It is not uncommon in casinos for patrons to become intoxicated to the point that they are unsuitable for public. For this reason, casinos implement security procedures to deal with intoxicated patrons. Most of these procedures involve cutting the patron off from alcohol and, in some cases, even removing the patron from the premises. Sometimes, however, intoxicated patrons who are confronted by casino security become unruly. In these situations, when patrons are forcibly removed from the establishment, the amount of force that can be justified in the removal becomes an issue.
In Miller v. L’Auberge Du Lac Casino, two intoxicated patrons were cut off from alcohol by casino security.Since the patrons were not allowed to gamble if they were unable to drink, the two patrons were asked to leave. When one of the patrons tried to take a picture with her cell phone in a photography prohibited area, a security guard took the phone away, resulting in a scuffle. Both patrons shouted profanities at the security guards and one patron grabbed a security guard by the neck, resulting in cuts and scrapes. In response, the security guard took the patron to the ground and handcuffed him.
The plaintiffs, the two patrons, took the confrontation to court, claiming that the security guards had used excessive force in the removal. The patron who was taken down claimed to have been punched in the face and that one of the security guards jumped up and down on his legs. Video shown at trial, however, showed no evidence of such conduct. Based on this video and expert testimony, the jury found for the defendants.
On appeal, the plaintiffs sought to have the jury’s verdict set aside. However, when a case is being heard on appeal the court will not disturb the fact finder’s ruling where there are conflicting testimonies. In these instances the court of appeals will only consider whether or not the fact finder’s conclusion was reasonable, not whether that conclusion was right or wrong. The only way for an appellant to get around this manifest error standard is to seek de novo review. De novo review occurs when an appellate judge allows independent appellate determination of issues of fact or law, or both. Typically de novo review is only granted if the trial jury fails to follow the court’s instructions or there is a clear error of fact or law. De novo review, therefore, is in essence a rehearing of the case before the appellate judge.
The plaintiffs in the Miller case sought de novo review on appeal. In deciding whether or not to grant such a review, the court of appeals looked to the evidence presented at trial. Review of the tape and testimony revealed that the jury’s finding was reasonable, and was therefore not so erroneous to justify a de novo review.
The plaintiffs in Miller also sought judgment notwithstanding the verdict. A judgment notwithstanding the verdict occurs when a judge reverses a jury’s verdict because there were insufficient facts to support the verdict or that the law was erroneously applied to the facts. Like a de novo review, the granting of a judgment notwithstanding the verdict is tied to the reasonableness of the jury’s finding. However, in judgment notwithstanding the verdict, if no reasonable person could come to the conclusion of the jury, then the judgment is completely reversed without another hearing. The conflicting testimony in Miller’s case allowed a reasonable person to come to the same conclusion as the jury. Therefore, the plaintiffs’ movement for judgment notwithstanding the verdict was denied by the appellate court.
The decision to appeal a judgment is important and should not be taken lightly. Cases that are arbitrarily appealed create inefficiency within the court system and increase costs to both the state and plaintiffs. Therefore, if you are considering appealing a judgment it is important to consult an experienced attorney. If you find yourself in this situation please contact the Berniard Law Firm.