Palms asks Nevada Supreme Court to toss $6.1 million verdict for injured knee

As his longtime girlfriend rested while recovering from a medical procedure, local Enrique Rodriguez decided to check out Monday Night Football Fever with Brandy Beavers at the Palms sports book.

It was Nov. 22, 2004. During the game — New England at Kansas City — several female employees at the Palms dressed as cheerleaders blindfolded each other, spun around and tossed souvenirs into the crowd. Rodriguez had been standing and watching the game for about an hour when an empty water bottle landed near him.

According to one witness, an unidentified female patron then took “a total dive, body dive” to grab the bottle for herself. In doing so, she hit Rodriguez in the knee.

The subsequent treatment included two surgeries. He had a limp, back problems and ongoing pain.

It also resulted in a $6.1 million verdict from Clark County District Judge Jessie Walsh after a nonjury trial in 2010, rising to $6.6 million with interest and certain costs included.

In arguments before the Nevada Supreme Court on Tuesday, the Palms argued that the judgment should be tossed out because of the freakish way the accident occurred. It has become a staple of live sports events, parades or shows such as Blue Man Group to fling T-shirts or novelties into the crowd, sometimes by hand and sometimes using oversized slingshots or small air cannons, Palms attorney Robert Eisenberg said. That does not pose a peril to the spectators.

“People expect it, spectators want to be part of the experience,” he said. “If this court affirms this $6 million judgment against the Palms, that could all drastically change.”

Rodriguez stood by the door watching the game for about an hour, seeing at least six tosses and not “having the slightest inkling there was any danger,” Eisenberg said. The lunge by another patron to grab the water bottle emblazoned with a Palms logo was “completely unexpected,” he said.

Because the court previously has protected the owners of baseball parks from lawsuits by people who get hit by errant balls that wind up in the stands, the court should extend the same principle to sports-related promotions, he argued.

But the two types of events do not resemble each other, countered Rodriguez’s attorney, Michael Wall.

“This isn’t a baseball game. It isn’t a sporting event,” he said. “It’s an event at a casino. It’s where they bring people to gamble, to drink and to have a party.”

In this context, Wall said, the Palms should have known better than to stage a souvenir toss, especially because patrons often wave and yell to gain the flingers’ attention, then have a scrum to pick up something that doesn’t land in someone’s hand, holding it up in triumph if they win.

“The idea that (Rodriguez’s accident) was sudden and nobody expected it … is simply one of many, many red herrings in this case,” Wall said.

In fact, two Palms managers had questioned whether the promotion was a good idea before it took place, he said.

Chief Justice Kristina Pickering, who heard the case with Justice Michael Cherry, also raised questions about how testimony by physicians was handled at the trial.

Although it did not come up during the hearing, previous parts of the case raised the implication that Rodriquez had amplified his injury well beyond what should have happened from a run-of-the-mill bump to the knee.

But in court papers, Wall recounted some of the yearslong treatment he has received after doctors initially opted not to operate.

Rodriguez is saddled with “pain that will to a reasonable degree of medical probability continue throughout the remainder of his life,” according to Wall.

Contact reporter Tim O’Reiley at toreiley@reviewjournal.com or at 702-387-5290.


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