The Importance of Alleging All Possible Causes of Action in the Beginning of a Complaint

Although parties are not sure of exactly what happened during an incident that they were injured, it is important to speculate and make all reasonable guesses as to what may have occurred at the time you file your lawsuit. If not, and if only some theories are alleged, you may not be able to add additional theories later on.

The Curious Case of Mr. Nutton's complaint

This happened in the recent case of Nutton v. Sunset Station, Inc.¹⁾131 Nev. Adv. Op. 34.. Mr. Nutton fell while bowling at the casino and broke his knee. When he sued for under a personal injury theory of liability, he alleged in his complaint only that the casino had applied to much oil to the bowling lanes which made the lanes unsafely slippery, causing his injury. Mr. Nutton, who was not wearing bowling shoes at the time, steadfastly defended his shoe choice throughout the whole litigation process. He testified under oath that his choice to wear street shoes had nothing to do with his fall, because it was the oil and not the shoes that caused him to slip. As the case went on, it became rather obvious that Mr. Nutton was wrong about the oil in the lane. No other witnesses noticed oil, security footage showed no one else slipping, and Nutton could not even find an expert witness to state that there was too much oil on the lane. So, in order to save his case, a few months before trial, Mr. Nutton moved to amend his Complaint to allege that it was the negligence of the casino employees in not making him wear the bowling shoes that caused his fall.

Because Nutton had not originally alleged this theory, he needed permission from the Court to amend his complaint. Problem was, that at such a late time, it is difficult to meet standard for amending a pleading. First, if the time for amending pleadings has passed, (which it had), Nutton needed to show “good cause” for the court to allow him to amend. To determine whether good cause for amendment exists, the court looks at whether the complaint could not have been reasonably filed within the deadline despite best efforts of the party. Here, it was clear that this theory could have been alleged earlier since Nutton knew from day one that he was not wearing his bowling shoes. He could have easily added this theory at an earlier time. Next, the court had to decide whether to allow the amendment at all. Under Rule 15, leave to amend is generally given, unless it is clear that allowing a party to amend his complaint would be futile. Here, it was clear from discovery that alleging this new theory would be futile because he had maintained all along that his shoes were not the cause of the fall. So further pursuit of this claim would have just involved dismissal through a motion for summary judgment based on Mr. Nutton’s own testimony. However, the court was hesitant to disallow Mr. Nutton’s amendment based on his contradictions because his contrary statements were an issue for a jury to decide. But, ultimately, the amendment was not allowed because good cause for the delay was not shown.

So, what did we learn?

The court prefers to permit amendments to a complaint to give parties the chance to fully litigate cases on their merits. But, the court wants parties to do so in a timely manner, and if the parties do not, they risk losing the right to make their claims.