## Facts

- Calvin Kawamura and his wife, Jeanie, traveled from Hawaii to Las Vegas and visited Main Street Station Casino Brewery Hotel (the casino), operated by M.S.W., Inc., a Boyd Gaming Corporation subsidiary.
- While the Kawamuras were gambling at the casino, Calvin went to a restroom and was assaulted and robbed there by an unhoused man.
- Calvin suffered severe head injuries and underwent multiple medical procedures to remove blood clots from his brain.
- Calvin sued Boyd Gaming Corporation and the casino in federal district court, alleging negligent failure to provide adequate security and seeking compensatory damages; he also sought punitive damages based on alleged gross negligence.
- Calvin alleged the casino maintained lax security policies and trained security personnel to focus more on protecting casino money than protecting patrons.
- Calvin offered testimony from casino-security consultant Ken Braunstein, who relied on crime statistics and other materials to opine that the area surrounding the casino carried a high risk of crime and that the casino’s security and management were inadequate.
- Calvin also presented evidence of earlier incidents in and near the restroom area, including prior assaults and incidents involving unhoused people loitering in the restroom and stalking casino patrons.
- Defendants moved for summary judgment, arguing the assault was not reasonably foreseeable and that earlier incidents did not involve comparable serious injuries.
- Defendants also moved for partial summary judgment on punitive damages, arguing the record could not support gross negligence and pointing, among other things, to security’s actions after the assault.
- Defendants separately moved under Federal Rule of Evidence 702 and *Daubert* to exclude Braunstein’s opinions as unreliable and as improper legal conclusions that would direct the outcome.

## Issues

1. Whether defendants were entitled to summary judgment on negligence-based claims because the assault was not reasonably foreseeable and defendants did not breach any duty to protect patrons from third-party criminal acts.
2. Whether defendants were entitled to partial summary judgment on punitive damages because the evidence could not support gross negligence or conscious disregard under Nevada law.
3. Whether plaintiffs’ casino-security witness, Ken Braunstein, should be excluded under Rule 702 and *Daubert* for unreliable methods or for offering impermissible legal conclusions.

## Decision

- The court denied defendants’ motion for summary judgment because the record contained genuine disputes of material fact on foreseeability and the reasonableness of the casino’s security measures.
- The court denied defendants’ motion for partial summary judgment on punitive damages because a reasonable jury could find conduct exceeding ordinary negligence based on the asserted notice of repeated problems and the alleged security policies and practices.
- The court denied defendants’ amended renewed motion to exclude Braunstein’s testimony under Rule 702 and *Daubert*, concluding that defendants’ objections were better addressed through trial objections and cross-examination rather than wholesale exclusion.

## Legal Principles

- Under Nevada law, proprietors and innkeepers owe invitees a duty of reasonable care, which may include taking reasonable measures to protect patrons from foreseeable criminal acts by third parties on the premises.
- Foreseeability can be shown through evidence such as prior similar incidents, recurring safety problems, and conditions on or near the property; where competing inferences are reasonable, foreseeability and breach are generally for the factfinder.
- On summary judgment, the court must view the evidence and draw reasonable inferences in favor of the nonmoving party; the motion should be denied when disputes of material fact exist.
- Nevada punitive damages require clear and convincing proof of oppression, fraud, or malice; in negligence cases, implied malice may be shown by conscious disregard of the rights or safety of others.
- Under Federal Rule of Evidence 702 and *Daubert*, opinion testimony is admissible when it is based on sufficient facts or data and reliable methods and will help the jury; legal-instruction testimony is improper, but concerns about phrasing and overreach are commonly handled through limits at trial rather than blanket exclusion.

## Conclusion

The district court held that evidence of earlier restroom-area incidents, asserted security-policy shortcomings, and competing accounts of the adequacy of security created triable questions on foreseeability, breach, and punitive damages, and it allowed plaintiffs’ casino-security witness to testify under Rule 702 subject to ordinary trial controls.


Kawamura v. Boyd Gaming Corp., 2015 WL 4622622 (2015)