Michael Lowry

Michael Lowry (Partner-Las Vegas) succeeded on a motion to compel arbitration in the Eighth Judicial District Court, Clark County, Nevada, for Wilson Elser’s client, a regional gym. The plaintiff, a gym member, alleged she was injured after tripping and falling while approaching a row of exercise equipment. She filed suit asserting that her fall resulted from the gym's negligence. However, her membership agreement contained an arbitration clause requiring the parties to resolve this dispute through arbitration. Michael moved to compel arbitration, and the court agreed, finding the arbitration clause enforceable as to the plaintiff’s claims and granting the motion.

Michael Lowry (Partner-Las Vegas) prevailed on a motion to dismiss based on forum non conveniens for Wilson Elser’s client, a hotel on the East Coast. The plaintiffs brought suit in the Eighth Judicial District Court, Clark County, Nevada, alleging they were assaulted and battered at the hotel. Michael moved to dismiss based on forum non conveniens, so the case could be re-filed in the jurisdiction where the hotel is located. The guests and all the evidence relating to what had occurred were in that jurisdiction. The district court agreed that the plaintiffs' choice of Nevada as the forum was entitled to less deference and that the balance of interests favored litigating the matter in the home jurisdiction. Wilson Elser’s motion was granted, and the case was dismissed without prejudice to be litigated in a different forum.

Michael Lowry (Partner-Las Vegas) obtained a dismissal for lack of federal jurisdiction over a complaint filed against a unit owners’ association for a residential high-rise building near the Las Vegas Strip. The plaintiff's complaint alleged that he sustained injuries after exposure to mold in the building. However, the plaintiff never pled facts supporting federal jurisdiction, even after being provided an opportunity to amend. The plaintiff appealed, but the U.S. Court of Appeals for the Ninth Circuit concluded that the complaint did not plead facts that created either diversity or a federal question, affirming the dismissal.

Michael Lowry (Partner-Las Vegas, NV) was retained to represent a manufacturer against a water loss subrogation claim at a luxury home near Lake Tahoe. The homeowner's insurer alleged the client's water system equipment was defective and caused extensive damage to the home. The subrogating insurer timely filed suit but failed to timely open discovery. The Second Judicial District Court, Washoe County, Nevada, agreed the subrogating insurer failed to present compelling and extraordinary circumstances to excuse the delay. Michael's motion to dismiss was granted.

Michael Lowry (Partner-Las Vegas) and Kevin Brown (Of Counsel-Las Vegas) obtained a voluntary dismissal of all claims against Wilson Elser’s client, a flooring subcontractor, in the Eighth Judicial District Court, Las Vegas. The case involved a trip and fall incident that occurred during a renovation project. Michael and Kevin noted that the client's job file reflected that it did not start work on the project until two days after the alleged fall. After reviewing the job files from the general contractor and other subcontractors, the plaintiff agreed with that timeline and voluntarily dismissed all claims against our subcontractor client only.

Michael Lowry (Partner-Las Vegas) and Jonathan Pattillo (Associate-Las Vegas) obtained summary judgment in the United States District Court, District of Nevada, for a retail client named in a slip and fall action. The plaintiff alleged that customers were frequently stealing food by eating it inside the client’s store and then throwing the used containers on the floor, creating slip and fall hazards. However, there was no evidence that this alleged activity caused the hazard that the plaintiff found after her fall. The district court concluded that the plaintiff lacked evidence demonstrating the retailer had permitted a virtually continuous hazard to exist, granting Wilson Elser’s motion for summary judgment.

Michael Lowry (Partner-Las Vegas) won summary judgment in the Eighth Judicial District Court in Las Vegas for a fitness club client. The plaintiff, a club member, sued the client, alleging that he sustained injuries after slipping and falling while using the club’s facilities. Michael determined that the plaintiff’s membership agreement contained an assumption of risk regarding the use of the facility and a waiver of claims, prompting him to move for summary judgment at the outset of the case. The court concurred, granting Michael’s summary judgment motion and saving Wilson Elser’s client thousands of dollars in legal fees. 

Michael Lowry (Partner-Las Vegas, NV) and Ashley Zurkan (Associate-Las Vegas, NV) worked with a luxury homeowners’ association client to develop facts that led to a voluntary dismissal. A mobile dog groomer tripped on a sidewalk near a home, and it was initially unclear who controlled this part of the sidewalk. Michael and Ashley worked with the homeowners' association to begin developing facts supporting the HOA's position that the individual homeowner controlled this area. They then worked with the plaintiff to confirm repairs had occurred in the area and the homeowner paid for the repairs. With control confirmed, the plaintiff voluntarily dismissed the HOA and instead pursued the homeowner. This collaborative approach ultimately saved the parties time and money.

Michael Lowry (Partner-Las Vegas, NV) and Patrick Tarzi (Associate-Las Vegas, NV) successfully defended a Las Vegas resort and casino against a property theft claim filed by a guest. The guest alleged certain items were stolen from his room. However, Patrick pointed out that the guest had not used the in-room safe nor did he attempt to deposit the items with the hotel for safekeeping. As a result, the Las Vegas Justice Court, Small Claims concluded the guest had not meet his burden of proof under NRS 651.010. A defense decision was entered. 

Michael Lowry (Partner-Las Vegas, NV) filed an amicus brief concerning a petition for a writ of mandamus pending before Nevada's Supreme Court. As background, a plaintiff in a personal injury case alleged a traumatic brain injury. The defense retained a Las Vegas neuropsychologist to perform neuropsychological testing and provide a report. After the report was disclosed, a discovery dispute arose about whether the testing materials and data generated could be disclosed to anyone other than the plaintiff's own neuropsychologist. The district court ordered the data be disclosed to the plaintiff's lawyers and neuropsychologist. The defendant petitioned the Supreme Court of Nevada to consider an interlocutory appeal of this order, arguing the neuropsychological community is obligated to safeguard the tests or risk the tests losing effectiveness. This obligation is now codified in NAC 641.234(3).

The neuropsychologist retained Michael to submit his own, separate amicus brief to emphasize how serious this issue is to both neuropsychology and litigants. NAC 641.234(3) attempts to balance the public interest in having access to valid neuropsychology measures against the private interests of civil litigants. The neuropsychologist urged the Supreme Court to follow NAC 641.234(3) and overturn the district court's order.
 

Michael Lowry (Partner-Las Vegas, NV) and Kevin Brown (Of Counsel-Las Vegas, NV) worked to develop facts leading to a nuisance-value settlement in a case in which a high-school student attempted to cross six lanes of traffic on a main thoroughfare. His alleged actions were much like a real-life game of Frogger. When the plaintiff tried to cross the sixth lane, he was struck by a car owned by a pre-owned vehicle dealer and driven by a vendor who was taking it to his shop to prepare it for sale. The teen sued the driver alleging significant injuries. He also sued the dealer alleging negligent entrustment. An entrustment clearly occurred, but Michael and Kevin worked with the dealer to develop facts demonstrating the entrustment was not negligent. Once these facts were developed, the teen accepted a nuisance value settlement rather than litigate summary judgment.

Las Vegas partner Michael Lowry and associate Kimberly Nelson earned a voluntary dismissal for their national restaurant chain client sued in Las Vegas. Two guests were dining when their table collapsed on them. The restaurant was being renovated at the time but there were problems identifying the applicable contractor and contract. Michael and Kimberly used the discovery process to identify the contractor and locate the contract, and then persuaded the plaintiffs to add the contractor as a defendant. This led to a global settlement that the contractor funded. The case was ultimately dismissed without any indemnity from the firm's client.

Michael Lowry (Partner-Las Vegas) and Jonathan Pattillo (Associate-Las Vegas) earned a defense decision following a 16-day binding arbitration for Wilson Elser’s client, a landscaping subcontractor. The dispute arose during the construction of a large mobile home park. The general contractor and the owner had a falling out prior to the project's completion, leading to litigation that expanded to include various subcontractors. After the protracted arbitration hearing, the arbitrator agreed with the owner’s assertion that our client breached its subcontract. However, the arbitrator also concurred with Michael and Jonathan’s arguments that no damages were incurred as a result of the breach. This decision resulted in a net win for Wilson Elser’s client.

Michael Lowry (Partner-Las Vegas) prevailed on a motion to dismiss based on forum non conveniens for Wilson Elser’s client, a national trucking company. The plaintiffs brought suit in the Eighth Judicial District Court, Clark County, Nevada, on behalf of the deceased, the driver of a vehicle that collided with our client’s truck on a Texas roadway. The plaintiffs appealed the decision, and the Supreme Court of Nevada remanded for further facts. Upon remand, Michael provided the requested additional information, and the district court was again persuaded to grant dismissal. The plaintiffs subsequently appealed again, but this time the Supreme Court affirmed the decision, concluding the district court did not abuse its discretion by concluding the case should be litigated in a different forum. 

Michael Lowry (Partner-Las Vegas, NV) was brought in to try a slip-and-fall case against a janitorial company in the Eighth Judicial District Court, Las Vegas after the original defense firm was unable to fully staff the file. The case involved disputed liability based on the multiple caution cones the plaintiff walked past before falling. The plaintiff had never given a demand before Michael joined the case. After Michael’s motions in limine were filed, the plaintiff started negotiating and eventually settled for less than the specials he would present at trial.

Michael Lowry (Partner-Las Vegas, NV) and Jonathan Pattillo (Associate-Las Vegas, NV) obtained summary judgment for a unit owners association for a residential building near the Las Vegas Strip. The plaintiff alleged he sustained injuries after exposure to mold in the building. However, the plaintiff never responded to requests for admission regarding key elements of his claim. As a result, the requests were deemed admitted and the district court agreed with Michael and Jonathan's assertion that the plaintiff's responses were inadequate and failed to address the substance of the requests, and that summary judgment was proper. The plaintiff then appealed, arguing summary judgment was improper for a variety of reasons. Nevada's Court of Appeals rejected these arguments and affirmed summary judgment. It noted the plaintiff had not preserved many of his arguments and those that he had preserved did not support reversal.

Michael Lowry (Partner-Las Vegas) and Jonathan Pattillo (Associate-Las Vegas) obtained summary judgment in Nevada’s Eighth Judicial District Court on behalf of a regional grocer. The plaintiff alleged she was injured after slipping and falling in one of the client’s Las Vegas stores. At the close of discovery, Michael and Jonathan moved for summary judgment because no evidence was shown indicating how or why the alleged hazard was created. The court concurred, determining the plaintiff failed to show that our client created the hazard that caused her to slip, was unable to produce admissible evidence that our client received actual notice of the hazard before the slip occurred and failed to produce sufficient evidence to create a genuine dispute as to any material facts in relation to breach of duty and causation. The court then  granted Wilson Elser’s summary judgment motion in favor of the grocer client.

Michael Lowry (Partner-Las Vegas, NV) and Jonathan Pattillo (Associate-Las Vegas, NV) proposed and executed a discovery strategy that eventually led to a voluntary dismissal. The firm's client was named in a slip-and-fall case where the claimant alleged a complex fracture resulted in medical bills exceeding $350,000.  The client was suspicious that the fall did not happen within an area the client controlled. Over the course of months, Michael and Jonathan were able to gather facts from the plaintiff and other defendants that eventually confirmed the client's suspicions. The plaintiff later agreed to voluntarily dismiss as to the firm's client without indemnity.

Michael Lowry (Partner-Las Vegas, NV) and Jonathan Pattillo (Associate-Las Vegas, NV) obtained summary judgment in the U.S. District Court, District of Nevada for a national discount retailer. The plaintiff alleged she was injured after slipping and falling on a spill in one of our retailer client’s Las Vegas stores. However, Michael and Jonathan obtained video that documented the spill was created just seven minutes before the fall. While the parties disputed whether Nevada law considers the length of time a spill existed as an element of notice, the court concluded even if that was considered, summary judgment was appropriate given the factual circumstances of the spill's creation.

Michael Lowry (Partner-Las Vegas, NV) obtained a jury award in the Eighth Judicial District Court, Las Vegas that was less than the defense offer of judgment in an admitted liability, damages-only trial. Michael represented a well-known restaurant chain concerning a slip and fall. Video captured the relevant events and liability was admitted. The trial was limited to the extent of plaintiff's injuries. 

Michael Lowry (Partner-Las Vegas) and Jonathan Pattillo (Associate-Las Vegas) were granted summary judgment in the Eighth Judicial District Court in Las Vegas on behalf of an RV dealership client against a warranty claim. After purchasing an RV, the plaintiffs alleged they immediately began experiencing problems, and filed suit seeking to unwind the purchase and consequential damages. The court granted Michael and Jonathan summary judgment at the end of discovery, as the plaintiffs had not designated an expert witness to explain how the RV's systems worked and why the system was allegedly defective. Also, the losses plaintiffs alleged were economic losses, and finally, plaintiffs had not preserved the RV in a way that provided the dealership meaningful access to assess its condition. The plaintiffs did not dispute these points, instead arguing dismissal without prejudice was appropriate per Rule 41(a)(2). As the statute of limitations on the contract had not yet expired, that would have allowed them to re-file the case. The court rejected that argument, noting it came just 48 days before the start of the trial stack to which the case was assigned. The customer later dismissed in lieu of appealing in exchange for a waiver of costs.

Michael Lowry (Partner-Las Vegas) and Kevin Brown (Of Counsel-Las Vegas) obtained summary judgment for a resort on the Las Vegas Strip in a case where a guest alleged she was injured, claiming that as she approached an elevator, the doors suddenly closed and struck her. She then fell and was injured. Her last computation of damages alleged more than $422,000 in past medical specials alone. The resort had video in the elevator car from an hour before and after the fall. It showed the elevator doors opening normally and opening and closing in the same time period when the plaintiff fell. The video also showed the doors’ sensors appropriately responded when objects were placed in their way. The Eighth Judicial District Court, Las Vegas granted summary judgment based on the physical facts rule. The objective evidence shown on the video could not be overcome by other evidence speculating about whether the elevator was not properly maintained.

Michael Lowry (Partner-Las Vegas) and Chris Richardson (Of Counsel-Las Vegas) obtained summary judgment in the Eighth Judicial District Court, Las Vegas, in a malicious prosecution case against Wilson Elser’s client, a security services provider contracted to work in a hospital. The plaintiff is a hospital nurse whom our client’s employees observed interacting with a patient they believed the nurse physically abused. The employees reported their observations to superiors resulting in a police investigation, a grand jury hearing, and criminal charges against the nurse. The charges were dismissed, however, due to an error in the grand jury hearing, and the plaintiff sued our client and its employees for malicious prosecution and other related causes of action.

After significant discovery, Michael and Chris moved for summary judgment, arguing that the malicious prosecution cause of action failed as a matter of law because the dismissal of criminal charges didn’t prevent the state from re-filing them. The court concurred that dismissal with prejudice is required to support malicious prosecution. It also concluded that the security personnel had probable cause to report their observations, a defense defeating a malicious prosecution claim.

The court further agreed that our client’s security personnel are immune from suit and qualify for statutory immunity under NRS 200.5096. The statute creates mandatory and permissive reporting obligations for certain persons and immunizes them from civil liability arising from their reporting. This ruling is thought to be among the first where the statute has been applied to security personnel working in a hospital. The plaintiff later voluntarily dismissed his case in lieu of an appeal.

Michael Lowry (Partner-Las Vegas) and Jonathan Pattillo (Associate-Las Vegas) obtained summary judgment in the Eighth Judicial District Court, Las Vegas, for Wilson Elser's client, a unit owners association for a residential building near the Las Vegas Strip. The plaintiff alleges he sustained injuries after exposure to mold in the building. However, the plaintiff never responded to requests for admission regarding key elements of his claim. As a result, the requests were deemed admitted. The court agreed with Michael and Jonathan's assertion that the plaintiff's responses were inadequate and failed to address the substance of the requests and that summary judgment was proper.

Michael Lowry (Partner-Las Vegas) and Jonathan Pattillo (Associate-Las Vegas) obtained summary judgment in Nevada’s federal court for a regional grocer client. The plaintiff alleged he was injured after slipping and falling in one of the client’s Las Vegas stores. As a rule, Nevada requires medical expert testimony to satisfy the causation element in a negligence claim. An “obvious injury” exception exists, but did not apply to the injuries alleged. The district court concluded that the plaintiff had not met his obligation under FRCP 26(a)(2) to disclose medical expert testimony regarding medical causation and granted summary judgment.

Michael Lowry (Partner-Las Vegas) and Christopher Lee (Associate-Miami) obtained summary judgment from the Circuit Court, Monroe County, FL, in a personal injury claim against Wilson Elser's client, an integrated facilities maintenance provider. The plaintiff, an employee of our client, was injured while working at the direction of the resort. The plaintiff received workers' compensation benefits but proceeded to sue our client and the resort. Regarding our client's liability, the plaintiff argued that an intentional tort exception applied to worker's compensation immunity in this case. The district court disagreed, concluding that the evidence presented by the plaintiff failed to demonstrate an intentional tort. The plaintiff later agreed to dismiss the case in lieu of an appeal after four years of litigation.

Michael Lowry (Partner-Las Vegas) was retained by an alliance of neuropsychological governing boards and trade associations to file an amicus brief on their behalf in a case pending before the Supreme Court of Nevada. The case is significant for neuropsychologists because the district court ruled that the neuropsychological examination had to be audio recorded. Repeated neuropsychological studies have shown that any recording of such an examination invalidates the data gathered and defeats the purpose of its being conducted. Further, various neuropsychological associations have published ethical guidance expressly counseling against allowing audio recording. The groups involved with this amicus brief are concerned that if an audio recording of the examination is permitted, it could severely limit or perhaps even eliminate the ability of neuropsychologists to provide testing for litigants.

Michael Lowry (Partner-Las Vegas, NV) was hired to defend a local trucking company in a case concerning one of its vehicles involved in a tip-over accident with another commercial truck. Michael obtained dismissal of the first case because the plaintiff failed to timely meet court deadlines for opening of discovery. The plaintiff then re-filed the suit, after the statute of limitations expired, arguing that COVID-19 pandemic orders had extended his statute of limitations period. Michael moved to dismiss, arguing the orders did not extend the statute of limitations as far as the plaintiff would have needed and, alternatively, that such orders were unconstitutional as applied to statutes of limitation. The Second Judicial District Court in Reno agreed with Michael on both points and dismissed the case.

Michael Lowry (Partner-Las Vegas) won a dismissal based on forum non conveniens for a national trucking company, which the plaintiffs appealed to the Supreme Court of Nevada. In a published decision, the Supreme Court rejected plaintiffs’ argument that the forum non conveniens doctrine applied only to plaintiffs based outside the United States. The Court concluded that for forum non conveniens purposes, sister-state plaintiffs are considered foreign and thus their choice of forum does not automatically receive deference. While the Supreme Court remanded the case for further factual development, the deference argument was a key part of the plaintiffs’ arguments why forum non conveniens should not apply at all.

Michael Lowry (Partner-Las Vegas) and Alexandra McLeod (Of Counsel-Las Vegas) had their motion to dismiss granted in the Eighth Judicial District Court, Las Vegas, in a landlord/tenant dispute against Wilson Elser’s client, an apartment complex. The plaintiff is a tenant alleging harassment by the landlord in an effort to avoid eviction. The district court granted Michael and Alex’s motion to dismiss based on the pleadings. With motions to dismiss based on the pleadings rarely granted, the court noted that no eviction had yet occurred, nor was the plaintiff harmed or damaged yet. Further, another local court has exclusive jurisdiction over eviction proceedings.