Jaross et al v. Phillips
Filing
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ORDER granting Defendant's 17 Motion for Summary Judgment. Clerk to enter Judgment. Signed by Judge Philip M. Pro on 8/9/11. (Copies have been distributed pursuant to the NEF - ECS)
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UNITED STATES DISTRICT COURT
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DISTRICT OF NEVADA
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LOURDES JAROSS and KEN JAROSS,
individually and as husband and wife,
Plaintiffs,
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v.
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SHAUN PHILLIPS,
Defendant.
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2:10-cv-01631-PMP-GWF
ORDER
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Presently before the Court is Defendant Shaun Phillips’ Motion for Summary
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Judgment (Doc. #17), filed on May 2, 2011. Plaintiffs Lourdes Jaross and Ken Jaross filed
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a Response (Doc. #19) on May 26, 2011. Defendant filed a Reply (Doc. #20) on June 8,
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2011.
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I. BACKGROUND
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Plaintiffs Lourdes Jaross (“Jaross”) and Ken Jaross (“Mr. Jaross”) were in Las
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Vegas in February 2008. (Pls.’ Resp. to Def.’s Mot. for Summ. J. (Doc. #19) [“Pls.’
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Resp.”], Ex. A, Dep. of Lourdes Jaross at 22:13-16.) The Jarosses went to Privé, a
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nightclub at the Planet Hollywood Resort and Casino, at around 12:00 a.m. on February 5,
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2008. (Id. at 29:13; 27:12-14; 22:20-21.) Defendant Shaun Phillips (“Phillips”) arrived at
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Privé sometime between 12:30 and 1:30 a.m. that same morning. (Pls.’ Resp., Ex. E, Dep.
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of Shaun Phillips at 17:17-20.) At around 2:33 a.m., an incident occurred between Jaross
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and Phillips. (Pls.’ Resp., Ex. A at 62:6-10; 19:7-14.)
Phillips, who is 6'3" and weighs 250 pounds, was in a private table and seating
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area. (Pls.’ Resp., Ex. E at 30:18-22; 23:5-8.) He was with three other individuals. (Id. at
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71:10-18.) Next to this private area was a raised platform stage that surrounded the club’s
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main dance stage. (Pls.’ Resp., Ex. A at 31:11-13.) As the Jarosses were heading out of the
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club, Jaross’s husband suggested she get on the stage and dance before they left. (Id. at
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31:5-7.)
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Jaross, who is 5'2" and weighed 130 pounds at the time, states she pulled herself
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onto the platform stage without assistance and started dancing next to Phillips. (Id. at
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65:18-20; 31:19-32:2.) Another woman was on the other side of Phillips. (Id. at 43:18-20.)
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Jaross states she was dancing next to Phillips for a few minutes when she felt an impact to
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her head. (Id. at 31:25-32:7; 32:18-19.) At her deposition, Jaross testified that Phillips’
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elbow was the object that struck her face. (Id. at 32:13-15.) However, upon further
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questioning, Jaross testified she does not know if Phillips elbowed her in the head; she only
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knows there was an impact to her head. (Id. at 63:15-17.) The impact of the hit was to the
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side of Jaross’s forehead. (Id. at 40:12-15.)
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Jaross lost her balance after she was hit, causing her to fall backwards. (Id. at
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34:9-11.) Jaross states she grabbed part of Phillips’ back or belt as she was falling. (Id. at
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33:20-25.) She does not recall whether Phillips also fell because she immediately ran to the
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restroom after the incident. (Id. at 39:3-11.) Jaross states it is possible she pulled Phillips
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off the stage as she was falling, but she does not remember. (Id. at 39:9-12.) Jaross was not
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looking at Phillips when she was struck but asserts Phillips had to be the person who hit her
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because he was the only person next to her. (Id. at 33:1-7.)
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Jaross initially testified that she and Phillips had no verbal exchange until after
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she was hit. (Id. at 32:20-23.) However, when given a police report that contradicted her
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testimony, Jaross provided a different account of the events, asserting the report refreshed
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her recollection of the incident. (Id. at 65:15-66:12.) With her refreshed recollection,
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Jaross avers Phillips first spoke to her when she initially tried to pull herself up on the stage,
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telling her not to get on the stage. (Id. at 66:9-12.)
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Jaross admits Phillips did not say anything to indicate he was going to hurt her
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deliberately, but she alleges he gave her a look that gave her cause for concern. (Id. at 45:4-
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6; 44:9-19.) Jaross believes the hit was intentional based on its forceful impact. (Id. at
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42:19-25.) She also assumes Phillips hit her intentionally because she got between Phillips
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and the other woman who was dancing next to him on the stage. (Id. at 43:1-44:6.) Jaross
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admits the look Phillips gave her and the injury she suffered are the only bases she has for
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her belief that Phillips deliberately hit her. (Id. at 44:24-45:3.)
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Phillips provides a different account of the events. He claims their interaction
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first began when Jaross tapped him on the leg and asked if she could get up on the raised
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platform stage. (Pls.’ Resp., Ex. E at 24:2-6.) According to Phillips, he told Jaross yes and
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helped her get on the stage. (Id. at 25:2.) Phillips found Jaross’s dancing to be “wild and
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crazy,” causing him to tell her to get off of the stage because it was a private area. (Id. at
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25:4-11.) Phillips claims he then helped Jaross get off of the stage. (Id. at 26:5-7.)
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After helping Jaross get down from the stage, Phillips alleges Jaross grabbed the
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back of his jeans, causing him to fall backwards. (Id. at 26:20-27:4.) Phillips avers he was
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able to land on his feet on the floor. (Id. at 28:3-5.) Phillips assumes he landed on top of
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Jaross because she was holding her head when he looked back at her. (Id. at 27:14-17.)
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Phillips does not remember feeling any part of his body strike her during their brief
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encounter. (Id. at 29:2-4.)
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After the incident, Jaross’s husband approached Phillips to confront him. (Pls.’
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Resp., Ex. D, Dep. of Ken Jaross at 26:16-19.) Mr. Jaross did not observe the incident, and
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he does not remember exactly what he saw that prompted him to confront Phillips. (Id. at
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27:2-5; 39:10-18.) Mr. Jaross claims the tone of Phillips’ voice was threatening, but Mr.
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Jaross could not recall whether Phillips actually threatened him during the course of the
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confrontation. (Id. at 31:20-24.) Additionally, Mr. Jaross perceived that Phillips was “put
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off” when Mr. Jaross confronted him, but he could not say whether Phillips was angry. (Id.
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at 32:17-19; 31:16-17.) Mr. Jaross believes Phillips intentionally struck Jaross on the bases
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that an injury occurred and Phillips did not apologize. (Id. at 46 20:23.) Just as Mr. Jaross
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did not observe the incident, the individuals in Phillips’ group did not observe the incident
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either. (Pls.’ Resp., Ex. E at 32:21-33:5.)
When medical personnel arrived at the scene, they examined Jaross and informed
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her she did not have a concussion. (Pls.’ Resp. Ex. A at 42:4-9.) Jaross was given the
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option of either going to the hospital at that time or waiting until the next day to be
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“checked out.” (Id. at 42:9-11.) Jaross chose the latter option. (Id. at 42:11-12.) She did
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not feel as though her injury was severe enough to require an overnight hospital stay. (Id. at
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47:8-12.)
A police officer arrived to investigate the incident and spoke to Jaross and
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Phillips separately. (Id. at 50:15-16; 55:12-16.) Jaross states the officer ultimately decided
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not to file a police report, as he concluded it was an accident. (Id. at 51:19-21.) Later that
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day, Jaross went to the police station to file a police report. (Id. at 67:2-14.) Sometime
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after Jaross returned home to Texas, the investigating officer who had been assigned to the
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case informed Jaross he could not press charges due to the lack of witnesses. (Id. at 68:15-
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69:5.)
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As a result of the impact to her head, Jaross had a bump on her forehead and
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bruising around her forehead and eye. (Id. at 63:18-23; 86:9-17.) Jaross claims her
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headaches would not subside and her emotional pain worsened in the days following the
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incident. (Id. at 75:4-25.) According to Jaross, she had difficulty sleeping and
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concentrating on work for months after the incident due to the trauma she experienced. (Id.
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at 76:14-77:24; 78:3-5.) Jaross does not claim she still is suffering from the injury, nor has
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any doctor told her she will suffer a permanent injury because of the incident. (Id. at 83:34
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6; 112:2-5.)
Jaross and her husband filed a Complaint in the District Court of Clark County,
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Nevada, asserting claims of negligence, battery, loss of consortium, and requesting punitive
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damages. (Def.’s Notice, Ex. 1 at 2-4.) Phillips removed to this Court on September 22,
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2010.
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Phillips now moves for summary judgment, arguing Jaross has not provided
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evidence of negligence or battery. Phillips asserts he could not be found negligent because
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there is “no evidence of his conduct whatsoever.” (Def.’s Mot. for Summ. J. Pursuant to
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FRCP 56 (Doc. #17) [“Def.’s Mot.”] at 6.) Phillips further argues he did not owe a duty to
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Jaross because she assumed the risk of being injured while dancing on the platform in a
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crowd. Phillips contends he owed no general duty to Jaross to protect her from colliding
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with another patron.
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Additionally, Phillips argues that the intention required for a claim of battery is
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not present in this case. Next, Phillips argues that Jaross’s punitive damages claim must
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also fail due to a lack of malice and oppression in his actions. Finally, Phillips asserts that
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because Jaross’s negligence and battery claims fail as a matter of law, Mr. Jaross’s loss of
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consortium claim also must fail.
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Jaross argues that she has provided sufficient evidence that Phillips intentionally
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struck her because he did not want her in his “‘area.’” (Pls.’ Resp. at 4.) In support of her
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negligence claim, Jaross argues that Phillips had a general duty of care towards her,
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regardless of whether Phillips intentionally struck her. Jaross asserts Phillips breached that
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duty when he struck Jaross in the face and pushed her “hard enough to knock her off the
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stage . . . and cause a massive black eye.” (Pls.’ Resp. at 6.) Finally, Jaross contends
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punitive damages are appropriate due to the presence of malice in Phillips’ actions.
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Phillips replies that there is no evidence that he was the individual who struck
Jaross. Furthermore, Phillips contends there is no evidence he acted intentionally, even if
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he was the individual who struck Jaross. Phillips asserts that the fact an injury occurred is
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not enough to infer negligence. Finally, Phillips argues that Mr. Jaross’s testimony about
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Phillips’ demeanor after the incident does not create a material factual issue.
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II. DISCUSSION
Summary judgment is appropriate “if the movant shows that there is no genuine
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dispute as to any material fact and the movant is entitled to judgment as a matter of law.”
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Fed. R. Civ. P. 56(a). As determined by the governing substantive law, a material fact is
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one which might affect the outcome of the suit. Anderson v. Liberty Lobby, Inc., 477 U.S.
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242, 248 (1986). An issue of material fact is genuine if a reasonable fact finder could
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return a verdict for the non-moving party based on the evidence. Id.
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The moving party bears the initial burden of proving there is no genuine issue of
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material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). To show that a material
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fact cannot be genuinely disputed, the movant must cite to particular parts of materials in
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the record or show that the materials cited do not establish the presence of a genuine
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dispute. Fed. R. Civ. P. 56(c)(1). If the moving party meets that burden, the non-moving
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party must show that a material fact is genuinely disputed by citing to particular parts of
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materials in the record or showing that the materials cited do not establish the absence of a
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genuine dispute. Id.
An affidavit or testimony lacking in detailed facts or supporting evidence is
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insufficient to create a genuine issue of material fact. FTC v. Publishing Clearing House,
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Inc., 104 F.3d 1168, 1171 (9th Cir. 1997). Reasonable inferences may be made from facts
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established by circumstantial evidence, but a reasonable inference cannot be based on mere
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suspicion or speculation. United States v. Thomas, 453 F.2d 141, 143 (9th Cir. 1971).
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Courts must view the evidence in the light most favorable to the non-moving party. Scott v.
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Harris, 550 U.S. 372, 378 (2007).
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A. Battery
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Under Nevada law, an individual’s actions constitute battery where there is “any
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willful and unlawful use of force or violence upon the person of another.” Nev. Rev. Stat.
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§ 200.481(1)(a). A plaintiff must establish a battery claim by showing the actor “intended
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to cause harmful or offensive contact.” Burns v. Mayer, 175 F. Supp. 2d 1259, 1269 (D.
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Nev. 2001). This includes even the slightest intentional and unwanted exertion of force
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upon another individual. Hobbs v. State, 251 P.3d 177, 180 (Nev. 2011). Additionally, the
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plaintiff must establish that the contact actually occurred. Burns, 175 F. Supp. 2d at 1269.
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Where an offense consists of an act combined with intent, it is just as necessary
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to prove intent as it is to prove the act itself. Wilson v. State, 450 P.2d 360, 361 (Nev.
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1969). A fact finder may ascertain an individual’s intent through inferences based on the
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individual’s conduct and the attendant circumstances of an incident. State v. Thompson,
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101 P. 557, 560 (Nev. 1909). Additionally, if the plaintiff suffered an injury, certain
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inferences, including willfulness, reasonably may be drawn from the nature and extent of
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the injury. Hern v. State, 635 P.2d 278, 281 (Nev. 1981). If an injury was accidentally
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inflicted, it is not battery. McDonald v. Sheriff of Carson City, 512 P.2d 774, 775 n.1 (Nev.
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1973).
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Jaross has failed to present evidence raising a genuine issue of material fact that
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Phillips actually struck her. Jaross asserts she was struck by something she assumes was
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Phillips’ elbow, but Jaross did not see who or what hit her; she only felt an impact. Jaross
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contends that it had to be Phillips who hit her because he was the only person next to her.
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However, Jaross also testified she assumed Phillips struck her because she got between
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Phillips and another woman. Phillips, therefore, was not the only person next to Jaross on
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the platform stage, and thus was not the only person who possibly could have struck Jaross.
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Viewing the evidence in the light most favorable to Jaross, Jaross has failed to present
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evidence from which a reasonable fact finder could find that Jaross has met her burden of
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showing that Phillips struck her.
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Even if a reasonable fact finder could find that Phillips struck Jaross, Jaross fails
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to present evidence raising a genuine issue of material fact that Phillips did so intentionally.
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First, Jaross’s argument that Phillips must have hit her intentionally based on the impact of
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the hit is insufficient for a reasonable fact finder to determine that Phillips acted with intent.
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There was no evidence of use of a weapon, repeated blows, injuries inconsistent with the
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defendant’s version of events, or previous incidents between the parties from which intent
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could be inferred. See, e.g., Hern, 635 P.2d at 532-33; Turpen v. State, 583 P.2d 1083,
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1084 (Nev. 1978); Wallin v. State, 558 P.2d 1143, 1144 (Nev. 1977). Jaross received a
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black eye as a result of the impact to her head, but the nature and extent of that injury is as
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consistent with an accidental injury as an intentional one under the circumstances. An
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accidental collision with Phillips, at 6'3" and 250 pounds, could result in a strong impact to
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Jaross, who is considerably smaller at 5'2" and 130 pounds. Though Jaross felt a strong
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impact, that alone does not raise a genuine issue of fact that a battery occurred. A
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reasonable fact finder could not find that Phillips struck Jaross intentionally based solely on
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the fact that Jaross experienced a strong impact to her head and suffered an injury.
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Next, Jaross’s argument Phillips must have hit her willfully because he did not
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want her in his “area” does not raise a genuine dispute as to a material issue of fact that
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Phillips committed battery. An individual’s intent to frighten and intimidate his victim may
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be considered when ascertaining that individual’s intent to harm his victim. See Wilson,
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450 P.2d at 362 (holding a razor against victim’s throat and demanding the victim follow
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orders shows an intent to frighten and intimidate and is sufficient evidence for a reasonable
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jury to find an intent to inflict bodily harm). However, Jaross’s only communication with
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Phillips was when Phillips told her he did not want her on the stage and that he gave her a
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“look.” There is no evidence that Phillips indicated he was going to hurt Jaross
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deliberately, nor is there evidence that Phillips made any threats against her. Moreover,
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Jaross admits that Phillips did not appear to be angry. Considering the facts in the light
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most favorable to Jaross, a reasonable fact finder could not find that Phillips hit Jaross
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intentionally because he did not want her in his “area.”
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Additionally, Jaross’s assumption that Phillips hit her because she got between
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Phillips and another woman does not raise a genuine issue of material fact that Phillips hit
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Jaross intentionally. Jaross concedes it is only her assumption that Phillips struck her
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because she got between Phillips and another woman. A reasonable inference cannot be
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made based on mere speculation, and testimony that lacks sufficient supporting facts does
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not raise a genuine issue of material fact. Accordingly, Jaross’s assumption that Phillips hit
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Jaross intentionally because she got between Phillips and another woman is not sufficient to
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raise a genuine issue of material fact that Phillips struck her intentionally.
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Furthermore, Mr. Jaross’s account of Phillips’ post-incident behavior does not
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raise a genuine issue of fact that Phillips intentionally struck Jaross. The fact finder can
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consider post-incident conduct, such as a lack of remorse, an effort to conceal the conduct,
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demeanor inconsistent with the defendant’s version of events, or an attempt to flee police as
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evidence of intent. See Flores v. State, 120 P.3d 1170, 1181 (Nev. 2005) (stating that
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evidence regarding lack of remorse was evidence of consciousness of guilt); Briano v.
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State, 581 P.2d 5, 8 (Nev. 1978) (stating that post-incident attempt to conceal the incident
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constitutes evidence of intent); Edwards v. State, 524 P.2d 328, 332 (Nev. 1974). Mr.
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Jaross admits he did not see Phillips strike Jaross and could not remember what prompted
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him to confront Phillips in the first place. Mr. Jaross characterized Phillips’ behavior
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during the confrontation as threatening and said Phillips seemed “put off.” Though Mr.
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Jaross perceived Phillips as being “put off” when Mr. Jaross approached him, Phillips could
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have reacted that way for a number of reasons. That, without any supporting evidence, does
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not raise a genuine issue of material fact that Phillips struck Jaross at all, let alone
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intentionally.
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Additionally, Mr. Jaross testified that he believes Phillips struck his wife
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intentionally based on the fact that Phillips did not apologize. While a lack of remorse for
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one’s actions may be evidence of an individual’s state of mind, Mr. Jaross admittedly did
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not know why he confronted Phillips, and he did not see Phillips strike Jaross.
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Additionally, Phillips stayed at the scene and spoke to police when they arrived. There is
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no evidence he attempted to flee, conceal his participation in the incident, or offer a version
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of events that was inconsistent with the injuries sustained. Mr. Jaross’s testimony lacks
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sufficient evidence to raise a genuine issue of material fact that Phillips struck Jaross,
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intentionally or at all. Viewing the facts in the light most favorable to Jaross, a reasonable
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fact finder could not find that Phillips acted with intent based on Mr. Jaross’s account of
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Phillips’ post-incident behavior.
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Individually, the various assertions and assumptions raised by Jaross and Mr.
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Jaross do not raise a genuine issue of material fact that Phillips struck Jaross intentionally.
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When construed together, Jaross and Mr. Jaross’s assertions and assumptions also do not
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raise a genuine issue of material fact that Phillips struck Jaross intentionally. The evidence
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of the incident itself and the evidence of Phillips’ behavior throughout and after his
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encounter with Jaross are insufficient to raise a genuine issue of material fact that Phillips
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acted with intent. Jaross felt an impact to her face and received an injury but does not know
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who or what actually struck her. Jaross was concerned by a look Phillips gave her, but she
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admits Phillips did not threaten her or seem angry. Finally, not only did Phillips not flee
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before police arrived, but he remained there and spoke with the police when they arrived.
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Upon evaluating all of the evidence together, Jaross fails to present evidence raising a
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genuine issue of material fact that Phillips hit Jaross. Even if Jaross could raise a genuine
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issue of material fact that Phillips struck her, Jaross’s claim of battery could not withstand
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summary judgment because a reasonable fact finder could not find Phillips struck Jaross
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with intent.
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B. Negligence
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To prove negligence, the plaintiff must show: “(1) the defendant owed a duty of
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care to the plaintiff; (2) the defendant breached that duty; (3) the breach was the legal cause
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of the plaintiff’s injury; and (4) the plaintiff suffered damages.” Scialabba v. Brandise
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Constr. Co., Inc., 921 P.2d 928, 930 (Nev. 1996). “Negligence is never presumed but must
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be established by substantial evidence.” Gunlock v. New Frontier Hotel Corp., 370 P.2d
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682, 684 (Nev. 1962). The mere occurrence of an accident or injury does not give rise to a
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presumption of negligence. Id. Whether a duty of care exists is a question of law to be
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determined by a court. Scialabba, 921 P.2d at 930. All individuals have a general duty to
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act reasonably under the circumstances. Moody v. Manny’s Auto Repair, 871 P.2d 935,
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943 (Nev. 1994).
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Part of the court’s duty analysis involves determining whether the plaintiff
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assumed any risk by engaging in a certain activity such that the defendant owes no duty to
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the plaintiff. Turner v. Mandalay Sports Entm’t, LLC, 180 P.3d 1172, 1177 (Nev. 2008).
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Under the doctrine of primary implied assumption of risk, the court looks to whether an
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individual impliedly assumed the risks that are inherent in a particular activity. Id. If so,
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the defendant owed no duty to the plaintiff. Id.
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Nevada has not addressed the question of what duty one patron in a nightclub or
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dance hall owes to another patron. Where a state court has not addressed an issue, the task
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of a federal court is “to predict how the highest state court would decide the issue using
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intermediate appellate court decisions, decisions from other jurisdictions, statutes, treatises,
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and restatements as guidance.” Credit Suisse First Boston Corp. v. Grunwald, 400 F.3d
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1119, 1126 (9th Cir. 2005) (quotations omitted). In making that prediction, federal courts
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look to existing state law without predicting changes in that law. Hemmings v. Tidyman’s
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Inc., 285 F.3d 1174, 1203 (9th Cir. 2002). However, “federal courts are not precluded from
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affording relief simply because neither the state supreme court nor the state legislature has
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enunciated a clear rule governing a particular type of controversy or claim.” Vernon v. City
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of Los Angeles, 27 F.3d 1385, 1391 (9th Cir. 1994).
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Generally, courts in other jurisdictions which have addressed the issue have held
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that primary implied assumption of risk is applicable in certain non-contact sporting
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activities, and co-participants therefore owe no duty of care to each other unless they
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engage in some activity that increases the risks beyond those inherent to the activity. See,
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e.g., Staten v. Superior Court, 45 Cal. App. 4th 1628, 1633-35 (1996) (holding that being
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cut by the blade of a fellow figure skater is a risk inherent to group figure skating session);
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McDaniel v. Dowell, 210 Cal. App. 2d 26, 36 (1962) (holding that risk of collision with
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another skier is inherent to use of ski facilities). The Supreme Court of California reasoned
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that the combination of each individual participant’s fluidity of action and the presence of
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co-participants poses an inherent risk of collision in certain non-contact sporting activities.
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Staten, 45 Cal. App. 4th at 1634 (assumption of risk applies to figure skating and snow
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skiing, two activities in which one acts alone but in the presence of others). Another
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driving policy consideration is to “avoid imposing a duty which might chill vigorous
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participation in the implicated activity and thereby alter its fundamental nature.” Regents of
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Univ. of Cal. v. Superior Ct., 41 Cal. App. 4th 1040, 1046 (1996).
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Specifically with respect to social dancing, the Court of Appeals of Louisiana has
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held that social dance participants assume the inherent risks associated with social dancing,
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including the risk of contact with other dancers. Heard v. Bonnie & Clyde’s of Hattiesburg,
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Inc., 501 So.2d 1003, 1007 (La. Ct. App. 1987) (holding the plaintiffs assumed the risk of
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being bumped, jostled, or falling down by choosing to dance on the same dance floor with
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other individuals who were dancing at a fast pace but who were not engaged in boisterous
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conduct or doing anything out of the ordinary). On the other hand, the Court of Appeals of
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California has held that recreational dancing is not an inherently dangerous activity, making
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primary implied assumption of risk inapplicable. Bush v. Parents Without Partners, 17 Cal.
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App. 4th 322, 328 (1993) (holding that social dancing was not inherently dangerous, and,
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even if it was, slipping and falling on a dance floor is not an inherent risk of social
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dancing); but see Saville v. Sierra Coll., 133 Cal. App. 4th 857, 869 (2005) (suggesting
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Bush court erred by confining primary implied assumption of risk only to sports and
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holding the doctrine applied in a peace officer training class involving arrest and control
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technique training).
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The Court concludes Nevada would hold that being bumped, jostled, or colliding
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with another patron is an inherent risk of social dancing. Although Nevada has not
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addressed the liability of co-participants in a sporting or recreational activity, Nevada has
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held that an operator of a sports or activity venue does not need to protect patrons from a
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known or obvious aspect of attending a certain sporting event or activity. Turner, 180 P.3d
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at 1175 (holding that baseball stadium operator had to provide sufficient amount of
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protected seating and must provide protection for spectators in the most dangerous parts of
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the stadium, but otherwise owed no duty to protect patrons from errant baseballs). The
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Nevada Supreme Court reasoned that an operator of a sports or activity venue should not be
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required to take precautions that are unreasonable in light of the nature of the sport because
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doing so may alter the nature of the game as a spectator sport. Id. at 1175-76. However, an
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operator of a sports or activity venue must protect patrons from an “unduly high risk of
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injury.” Id. at 1176.
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Thus, it appears that Nevada has adopted the general framework of other courts
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addressing co-participant liability that no duty is owed for risks inherent to the activity, but
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a duty exists not to engage in acts or omissions that increase the risk beyond what would be
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expected. Nevada also has endorsed the view that individuals ought to be able to participate
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in sports and similar recreational activities without fear of being held liable for a risk that is
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inherent in the nature of the sport or activity. It follows that Nevada would hold that co-
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participants of certain sporting or recreational activities, like operators of sporting venues,
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have a duty of care not to increase the risks above those inherent in the sport or activity but
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should not be required to take precautions that are unreasonable in light of the nature of the
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sport or activity.
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Like skiing and ice skating, social dancing involves the fluid movement of
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individuals near co-participants engaged in the same activity, and thus a risk of collision
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with other dancers is inherent in the activity. Further, Nevada likely would endorse a policy
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of encouraging individuals to be able to engage in social dancing without fear of being sued
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for every bump, jostle, or collision on the dance floor, unless they somehow are increasing
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the risk beyond what would be expected in ordinary social dancing.
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Here, even though there were only a few other individuals on the particular stage
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on which Jaross and Phillips were dancing, Jaross assumed the risk of contact with other
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dancers, particularly where Jaross testified she placed herself between two other people.
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Further, Jaross has presented no evidence raising a genuine issue of material fact that
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Phillips was increasing the risks above those that are inherent in dancing around other
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individuals. Phillips therefore owed no duty to Jaross.
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Even if this Court found that Phillips owed Jaross a duty, Jaross failed to present
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evidence raising a genuine issue of material fact that Phillips breached his duty to act
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reasonably under the circumstances. Jaross testified that she and Phillips were next to each
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other on the stage, and Phillips gave Jaross a look. Then, Jaross felt an impact to her head.
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She assumed Phillips struck her with his elbow, but Jaross could not positively state that
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Phillips was the individual who struck her. There were no witnesses who observed the
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incident, and Jaross could not provide specifics about how the incident occurred. Jaross
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was able to state only that she was struck and received a black eye as a result. She provided
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no evidence that Phillips was dancing wildly or acting unreasonably in any way.
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The mere fact that the incident occurred does not give rise to the presumption that
it occurred due to Phillips’ negligence. Jaross received an injury, but an injury alone does
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not raise a genuine issue of material fact that she received that injury because Phillips
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breached his duty to act reasonably under the circumstances. Jaross provided no evidence
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of Phillips’ conduct at all. In fact, she did not see if Phillips was even the individual who
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struck her.
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Even if a reasonable fact finder could find that Phillips struck Jaross, there is no
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evidence that Phillips negligently did so. A claim of negligence must be supported by
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substantial evidence, and the fact that an incident occurred does not raise a genuine issue of
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material fact that Phillips breached his duty. Weighing all of the facts in the light most
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favorable to Jaross, a reasonable fact finder could not find that Phillips breached his duty of
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reasonable care because there is no evidence of Phillips’ unreasonable conduct.
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Accordingly, Jaross’s negligence claim could not withstand summary judgment even if
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Phillips owed her a duty.
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C. Punitive Damages
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To receive punitive damages, the plaintiff must prove by clear and convincing
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evidence that the defendant has been guilty of oppression, fraud, or malice, express or
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implied. Nev. Rev. Stat. § 42.005(1). Oppression is defined as “despicable conduct that
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subjects a person to cruel and unjust hardship with conscious disregard of the rights of the
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person.” Id. § 42.001(4). Malice, express or implied, means “conduct which is intended to
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injure a person or despicable conduct which is engaged in with a conscious disregard of the
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rights or safety of others.” Id. § 42.001(3).
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Conscious disregard requires “knowledge of the probable harmful consequences
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of a wrongful act and a willful and deliberate failure to act to avoid those consequences.”
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Id. § 42.001(1). Thus, there must be evidence that a defendant acted with a culpable state
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of mind, and the defendant’s conduct must, “at a minimum, exceed mere recklessness or
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gross negligence.” Countrywide Home Loans, Inc. v. Thitchener, 192 P.3d 243, 255 (Nev.
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2008). Punitive damages are not meant to compensate the victim but instead are meant to
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punish oppressive, fraudulent or malicious conduct. Siggelkow v. Phoenix Ins. Co., 846
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P.2d 303, 304 (Nev. 1993).
Jaross has no claim for punitive damages because her underlying claims for
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battery and negligence cannot withstand summary judgment. Nevertheless, even if either of
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those claims could survive summary judgment, Jaross’s punitive damages claim could not.
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Jaross did not produce evidence raising a genuine issue of material fact that Phillips acted
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with conscious disregard of her rights. Phillips did not threaten Jaross, but Jaross states
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Phillips gave her a look, causing her to be concerned. The fact that Phillips gave Jaross a
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look that made her nervous does not raise a genuine issue of material fact that he acted with
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a conscious disregard for her rights.
Jaross also assumes Phillips hit her intentionally because she got between Phillips
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and another woman. Jaross’s assumption that Phillips hit her intentionally because she got
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between Phillips and another woman does not raise a genuine issue of material fact that
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Phillips acted with a culpable mind. Viewing all of the facts in the light most favorable to
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Jaross, a reasonable fact finder could not find that Phillips acted with malice or oppression.
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Jaross’s claim for punitive damages does not withstand summary judgment.
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D. Loss of Consortium
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A loss of consortium claim is dependant upon the success of the other claims in
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the suit. Turner, 180 P.3d at 1178 n.31. Because the Court will grant summary judgment in
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favor of Phillips on all of Jaross’s claims, Mr. Jaross’s loss of consortium claim does not
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withstand summary judgment.
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///
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///
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///
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///
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///
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III. CONCLUSION
IT IS THEREFORE ORDERED that Defendant Shaun Phillips’ Motion for
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Summary Judgment (Doc. #17) is hereby GRANTED.
IT IS FURTHER ORDERED that the Clerk of Court shall forthwith enter
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Judgment in favor of Defendant Shaun Phillips and against Plaintiffs Lourdes and Ken
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Jaross.
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DATED: August 9, 2011
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_______________________________
PHILIP M. PRO
United States District Judge
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