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November 2017

Submitted by: Bradford D. Box

 

The Benefits of Community

 

How many times have you been in litigation and some document is presented in your case that had been produced, or otherwise discovered, in another lawsuit at the other end of the country?  I can think of several occasions where a document that should have been confidential and should have been under protective order was shared without limitation in a lawsuit I knew nothing about.  That document was then used, in my case, and in other cases when Plaintiffs’ lawyers through their national organizations shared that information.

 How do we deal with that challenge?  Defense lawyers historically have not been nearly as good at sharing ideas, approaches, and information. 

A few days ago, I attended a gathering of lawyers at the home office of a national retailer.  My client retailer had invited all attorneys who do work for them across the country to come in for a full day of meetings and discussion.  As part of the day-long meeting, the company started with presentations by various levels of management throughout the company.  They shared general ideas of the company’s philosophy and history.  They discussed the company’s efforts in the community and participation in charitable organizations.  And they also described the corporate structure, the various entities, and made certain that everyone was on the same page about how the entities are structured and how they interrelate with each other. 

This presentation alone was valuable and would have made it worthwhile to make the travel to the meeting.  Even after having done defense work for this company for two decades, I learned new information that will help in my approach to defending them and representing them in the years to come. 

The company also facilitated and provided an opportunity for their almost 200 lawyers to share ideas and information.  The company discussed in detail what confidential information means to them and set out a general guideline on how, subject to each’s jurisdiction’s limitations, the company would like to work with their attorneys to protect proprietary and confidential information. 

Among the lawyers, there was an opportunity to meet and exchange contact information, which hopefully will build a network for addressing new problems that arise for this particular client, and also allow the attorneys to share defense strategies that are unique to this client. 

I have to confess that, before the meeting, I was doing the math in my head at the cost, not only for me but for the law offices’ hours for so many lawyers to attend this meeting.  On reflection, I now realize that it was time very well spent and will benefit everyone down the road. 

If you are a corporate counsel, I would encourage you to consider having such a meeting or perhaps start with a network building effort among your defense lawyers.  As defense counsel, I would encourage you to look for opportunities to get to know lawyers who provide work for the same companies and carriers that you work for and strive to increase continually the amount of information-sharing for the mutual benefit of everyone involved.

 

 

 

 

 October 2017

 

The Premises and Security Liability section is gearing up for a busy year.

 

We are partnering with the Civil Rights and Public Entity Liability section to present on liability for moonlighting police officers at the winter meeting in Amelia Island.

 

We are soliciting input for our program at the annual meeting in Hawaii. Please contact John Sinnott (jsinnott@irwinllc.com) if you are interested in being on our panel or if you have thoughts on topics to cover.

 

We would like to see more people submit blog posts, case summaries, recent victories, internet articles, or anything of interest to share with our members and clients. Please send John Sinnott (jsinnott@irwinllc.com) your ideas, links, etc.


 

SEPTEMBER 2017

 

The Premises and Security Liability section is looking forward to an active 2017-18 year. Our section Chair is John Sinnott, and our Vice Chairs are Marty Kravitz, Brad Box, Michael Ludwig, and LaShawnda Jackson. Feel free to contact any of the section leaders throughout the year.

 

We will present a program at the winter meeting in Amelia Island (February 24-28, 2018) on the implications of using police to provide security. Here are the details:

 

Blurring the Blue Line: Who’s Responsible for Moonlighting Police Officers?

What happens when someone is injured by an off-duty police officer hired to provide security for a private company? Who is potentially liable for the police officer’s actions? What are the insurance coverage implications? Join us for a presentation on these risks and steps that can be taken to minimize them.

·      Brad Box, Rainey Kizer Reviere & Bell PLC, Jackson, TN

·      Kay Hodge, Stoneman, Chandler & Miller LLP, Boston, MA

·      John Sinnott, Irwin Fritchie Urquhart & Moore LLC, New Orleans, LA

·      Casey Stansbury, Mazanec, Raskin & Ryder, Co., L.P.A., Lexington, KY

 

We are soliciting input for our presentation at the annual meeting in July/August 2018. If you have any topics and speakers you would like to suggest, please contact John Sinnott.

 

Section Vice Chair Marty Kravitz wrote the blog post below. Any section members can submit posts such as these for publication. The posts can include updates on substantive law issues of interest to our members, links to relevant articles on the internet, recent victories, and the like.

 

Thanks to Marty Kravitz for the September Blog post located below!


 

AUGUST 2017
 

The Premises and Security Liability section is looking forward to an active 2017-18 year. Our section Chair is John Sinnott and our Vice Chairs are Brad Box, Marty Kravitz, Michael Ludwig, and LaShawnda Jackson. Feel free to contact any of the section leaders throughout the year.

 

We are planning a presentation for the winter meeting in Amelia Island in conjunction with the Civil Rights and Public Entity Liability section on the implications of using police to provide security. Please contact John Sinnott if you have any input into this topic. The winter meeting is February 24-28, 2018 at the Omni Hotel and Resort in Amelia Island, Florida.

 

We are soliciting input into our presentation at the annual meeting in July/August 2018. If you have any topics and speakers you would like to suggest, please contact John Sinnott.

 

We will send an email to all section members in the near future outlining our plans for the upcoming year in more detail.

 

 

 

BLOGS

 

September 2017

AN UPDATE ON DEFENDING THE REPTILE

By: Marty Kravitz

 

For those of you who attended the Charleston Plenary lecture on defending against reptile cases and arguments, we suggested during the lecture that filing a motion for protective order BEFORE the critical rule 30(b)(6) depositions was the appropriate method to stop reptile questioning at the early stages of the litigation. In fact, our office has been filing the motion below with great success. Our discovery commissioner and a federal magistrate have actually ruled that a protective order is the appropriate remedy to stop hypothetical questions to lay witnesses. Moreover, the courts have given us the right to object and instruct the witness not to answer when the questioning moves to suggesting false standards of care.

 

Recognize that before you file this motion you must first discuss the issue with opposing counsel and reach an impasse under most state and federal rules.

 

In addition, a motion in limine before trial must also be filed showing the trial judge the types of questions being asked so that the court is prepared to stop the reptile when it first rears its ugly head at trial.

 

Below is a copy of excerpts from one of the motions with the legal arguments to be used:

 

MEMORANDUM OF POINTS AND AUTHORITIES

I.               INTRODUCTION

As the Court may well know, the “Reptile Theory” approach to litigation is becoming more and more pervasive.  Even though the primary tenants of the approach are a violation of the “Golden Rule,” it also involves setting up false standards of care in depositions and then asking hindsight hypothetical questions of lay witnesses.  As will be shown in this brief both approaches are legally improper.  However, the rules as currently written limit the defense in precluding such improper and unethical questioning. This motion asks this Court to set reasonable boundaries during the upcoming depositions.[1]

 

A.    The Reptile

The “Reptile Theory” is an advocacy platform designed for the plaintiff’s bar that stems from a book by David Ball (a trial consultant) and Don Keenan (a plaintiff’s attorney) entitled Reptile: The 2009 Manual of the Plaintiff’s Revolution (“The Reptile”). David Ball, Don Keenan, Reptile The 2009 Manual of the Plaintiff’s Revolution (Balloon Press 2009). The book’s major axiom is “[w]hen the Reptile sees a survival danger, even a small one, she protects her genes by impelling the jury to protect himself and the community.” Id. at 8. From this premise, plaintiffs attempt to posture the case so as to put jurors in the position of the plaintiff and task the jury with protecting their loved ones and the community at large.


The Reptile Theory is put into practice by the plaintiff creating a safety “umbrella” rule and a case specific safety “umbrella” rule that typically attempts to establish that needlessly endangering the public is impermissible. Next, the plaintiff then attempts to “spread the tentacles of danger” by presenting hypothetical questions related to the safety umbrella rules to appeal the prejudices and passions of the jury.  The Reptile states in pertinent part:

 

Analogizing to familiar situations gets past the narrow circumstances of this case, clarifies the rule, and shows how dangerous the violation is to everyone in the community, not just some stranger’s baby. 

 

Id. at 59 (emphasis added).


In essence, the “Reptile Theory” is a back-door tactic requesting the jury to step into the shoes of the Plaintiff which is in clear violation of the Golden Rule.

 

Additionally, these plaintiff-crafted safety rules are totally irrelevant to the legal framework courts employ to determine liability, particularly standards of care in negligence cases.  The Reptile states in relevant part:


The Reptile and the Standard of Care.

The Reptile is not fooled by defense standard-of-care claims.  Jurors are, but not Reptiles.  When there are two or more ways to achieve exactly the same result, the Reptile allows- demands!- only one level of care: the safest….The second safest available choice, no matter how many “experts” say it’s okay, always violates the legal standard of care.

Id. at 62.


The “Reptile Theory” plaintiff attempts to establish that, vis-a-vie the plaintiff-fashioned safety umbrella rules, the defendant must exercise the highest degree of safety or else the safety of the community at large is compromised. This is most commonly accomplished by plaintiff presenting open-ended questions on the following doctrines or values:


·      Safety is always the top priority of the defendant;

·      Danger is never appropriate;

·      Protecting its consumers/clients is always the defendant’s top priority;

·      Reducing risks to its consumers/clients is always the defendant’s top priority;

·      Sooner is always better; and

·      More is always better


In other words, the “Reptile Theory” attempts to establish the defendant violated a plaintiff-conceived safety rule that is irrelevant to the applicable standard of care to cut to the passions of the jury so as to obtain a high verdict to prevent future harm.


“Reptile Theory” lines of questioning can be utilized, and have become common, in depositions.  The Reptile states:

 

THE REPTILE TAKES DEFENSE DEPOSITIONS

When you take depositions, one of your main tasks is to establish your Reptilian themes.  They will infuse the entire trial.

Id. at 209(emphasis added).


It is clear that the main goal of deploying “Reptile Theory” questions in depositions, knowing the testimony solicited therefrom is irrelevant and inadmissible, is to harass the deponent and prejudice the defendant at trial.   Thus, it is necessary to address “Reptile Theory” lines of questioning prior to depositions so as to prevent situation in which the bell cannot be “unrung.” 


B.    The Present Motion

The Court should issue an order precluding Plaintiff from employing “Reptile Theory” lines of questioning that (1) pose hypothetical questions to lay witnesses regarding safety; and (2) postulate inapplicable or non-existent standards of care during the depositions of certain lay witnesses because these lines of questioning are harassing and vexatious.


The present matter arises after Plaintiff allegedly sustained physical injuries resulting from the use of __________ located in the __________ on [date] (“Subject Incident”). Plaintiff’s only remaining claims against __________ are all premised in negligence.  Plaintiff has recently noticed the depositions of the following former and current __________ employees: __________.


These deponents are lay witnesses, and under Nevada law, testimony of these witnesses must be based upon their respective perceptions and first-hand knowledge of the Subject Incident. Consequently, any testimony of these deponents in response to hypothetical questions is inadmissible and not likely to lead to the discovery of admissible evidence.  As such, Plaintiff should be precluded from positing hypothetical questions or situations to these deponents during their respective depositions.


Furthermore, Plaintiff should be precluded from presenting questions to these deponents that attempt to establish a plaintiff-fabricated or fictitious standard of care is applicable in this case or that __________ breached any such faux standard of care. Courts often hold that the primary assumption of the risk doctrine applies to cases that involve the use of exercise equipment which eliminates any duty the defendant owed to the plaintiff. Nevertheless, if the Court finds that the primary assumption of the risk doctrine does not apply, __________ owed Plaintiff at most a “duty of reasonable care” at the time of the Subject Incident.  Any “Reptile Theory” questions designed to solicit testimony to establish any deviation thereof is irrelevant and inadmissible. As such, this line of questioning unnecessarily subjects the aforementioned deponents to harassment, annoyance, and embarrassment prohibited by NRCP 26(c) and NRCP 30(c)(3).


Similarly, any testimony would be egregiously prejudicial to __________, and inadmissible pursuant to NRS 48.035.  The probative value of the evidence, if any, is substantially outweighed by the danger of unfair prejudice, of confusion of the issues or of misleading the jury. Specifically, “Reptile Theory” lines of questioning are disguised attempts of presenting “Golden Rule” arguments in clear violation of Nevada law. Accordingly, the Court should grant the present Motion and issue a protective order.


II.                    LAW AND ANALYSIS


A.    Protective Order Legal Standard

NRCP 16.1 and 26 govern discovery in civil actions. Mays v. Eighth Judicial Dist. Court, 105 Nev. 60, 62, 768 P.2d 877, 878 (1989). Patterned after the Federal Rules of Civil Procedure 26(c), Nevada Rules of Civil Procedure 26(c) authorizes the Court for good cause to issue a protective order, which justice requires to protect a party or person annoyance, embarrassment, oppression, or undue burden or expense including that discovery not be had. NRCP 26(c). The Rule states in pertinent part:


Upon motion by a party or by the person from whom discovery is sought, accompanied by a certification that the movant has in good faith conferred or attempted to confer with the other affected parties in an effort to resolve the dispute without court action, and for good cause shown, the court in which the action is pending may make any order which justice requires to protect a party or person from annoyance, embarrassment, oppression, or undue burden or expense, including one or more of the following:

(1) that the discovery not be had;

(4) that certain matters not be inquired into, or that the scope of the discovery be limited to certain matters.

 

Id.(emphasis added).

 

Rule 26(c) applies in the context of depositions. NRCP 30(c)(3).  Rule 30(c)(3) states in pertinent part:

(3) Motion to terminate or limit.

(A) Grounds and procedure. At any time during a deposition, the deponent or party may move to terminate or limit it on the grounds that it is being conducted in bad faith or in a manner that unreasonably annoys, embarrasses, or oppresses the deponent. The motion may be filed in the court where the action is pending or, if the action is pending out of the state, where the deposition is taken.  If the objecting deponent or party so demands, the deposition must be suspended for the time necessary to obtain an order.

(B) Order. The court may order that the deposition be terminated or may limit its scope and manner as provided in Rule 26(c). If terminated, the deposition may be resumed only by order of the court where the action is pending.

 

Id.(emphasis added).

 

B.    Golden Rule Legal Standard

An attorney may not make a golden rule argument, which is an argument asking jurors to place themselves in the position of one of the parties or to nullify the jury’s role by asking it to instead “send a message” to the defendant. Grosjean v. Imperial Palace, Inc., 125 Nev. 349, 364, 212 P.3d 1068, 1079 (2009). Golden rule arguments are improper because they infect the jury's objectivity. Lioce v. Cohen, 124 Nev. 1, 22, 174 P.3d 970, 984 (2008).

The “Reptile Theory” is a thinly veiled Golden Rule agreement. “The Reptile Theory encourages plaintiffs to appeal to the passion, prejudice, and sentiment of the jury” as though they might be the plaintiff. Hensley v. Methodist Healthcare Hosps., 2015 U.S. Dist. LEXIS 113565, *14, 2015 WL 5076982 (W.D. Tenn. Aug. 27, 2015). Most commonly, “Reptile Theory” arguments are meant to use a general sense of promoting safety to evoke an emotional response in the jury and inappropriately request it to act as the conscience of the community. Turner v. Salem, 2016 U.S. Dist. LEXIS 102239, *7 (W.D.N.C. July 29, 2016)(court discouraging Plaintiff from deploying Reptile Theory arguments); Hensley v. Methodist Healthcare Hosps., 2015 U.S. Dist. LEXIS 113565, *14, 2015 WL 5076982 (W.D. Tenn. Aug. 27, 2015)(noting that Reptile Theory is used “as a way of showing the jury that the defendant’s conduct represents a danger to the survival of the jurors sand their families”); Haberstroh v. State, 105 Nev. 739, 742, 782 P.2d 1343, 1345 (1989)(holding prosecutor’s request of the jury to act as the conscience of the community to be misconduct).


III.           LEGAL DISCUSSION


                    A.  Plaintiff Must Be Precluded From Posing Hypothetical Questions

In order to testify, a witness must have personal knowledge of the matter at hand. NRS 50.025. A lay witness's testimony may only provide opinions that are rationally based on his or her perceptions and helpful to a clear understanding of the witness's testimony or the determination of a fact at issue. NRS 50.265. Since a lay witnesses’ testimony must be based upon first hand perceptions, answers to hypothetical questions are inadmissible evidence. Id.; United States v. Urena, 659 F.3d 903, 908, 2011 U.S. App. LEXIS 20720, *8 (9th Cir. Cal. 2011)(“And the ability to answer hypothetical questions is the essential difference between expert and lay witnesses.").


Here, the Court should issue a protective order that prohibits Plaintiff from posing any hypotheticals during the depositions of the former and current __________ employees. The aforementioned deponents are lay witnesses, and consequently, the testimony of these witnesses must be based upon their respective perceptions.  NRS. 50.265. “Reptile Theory” lines of questioning pose broad safety hypotheticals and analogies rather than focusing upon the specific facts of the case.  See Ball et al., supra at 55-59. In fact, the “Reptile Theory” is premised upon the plaintiff creating a safety umbrella rule and a case specific rule under the umbrella rule, and then “spreading the tentacles of danger” by “analogizing to familiar situations” to get “past the narrow circumstance of this case” and show “how dangerous the violations [of the rule] is to everyone in the community.  Id. at 59. In other words, “Reptile Theory “questioning is designed to solicit highly prejudicial testimony from lay witnesses which is both inadmissible and in violation of the “Golden Rule.” Lioce v. Cohen, 124 Nev. at 22, 174 P.3d at 984; Pracht v. Saga Freight Logistics, LLC, 2015 U.S. Dist. LEXIS 149775, *4, 2015 WL 6622877 (W.D.N.C. Oct. 30, 2015)(granting defendant’s motion in limine to “prohibit any Golden Rule argument and/or Reptile Theory questions and argument.”). Since any testimony solicited in response to hypothetical questions is clearly inadmissible and not likely to lead to the discovery of admissible evidence, the posing of any such questions is vexatious, oppressive, harassing, and embarrassing.  Accordingly, the Court should grant the present Motion to prevent prejudicial misconduct. NRCP 26(c); NRCP 30(c)(3)(A).


                       B.  Plaintiff Should Be Precluded From Presenting Non-Existent Standards of Care

Generally, a premises owner or operator owes entrants a duty to exercise reasonable care, but courts may limit that duty.  FCH1, LLC v. Rodriguez, 130 Nev. Adv. Op. 46, 326 P.3d 440, 442-43 (2014). The Nevada Supreme Court recently indicated that the doctrine of “primary assumption of the risk” applies to limited circumstances or activities “involving an inherent risk of injury to voluntary participants ... where the risk cannot be eliminated without altering the fundamental nature of the activity.” Id. at 442-43 (2014)(citing Nalwa v. Cedar Fair, L.P., 150 Cal.Rptr.3d 551 (2012)). Thus, the primary assumption of risk doctrine which is “a rule of limited duty” was developed to avoid such a chilling effect. Id.  A Plaintiff has “primarily assumed” a risk when that “risk[] [is] inherent in a particular activity.”   Turner v. Mandalay Sports Entm't, LLC, 124 Nev. 213, 220, 180 P.3d 1172, 1177 (2008). When a Plaintiff has assumed a risk, the premises owner owes the Plaintiff either no duty or a limited duty of care. FCH1, LLC v. Rodriguez, 326 P.3d 440, 442 (2014)(citing Restatement (Second) of Torts § 496C cmt. d (1965); Restatement (Third) of Torts: Phys. & Emot. Harm § 7(b) (2010); Turner v. Mandalay Sports Entm't, L.L.C., 124 Nev. 213, 220-21, 180 P.3d 1172, 1177 (2008). Courts routinely apply the primary assumption of the risk doctrine to claims arising from weight training or use of weight training equipment.  Cann v. Stefanec, 217 Cal. App. 4th 462, 158 Cal. Rptr. 3d 474 (2013)(applying the primary assumption of the risk doctrine where the plaintiff was injured by a weightbar dropped by another gym member); Thomas v. Sport City, Inc., 738 So. 2d 1153, 1999 La. App. LEXIS 1891 (La.App. 2 Cir. 06/16/99); (La.App. 2 Cir. June 16, 1999)(applying doctrine of primary assumption of the risk to bar claims brought by plaintiff who sustained injury to his foot and ankle as he was exiting the squat machine).  


Here, Plaintiff should be barred from engaging in lines of questioning that propose inapplicable or false standards of care.  Nevertheless, if the Court holds that the primary assumption of the risk doctrine does not apply in this case, at best __________ owed Plaintiff a “duty of reasonable care” at the time of the Subject Incident. FCH1, LLC v. Rodriguez, 130 Nev. Adv. Op. 46, 326 P.3d 440, 442-43 (2014).  “Reptile Theory” lines of questioning in depositions are not tailored to obtain probative testimony regarding the facts of the case which is the purpose of depositions. Instead, “Reptile Theory” questions attempt to establish that the defendant violated a broad plaintiff-crafted safety rule, as opposed to the applicable standard of care, and that the jury could be the next victim.  Any testimony solicited from the aforementioned deponents related to the plaintiff-created safety rule will not tend to prove or disprove any to any material element of any of Plaintiff’s claims premised in negligence.  As such, the testimony is totally irrelevant and inadmissible.  NRS 48.015, NRS 48.025. Furthermore, since this line of questioning is not likely to lead to the discovery of admissible evidence, it is oppressive and vexatious.  NRCP 26(c) and 30(c)(3)(A) preclude deponents from being subjected to annoyance, oppression, and embarrassment.  Consequently, good cause exists to issue a protective order.

 

Additionally, “Reptile Theory” lines of questioning are impermissible because any testimony related thereto is inadmissible pursuant to NRS 48.035.  Arguments calculated to appeal to jurors’ passions or prejudices are improper.  See Canterino v. The Mirage Casino-Hotel, 117 Nev. 19, 16, P.3d 415 (2001) (modified on other grounds by Canterino v. The Mirage Casino-Hotel, 118 Nev. 191, 42 P.3d 808 (2002); NRS 48.035 (evidence is inadmissible if its probative value is substantially outweighed by the danger of unfair prejudice, of confusion of the issues or of misleading the jury).  As set forth above, “Reptile Theory” questions are meant to establish the defendant violated a plaintiff-created safety rule that, if violated, will place the jury and the community at large in danger, compelling the need to return a large verdict. In addressing depositions, the Reptile states in pertinent part:

 

3. Show the Reptile how this can happen to her.  Use defense depositions to develop the major theme that the result of violating these rules can hurt anyone, not just someone who was in your client’s particular situation.


Ball et al., supra at 213.


In other words, the “Reptile Theory” is designed to cut directly to the emotions and fears of the jury rather than proving __________ was negligent in this case.  Since Nevada law is clear that a party may not appeal to the prejudices of the party and this evidence is inadmissible, any line of questioning related thereto is vexatious and oppressive.  This is particularly concerning given that the objections that are permissible during depositions cannot address or prevent Plaintiff from employing harassing “Reptile Theory” lines of questioning despite the inadmissibility of the evidence. Consequently, failing to limit the scope of the depositions of the aforementioned lay witnesses will unnecessarily subject them to oppression and annoyance while inflaming the jury resulting in great prejudice to __________.

In sum, the Court should issue an order precluding Plaintiff from employing “Reptile Theory” lines of questioning that (1) pose hypothetical questions regarding safety and (2) postulate inapplicable or non-existent standards of care during the depositions of lay witnesses __________ because any testimony related thereto is inadmissible not likely to lead to the discovery of additional evidence, and extremely prejudicial. Consequently, these lines of questioning are oppressive, harassing and vexatious, and good cause exists for this Court to grant the present Motion.


V. CONCLUSION


For the foregoing reasons, __________ respectfully requests the Court grant its Motion for a Protective Order on Order Shortening Time.

 



[1] A published opinion would also be helpful in understanding such misconduct in other cases.

 

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