IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR THE COUNTY OF WASHOE * * * *

Transcription

1 IN THE SECOND JUDICIAL DISTRICT COURT OF THE STATE OF NEVADA IN AND FOR THE COUNTY OF WASHOE * * * * JANE HEALY, Plaintiff, CASE NO.: CR vs. DEPT. NO.: 1 CHARLES RAYMOND, an individual, ALLEGRETTI & SONS, a Nevada company, RED S TAVERN, a Nevada business, BMW, Inc., a Nevada corporation, / Defendants. PLAINTIFF HEALY'S MOTION FOR SUMMARY JUDGMENT AND BRIEF IN SUPPORT Plaintiff, Jane Healy ( Plaintiff ), moves this Court to grant summary judgment against defendant, Charles Raymond ( Defendant ), pursuant to Rule 56 of the Federal Rules of Civil Procedure for the reason that there is no substantial controversy as to any material fact and that Plaintiff is entitled to judgment against Defendant as a matter of law. STATEMENT OF MATERIAL FACTS NOT IN CONTROVERSY 1. The Defendant was involved in an automobile accident on April 9, 2008, with the Plaintiff. Provided is a copy of the Defendant's Reply to the Plaintiff's First Set of Interrogatories, which is attached as Exhibit A. 2. According to the Deposition taken April 16, 2009, during the day of the accident, the Defendant was performing a delivery for his employer in his personal automobile. Attached is a copy of the Deposition under Exhibit B. See page 16:2-5.

2 3. On April 9, 2008 the date of the accident, the Defendant stopped at Red's Tavern and stayed for approximately an hour. See Exhibit B, page 16: On April 9, 2008 the Defendant consumed five drinks within the timespan of an hour at the establishment Red s Tavern prior to the accident with Plaintiff. See attached Exhibit B, page 17: Defendant negligently drove in his automobile while intoxicated, which placed other drivers on the road at risk of the defendant causing a collision, and Plaintiff asserts this intoxication served as contributory negligence in the automobile collision with the Defendant. Attached as Exhibit B. page 17: On April 9, 2008 the Defendant negligently did not check the intersection for clearing before proceeding into the intersection where accident with Plaintiff occurred. According to deposition attached as Exhibit B. See page 17: On April 9, 2008 Defendant admitted to negligently pressing the accelerator of his vehicle all the way to the floor, before proceeding into the intersection and colliding with the Plaintiff. According to documentation included as Exhibit C. page 18: On April 9, 2008 Plaintiff was in the intersection executing a turn when the defendant struck her vehicle the light was yellow when Plaintiff was executing turn; however, accident was caused by Defendants negligence in not checking the intersection for clearing before proceeding causing Defendant to collide with the Plaintiff causing injuries and damages to the Plaintiff. Attached as Exhibit C. page 18: Defendant has admitted to prior convictions related to alcohol consumption, and the Defendants employer was aware of these prior issues before Defendant performed delivery for the employer Allegretti & Sons, which lead to the defendant s accident involving Plaintiff after leaving Red s Tavern occurring on April 9, See Exhibit C. page 18: Defendant s negligence in driving after having consumed five drinks in an hour at Red s Tavern caused injuries to the Plaintiff that caused loss of revenue for the

3 Plaintiff due to the Plaintiff being injured by the accident. Attached as Exhibit C. page 18: Plaintiff alleges that the Defendant also caused the Plaintiff to miss a promotional opportunity in her company, which caused additional loss of revenue for the Plaintiff due to injuries caused by the Defendant s negligent driving. Attached as Exhibit C. page 18: The cause for the accident was also beyond the Plaintiffs control as the Plaintiffs automobile was already in the intersection executing a turn, and it was the duty of the Defendant to have checked the intersection for clearing prior to proceeding. And it was also beyond the Plaintiffs control that the defendant would drive while intoxicated causing hazardous driving conditions for other persons driving on the road. See Exhibit C. page 18: BRIEF IN SUPPORT OF MOTION FOR SUMMARY JUDGMENT ARGUMENTS AND AUTHORITIES According to Rule 56 of The Federal Rules of Civil Procedure which provides the language, A party claiming relief may move, with or without supporting affidavits, for summary judgment on all or part of the claim. Summary judgment is appropriate when there is no substantial controversy as to any material fact, and one of the parties is entitled to judgment as a matter of law. Stroud v. Cook, 931 F.Supp. 733, 45 Fed. R. Evid. Serv. 23 (Nev. 1996). N.R.S provides that If an offender has been convicted of the crime which resulted in the injury to the victim, the judgment of conviction is conclusive evidence of all facts necessary to impose civil liability for the injury. In the present situation, the language under N.R.S appears to require the admission in evidence of Plaintiff Stroud's conviction under N.R.S for not using due care while operating a motor vehicle. Failure to use due care which has been proved beyond a reasonable doubt in the criminal case is an element of the Plaintiff Stroud's claim of negligence against the cases defendant.

4 The issue here is whether the Defendant Raymond Charles caused the automobile accident with Plaintiff Jane Healy by negligently driving while intoxicated? Also, in regard to evidence presented, the Federal case of Anderson v. Liberty Lobby, Inc. provides that though the Court is not required to determine the weight of the evidence nor the credibility of witnesses, it must, bear in mind the actual quantum and quality of proof necessary to support liability... Anderson, 477 U.S. 242 at 254, 106 S.Ct 2505, 91 L. Ed. 2D 101 at 215 (1986). N.R.S DEFENDANT'S CONVITION IS CONCLUSIVE PROOF OF LIABILITY UNDER Pertinent to our issue is N.R.S , 2. DEFENDANT'S ACTIONS CONSTITUTE NEGLIGENCE According to Nevada case law, a prima facie claim for negligence in Nevada, as elsewhere, consists of four elements: (1) an existing duty of care, (2) breach, (3) legal causation, and (4) damages. The issue presented for this case is whether the Defendant s negligence while driving intoxicated, served as the approximate cause for the Accident with the Plaintiff? And in a case that deals with a similar issue Mahan v. Hafen, 76 Nev. 220, 351 P.2d 617 (Nev. 1960). Action for injuries and death of, passengers in an automobile which collided with defendant's truck as defendant was making a turn into the side road. The 8th Judicial District Court, Clark County ruled judgment in favor of defendant, plaintiffs appealed. Issue: Was the respondent s negligence in not activating his vehicles turn signal the proximate cause of the automobile accident? Rule: The case Smith v. Zone Cabs, 135 Ohio St. 415, 21 N.E.2d 336, 339 (Oh. 1939). Similarly to the case Mahan v. Hafen, this case involved an action for an accident involving a

5 pedestrian against an operator of a motor vehicle for personal injury due to accident. The court held that Negligence and proximate cause are two separate issues. One is a matter of law, while the other must be proved a matter of fact, while the driver of the vehicle might have been negligent, the court however also the court held appellant the driver of the taxi cab as the party who negligently hit the defendant pedestrian injuring the defendant. Analysis: The proximate cause of the accident in this case appears to be the fault of the Plaintiffs of the case. This was due to the plaintiffs claiming that the respondent s truck turning before the collision was a surprise. To answer the issue of whether the respondent s negligence was proximate cause for the accident, it would appear that respondent s negligence did not serve as proximate cause for the accident with the appellant s. This is further supported by Smith v. Zone Cabs, where the court held that a taxi service when cutting a corner and hitting a pedestrian, the taxi company (Appellant s) of the case, were found to be the negligent and proximate cause for the accident as the taxi cut a corner without ensuring pedestrians were not crossing. Conclusion: The Court of Appeals found that the violation of the city ordinance by the Plaintiff constituted negligence, and which also contributed proximately to the cause of injury sustained by Plaintiff. Summary judgments are used for the purpose of avoiding any unnecessary trials and under the case Rodriguez v. Primadonna Co., LLC, 125 Nev. 578, 216 P.3d 793 (Nev. 2009). It is examined whether the district court properly entered summary judgment in favor of the respondent hotel corporation, when dismissing the appellant's negligence claim. In this case summary judgment was granted for the hotel, and the plaintiffs appealed

6 Issue: Did the hotels decision to evict the serve as the proximate cause for the accident which occurred upon negligent eviction from the hotel tavern? Rule: Under N.R.S the statutes language provides that Every owner or keeper of any hotel, inn, motel, motor court, or boardinghouse or lodging house in this State shall have the right to evict from such premises anyone who acts in a disorderly manner, or who causes a public disturbance in or upon such premises. Also the case Hamm v. Carson City Nugget, Inc., 85 Nev. 99, 101, 450 P.2d 358, 359 (1969), Involved an Action for wrongful death by heirs of pedestrians who were killed by automobile driven by a drunk driver alleging fault against driver as well as the tavern keeper who unlawfully sold liquor to the offending driver. The case Hamm v. Carson City Nugget, Inc., the court also held that the tavern keeper was not liable for injuries caused by a drunken driver leaving a bar. It is the duty of care of the driver to ensure they are not intoxicated before driving, and N.R.S supports this claim for the tavern. Also the court held that the heirs of the pedestrian also did not have claim for wrongful death against tavern keeper based on negligence and proximate cause for the accident. Analysis: The hotels decision to evict was not the proximate cause for the accident that occurred upon the appellants leaving due to being evicted for drunken disorderly behavior at the hotel. Since one of the intoxicated appellants was underage, it was questioned whether the hotel was negligent for serving a minor. Under N.R.S a tavern is not liable for damages or injuries inflicted by an intoxicated person, simply for being evicted from a tavern. In the case of Hamm v. Carson City Nugget, Inc., the court held that the heirs of the passenger killed in the automobile accident could not find the tavern guilty for what an intoxicated person doe when driving negligently intoxicated, which serves as the proximate cause for the accident in this case.

7 Conclusion: The court however held that absent a legal duty to protect after eviction from an establishment even if intoxicated, there can then be no actionable claim for negligence as the proximate cause of the accident in this particular case. CONCLUSION Based on the cases provided in this request for summary judgment, there appears to be no actionable claim that can be taken against the Plaintiff of the case Jane Healy, for negligence in executing a turn in the intersection as the Plaintiff clearly had the right of way. This is supported by the cases provided such as Smith v. Zone Cabs, Where The Court of Appeals found that the violation of the ordinance of the city by the plaintiff constituted negligence per se, which contributed proximately to cause of the injuries sustained by the plaintiff. This supports the Healy case by affirming that the person that did not practice duty of care while driving, and who struck another car without ensuring the way was clear. This served as the proximate cause for the accident, and the accident was not caused by the pedestrian who crossed the street negligently in the Smith v. Zone Cabs case. Also in the case of Rodriguez v. Primadonna Co., In similarity to the Healy case, also involves an automobile accident where the drivers of the vehicle that caused the accident were intoxicated. The intoxicated drivers were ejected from a hotel for drunk and disorderly conduct, and were subsequently evicted. The court found in this case that due to the language provided by N.R.S that the tavern that evicted the intoxicated patrons did not serve as the negligent and proximate cause for the accident. The court held that it was the duty of care of any driver to endure they are not intoxicated when operating a motor vehicle, and due to this reason the court held that the intoxicated drivers served as the negligent proximate cause for the accident.

8 This is in similarity to the Healy case as Raymond Charles left Red s Tavern intoxicated and later caused an accident with the plaintiff Jane Healy, the plaintiff Healy alleges that Raymond Charles was the sole proximate cause of the accident due to his negligence when driving intoxicated. However Healy also alleges that the Red s Tavern may have also been responsible; however the language under N.R.S does not support this claim from the plaintiff. Due to these facts we respectfully request that you find for the plaintiff based on the merits that Raymond Charles and his intoxicated state served as the negligent and proximate cause of the accident with the plaintiff Jane Healy. And for the reasons and arguments stated above, Plaintiff Jane Healy should respectfully be granted motion for summary judgment against Defendant Raymond Charles together with any and all costs associated with this action, along with reasonable attorney s fees, and any other forms of relief the court deems proper. AFFIRMATION LAW OFFICE of KATHERINE BERNING & ASSOCIATES DATED this day of April 27, 2009 Neal Harknett, Esq. 195 Casazza Dr, Reno Nv Telephone: 775/ Katherine Berning esq. (7777) Attorney for Plaintiff CERTIFICATE OF MAILING This is to certify that a true and correct copy of Plaintiff Jane Healy's Motion for Summary Judgment and Brief in Support was mailed, postage prepaid. To Edward Sullivan, Esq. Law Office of Sullivan, and Associates 1234 Mt Rose St. Reno, Nevada and Joe

9 Deese, Esq. Law Office of Joe Deese 2005 South Virginia St. Reno, NV 89502, attorneys for defendants, on this 27th Day of April, TO: Berning Katherine esq. From: Neal Harknett Date: Nov. 21, 2014

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