Passer v. Gnlv ( 2014 )

 Clint Belka, its corporate representative, and Jeff Baer, its engineering
expert. Baer specifically testified about a feasibility study he prepared for
the Golden Nugget after the first accident concerning the repair of the
entire parking garage. Despite Passer's objections to Baer's testimony, the
district court concluded that the testimony did not open the door for
admission of evidence regarding the Golden Nugget's subsequent remedial
measures. At the conclusion of trial, the jury returned a verdict in favor of
the Golden Nugget and Passer appealed.
On appeal, Passer argues that the district court erred in
denying her motion for a new trial based on the fact that the court
precluded her from admitting evidence of the Golden Nugget's subsequent
remedial measures.'
Although we conclude that Passer should have been permitted
to introduce evidence of the Golden Nugget's subsequent remedial
measures pursuant to NRS 48.095(2), Passer failed to demonstrate that
this admission would have changed the outcome of the case and we
therefore conclude the district court did not abuse its discretion by
denying Passer's motion for a new trial.
Standard of review
This court reviews both evidentiary rulings and
determinations on motions for a new trial for an abuse of discretion. FGA,
Inc. v. Giglio, 128 Nev. „ 278 P.3d 490, 497 (2012); Dow Chem. Co.
v. Mahlum, 114 Nev. 1468, 1505, 970 P.2d 98, 122 (1998), overruled in
part on other grounds by GES, Inc. v. Corbitt, 117 Nev. 265, 21 P.3d 11
'Passer also argues that the district court erred when it denied her
motion for judgment as a matter of law. After careful consideration, we
conclude that Passer's arguments on this issue lack merit.
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(2001). Further, we will not interfere with a district court's exercise of its
discretion in an evidentiary ruling "absent a showing of palpable abuse."
M.C. Multi-Family Deu., LLC v. Crestdale Assocs., Ltd., 124 Nev. 901, 913,
193 P.3d 536, 544 (2008).
Evidence of subsequent remedial measures
Generally, evidence of subsequent remedial measures is
inadmissible. NRS 48.095 provides as follows:
1. When, after an event, measures are
taken which, if taken previously, would have made
the event less likely to occur, evidence of the
subsequent measures is not admissible to prove
negligence or culpable conduct in connection with
the event.
2 This section does not require the
exclusion of evidence of subsequent remedial
measures when offered for another purpose, such
as proving ownership, control, feasibility of
precautionary measures, or impeachment.
The district court determined that evidence of the Golden Nugget's
subsequent repairs and reinforcements to the parking garage were
inadmissible unless it elicited testimony about the repairs. But, if the
Golden Nugget introduced evidence about the remedial measures, it would
open the door for Passer to present additional evidence on that issue.
Passer argues that the Golden Nugget opened the door for
entry of evidence of subsequent remedial measures during three separate
occasions: (1) the Golden Nugget's opening statement, (2) the testimony of
Clint Belka, and (3) the testimony of Jeff Baer. First, Passer argues that
during the Golden Nugget's opening statement, counsel opened the door
for additional evidence when he stated that the "new Uniform Building
Code wall is also going to fail," and that "if you take either code[ 1, it's
going to be the same and. . . the same situation [would] occur." In
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response, the Golden Nugget contends that whether the 1997 Uniform
Building Code would have prevented the accident is irrelevant to whether
it later refitted the building. We conclude that the Golden Nugget's
argument has merit because the remarks do not directly mention the
retrofit of the parking garage.
Second, Passer argues that when Belka testified that "[i]f we
could have reacted quick enough and engineered the system that we --
eventually went in there," he opened the door for evidence of subsequent
remedial measures. The Golden Nugget argues that this testimony did
not open the door for other evidence because Belka is not an engineer, the
testimony was elicited by Passer, and the testimony went to two
individual panels that the Golden Nugget had replaced. When Passer
objected to this particular testimony from Belka, the district court
instructed the jury to disregard the testimony rather than permit Passer
to introduce evidence of subsequent remedial measures. The Golden
Nugget argues that the district court's instruction properly remedied the
testimony. We agree. Belka's statement was offered in response to
Passer's question, and the court gave the jury a curative instruction.
Lastly, Passer argues that Baer's testimony also opened the
door for admission of evidence of subsequent remedial measures.
Although the Golden Nugget was careful to specify that Baer's testimony
reflected occurrences prior to Marcinkowski's accident, the Golden Nugget
asked Baer if "[t]here were discussions that [he] had with the Golden
Nugget as to time frames if there was to be an entire retrofit of the
garage," and then asked him to describe the planning process necessary to
retrofit the entire garage. Baer testified about a feasibility study and the
"prospective time frames" necessary to retrofit the entire garage. Baer's
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testimony also included references to "the operational impact" of the
retrofit and potential "loss of revenue." The Golden Nugget argues that
this testimony shows that it would have been difficult for it to retrofit the
parking garage in the nine months between the first accident and
Marcinkowski's accident, and this fact would not have been properly
rebutted by evidence of the actual retrofit.
Although Baer's testimony was based on work he performed
prior to Marcinkowski's accident, his testimony opened the door for
additional evidence of the Golden Nugget's subsequent remedial
measures. The feasibility study Baer testified about specifically related to
the feasibility of retrofitting the garage. Although the study was prepared
between the first accident and Marcinkowski's accident, the testimony
directly addressed whether it was feasible, for the Golden Nugget to have
retrofitted the garage and potentially prevented Marcinkowski's accident.
Here, the Golden Nugget intentionally elicited testimony from Baer about
the feasibility study he prepared, and Passer should have been permitted
to introduce evidence of the Golden Nugget's subsequent remedial
measures pursuant to NRS 48.095(2).
Having determined that the district court abused its discretion
in making this evidentiary ruling, we now must determine whether this
error warrants reversal and remand for a new trial, or whether this error
was harmless. See Beattie v. Thomas, 99 Nev. 579, 586, 668 P.2d 268, 273
(1983) (noting that an error in evidence admissibility must be prejudicial
in order to warrant reversal and remand, and an error is prejudicial if the
error "so substantially affected [the complaining party's] rights that it
could be reasonably assumed that if it were not for the alleged error[ ], a
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different result might reasonably have been expected" (quoting El Cortez
Hotel, Inc. v. Coburn, 87 Nev. 209, 213, 484 P.2d 1089, 1091 (1971))).
While we conclude that the district court erred in not allowing
the evidence of the Golden Nugget's subsequent remedial measures,
Passer did not argue, and the dissent has failed to demonstrate, how the
error "might reasonably have been expected" to produce a different result.
Beattie, 99 Nev. at 586, 668 P.2d at 273 (internal quotations omitted). We
cannot "imply[ ]," as suggested by the dissent, and are therefore unable to
conclude, that the inclusion of the evidence would have resulted in a
different verdict. The evidence clearly demonstrates the panels were
constructed in accordance with the Uniform Building Code. The feasibility
study, although produced before Marcinkowski's accident, would not have
afforded the Golden Nugget adequate time to make repairs that would
have prevented his death. Further, there is ample evidence in the record
to conclude that Marcinkowski's negligence in misapplying the accelerator
pedal was the contributing factor to his death. Expert testimony elicited
at trial indicated that Marcinkowski's misapplication caused his car to
reach a speed of between six to nine miles per hour at the point of the
barrier, and a speed of six-tenths of a mile per hour was sufficient to break
through the barrier.
For the reasons set forth above, we ORDER the judgment of
the district court AFFIRMED.
J.
Hardesty
Douglas
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cc: Chief Judge, The Eighth Judicial District Court
Hon. Joseph T. Bonayenture, Senior Judge
Hon. Kerry Louise Earley, District Judge
Hon. Kenneth Cory, District Judge
Israel Kunin, Settlement Judge
Eglet Law Group
Cisneros & Marias
Eighth District Court Clerk
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CHERRY, J., concurring in part and dissenting in part:
I agree with my colleagues that the district court abused its
discretion in making the evidentiary ruling that precluded Passer from
producing evidence of subsequent remedial repairs and reinforcement to
the parking structure.
I do not agree with my colleagues that the district court was
correct in denying Passer's motion for a new trial. The majority bases its
affirmance of the defense verdict and the denial of the motion for a new
trial on the fact that Passer did not argue that the inclusion of the
evidence of subsequent remedial measures would have resulted in a
different verdict.
The majority has become a "fact finder," and uses its own
analysis of the facts to deny Passer a new trial even with the inclusion of
the evidence of subsequent remedial measures and/or repairs.
By filing a motion for a new trial, Passer is certainly implying
that, but for the evidentiary error, the verdict would have been in her
favor.
At the new trial, the defense would of course be able to raise
the affirmative defense of comparative negligence on behalf of the
deceased and then the new jury could determine with the inclusion of
subsequent remedial measures whether the deceased was negligent and
whether his negligence was the greater cause of his death.
A new trial seems to me to be the fairest vehicle of deciding
liability and damages, if any.
For the above reasons, I would grant Passer a new trial.
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