Monday, February 21, 2005
Copyright © Las Vegas Review-Journal

JANE ANN MORRISON: Tourist's case serves as cautionary tale for security guards on Strip

Say you were held handcuffed for five hours in a hotel security office.

Say you hadn't done anything terribly wrong, other than irk a security guard by asking to speak to the manager of a nightclub. How should you be compensated?

Pick a number between $25,000 and $5 million and see if you agree with the Clark County jury that heard this case in December.

While there is some dispute over Tara Frabotta's behavior that night, the jury clearly believed her more than they believed Luxor security guard Jeff Shackel.

Court records show that on Memorial Day weekend 2001, Frabotta was a 27-year-old tourist from St. Louis, Mo., making her first visit to Las Vegas. She was standing in line at 4 a.m. with her boyfriend to get into an after-hours Pimp 'N Ho party at Ra, the Luxor's happening nightclub.

After half an hour, the advertising executive got out of line to go to the restroom.

When she came back, Shackel thought she was cutting in line and told her she wouldn't be getting in the club. When she reached the front of the line about 20 minutes later, he refused her entrance. When she asked to see the manager, he physically picked up the 125-pound woman and took her to the security office, where she sat in handcuffs for five hours.

His version: She was abusive and profane. She scratched him and kicked him in the groin. Her version: Not so.

Police were called and she was cited for misdemeanor battery based on Shackel's word. She went to trial in September 2001 and was found not guilty.

On July 15, 2002, she sued the guard, the Luxor and Mandalay Bay, where she was staying, charging assault and battery, false imprisonment, defamation, malicious prosecution, intentional infliction of emotional distress, and negligent hiring and training of security.

The defendants offered to settle the case for $25,000, said Carolyn Ellsworth, Frabotta's Las Vegas attorney.

The verdict was swift Dec. 13, less than three hours to decide that the guard and the Luxor should pay $203,230 and Mandalay Bay, which evicted her from her room after the incident at the Luxor, should pay $100,000. Then jurors went back to discuss punitive damages.

That's when the resort's lawyers came up with a better settlement offer, which was accepted but is not public.

Since Nevada law limits punitive damages to no more than three times actual damages, the maximum Frabotta could have received in punitive damages would have been another $900,000. So she received no more than $1.2 million, maybe less.

Ellsworth said she spoke afterward to jurors who found it suspicious that the surveillance tapes covering the Ra entrance, which would have shown exactly what happened, no longer existed. That video had "disappeared," although the tape of her in custody existed.

The hotel submitted photos of the guard's wounds. During the trial, Ellsworth argued that the photos had been "enhanced" using computer software to make the supposed scratches appear worse than they were. Another no-no.

"Jurors were upset, they felt it was outrageous conduct," Ellsworth said. "And she was humiliated." When Frabotta had to use the restroom while she was in the custody of hotel security, she did so handcuffed and under the eye of a female guard, who refused to help her adjust her clothing afterward.

Ellsworth said one juror wanted to return a verdict of $900,000 in punitive damages. Another wanted $5 million. Yet another thought $50,000 would be appropriate. Since the case was settled, they never decided on a number.

Defense attorney Bryan Lewis referred questions to Mandalay spokesman John Marz, who didn't respond.

"This is a case about bullies," Ellsworth said. "It's a woman's God-given right to ask to speak to the manager. When she asked to see the manager, it sent him over the edge."

This should serve as a warning to security guards, said Ellsworth, who represented five Teamsters who had encounters with security guards at The Venetian. Those cases settled for around $40,000 to $75,000 each, she said. "All involved security guards who got badge heavy."

So what sum would you have wanted from the Luxor and Mandalay Bay in the same situation? Tara Frabotta would have settled for $153,000.

Jane Ann Morrison's column appears Monday, Thursday and Saturday. E-mail her at jane@reviewjournal.com or call 383-0275.