Feagins et al v. Trump Organization et al

Filing 86

ORDER Granting 44 Defendant Otis Elevator Company's Motion for Summary Judgment and 45 Trump Ruffin Tower I LLC's Joinder. Signed by Judge Gloria M. Navarro on 10/17/2013. (Copies have been distributed pursuant to the NEF - EDS)

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1 2 3 4 5 Rebecca L. Mastrangelo, Esq. Nevada Bar No. 5417 ROGERS, MASTRANGELO, CARVALHO & MITCHELL 300 South Fourth Street, Suite 710 Las Vegas, Nevada 89101 Phone (702) 383-3400 Fax (702) 384-1460 Attorneys for Defendant OTIS ELEVATOR COMPANY 6 UNITED STATES DISTRICT COURT 7 DISTRICT OF NEVADA 8 9 10 11 12 13 14 15 16 17 18 19 KEVIN FEAGINS, YOLANDA FEAGINS, KEVIN FEAGINS, JR., a Minor, JOSHUA FEAGINS, a Minor, ANDRE FEAGINS, a Minor, and JONATHAN FEAGINS, a Minor, by and through their parents, KEVIN FEAGINS and YOLANDA FEAGINS, ) ) ) ) ) ) ) Plaintiffs, ) CASE NO. 2:11-CV-01121-GMN-GWF ) vs. ) ) THE TRUMP ORGANIZATION, a foreign ) corporation; TRUMP RUFFIN COMMERCIAL ) LLC, a foreign limited liability company; ) TRUMP INTERNATIONAL HOTEL & TOWER ) LAS VEGAS UNIT OWNERS ASSOCIATION, ) a Nevada non-profit corporation; OTIS ) ELEVATOR COMPANY, a foreign corporation, ) and DOES I through XXX, inclusive, ) ) Defendants. ) __________________________________________) 20 21 (PROPOSED) ORDER ORDER Defendant OTIS ELEVATOR COMPANY’s Motion for Summary Judgment and 22 Defendant TRUMP RUFFIN TOWER I LLC’s (erroneously sued as The Trump Organization, 23 Trump Ruffin Commercial LLC, and Trump International Hotel & Tower-Las Vegas Unit 24 Owners Association) Joinder to Otis Elevator Company’s Motion for Summary Judgment having 25 come on for hearing on the 27th day of September, 2013, and REBECCA L. MASTRANGELO, 26 ESQ., of the law firm of ROGERS, MASTRANGELO, CARVALHO & MITCHELL, having 27 appeared on behalf of Defendant Otis Elevator Company, DAVID B. AVAKIAN, ESQ., of the 28 1 law firm of LEWIS BRISBOIS BISGAARD & SMITH LLP, having appeared on behalf of 2 Trump Ruffin Tower I LLC, and BRADLEY PAUL ELLEY, ESQ. having appeared on behalf of 3 Plaintiffs; and the Court having reviewed the pleadings and papers on file herein and having 4 entertained oral argument, and good cause appearing therefore, finds as follows: FINDINGS OF FACT 5 6 7 8 9 10 11 12 13 14 15 16 17 18 1. On May 13, 2009 , Plaintiffs were passengers in an elevator at the Trump Hotel in Las Vegas. 2. Plaintiffs allege that the elevator “free fell” then stopped abruptly. Plaintiffs concede that one of the minor Plaintiffs was jumping in the elevator. 3. The elevator at issue was manufactured by Otis Elevator Company and was installed at the Trump premises in 2006. 4. At the time of the incident and at all times relevant herein, Otis Elevator Company was under contract with the Trump for the maintenance and repair of the elevator. 5. Plaintiffs’ sole claim against Otis Elevator Company is for strict products liability. 6. Otis Elevator Company denied that there was a malfunction in the operation of the elevator on the date of the subject incident, and denied that the elevator was defective. 7. Plaintiffs neither discovered, nor produced, any evidence or expert opinions 19 indicating that the elevator was defective or that any defect existed in the product at the time it 20 left the hands of the manufacturer. 21 8. Plaintiffs asserted claims against the Trump Defendants for negligence and 22 premises liability. 23 9. Plaintiffs neither discovered, nor produced, any evidence or expert opinions 24 indicating that there was a dangerous condition on the property or negligence in the maintenance 25 of the elevator or otherwise on the part of the elevator owner, Trump. 26 10. Plaintiffs produced no evidence, nor any expert opinions, indicating that there was 27 anything wrong with the elevator, that it malfunctioned on the date of the incident, or that the 28 actions of any of the Defendants caused or contributed to the alleged incident. 1 11. This case involves the inner workings of an elevator which is, by its very nature, 2 a complex piece of machinery. The appropriate design, manufacture, installation and 3 maintenance of an elevator is beyond the common knowledge of laypersons. CONCLUSIONS OF LAW 4 5 12. Fed. R. Civ. Pro. 56(a) provides that the court shall grant summary judgment upon 6 the movant’s showing that “there is no genuine dispute as to any material fact and the movant is 7 entitled to judgment as a matter of law.” 8 9 13. In opposing a motion for summary judgment, the non-moving party cannot merely rest on the allegations of the Complaint, but must come forward with admissible evidence 10 pointing to a genuine issue for trial. Celotex Corp. v. Catrett, 484 U.S. 1066, 107 S.Ct. 1028 11 (1988). In the absence of such evidence, the court may consider the facts, as supported by the 12 movant, as undisputed. Fed. R. Civ. Pro. 56(e)(2). 13 14. Where a party is seeking summary judgment, it need only show that the Plaintiffs 14 cannot establish an element of their case. Triton Energy Corporation v. Continental Loss 15 Adjusting, Inc., 68 F.3d 1216 (9th Cir. 1995). 16 15. Proceeding under a theory of strict product liability does not relieve Plaintiffs of 17 their burden of proof; instead, in order to prove a case of strict product liability, Plaintiffs must 18 show that there was a defect in the product (elevator) and that such defect existed at the time the 19 elevator left the hands of the manufacturer. Shoshone Coca Cola Bottling Co. v. Dolinski, 82 20 Nevada 439, 443, 420 P.2d 855 (1966). 21 16. The proferred testimony of the Plaintiffs herein, i.e. that the elevator “free fell” 22 cannot sufficiently demonstrate the existence of a defect in the elevator, nor that a defect existed 23 at the time the product left the hands of the manufacturer in 2006. Griffin v. Rockwell 24 International, Inc., 96 Nev. 910, 912, 620 P.2d 862 (1981). 25 17. Without evidence of a defect in the elevator, Plaintiffs cannot demonstrate a 26 genuine issue of material fact on their strict products liability claim as the “malfunction theory in 27 no way relieves the plaintiff of the burden of proving a defect.” Walker v. General Electric Co., 28 968 F.2d 116, 120 (1st Cir. 1992), quoting Ocean Barge Transport v. Hess Oil Virgin Islands, 1 2 726 F.2d 121, 125 (3rd Cir. 1984). 18. Although Plaintiffs have not demonstrated, by admissible evidence, that the 3 elevator failed, even if their testimony was sufficient, the mere fact that a product failed is 4 insufficient to establish a defect. Cooper Tire & Rubber Co. v. Mendez, 204 S.W.3d, 797, 807 5 (Tex. 2006); Clement v. Griffin, 634 So.2d 412, 429 (La.Ct.App. 1994). 6 19. As to the negligence claims, the mere happening of an accident does not prove 7 liability or the existence of a dangerous condition on the property. Gunlock v. New Frontier 8 Hotel, 78 Nev. 182, 370 P.2d 682 (1962). Further, under Nevada law, an expert is an 9 indispensable part of a case where the conduct at issue is beyond the common knowledge of lay 10 persons. Daniel, Mann, Johnson & Mendenhall v. Hilton Hotels Corp., 98 Nev. 113, 115, 642 11 P.2d 1086 (1982), citing Bialer v. St. Mary’s Hospital, 83 Nev. 241, 427 P.2d 957 (1967) 12 (overruled on other grounds). 13 20. Even under a theory of res ipsa loquitur, Plaintiffs are not relieved of carrying 14 their burden of proof as they must still show that it is more probable than not that the claimed 15 injury resulted from the Defendant’s breach of duty. American Elevator Co. v. Briscoe, 93 Nev. 16 665, 669, 572 P.2d 534 (1977). 17 21. To establish that the res ipsa loquitur doctrine applies, Plaintiffs must first 18 establish that the event does not normally occur unless someone has been negligent. Woodard v. 19 Univ of Michigan Med Ctr, 473 Mich. 1, 7, 702 NW2d 522 (2005). Further, “the fact that the 20 injury complained of does not ordinarily occur in the absence of negligence must either be 21 supported by expert testimony or must be within the common understanding of the jury.” Id. 22 (internal citation and quotation marks omitted.) 23 22. Plaintiffs herein failed to provide any expert testimony, which was necessary as 24 elevator maintenance is not within the common understanding of the average juror. Hearon v. 25 Lafayette Towers Apartments, 2006 WL 1042110 (Mich.App., 2006.) 26 27 28 Based upon the undisputed facts and the state of the law, Plaintiffs have shown no genuine issues of material fact and, therefore: IT IS HEREBY ORDERED that Defendant OTIS ELEVATOR COMPANY’s Motion 1 for Summary Judgment is GRANTED; and 2 IT IS FURTHER ORDERED that Defendant TRUMP RUFFIN TOWER I LLC’s 3 (erroneously sued as The Trump Organization, Trump Ruffin Commercial LLC, and Trump 4 International Hotel & Tower-Las Vegas Unit Owners Association) Joinder to Otis Elevator 5 Company’s Motion for Summary Judgment is GRANTED. 6 DATED this 17th day of October, 2013. DATEDthis ____ day of ______________, 2013. 7 _______________________________ ______________________________________ Gloria M. Navarro U.S. DISTRICT JUDGE 8 United States District Judge 9 10 SUBMITTED BY: 11 ROGERS, MASTRANGELO, CARVALHO & MITCHELL 12 13 14 15 16 /s/ Rebecca L. Mastrangelo ______________________________ REBECCA L. MASTRANGELO, ESQ. Nevada Bar No. 5417 300 S. Fourth Street, Suite 710 Las Vegas, Nevada 89101 Attorney for Defendant OTIS ELEVATOR COMPANY 17 18 APPROVED AS TO FORM AND CONTENT: 19 LEWIS BRISBOIS BISGAARD & SMITH LLP 20 /s/ Josh Cole Aicklen, Esq. 21 JOSH COLE AICKLEN, ESQ. Nevada Bar No. 7254 DAVID B. AVAKIAN, ESQ. Nevada Bar No. 9502 6385 S. Rainbow Blvd, Suite 600 Las Vegas, Nevada 89118 Attorneys for Defendant TRUMP RUFFIN TOWER I LLC 22 23 24 25 26 27 28 REVIEWED BY: BRADLEY PAUL ELLEY, ESQ. Nevada Bar No. 658 120 Country Club Drive, Suite 5 Incline Village, Nevada 89451 Attorney for Plaintiffs NO INPUT RECEIVED FROM COUNSEL FOR PLAINTIFFS

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