900 P.2d 323 | Nev. | 1995
FACTS
Appellant Karen Snellback slipped and fell in the bathroom of her room at the Golden Nugget Hotel & Casino (“the Golden Nugget”) in Las Vegas. Snellback claimed that the bath mat slipped out from underneath her as she stepped out of the bathtub. As a result of the fall, Snellback suffered a fracture in her left shoulder, pain in her right hand and wrist and aggravation of her arthritis, and loss of use of her left arm. Directly after the fall, Snellback examined the bath mat and discovered that the rubber backing of the bath mat was almost entirely worn off.
The Golden Nugget took possession of the bath mat and allegedly placed it in the locked evidence room in their risk management office. Two Golden Nugget employees inspected the mat at the time of the accident, and approximately six months later, in November, 1990, prepared written statements describing its condition. One employee stated that “over ninety percent of the anti-
On February 4, 1991, the Golden Nugget supplied its employees’ statements to Karen Snellback. Snellback states that the loss of the bath mat was the result of the Golden Nugget’s negligence. Western Linen, under contract with the Golden Nugget since 1988 to provide linen, including bath mats, in serviceable and sanitary condition for use in the hotel’s rooms, concedes that “the Golden Nugget did not ostensibly engage in the willful destruction of the evidence.” Included in the Golden Nugget’s contract with Western Linen was a provision whereby Western Linen would hold the Golden Nugget harmless from damages resulting from claims or causes of action for personal injuries or property damage arising out of the performance of the contract due to Western Linen’s negligence or that of its employees.
On April 23, 1992, Karen Snellback and her husband Chet filed a complaint against Western Linen and the Golden Nugget, alleging, inter alia, that Western Linen was negligent for supplying a defective bath mat to the Golden Nugget. On August 3, 1992, Western Linen answered the Snellbacks’ complaint and filed a cross-claim against the Golden Nugget for indemnification and contribution. The cross-claim was subsequently dismissed with prejudice. On September 23, 1992, the Golden Nugget answered both the Snellbacks’ complaint and Western Linen’s cross-claim, and filed a cross-claim against Western Linen for breach of a contractual duty to provide proper bath mats, and to enforce the contractual right of indemnity.
On March 8, 1993, Western Linen moved for summary judgment against the Golden Nugget and the Snellbacks, arguing that it was entitled to summary judgment due to the Golden Nugget’s
DISCUSSION
On appeal, the Snellbacks and the Golden Nugget argue that the district court erred in dismissing Western Linen as a party. We agree that the sanction of dismissal was too harsh in this case.
Generally, sanctions may only be imposed where there has been willful noncompliance with a court order or where the adversary process has been halted by the actions of the unresponsive party. Fire Ins. Exchange v. Zenith Radio Corp., 103 Nev. 648, 651, 747 P.2d 911, 913 (1987). “[Ejven where an action has not been commenced and there is only a potential for litigation, the litigant is under a duty to preserve evidence which it knows or reasonably should know is relevant to the action.” Id. at 651, 747 P.2d at 914.
Although discovery sanctions are within the power of the district court and this court will not reverse the particular sanctions imposed absent a showing of abuse of discretion, if the sanction imposed is that of dismissal with prejudice, a somewhat heightened standard of review applies. Nevada Power v. Fluor
In Young, we set out eight factors that a court may consider before ordering dismissal with prejudice as a discovery sanction: (1) the degree of willfulness of the offending party; (2) the extent to which the non-offending party would be prejudiced by a lesser sanction; (3) the severity of dismissal relative to the severity of the abusive conduct; (4) whether evidence has been irreparably lost; (5) the feasibility and fairness of alternative and less severe sanctions, such as an order deeming facts relating to improperly lost or destroyed evidence to be admitted by the offending party; (6) the policy favoring adjudication on the merits; (7) whether sanctions unfairly operate to penalize a party for the misconduct of his or her attorney; and (8) the need to deter both the parties and future litigants from similar abuses. Young, 106 Nev. at 93, 787 P.2d at 780.
The district court erred in dismissing Western Linen as a party to the Snellbacks’ lawsuit because the party to whom sanctions are applied is usually the party actually responsible for the loss or destruction of the evidence. See Nevada Power, 108 Nev. 638, 837 P.2d 1354 (1992).
The bath mat is not necessary to Western Linen’s defense. Both Karen Snellback and the Golden Nugget employees can testify to its condition. Admittedly the employees’ affidavits were prepared three years after they observed the bath mat, but those affidavits were simply a reiteration of the employees’ written statements, which they made six months after Karen Snellback’s accident. Western Linen would have an opportunity to cross-examine these witnesses to ferret out bias. Western Linen could also attempt to use the employees’ statements against the Golden Nugget. For example, if the bath mat were obviously defective, the Golden Nugget might be liable for negligently placing it or leaving it in the Snellbacks’ bathroom. If there is no evidence that the mat was defective, the Golden Nugget, like Western Linen, might not be liable to the Snellbacks since the fall might have been her fault.
For the reasons set out above, we therefore reverse the order of the district court dismissing Western Linen from both the Snellbacks’ claim and the Golden Nugget’s cross-claim and awarding attorney fees to Western Linen.
The contract also apparently provided that Western Linen would deliver textiles for immediate use in a serviceable and sanitary condition, that Western Linen would replace textiles which were not reasonably useable, and that Western Linen would provide an on-site room linen distribution and inventory management program.
This provision provides, in pertinent part:
RULE 37. REFUSAL TO MAKE DISCOVERY: SANCTIONS.
(b) Failure to Comply With Order.
(2) Sanctions — Party. If a party . . . fails to obey an order to provide or permit discovery . . . the court in which the action is pending may make such orders in regard to the failure as are just. . . .
Although there was no court order to produce the bath mat, this court has held that Rule 37(b) applies where one of the parties destroys evidence, even when no court order was entered. For example, this court has stated, “ ‘[t]he plaintiffs are not free to destroy crucial evidence simply because a court order was not issued to preserve the evidence.’ ” Stubli v. Big D International Trucks, 107 Nev. 309, 313-14, 810 P.2d 785, 788 (1991) (quoting Graves v. Daley, 526 N.E.2d 679, 681 (Ill. App. Ct. 1988)).
NRCP 37(b)(2) authorizes the following sanctions “among others”:
(A) An order that the matters regarding which the order was made or any other designated facts shall be taken to be established for the purposes of the action in accordance with the claim of the party obtaining the order;
(B) An order refusing to allow the disobedient party to support or oppose designated claims or defenses, or prohibiting him from introducing designated matters in evidence;
(C) An order striking out pleadings or parts thereof, or staying further proceedings until the order is obeyed, or dismissing the action or proceeding or any part thereof, or rendering a judgment by default against the disobedient party;
(D) In lieu of any of the foregoing orders or in addition thereto, an order treating as a contempt of court the failure to obey any orders ....
In lieu of any of the foregoing orders or in addition thereto, the court shall require the party failing to obey the order ... to pay the reasonable expenses, including attorney’s fees, caused by the failure, unless the court finds that the failure was substantially justified or that other circumstances make an award of expenses unjust.
See also Stubli v. Big D International Trucks, 107 Nev. 309, 810 P.2d 785 (1991) (appellants destroyed trailer, the subject of a products liability and negligence repair action); Young v. Johnny Ribeiro Building, 106 Nev. 88, 787 P.2d 777 (1990) (appellant willfully fabricated diary notations pertinent to suit based on breach of fiduciary duty and contract); Fire Ins. Exchange v. Zenith Radio Corp., 103 Nev. 648, 747 P.2d 911 (1987) (appellants threw away remains of destroyed television, subject of subrogation suit).
The Honorable Robert E. Rose, Justice, voluntarily recused himself from participation in the decision of this appeal.