was hired to defend the transit company.
Once discovery opened, the passenger failed to disclose any documents as he was required by rule. He failed to answer any interrogatories or requests for production. He even failed to appear for his deposition. Based upon this complete failure to cooperate in the discovery process, Mr. Lowry asked the court to dismiss the case. A party may not refuse to honor its obligations under the rules of civil procedure and then still expect the court to award him relief.
The court granted the motion this morning. It ruled the passenger gave no excuse to justify his refusal to participate and this refusal had prejudiced the mass transit company’s ability to defend itself.
- Mar 14, 2016
Lowry Defenses Warranty Claim
A Las Vegas judge concluded today that a local oil change store was not responsible for more than $8,000 of damage to a 2015 Honda Fit. A customer visited the store in August and had a normal oil change. 10 weeks and more than 3,300 miles later, the engine developed problems. A Honda mechanic concluded the engine had been run without lubrication and was irreparably damaged. The customer blamed the prior oil change store, arguing it had not properly attached the oil drain plug.
Michael Lowry defended the oil change store. The customer asserted she saw no warnings whatsoever from the car about low oil pressure or any check engine lights during the 10 weeks between the oil change and the engine failing. Mr. Lowry argued that had the oil drain plug not been properly secured, it would have come out much soon than 10 weeks later. Further, when it did come out, at least two of the car’s onboard sensors should have been triggered and displayed visual warnings to the customer.
The judge agreed. He concluded whatever caused the drain plug and oil to come out was not the oil change store’s fault. Not only did 10 weeks pass, but the judge was not persuaded by the customer’s assertion that the car gave her no warnings whatsoever. The store was not required to pay to replace the engine.
- Feb 17, 2016
Eisinger & Parks Win Subsidiary Liability Case
Earlier today a Nevada federal judge granted summary judgment in a case against a resort company that sought to hold it liable for alleged negligence of its subsidiary in Aruba. A Canadian citizen traveled to a resort on Aruba owned by a subsidiary. While there she tripped, fell and asserted an injury. Rather than suing the subsidiary in Aruba, the guest returned home, and then filed suit in Nevada against the subsidiary’s parent company. She claimed the parent and subsidiary were alter egos, meaning the parent could be liable for the subsidiary’s negligence.
Paul Eisinger and Kathy Parks represented the resort parent company. They repeatedly noted throughout the case that the wrong company was sued, that Nevada lacked jurisdiction over the Aruba subsidiary, and that Dutch personal injury law would likely apply. The guest ignored these warnings and proceeded with the lawsuit. At the end of discovery, Mr. Eisinger and Ms. Parks argued to the court that there was no evidence of anything but a typical corporate parent-subsidiary relationship. There was no basis to find the parent was an alter ego of the subsidiary or to hold the parent liable if the subsidiary had actually been negligent.
The court agreed and dismissed the case. First, the court noted that the guest’s alter ego argument was based upon an incorrect reading of the company’s form 10-K filings about its corporate structure. Second, the fact that the two companies had two directors in common was insufficient. Finally, there was no evidence that corporate formalities to establish and maintain separation had been breached.
- Feb 12, 2016
Defense Verdict in Retail Trial
A Las Vegas jury today issued a defense verdict in a retail slip and fall case filed against a national retailer. A customer was shopping in the store near the checkout registers when she slipped on water, fell, and was injured. She sued the store, arguing it was responsible for her fall. The store hired shareholder Michael Lowry to defend against the lawsuit.
The store had various video cameras in the area of the fall, but none could see the exact spot on the floor where the water was. The cameras did see one customer walk through the area and notice the water. She then walked a short distance to a busy cashier and informed him of the water. 33 seconds later, a different customer fell. In the 33 seconds that passed between notice and the fall, the cashier completed checking a customer out and then went to investigate the reported spill. By the time he arrived, it was too late.
Before trial the judge granted Mr. Lowry’s motion for summary judgment on actual notice, concluding 33 seconds was insufficient time for the store to receive notice and then remedy the spill. Instead, at trial the customer argued that the store had created the spill by not properly maintaining a nearby beverage cooler. Mr. Lowry argued persuasively for the store that the evidence did not show the water’s source, let alone that it came from the beverage cooler. The jury ultimately agreed and issued a defense verdict for Mr. Lowry’s client.
“I give the client a lot of credit for holding to their position that there was no evidence that the store did anything wrong,” Mr. Lowry remarked afterwards. “Apparently the jury saw it the same way.”
- Dec 18, 2015
Diamond Helps Kids in Pro Bono Case
Shareholder Kevin Diamond accepted a pro bono case to represent three children in a trial seeking to terminate their parents’ parental rights. Sadly, the children’s mother had fallen victim to drug abuse and the father was incarcerated for numerous offenses. Nevada’s Department of Family Services concluded the children were at risk in this environment and would be best served if they were removed from their parents. The Department went to court to accomplish this and Mr. Diamond was appointed to separately represent the children.
Before trial, Mr. Diamond successfully terminated the mother’s rights. The father insisted upon trial. At trial, Mr. Diamond was assisted by law clerk Matthew Winters. Mr. Winters volunteered to help and was permitted to participate in trial by Nevada’s program encouraging law students to gain experience by participating in pro bono work. The trial was a success for the children as the father capitulated and agreed to terminate his rights shortly before Mr. Winters was to cross-examine him. All three children may now be formally adopted by a loving family member in the near future.
“Assisting children as clients is a difficult situation,” says Winters. “Here they were too young to understand what was happening other than that they might go to live with a family member. Our goal was to provide these children a better opportunity in the future by providing them stability in their home life they never had before.” Diamond added, “here, stability is exactly what was achieved as the children will all be adopted by a family member and continue to grow up together as opposed to living in split foster homes. Pro bono cases like these are exactly what makes practicing law very rewarding, especially right before the holidays.”
- Sep 22, 2015
Plaintiff Spoliates Evidence; Case Dismissed
Today a local court dismissed a product liability case brought against a mobility device manufacturer. A person with disabilities was using a power scooter and was injured. The person asserted the injuries occurred because the power scooter was defective and notified the manufacturer. The manufacturer wrote the person and asked that he preserve the power scooter so it could be inspected.
The person later filed a lawsuit and the manufacturer hired shareholder Brian K. Terry to defend it. When Mr. Terry asked to inspect the power scooter, as had been anticipated, the person advised the power scooter had been discarded. No inspection was ever performed.
Mr. Terry asked the court to dismiss the case. The person alleged the power scooter was defective but the manufacturer was never given an opportunity to evaluate the power scooter and determine what happened. The person argued for an adverse inference or presumption in lieu of dismissal, which may be appropriate in mere negligence cases. The court agreed with Mr. Terry that such an analysis does not apply to product liability cases. The court then dismissed the case.
- Sep 4, 2015
Court of Appeals Affirms Dismissal
Legal malpractice claims can harm a lawyer’s public and private reputations. A strong defense is important to protecting those hard earned reputations. Shareholder Brian Terry routinely defends these cases and was retained to defend a local judge who was sued by a client arising from a conviction when the judge was in private practice. Mr. Terry successfully moved to dismiss the case, before discovery ever started, because the judge had been appointed to defend the criminal via a public defender program. The Supreme Court of Nevada has ruled attorneys functioning in that capacity are protected by sovereign immunity.
The plaintiff then appealed, arguing the case should be reinstated. The case was assigned to Nevada’s Court of Appeals that opened in 2015 to relieve the appellate backlog. After briefing from Mr. Terry and Michael Lowry, the Court unanimously concluded the client had either waived these arguments or, even if not, then the errors still did not overcome the various hurdles to reinstating the case.
“This was an extremely dubious claim, and the newly instituted Court of Appeals brought the appeal to resolution expeditiously,” said Mr. Terry.
- Aug 18, 2015
City Vindicated Before EEOC
In April 2012 a former City of West Wendover employee filed a discrimination claim against the City with the with the U.S. Equal Employment Opportunity Commission. The employee alleged the City discriminated against him due to his national origin and disabilities under the Americans with Disability Act. The EEOC investigated for three years and recently advised the City it will not proceed with any further investigation of the employees allegations.
Shareholder Philip Goodhart represented the City in this investigation. Although the EEOC’s investigation was lengthy, he was pleased that justice was eventually served. "Throughout this investigation the City complied with every EEOC request. City made every reasonable attempt to accommodate the employee's physical restrictions and limitations," said Mr. Goodhart.
- Jul 30, 2015
Supreme Court Rules on Third-Party Bad Faith in Nevada
For years, claimants’ counsel in Nevada have argued that NRS 485.3091 gives standing to a third-party claimant to sue a third-party insurer for bad faith. Nevada Direct Insurance Company hired Douglas J. Duesman to defend it against one case that argued this point. The district court agreed with Mr. Duesman that NRS 485.3091 does not provide standing and dismissed this section of the complaint. The remainder of the case was tried and defensed.
On appeal the claimant continued to argue NRS 485.3091 provided standing. The Supreme Court of Nevada concluded “nothing in the statute grants a third-party claimant an independent cause of action for bad faith against an insurer.” Although the Court did conclude that the insured’s failure to cooperate in defense did not eliminate Nevada’s mandatory minimum coverage, it refused to permit the independent cause of action for bad faith.
“The Court answered a question that has been driving a lot of litigation locally,” said Mr. Duesman. “This ruling appropriately defines to whom an insurer owes a duty.”
- Jul 17, 2015
Product Claim Voluntarily Dismissed
Shareholder Michael Lowry was retained to defend an automatic door manufacturer to defend against a case alleging its door failed and caused a customer at a casino to fall. Product liability cases are routinely expensive and difficult to prosecute or defend. The first question always is to locate the product at issue and evaluate whether it actually failed.
Efforts to view the actual product involved before the lawsuit was filed were not successful. When discovery opened, Mr. Lowry immediately served a request to force an inspection of the product. After delays, the casino finally admitted it had lost the product at issue. Without the product it became impossible to prosecute the case against the door manufacturer, or for the manufacturer to defend itself. Soon after this admission, the case against the manufacturer was voluntarily dismissed.
“The allegations of how the door failed did not match its operating characteristics, but now we will never know what happened. The parties did the right thing by voluntarily dismissing the manufacturer,” said Mr. Lowry.
- Jun 11, 2015
Court Dismisses Bad Faith Claim Defended by Terry
Merely moving from state A to state B does not mean you get to then sue people from state A in state B. Yet this is the factual scenario confronting an insurance company who hired Brian K. Terry to defend it from a bad faith claim. The company operated exclusively in one east coast state. Two residents of that state bought an insurance policy. They later moved to Nevada and tried to sue the insurance company for allegedly breaching its obligations under the insurance policy.
Mr. Terry recommended the company file a motion to dismiss for lack of jurisdiction. The company had never done business in Nevada. It instead sold a policy to people in another state based on that state’s laws. Michael Lowry assisted Mr. Terry on the brief.
Today United States District Court Judge Andrew Gordon granted the motion. “The key question is one of due process: would it be fair, based on [the company]’s contacts with Nevada, for it to expect to have to defend itself in a Nevada court. I find that it would not be fair.”
- Jun 5, 2015
Plaintiff Folds Days Before Trial
The mere fact that an accident happened does not mean that someone was negligent and responsible for the damage. A guest at a casino in Las Vegas tripped, fell and was injured in the parking lot. The fall was on video and the injury was a broken bone, but the casino found nothing wrong with the parking lot and denied the guest’s request for compensation.
The guest filed a lawsuit and the casino hired Las Vegas shareholder Kevin Diamond to defend it. Throughout discovery, Diamond too found nothing wrong with the parking lot. The guest hired an expert witness who examined the scene three years later and argued a joint in the parking lot’s surface was 0.125” too tall. Under deposition questioning from shareholder Michael Lowry, the expert conceded that because the joint was designed to move and he could not correlate his finding to the date when the guest fell three years earlier.
As trial neared, Mr. Diamond filed a motion to exclude all of the guest’s medical damages because she had not disclosed expert witnesses to discuss them. After a contentious hearing, the judge granted the motion almost completely. The guest claimed the fall had cost her more than $62,000 in medical costs, but because she had not properly disclosed expert witnesses, at trial she could only discuss $2,300 of these costs. After this ruling, the case settled on very favorable terms for the casino.
“I credit the client for sticking to its defense in this case,” said Diamond afterwards. “The casino did nothing wrong and the guest never proved otherwise.”
- Jun 1, 2015
Court of Appeals Affirms Litigation Privilege Ruling
The Nevada Court of Appeals affirmed a judgment attorneys Brian Terry and Greg Schulman won for their client. The attorney-client had recorded a lis pendens on the claimant’s Nevada property based upon litigation claims in a California lawsuit. The property owner then sued the attorney, arguing he had slandered the property’s title because the lis pendens prevented the property’s sale for a profit before the Nevada real estate market crashed.
The district court had granted summary judgment to the attorney for several reasons, including that the lis pendens was covered by the litigation privilege. This absolute privilege protects people from civil liability based upon communications published during the course of a lawsuit. The plaintiff appealed but the Court of Appeals affirmed.
- May 21, 2015
Diamond Helps Contractor Obtain License
Shareholder Kevin Diamond appeared in front of the Nevada State Contractors Board for a client attempting to obtain a concrete cutting contractors license. The client's application had been denied on three prior occasions, before Diamond’s involvement. The client’s Qualified Employee was involved in an altercation seven years ago which resulted in a misdemeanor battery conviction. The prior denials were based upon the Contractors Board’s belief that the prior misdemeanor rendered the qualifying employee and therefore the client unfit for a license. Diamond argued that the employee was forthright about the prior conviction, paid his restitution and acknowledged a poor decision. However, the qualifying employee had no problems in seven years and is an active member of a number of charitable organizations. Diamond further argued that the Board should allow the employee and the company the ability to move forward. The Board agreed, granting the license.
Diamond stated “I believe the Board realized that the qualifying employee paid his dues, owned up to his mistake and as a result should be allowed to be a productive member of the construction community in Las Vegas”.
- Apr 30, 2015
Lowry Convinces Plaintiff to Drop Case
When a customer decides to sue a hospitality company for a slip and fall, they unfortunately tend to sue anyone and everyone who might in some remote way be connected to the company or property. This tactic can cause great consternation to the company because courts tend to let the customer drag out the discovery process at great expense before even considering dismissing the company.
A building services provider hired shareholder Michael P. Lowry to defend it from such a claim. A customer fell in a lounge. She later sued the property and the building services provider. The building services provider, however, was only to be in the lounge upon request. Rather than wait for the discovery process to drag out, Mr. Lowry executed an early and aggressive deposition schedule to establish the building services provider had never been requested into the lounge on the day of the fall. After just four depositions, the customer agreed to voluntarily dismiss Mr. Lowry’s client.
“These depositions had to be taken at some point but since the goal was to end the client’s involvement as soon as possible, so as to save on legal expenses, it was a calculated gamble to take them early,” said Mr. Lowry.
- Apr 16, 2015
Lowry Wins MSJ in Slip and Fall
Slip and fall cases are one of the most common problems retail and hospitality clients confront. With the right defense strategy, however, clients are not defenseless.
A national discount retailer retained shareholder Michael P. Lowry to defend it from a slip and fall claim. The customer involved alleged water was on the floor. After a course of discovery, it became apparent minimal evidence was available in the case. The customer could not demonstrate how the water got on the floor or how long it had been there before she fell.
The retailer agreed with Mr. Lowry’s recommendation to seek summary judgment. The mere fact that water was on the floor did not prove that the retailer caused the water to be there. The court agreed and dismissed the case.
- Feb 12, 2015
Terry Wins 3 Cases in 1 Day
LAS VEGAS – Winning one case is an accomplishment, winning three in one day is an extremely rare feat. Las Vegas shareholder Brian Terry was hired to defend three different local lawyers each sued for malpractice in different lawsuits. Each lawsuit had fatal weaknesses to the theory against the attorney and Mr. Terry moved for summary judgment as to all three.
In the first case, a criminal defendant unhappy with his public defender sued the public defender for malpractice. This effectively stopped the criminal prosecution because the defendant’s constitutional right to counsel was impacted because he and counsel could not communicate. Mr. Terry moved to dismiss. Nevada’s public defenders are state employees protected by sovereign immunity. Further, even had they been private attorneys, the accused must demonstrate he was convicted due to the malpractice. Here, however, the accused had not yet been convicted. Summary judgment was entered dismissing the case.
In the second case, two former clients of a private attorney alleged advice he provided and that they followed caused them to be criminally convicted of various crimes. Each served time in prison and filed unsuccessful petitions for writs of habeas corpus. After the legal malpractice suit was filed, however, the former clients delayed ever serving it. Despite years of stewing about the attorney’s negligence, the legal malpractice lawsuit was dismissed for failure to timely serve. As the statute of limitations had expired, the former clients were barred from re-filing.
Finally, Mr. Terry was retained to defend an attorney from a malpractice claim arising from a tax lien negotiation matter. A client hired one attorney to negotiate a tax lien. The terms of the retainer provided the attorney certain incentive payments if the liens were reduced quickly. The tax lawyer claimed he reduced the liens within these times but the client refused to pay the incentives. The attorney sued for his bonus and then the client filed a third-party complaint against another attorney claiming he committed malpractice as her family lawyer.
Nevada strictly limits third-party complaints to claims for contribution and equitable indemnity. The court first agreed with Mr. Terry that all claims except for equitable indemnity could not be pled in the third-party complaint. It then also agreed that for equitable indemnity to apply, Mr. Terry’s client had to be responsible for whatever damages the client caused the tax lawyer. This was impossible: the client affirmatively chose not to pay the tax lawyer. The case was then dismissed.
- Jan 5, 2015
Eisinger Starts 2015 With a Win
LAS VEGAS – Everyone wants to have their day in court, but that day must be earned per court rules. This was the situation Paul Eisingerencountered in defending a Laughlin casino from a lawsuit filed by a Canadian guest who claimed she had fallen and been injured on the property. The guest filed the lawsuit but failed to meet any of the court deadlines imposed upon her to move the case forward to trial. Most importantly, she failed to open the discovery period for nearly 2 years. This prevented the casino from conducting its investigation of the merits of the case and defending itself.
Mr. Eisinger asked the court to dismiss. With the assistance of Michael P. Lowry, he argued that the guest’s delays had materially prejudiced the casino’s ability to defend itself due to the passage of time. By the time the motion to dismiss was heard, more than four years had passed since the fall. The court rejected the guest’s sole excuse: a family illness that arose only after the deadlines had expired.
The court concluded the guest had her opportunity to earn a day in court, but failed to earn it. The case was dismissed.
- Dec 31, 2014
Lowry SLAPPs Down Defamation Lawsuit
LAS VEGAS – Attorney Michael P. Lowry ended 2014 by successfully defending a client’s freedom of speech rights in an intra-family dispute over a vulnerable family member. The family patriarch lived in New Jersey and his son commenced conservatorship proceedings there, claiming the patriarch was suffering from dementia and no longer able to care for himself. Another group of relatives disputed whether the patriarch was ill at all and objected to any conservatorship. Alternatively, if a conservator was needed, they strongly objected to the son serving in that role. The relatives created a website dedicated to locating potential witnesses and evidence that might support their argument that the son was an inappropriate conservator.
Rather than demonstrate his qualifications in a New Jersey court, the son filed a defamation lawsuit in Nevada because one of the relatives lived here. The son claimed the website’s search for information about his qualifications had defamed him.
Mr. Lowry was hired to defend the Nevada relative against this suit. Nevada has a strong history of protecting freedom of speech and in 2013 enacted some of the nation’s broadest protections known as anti-SLAPP laws, or Strategic Lawsuits Against Public Participation. Using lawsuits to silence critics is nothing new and anti-SLAPP laws are designed to prevent these lawsuits from accomplishing their goals. Mr. Lowry argued that the efforts to gather evidence about the son’s qualifications to be a conservator were protected by Nevada’s anti-SLAPP laws and the defamation claim was merely an attempt to silence a critic to gain an advantage. The district court agreed and dismissed the lawsuit.
“Nevada does not tolerate using lawsuits to silence critics or stymie the debate about issues of public concern,” said Mr. Lowry. “I am glad to end the year with a good result for this client.”
- Dec 4, 2014
Diamond Obtains Dismissal for Hotel
LAS VEGAS - Shareholder Kevin Diamond obtained a dismissal of a lawsuit brought by a man who claimed to have slipped and fallen on a French fry in a bowling alley of a hotel/casino. Diamond and his client maintained throughout the case that the maintenance and inspection procedures were proper in the bowling alley, and as a result the hotel/casino is not at fault for the claimed fall. As Diamond stated “the law in Nevada is clear that the fact that someone may have fallen in a hotel does not automatically mean the hotel is at fault. If the hotel can prove that it had reasonable procedures in place, the hotel should not be found at fault.”
The local court agreed with Mr. Diamond and dismissed the case against his client.
- Nov 13, 2014
Delk Wins for Southwest Airlines
LAS VEGAS - The mere fact that an accident happens does not mean that it was due to someone’s negligence. Yet this is exactly why one Nevada airline passenger sought to hold Southwest Airlines responsible for her fall on a jetway. She blamed the airline and filed a lawsuit.
Southwest hired shareholder Craig Delk to defend it. Mr. Delk deposed the passenger who acknowledged that she could not identify the specific defect, hazard, or other condition that caused her to fall. Nor when viewing photographs of the jetway was she able to identify precisely where she fell, although she believed it was near one of the “metal strips” running across the jetway floor. Plaintiff’s granddaughter, who was with her at the time, gave similar testimony. If a passenger cannot identify what caused her to fall, the airline cannot be responsible for failing to protect her against some unidentified and unknown hazard.
At Mr. Delk’s recommendation, Southwest filed a motion for summary judgment that the court granted.
- Nov 10, 2014
Balkenbush Wins in Supreme Court
RENO – Today the Supreme Court of Nevada ended more than six years of litigation over who has the right to access certain beaches within the Incline Village General Improvement District and if an ordinance codifying the acquisition of these beaches was constitutional.
In 1968 the District acquired certain lake front beach properties but the purchase was subject to a restriction that limited beach access to people living within the District’s 1968 boundaries. When another district merged with the Incline Village district, the new members who lived outside the 1968 boundaries were not permitted beach access, nor were they assessed for beach improvements.
Reno shareholders Steve Balkenbush & Kathy Parks were retained to defend the District against a lawsuit filed by a resident who resided outside the 1968 boundaries but demanded beach access. The resident argued the ordinance preventing him from accessing the beach was unconstitutional because the District only had authority to obtain property for “public recreation.”
The District successfully defended against the claim in district court, but the resident appealed. In a 14 page ruling, the Supreme Court, sitting en banc, unanimously agreed the resident had not met his burden of proof. As a result, the Supreme Court affirmed.
- Oct 14, 2014
Terry Defends Local Judge
LAS VEGAS – Criminal defendants sometimes later sue their attorneys, claiming the conviction only resulted due to legal malpractice. Shareholder Brian K. Terry was retained to defend a local judge who was sued by a client arising from a conviction when the judge was in private practice.
Mr. Terry immediately moved to dismiss the case and was assisted by associate Michael Lowry. The judge had been appointed to defend the criminal via a public defender program. The Supreme Court of Nevada has ruled attorneys functioning in that capacity are protected by sovereign immunity. The case against the judge was dismissed.
- Sep 9, 2014
Kolvet and Pick Successfully Defend School District
RENO – Today, a Nevada district court dismissed a contentious lawsuit brought against a local school district by its former superintendent. In addition to various other claims, the former superintendent argued that the school district had breached her employment contract and that the Board of Trustees for the school district had violated various provisions of Nevada’s open meeting laws. Reno shareholder Brent Kolvet was retained to defend the school district and was assisted on the case by associate Kevin Pick.
After conducting thorough discovery, Mr. Kolvet and Mr. Pick filed a motion for summary judgment, seeking the dismissal of the entire lawsuit. Ultimately, the court agreed with the school district, concluding the employment contract had not been breached and that there was no evidence indicating any violation of Nevada’s open meeting laws. Accordingly, the court dismissed the case.
- Jun 5, 2014
Delk Bites Back in Dog Case
LAS VEGAS – Dog bites can be traumatizing and dangerous. If a person knows of a dog’s dangerous propensities and fails to take protective action, they might be liable for the damages the dog causes.
A local landlord rented a home to a tenant. The tenant disclosed he would be living with a pet dog, but failed to disclose the dog had at least one prior biting incident. The dog later severely mauled a young woman who visited the tenant. The provocation was unclear as the woman had visited the tenant before without problem. The guest sued the tenant and the landlord.
The landlord hired shareholder Craig Delk to defend her. Mr. Delk investigated and confirmed she had no knowledge of the prior bite, and in any event she had not assumed a duty to protect guests as required by Nevada law in these circumstances. The court agreed that the landlord had not assumed any duty to the guest, and summary judgment was granted.
Thorndal Armstrong Delk Balkenbush & Eisinger is a Martindale-Hubbell AV-peer-rated law firm committed to providing the highest quality legal representation to its clients. With attorneys statewide, the firm is capable of assisting in all manner of Nevada legal needs.
- Jun 5, 2014
Delk Gets Right Result at Trial
LAS VEGAS – Shareholder Craig Delk succeeded in holding the line on an excessive claim at trial. Mr. Delk was retained to try a case where the defendant admitted negligence, but disputed whether the plaintiff had been injured to the extent claimed. The collision was not insignificant, but the plaintiff declined medical transport from the scene. He later claimed more than $21,000 in medical bills and asserted he would someday need surgery.
Mr. Delk disputed all of these claims. Through discovery, it was determined that surgery was only one of several possible contingent treatment options, and that most of plaintiff’s complaints were probably attributable to a long-standing degenerative back condition from years working in the construction field. At trial, the plaintiff asked for more than $100,000 in past and future damages. The judge hearing the bench trial agreed with Mr. Delk that the damages were less and awarded only $52,000.
Thorndal Armstrong Delk Balkenbush & Eisinger is a Martindale-Hubbell AV-peer-rated law firm committed to providing the highest quality legal representation to its clients. With attorneys statewide, the firm is capable of assisting in all manner of Nevada legal needs.