Motion For Partial Summary Judgment

Case 2:18-cv-00763-RFB-NJK Document 20 Filed 07/03/18 Page 1 of 12
MATTHEW R. VANNAH, ESQ.

1
Nevada Bar No. 006855
2 AMBER N. KING, ESQ.
Nevada Bar No. 14070
3 VANNAH & VANNAH
4 400 South Seventh Street, Fourth Floor
Las Vegas, Nevada 89101
5 Telephone: (702) 369-4161
Facsimile: (702) 441-0808
6
mvannah@vannahlaw.com
7 aking@vannahlaw.com
Attorneys for Plaintiff
8 UNITED STATES DISTRICT COURT
9
DISTRICT OF NEVADA, SOUTHERN DIVISION
10
WILLIAM PEGG,
400 South Seventh Street, 4th Floor, Las Vegas, Nevada 89101
11 CASE NO.: 2:18-cv-00763

Telephone (702) 369-4161 Facsimile (702) 441-0808
Plaintiff,
VANNAH & VANNAH
12 vs. MOTION FOR PARTIAL SUMMARY

13 JUDGMENT
CONOR McGREGOR and McGREGOR
14 SPORTS AND ENTERTAINMENT, LLC,
15
Defendants.
16
17 Pursuant to Federal Rule of Civil Procedure 56 and LR 56-1, Plaintiff, William Pegg,
18 moves for partial summary judgment that 1) Conor McGregor (“McGregor”) breached his duty
19
of care by throwing a can, 2) a can McGregor threw hit William Pegg (“Pegg”), 3) McGregor
20
battered Pegg, and 4) Pegg was not comparatively negligent.
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1 This motion is made and based upon all of the papers, pleadings and records on file
2 herein, exhibits, the attached Points and Authorities, and such oral argument, testimony, and
3
evidence as the Court may entertain at the hearing of this Motion.
4
DATED: July 3, 2018
5
Vannah & Vannah
6
/s/ Matthew R. Vannah
7
_____________________________
8 MATTHEW R. VANNAH, ESQ.
9
POINTS AND AUTHORITIES
10
STATEMENT OF FACTS
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This case arises out of the Plaintiff filing a Complaint in state court on March 28, 2017.
VANNAH & VANNAH
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13 The Defendant subsequently removed this case to federal court based upon diversity jurisdiction.
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On August 17, 2016, William Pegg was present inside the Copperfield Theater at the
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MGM Resort Hotel & Casino during the Ultimate Fighting Championship (“UFC”) 202 Pre-
16
17 Fight Conference (“Conference”). Conor McGregor was promoting the UFC 202 contest against
18 Nathan Diaz. McGregor was on stage at the Copperfield Theater during the press conference.
19
McGregor breached his duty during the press conference when he threw unopened
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beverage cans from the stage towards the audience. (UMF 1). The second of two cans thrown hit
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22 Pegg in his back, near his left shoulder. (UMF 2).
23 Pegg respectfully requests that this Court grant partial summary judgment in his favor as
24
to duty, breach, battery, and causation. Further, Defendants have not produced any evidence
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showing that Pegg was comparatively negligent and comparative negligence does not apply to
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27 intentional torts. (UMF 3). Therefore, Pegg also requests that this Court grant partial summary
28 judgment regarding Defendants’ Third and Eighth affirmative defenses of comparative
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1 negligence. See Defendant McGregor’s Sports Entertainment, LLC’s Answer to Complaint,
2 4:24-5:2 and 5:20-24, attached hereto as Exhibit 1 and Defendant Conor McGregor’s Answer to
3
Complaint, 4:12-21 and 5:10-14, attached hereto as Exhibit 2.
4
UNCONTESTED MATERIAL FACTS
5
6 1. On August 17, 2016, Conor McGregor threw unopened beverage cans into the audience
at the MGM Resort Hotel & Casino UFC Pre-Fight Conference. See Nevada State
7 Athletic Commission, Findings of Fact, Conclusions of Law, and Order, 4:26-27,
attached hereto as Exhibit 3; see also photos of McGregor throwing cans, attached as
8
Exhibit 4 and video of McGregor throwing cans attached on disk and labeled as Exhibit
9 5.
2. One of the cans that Conor McGregor threw hit William Pegg in the back near his left
10 shoulder. See Photos of Pegg hit by can, attached as Exhibit 6 and video of Pegg hit by
11 can, attached on disk and labeled as Exhibit 7; see also Photos of bruising, attached as
Exhibit 8; see also Affidavit of Karl Christon, attached hereto as Exhibit 9.

VANNAH & VANNAH
12 3. Defendants have offered no evidence of William Pegg’s comparative negligence. See

13 Defendant McGregor’s Sports Entertainment, LLC’s Answer to Complaint, 4:24-5:2 and
5:20-24, attached hereto as Exhibit 1 and Defendant Conor McGregor’s Answer to
14 Complaint, 4:12-21 and 5:10-14, attached hereto as Exhibit 2.
15
ARGUMENT
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A. Standard for Summary Judgment
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18 Summary judgment is appropriate when there “is no genuine issue of material fact and
19 the moving party is entitled to a judgment as a matter of law.” Fed. R. Civ. P. 56(c); see also,
20
Celotex Corp. v. Catrett, 477 U.S. 317, 325 (1986). The substantive law governing a claim
21
determines whether a fact is material. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986).
22
23 A factual dispute is genuine when the evidence is such that a rational trier of fact could return a
24 verdict for the nonmoving party. Matsushita Electric Industry Co., Ltd. v Zenith Radio Corp,
25
475 U.S. 574 (1986). The nonmoving party may not build a case “on the gossamer threads of
26
whimsy, speculation, and conjecture.” Gamble v. Moran, 15 F.3d 1085 (1st Cir. 1994) (quoting
27
28 Hahn v. Sargent, 523 F.2d 461, 467 (9th Cir.1975)).
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1 B. Plaintiff is entitled to partial summary judgment because Plaintiff has established

duty and breach and the absence of comparative negligence as a matter of law.
2
3 The standard governing that of the Defendants’ behavior for the performance of duty and
4 breach is one of the “reasonable person.” Restatement of the Law, Second, Torts §183; See also,
5
Nevada Jury Instructions, Civil, Negligence Instruction 4NG.12 (2011). The words “reasonable
6
person” denote a person exercising those qualities of attention, knowledge, intelligence, and
7
8 judgment, which society requires of its members for the protection of their own interests and the
9 interests of others. Id. It enables those who are to determine whether the actor’s conduct is such
10
as to subject him to liability for harm caused thereby, to express their judgment in terms of the
11
conduct of a human being. Restatement of Law, Second, Torts, § 283, Comment B.

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13 DUTY
14 Defendant McGregor had a duty, as a matter of law, not to throw cans into an audience.
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A reasonable and prudent person would know that throwing a can into a crowd of people creates
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a risk of public injury. Therefore, Pegg is entitled to partial summary judgment on the issue of
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18 duty.
19 BREACH
20 It is undisputed that McGregor breached his duty when McGregor threw unopened
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beverage cans into the audience at the MGM UFC Pre-Fight Conference. (UMF 1).
22
The Nevada State Athletic Commission (NSAC) held an administrative hearing on this
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24 matter pursuant to NRS 467.592. The NSAC order made a finding of fact that McGregor threw
25 the can described in the Plaintiff’s complaint, and McGregor admitted to doing the same:
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4. During the press conference, McGregor threw one or more items toward Diaz
27 and Diaz’s supporters, including water bottles and/or beverage cans;
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1 5. At the hearing before the Commission on this matter, McGregor admitted to

the above described actions; that his actions brought disrespect on unarmed
2
combat; and that he deserved to be punished for his actions.
3
4 See Nevada State Athletic Commission, Findings of Fact, Conclusions of Law,
and Order, 4:26-27, attached as Exhibit 3.
5
6 The NSAC’s finding that McGregor threw the can constitutes issue preclusion, pursuant
7 to State v. Sutton, 103 P.3d 8, 16 (Nev. 2004) (“Issue preclusion may apply to administrative
8
proceedings”), citing Britton v. North Las Vegas, 799 P.2d 568, 569 (Nev. 990) (“It is a well-
9
settled rule of law that res judicata may apply to administrative proceedings”), citing U.S. v. Utah
10
11 Construction and Mining Co., 384 U.S. 394, 422 (1966); see also University of Tennessee v.
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12 Elliott, 478 U.S. 788, 797 (1986) (“We have previously recognized that it is a sound policy to
13
apply principles of issue preclusion to the fact finding of administrative bodies acting in a
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judicial capacity”).
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16 In addition to the preclusive findings of the NSAC, there is video of McGregor throwing
17 the cans, from which the following screenshots were taken:

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See Photos of McGregor throwing cans, attached as Exhibit 4 and video of McGregor throwing
24 cans attached on disk and labeled as Exhibit 5.
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Therefore, Pegg is entitled to partial summary judgment that McGregor breached his duty
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by throwing cans into the audience.
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1 CAUSATION
2 One of the cans thrown by McGregor impacted Pegg’s shoulder. (UMF 2).
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7 ! !
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See Photos of Pegg hit by can, attached as Exhibit 6 and video of Pegg hit by can, attached on
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disk and labeled as Exhibit 7.
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Further, Karl Christon has sworn that “I personally viewed the second can that Conor
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McGregor threw leave Conor McGregor’s hand, travel through the air, and hit William Pegg in
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13 the back.” See Affidavit of Karl Christon, attached hereto as Exhibit 9.
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The can impacting the Plaintiff’s left shoulder left the following bruise to Pegg’s left
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shoulder:
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24 ! !
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See Photos of injury, attached as Exhibit 8.
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27 Pegg has produced an affidavit and other evidence that the second can McGregor threw
28 hit Pegg. (UMF 2). McGregor has not produced any contrary evidence that the second can he
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1 threw did not hit Pegg. Therefore, Pegg is entitled to partial summary judgment that the second
2 can McGregor threw hit Pegg.

3
In addition, tortfeasors bear the burden of proof when they act near simultaneously and it is
4
unclear which one caused a plaintiff's injury:
5
6 “Restatement (Second) of Torts § 433B(3) (1965) describes circumstances in
which the burden shifts to the defendant to show not only apportionment of
7 damages but causation. In our view, this legal principle applies when two
separate tortfeasors act near simultaneously and it is unclear which one of the
8
two caused the injury. See Restatement (Second) of Torts § 433B comment h
9 (1965). See, e.g., Summers v. Tice, 33 Cal.2d 80, 199 P.2d 1 (1948).”
10
Kleitz v. Raskin, 103 Nev. 325, 328, 738 P.2d 508, 510, FN2 (1987).
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Further, where several tortfeasors commit negligent acts, only one of which causes injury
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13 to a plaintiff, then all tortfeasors are liable absent a showing of which tortfeasor’s negligent act
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caused the injury. Accordingly, when one or more tortfeasors cause injury to a plaintiff, the
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tortfeasors are required to show that the other tortfeasors contributed to the harm and in what
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17 quantity:
18 “3. What is the liability of several persons involved in an accident where at least
one, and possibly all, were negligent, in the absence of a showing which one or
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ones were negligent?
20 It is now well-settled law that where several defendants cause injuries to a
plaintiff, but it cannot be determined which injuries were caused by the
21 defendants found to be negligent, each of the defendants is liable for all of the
22 injuries (Hawkes v. Goll, 256 App.Div. 940, 9 N.Y.S.2d 924, affd. 281 N.Y. 808,
24 N.E.2d 484; Musgrave v. Williams, 239 App.Div. 802, 264 N.Y.S.2d 94; see 1
23 New York Pattern Jury Instruction, Civil (2d ed.) 2:307). Further, it is generally
accepted that where several defendants, who are found to be tort-feasors, are
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guilty of acts, only one of which caused the injury, all are liable absent a
25 showing as to whose act was the cause (Summers v. Tice, 33 Cal.2d 80, 199 P.2d
1; Hall v. E. I. du Pont de Nemours & Co., 345 F.Supp. 353, 378-380; see, also,
26 Ann. 5 A.L.R.2d 98; Restatement, Torts 2d, s 433B, subsec. (3)). The effect, as
27 stated in Harper & James, The Law of Torts (Vol. 1, s 10.1, p. 709), ‘is to
require the (tort-feasor) defendants, not the plaintiff as was formerly the case, to
28 show that the other tort-feasors contributed to the harm and in what quantities
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1 they so contributed * * * In practical effect the court is holding, at least

implicitly, that as far as the plaintiff is concerned the harm is indivisible.’”
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3 Thrower v. Smith, 62 A.D.2d 907, 920-921 (N.Y.A.D. 1978).
4
Therefore, it is insufficient for McGregor to speculate that Pegg may have been hit by an
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object thrown by another person.
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7 BATTERY
8 Plaintiff is entitled to partial summary judgment on his claim for civil battery, as set for in
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the Restatement (Second) of Torts § 13.
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Restatement (Second) of Torts § 13 reads as follows:
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An actor is subject to liability to another for battery if

VANNAH & VANNAH
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(a) he acts intending to cause a harmful or offensive contact with the person of
13 the other or a third person, or an imminent apprehension of such a contact, and
(b) a harmful contact with the person of the other directly or indirectly results.
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15 Restatement 2d of Torts, § 13 (2nd 1979)(emphasis added).
16 The Nevada Athletic Commission Findings of Fact contain admissions that Defendant
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McGregor admitted he threw the cans at the audience and that he admitted he should be punished
18
for doing so: “During the press conference, McGregor threw one or more items towards Diaz and
19
20 Diaz’s supporters, including water bottles and/or beverage cans.” See Nevada State Athletic
21 Commission, Findings of Fact, Conclusions of Law, and Order, 1:5, attached as Exhibit 3 to
22
Plaintiff’s Motion. Therefore, the Plaintiff is entitled to partial summary judgment on both
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elements (a) and (b) of Restatement (Second) of Torts § 13.
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25 If Defendant McGregor intended to hit a person other than Pegg, the Plaintiff is also
26 entitled to summary judgment on this issue because the liability for civil battery still applies even
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if Defendant McGregor meant to hit a different person:
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1 (1) If an act is done with the intention of inflicting upon another an offensive but
not a harmful bodily contact, or of putting another in apprehension of either a
2
harmful or offensive bodily contact, and such act causes a bodily contact to the
3 other, the actor is liable to the other for a battery although the act was not done
4 with the intention of bringing about the resulting bodily harm.
(2) If an act is done with the intention of affecting a third person in the manner
5 stated in Subsection (1), but causes a harmful bodily contact to another, the actor
6 is liable to such other as fully as though he intended so to affect him.
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Restatement (Second) of Torts § 16. (Emphasis added).
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9 Therefore, the Plaintiff also requests partial summary judgment if McGregor intended to
10 hit a person other than Plaintiff.

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COMPARATIVE NEGLIGENCE
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Comparative negligence may only be asserted where the injured plaintiff was partly
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14 responsible for his or her own injuries. Buck v. Greyhound Lines, 105 Nev. 756, 763 (1989); See
15 also, NRS 41.141. The defendant bears the burden of establishing a plaintiff’s comparative
16
negligence. Worth v. Reed, 79 Nev. 351, 356, 384 P.2d 1017, 1019 (1963).
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Nevada’s comparative negligence statute, NRS 41.141 does not apply to intentional
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19 wrongful conduct. A plaintiff’s “mere negligence . . will not constitute a defense to [a
20 defendant’s] wanton or willful misconduct. Davies v. Butler, 95 Nev. 763, 771, 602 P. 2d 605,
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610 (1979). “Wil[l]ful or wanton misconduct is intentional wrongful conduct, done either with
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knowledge that serious injury to another will probably result, or with a wanton or reckless
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24 disregard of the possible results.” Id. at 769, 602 P.2d at 609 (emphasis omitted). “We agree with
25 the appellants that, read in light of our previous decisions carefully delineating the concepts of
26 willful and wanton misconduct, the legislature intended to leave such behavior outside the
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purview of the comparative negligence statute.” Id. at 770, 602 P.2d at 610.
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1 Here, there is no evidence showing Pegg was in any manner negligent. (UMF 3). The
2 Plaintiff was simply in the audience and was struck by a can thrown by McGregor. As a result,
3
Defendants have not and cannot meet their burden of establishing Pegg’s comparative
4
negligence.
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6 Therefore, even if Defendants could somehow prove that Pegg negligently caused
7 McGregor to batter him, Nevada law does not allow for that defense and partial summary
8
judgment must be granted as to the Defendants’ affirmative defense of comparative negligence,
9
as set for in affirmative defenses three and eight
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11 CONCLUSION
VANNAH & VANNAH
12 Based on the foregoing, Plaintiff is entitled to partial summary judgment on the issues of
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duty, breach, causation, battery, and comparative negligence. It is undisputed that McGregor
14
threw unopened beverage cans into an audience. Pegg provided an affidavit and videos showing
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16 that the second can thrown by McGregor hit Pegg. In affirmative defense four, McGregor
17 speculates that someone else may have thrown an object that hit Pegg. However, under Nevada
18
law, McGregor would have the burden of proving that his can did not hit Pegg. McGregor has
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not produced any evidence that Pegg was hit by an additional object.
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1 Therefore, the Plaintiff requests that the Court grant partial summary judgment that 1)
2 Conor McGregor had a duty to not throw cans into the audience, 2) that Conor McGregor
3
breached his duty by throwing cans into the audience, 3) that Conor McGregor’s can hit William
4
Pegg (affirmative defense 4), 4) that Conor McGregor’s can hitting William Pegg was a battery,
5
6 and 5) that William Pegg was not comparatively negligent as a matter of law (affirmative defense
7 three and eight).

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9
Dated: July 3, 2018.
10 VANNAH & VANNAH
11
/s/ Amber N. King

VANNAH & VANNAH
12 _____________________________
13 AMBER N. KING, ESQ.
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1 CERTIFICATE OF SERVICE (EDCR 8.05 (f))
2 I hereby certify that the following parties are to be served as follows:

3
Electronically and through United State Postal Service:
4
5 MCCORMICK, BARSTOW, SHAPPARD,
WAYTE & CARRUTH, LLP
6 Michael Merritt, Esq.
8337 West Sunset Road, Suite 350
7
Las Vegas, Nevada 89113
8
Attorney for Defendant,
9 Conor McGregor and
10 McGregor Sports & Entertainment, LLC
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VANNAH & VANNAH
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14 DATED: July 3, 2018.
15 /s/ Amber N. King

____________________________________________
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An employee of the Law Office of
17 VANNAH & VANNAH
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Case 2:18-cv-00763-RFB-NJK Document 20 Filed 07/03/18 Page 1 of 12

MATTHEW R. VANNAH, ESQ.

11 CASE NO.: 2:18-cv-00763

12 vs. MOTION FOR PARTIAL SUMMARY

28 judgment regarding Defendants’ Third and Eighth affirmative defenses of comparative

1 negligence. See Defendant McGregor’s Sports Entertainment, LLC’s Answer to Complaint,

Exhibit 8; see also Affidavit of Karl Christon, attached hereto as Exhibit 9.

12 3. Defendants have offered no evidence of William Pegg’s comparative negligence. See

1 B. Plaintiff is entitled to partial summary judgment because Plaintiff has established

conduct of a human being. Restatement of Law, Second, Torts, § 283, Comment B.

1 5. At the hearing before the Commission on this matter, McGregor admitted to

17 the cans, from which the following screenshots were taken:

2 can McGregor threw hit Pegg.

1 they so contributed * * * In practical effect the court is holding, at least

An actor is subject to liability to another for battery if

10 hit a person other than Plaintiff.

7 three and eight).

/s/ Amber N. King

1 CERTIFICATE OF SERVICE (EDCR 8.05 (f))

2 I hereby certify that the following parties are to be served as follows:

15 /s/ Amber N. King

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