FGA, INC. v. Giglio
278 P.3d 490
Nev.2012Background
- Giglio slipped at Carmine's Little Italy, a sit-down restaurant operated by FGA, Inc. and the related Trust; she alleged negligence due to a grease/substance on the floor.
- The incident occurred in June 2004; a video system was inoperable, so no footage of the fall existed.
- Giglio previously consumed alcohol that night; there was dispute over whether she was intoxicated at the time.
- Evidence included questions about preexisting back conditions and whether such evidence was admissible for causation or damages.
- The district court instructed the jury on a mode of operation theory for premises liability, and the jury apportioned fault 51% to FGA and 49% to Giglio, awarding over $5.5 million before reductions.
- On appeal, the Nevada Supreme Court reversed in part, holding that mode of operation liability does not extend to sit-down restaurants and remanding for further proceedings.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Mode of operation instruction scope | Mode of operation applies broadly to premises liability. | Mode of operation is limited to self-service contexts and should not apply here. | Not applicable; mode of operation does not extend to sit-down restaurants; instruction abused. |
| Evidence exclusions | Exclusions of preexisting injuries and Giglio's alcohol were improper or overly broad. | Exclusions were proper to avoid irrelevant or prejudicial testimony. | Exclusion of preexisting injuries proper; exclusion of Giglio's alcohol proper; but Schrefel's alcohol should be admitted; gaming-regulation evidence reversal partial. |
| gaming regulation evidence | Judicial notice of Gaming Regulation 5.160 and related evidence supported liability context. | Regulation did not apply to FGA due to license type; evidence should be limited. | District court abused by excluding evidence clarifying license status and applicability of regulation. |
| Judgment as a matter of law as to Trust | Trust may be liable based on its conduct and mode of operation. | A landlord is not liable for tenant's dangerous conditions unless conduct creates risk. | Remanded to determine if Trust can be held liable on its own conduct; mode of operation not to be used as basis on remand. |
Key Cases Cited
- Sprague v. Lucky Stores, Inc., 109 Nev. 247, 849 P.2d 320 (1993) (Nev. 1993) (premises liability; modern mode of operation discussion in self-service context)
- Sheehan v. Roche Bros. Supermarkets, Inc., 863 N.E.2d 1283 (Mass. 2007) (Mass. 2007) (mode of operation rationale; recognition of self-service related risks)
- Wright v. Schum, 105 Nev. 611, 781 P.2d 1142 (1989) (Nev. 1989) (landlord/owner duty to exercise reasonable care)
- Curry v. Burns, 626 A.2d 719 (Conn. 1993) (Conn. 1993) (general verdict rule and multiple theories underpinning a single claim)
- Green v. H.N.S. Management Co., Inc., 881 A.2d 1072 (Conn. App. 2005) (Conn. App. 2005) (overlapping theories and interrogatories in negligence claims)
- Skender v. Brunsonbuilt Construction & Development Co., 122 Nev. 1430, 148 P.3d 710 (2006) (Nev. 2006) (general verdict rule and abuse of jury instructions)