El Dorado Hotel, Inc. v. Brown

691 P.2d 436, 100 Nev. 622, 1984 Nev. LEXIS 451

• Court: Nevada Supreme Court
• Decided: December 6, 1984
• Docket: 13955
• Status: Published

Opinions

OPINION

By the Court,

Gunderson, J.:

This appeal is from a judgment entered on a jury verdict, which awarded damages against appellant casino owner for false arrest and negligence. Because our review of the record indicates that there was sufficient evidence to sustain the verdict on the theory of negligence, we affirm.

Respondent Coolidge Brown is a respected career civil servant, employed as a government contracts officer at the United States Naval Air Station at Alameda, California. His complaint arose out of his arrest for cheating at appellant El Dorado Hotel and Casino (“El Dorado”) in Reno, Nevada, on July 5, 1980. Prior to that incident Brown, a fifty-nine-year-old black man, had never been arrested and had no criminal record whatever.

At the time of his arrest Brown and his wife were vacationing in Reno, and were duly registered as paying guests of the El Dorado Hotel. At trial, Brown testified that on the day of his arrest, he had left his wife in their hotel room and had gone to El Dorado’s casino to take advantage of the recreational gaming offered. He had approximately $1,400 in his possession. After playing craps for approximately forty-five minutes and winning some eighty dollars, Brown decided to try his luck on El Dora-do’s slot machines.

Brown began to play a one dollar slot machine located in the casino. As he played, he noticed that a nearby machine being patronized by a third party appeared to be paying off frequently. When the patron moved on to another machine, Brown began playing the new machine, in addition to the machine he had been previously playing.

While Brown was engaged in playing the two machines, a “slot mechanic”¹ employed by El Dorado noticed that the reels of the second machine were not working properly. The mechanic testified that, depending upon how Brown pulled the handle of the machine, it appeared the first reel on the machine would sometimes stick rather than spin normally.

Even though the slot mechanic knew the reels on a slot machine sometimes stick as a result of wear through use, he somehow concluded that Brown was cheating. The mechanic reported his observations to his shift supervisor, who in turn observed Brown playing the machine for approximately forty-five minutes. During this period, the slot machine apparently “blacked out” twice, terminating play and indicating a possible malfunction. Each time the machine blacked out it was either filled or serviced by slot mechanics; these mechanics returned the machine to operating status and allowed Brown to continue playing, wishing him “Good Luck!” as they did so. No attempt was made to remove the machine from service or to move Brown to a new machine.

After watching Brown play, the shift supervisor incorrectly decided that Brown was manipulating the machine. The supervisor then contacted Griffin Investigations, a private security company employed by the El Dorado specializing in the investigation of “known cheaters.” When a Griffin agent arrived at the El Dorado, the shift supervisor pointed out Brown as the individual suspected of cheating. The agent told the supervisor that Brown was not a “known cheater.” Nevertheless, it appears he also erroneously decided that Brown was in some fashion manipulating or taking advantage of the machine. The Griffin agent then suggested that the El Dorado employees call the Nevada State Gaming Control Board. Again, no attempt was made to remove the suspect machine from service, to inspect it, to move Brown to a different machine, or to request Brown to identify himself.

Two Gaming Control Board agents eventually arrived at the casino in response to El Dorado’s request. After watching Brown play the machine for a few minutes, the agents placed Brown under arrest for cheating. El Dorado employees made no effort to intervene on Brown’s behalf. The agents were never informed of the prior machine malfunctions. Brown was taken to a Reno jail, where he was held until he posted bail several hours later. We do not have the specific charges against Brown before us. However, they were apparently predicated on our gaming statutes, which render it unlawful to alter the selection of criteria which determine the amount or frequency of payment in a game. NRS 465.015; NRS 465.083. Under these statutes it is unlawful for a player knowingly to take advantage of a defect that permits manipulation of a slot machine’s payoff criteria. However, although Brown was arrested and charged, all charges against him were subsequently dropped by the district attorney.²

Brown subsequently brought an action against the El Dorado for false arrest and negligence. At trial, testimony was adduced that the slot machine played by Brown had a “stop bracket” which was out of adjustment and that this defective adjustment could have caused the reels on the machine to “stick” without any intentional action on Brown’s part. Despite this testimony, at the end of the presentation of respondent’s case, El Dorado moved for involuntary dismissal under NRCP 41(b). This motion was denied, and the jury later returned a general verdict in Brown’s favor awarding him $25,000 in damages. Special interrogatories were not submitted to the jury, and the jury did not specify under which theory it found liability. El Dorado moved for judgment notwithstanding the verdict; the court denied the motion; judgment affirming the verdict was entered. El Dorado now appeals.

El Dorado maintains that there was insufficient evidence for the jury to have found in respondent’s favor under either a false arrest or a negligence theory. We disagree. We discern sufficient evidence in the record to support a verdict under the theory of negligence, and we affirm the judgment of the district court.³

We begin by noting that in reviewing a jury verdict, we are limited to determining whether the jury’s findings are supported by substantial evidence. Steen v. Gass, 85 Nev. 249, 253, 454 P.2d 94, 97 (1969). We may not weigh the evidence anew; we look at the facts from the viewpoint of the prevailing party. Smith v. Timm, 96 Nev. 197, 202, 606 P.2d 530, 532 (1980). It is the prerogative of the trier of fact to evaluate the credibility of the witnesses and to decide whom to believe. Ewing v. Sargent, 87 Nev. 74, 78, 482 P.2d 819, 821-822 (1971). On appeal we assume that the jury believed all the evidence favorable to the prevailing party and drew from the evidence all reasonable inferences in his favor. Steen v. Gass, 85 Nev. at 253, 454 P.2d at 97; Smith v. Timm, 96 Nev. at 202, 606 P.2d at 532.

With these principles in mind, we review some of the facts from which the jury could have inferred that El Dorado had been negligent. We turn first to the question of El Dorado’s duty toward Brown. Brown was an invited guest of the hotel, utilizing the casino which had been provided for his recreation. It was El Dorado’s duty as a proprietor to use reasonable care to keep the premises safe for its patrons. Early v. N.L.V. Casino Corp., 100 Nev. 200, 678 P.2d 683 (1984); see also Asmussen v. New Golden Hotel Co., 80 Nev. 260, 262, 392 P.2d 49, 49 (1964). “[T]he proprietor’s duty to protect an invited guest from injury caused by a third person is circumscribed by the reasonable foreseeability of the third person’s actions and the injuries resulting from the condition or circumstances which facilitated the harm.” Early v. N.L.V. Casino Corp., 100 Nev. 200, 678 P.2d at 684. The proprietor has a duty to take affirmative action to control the wrongful acts of third persons where he has reasonable cause to anticipate the act and the probability of injury. Thomas v. Bokelman, 86 Nev. 10, 13, 462 P.2d 1020, 1022 (1970). Our examination of the record discloses ample evidence from which the jury could have concluded that El Dorado’s employees had reasonable cause to anticipate that their actions would result in Brown’s wrongful arrest for cheating.

From Brown’s description of his behavior, the jury could infer that a prudent person could have perceived Brown was behaving like any ordinary tourist. After all, Brown testified that he was playing two machines at the same time. This practice is common among tourist players, but could be viewed as unnatural for a slot cheater, who typically concentrates on the machine he is manipulating. Brown testified that he was playing the machine in a normal fashion, pulling the handle at random. El Dorado’s witnesses testified to the contrary; the jury, however, could choose to believe Brown’s testimony.

It is undisputed that the slot machine in question had a stop bracket which was out of adjustment. El Dorado had general knowledge that such a condition can occur without any fault on anyone’s part, simply as a result of ordinary wear and tear. El Dorado also knew that sometimes slot machines are left “broken” by undetected slot cheaters. In either case, an unsuspecting person can begin playing the machine and ascribe his winning streak to having found a “hot machine.” The jury therefore could find that El Dorado employees knew, or should have known, that the mere fact Brown was playing a machine which was out of adjustment did not justify either a conclusion that Brown had broken the machine or that he was intentionally taking advantage of its malfunction.

Furthermore, evidence was adduced at trial from which the jury could have concluded that El Dorado knew or should have known the machine was out of adjustment. The mechanic who brought Brown to the shift supervisor’s attention had observed that the first reel was not working properly. The mechanic chose to believe that Brown was in some fashion manipulating the machine; however, at that point El Dorado, through its employee, clearly had notice that something was wrong with the machine. Moreover, the shift supervisor who was watching Brown play must have seen that the machine malfunctioned twice and had to be repaired by El Dorado mechanics.

At trial, Brown introduced into evidence fill slips which indicated that the machine had to be filled with coins four times in the twently-four hours preceding Brown’s arrest. An expert witness for Brown unequivocally testified that this number of fills within a twenty-four hour period was “abnormal,” and that it would have been ordinary and prudent practice to check the machine under those circumstances. Although El Dorado offered testimony to the effect that four fills would not have been unusual given the high level of play over the July 4 weekend, we see no reason why the jury, sitting as the finder of fact, could not have chosen to believe the testimony of Brown’s expert witness. Thus, again, based upon the testimony presented, the jury could legitimately have found that El Dorado knew or should have known that the slot machine was experiencing mechnical difficulties.

When El Dorado employees called Griffin Investigations, they were advised that Brown was not a known slot cheater. As the jury was entitled to consider, they could easily have ascertained Brown’s identity and have discovered that he was a tourist, a registered guest of their hotel, a man of impeccable credentials and background. Also, the casino employees could have examined the slot machine before pursuing their suspicions against Brown. Instead, they summoned agents of the Gaming Control Board.

El Dorado employees testified that they simply called the Gaming Control Board and pointed Brown out as the man to watch. They stressed that the decision to arrest Brown was made solely by the Gaming Control Board members. It may be inferred that El Dorado employees never told the Gaming Control agents about the abnormal fill levels of the machine. Furthermore, so far as appears, they did not mention that the machine had malfunctioned while Brown was playing. They did not point out that Brown was a registered guest of the hotel in whose casino he was supposedly cheating. Although Brown was their guest and entitled to their protection against unreasonable intrusions, they not only made no effort to ensure that he had the opportunity to explain his behavior; they withheld information which bore favorably on his conduct.

On the basis of these facts, we believe the jury could legitimately have found that El Dorado breached its duty to protect Brown from foreseeable injuries by third persons while on its premises. El Dorado contends, however, that even if it had breached its duty of care toward Brown, the decision of the Gaming Control agents to arrest Brown was a supervening cause which operated to cut off El Dorado’s liability. It is true that where an unforeseeable supervening cause intervenes between a defendant’s negligence and a plaintiff’s injury, the defendant is relieved of liability. See Van Cleave v. Kietz-Mill Minit Mart, 97 , 633 P.2d 1220 (1981). However, where a third party’s intervening' intentional act is reasonably foreseeable, a negligent defendant is not relieved of liability. Landeros v. Flood, 551 P.2d 389 (Cal. 1976). Further, the question of foreseeability is generally one for the jury. See Merluzzi v. Larson, 96 Nev. 409, 610 P.2d 739 (1980).

We believe that on the record presented in this case, the jury could have found that Brown’s arrest by State Gaming Control agents was reasonably foreseeable. Indeed, one might infer that El Dorado desired just such a result when it called the agents to the casino and neglected to inform them of circumstances tending to suggest that Brown had not been cheating.

Our review of the briefs presented in this case leads us to the conclusion that El Dorado is essentially attempting to re-litigate issues already determined by the trier of fact. It is well established, however, that where a question of fact has been determined by the trier of fact, this court will not reverse that determination unless the judgment is clearly erroneous and not based on substantial evidence. Beverly Enterprises v. Globe Land Corp., 90 Nev. 363, 526 P.2d 1179 (1974). In this case, the jury decided to believe Brown’s witnesses rather than El Dorado’s. Such was its prerogative. The record contains ample evidence to sustain the jury’s verdict.

Given the facts we have just reviewed, the jury award of $25,000 to Brown does not appear unreasonable. The damage he suffered was high. For fifty-nine years Brown had enjoyed an unblemished record. He had achieved a respected position as a civil servant with the United States government; he had raised five children. Two of his children — a daughter who is a Deputy District Attorney at the Alameda County District Attorney’s office and a son who is a juvenile probation officer — testified that their father had been deeply shaken by the episode. His distress is understandable. While a guest of the El Dorado Hotel, playing the slot machines in the hotel casino as the hotel encourages its guests to do, Brown was forcibly detained and accused of cheating. Without being given the opportunity to offer any explanations, he was arrested, taken to the police station, and subjected to the unpleasant procedures which accompany booking. The jury, acting as the conscience of the community, determined that Brown is entitled to $25,000 as compensation for the indignities he has suffered. For our part, we cannot say the jury acted either unreasonably or as a result of passion and prejudice.

The other issues raised by the parties have been considered, and are without merit. Accordingly, we order the judgment affirmed.

Springer and Mowbray, JJ., concur.

1 A “slot mechanic” is a casino employee trained in the service and maintenance of slot machines.

2 The district attorney dropped the charges after a preliminary hearing, concluding that there was insufficient evidence to obtain a conviction. At the time the charges were dropped, Brown apparently signed an agreement releasing the State Gaming Control Board from any civil liability stemming from his arrest.

3 In light of our determination that there is sufficient evidence in the record to support a verdict on a negligence theory, we do not address whether the award of damages could additionally have been sustained on the basis of the false arrest cause of action.