Estate of Smith v. Mahoney's Silver Nugget, Inc.

• Decision Date: 23 November 2011
• Docket Number: No. 54752.,54752.
• Citation: 265 P.3d 688,127 Nev. Adv. Op. 76
• Parties: The ESTATE OF Allen Tyrone SMITH, Jr., by and through its Co–Administrators Allen Tyrone SMITH, Sr., and Sandra O. Smith; Allen Tyrone Smith, Sr.; and Sandra O. Smith, Appellants, v. MAHONEY'S SILVER NUGGET, INC., a Nevada Corporation, Respondent.
• Court: Nevada Supreme Court

127 Nev. Adv. Op. 76

265 P.3d 688

The ESTATE OF Allen Tyrone SMITH, Jr., by and through its Co–Administrators Allen Tyrone SMITH, Sr., and Sandra O. Smith; Allen Tyrone Smith, Sr.; and Sandra O. Smith, Appellants,

v.MAHONEY'S SILVER NUGGET, INC., a Nevada Corporation, Respondent.

No. 54752.

Supreme Court of Nevada.

Nov. 23, 2011.

Chesnoff & Schonfeld and David Z. Chesnoff and Richard A. Schonfeld, Las Vegas, for Appellants.

Christian–Kravitz, LLC, and Martin J. Kravitz, M. Bradley Johnson, Jennifer N. Taylor, and Michael B. Lee, Las Vegas, for Respondent.

Before SAITTA, C.J., HARDESTY and PARRAGUIRRE, JJ.

OPINION

By the Court, PARRAGUIRRE, J.:

In this opinion, we consider the apparent disconnect between NRS 651.015's limitation on innkeeper liability and our decision in Doud v. Las Vegas Hilton Corp., 109 Nev. 1096, 864 P.2d 796 (1993). Having concluded that this discord arises from the multifaceted concept of “foreseeability,” we clarify that the duty element of a negligence cause of action must be determined as a matter of law by considering whether the wrongful act that precipitated the plaintiff's injury was foreseeable. We further conclude that NRS 651.015(3)'s definition of “foreseeable” provides the appropriate framework for conducting this inquiry in the context of innkeeper liability by codifying the common-law approach that we set forth in Doud. Because the district court in this case properly applied NRS 651.015(3) in determining that the act which led to the victim's death was not foreseeable, respondent Mahoney's Silver Nugget, Inc., did not owe the victim a duty as a matter of law. We therefore affirm the district court's summary judgment in favor of the Silver Nugget.

FACTS AND PROCEDURAL HISTORY

In the early morning hours of June 25, 2006, Daniel Ott entered the Silver Nugget casino with two friends, Paris Lee and Lakiva Campbell. They proceeded into the Touchdown Lounge and joined a boisterous group of people crowded around several pool tables near the bar. This group had already caught the attention of casino security, and within five minutes of Ott's arrival, the entire group was asked to leave.

At this same time, Allen Tyrone Smith, Jr., was seated at a bar adjacent to the Touchdown Lounge. While not entirely clear, the record indicates that one of Smith's friends began arguing with Lee as Ott's group exited the Touchdown Lounge. Over a period of approximately ten seconds, Smith rose from his barstool, pushed his way through the crowd, and punched Lee in the face. In response to the perceived attack on his friend, Ott immediately revealed a concealed weapon and fatally shot Smith.

Following Smith's death, appellants—the Estate of Allen Tyrone Smith, Jr., Allen Tyrone Smith, Sr., and Sandra O. Smith (collectively, Smith's Estate)—filed suit against the Silver Nugget asserting negligence, wrongful death, and loss of consortium. The Silver Nugget filed a motion for summary judgment, which the district court granted on the ground that the Silver Nugget did not owe Smith a duty of care under NRS 651.015. This appeal followed.

DISCUSSION

Smith's Estate argues that the district court erred in granting summary judgment in favor of the Silver Nugget because Smith's murder was foreseeable, and thus, the Silver Nugget owed Smith a duty of care under NRS 651.015.¹ This court reviews a district court's grant of summary judgment and its statutory construction determinations de novo. See Yeager v. Harrah's Club, Inc., 111 Nev. 830, 833, 897 P.2d 1093, 1094 (1995); Otak Nevada, LLC v. Dist. Ct., 127 Nev. ––––, ––––, 260 P.3d 408, 411 (2011). Generally, when “the language of a statute is plain and unambiguous, and its meaning clear and unmistakable, there is no room for construction, and the courts are not permitted to search for its meaning beyond the statute itself.” Attorney General v. Nevada Tax Comm'n, 124 Nev. 232, 240, 181 P.3d 675, 680 (2008) (quotations omitted). However, “[a] statute is ambiguous when it is capable of being understood in two or more senses by reasonably informed persons or it does not otherwise speak to the issue before the court.” Id. at 240, 181 P.3d at 680–81 (quotation omitted). When interpreting an ambiguous statute, this court will review the legislative history to determine the Legislature's intent. Id. at 240, 181 P.3d at 681.

Before reaching the merits of this appeal, it is necessary to draw a distinction between foreseeability as it relates to duty and foreseeability as it relates to causation in assessing innkeeper liability.

“ Foreseeability ” and application of NRS 651.015

In Doud v. Las Vegas Hilton Corp., 109 Nev. 1096, 864 P.2d 796 (1993), we addressed the four elements a plaintiff must establish to succeed on a negligence claim for innkeeper liability: (1) duty, (2) breach, (3) proximate causation, and (4) damages. Id. at 1100, 864 P.2d at 798. In determining the threshold inquiry of whether an innkeeper owes a duty of care to its patron, we recognized that a duty to prevent wrongful conduct by third parties only occurs when the wrongful conduct is foreseeable. Id. at 1101–02, 864 P.2d at 799–800. In determining foreseeability for purposes of establishing a duty, we considered two distinct approaches: evidence of prior similar acts and a totality of the circumstances. Id. at 1102–03, 864 P.2d at 799–800. After concluding that the wrongful act was foreseeable under a totality of the circumstances, thus giving rise to a duty as a matter of law, we proceeded to discuss the remaining negligence elements. Id. at 1104, 864 P.2d at 800–01. Ultimately, we remanded because the issue of proximate causation—specifically whether the plaintiff's injury was a foreseeable consequence of the wrongful act—was a factual issue to be decided by the jury. Id. at 1100–06, 864 P.2d at 798–802.

The Legislature subsequently enacted NRS 651.015 to resolve a perceived defect in Doud² and to “codify what was the old law with respect” to duty. Hearing on S.B. 474 Before the Senate Judiciary Comm., 68th Leg. (Nev., May 18, 1995). In doing so, the Legislature set forth a general limitation precluding the imposition of civil liability on an innkeeper unless the death or injury of a patron was caused by the foreseeable wrongful act of a third party (duty), and there is a preponderance of evidence to show a failure to exercise due care (evidentiary threshold for breach). NRS 651.015(1). With this general framework in mind, the Legislature set forth the applicable standard for assessing whether an innkeeper is liable for the acts of a third party in NRS 651.015(2).

The preliminary inquiry in any case involving innkeeper liability is whether “[t]he wrongful act which caused the death or injury was foreseeable,” and thus, whether a duty of care was owed to the plaintiff. NRS 651.015(2)(a). If an injury is unforeseeable, then the innkeeper owes no duty, and the district court has no occasion to consider the remaining elements of the plaintiff's cause of action, including breach, which is addressed in NRS 651.015(2)(b). The determination of foreseeability as it relates to an innkeeper's duty of care to a patron must be made by the district court as a matter of law. See NRS 651.015(2).

In determining whether a wrongful act is “foreseeable” and thus gives rise to a duty as a matter of law, the Legislature provided a definition in NRS 651.015(3). The subsection provides that a wrongful act is not “foreseeable” unless:

(a) The owner or keeper failed to exercise due care for the safety of the patron or other person on the premises; or

(b) Prior incidents of similar wrongful acts occurred on the premises and the owner or keeper had notice or knowledge of those incidents.

NRS 651.015(3) (emphases added).

At first blush, this definition appears counterintuitive because “due care” is a term of art generally used to describe the negligence element of breach–––an element typically reserved for determination by the jury. See Doud, 109 Nev. at 1104, 864 P.2d at 801. However, as previously stated, NRS 651.015(2) expressly provides that duty is a question of law to be decided by a judge.³ Accordingly, as the statute is ambiguous, we turn to the legislative history for guidance on NRS 651.015(3)(a)'s proper interpretation.

The legislative history indicates that the “due care” language in NRS 651.015(3)(a) was intended as authority for a judge to look beyond the existence of “similar wrongful acts” under NRS 651.015(3)(b) in determining the existence of a duty, and to consider other circumstances regarding the basic minimum precautions that are reasonably expected of an innkeeper. Hearing on S.B. 474 Before the Senate Judiciary Comm., 68th Leg. (Nev., June 10, 1995). Although an innkeeper cannot guarantee the safety of guests, the Legislature recognized that certain minimum precautions are necessary and concluded that a judge should be given broad leeway in evaluating foreseeability on a case-by-case basis. Id. As a result, the Legislature added the phrase “the owner or keeper failed to exercise due care for the safety of the patron or other person on the premises” to the definition of “foreseeable,” which ensured that a duty could be imposed “regardless of whether or not there had been prior [similar] incidents” of wrongful conduct. Id.

This standard is akin to Nevada's “totality of the circumstances” approach established in Doud, 109 Nev. at 1101–04, 864 P.2d at 799–801 (imposing a duty where there is reasonable cause to anticipate a wrongful act, regardless of past experience). Other jurisdictions have similarly articulated that “duty encompasses a responsibility to take reasonable steps to secure the premises against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures.” Lopez v. Baca, 98 Cal.App.4th 1008, 120 Cal.Rptr.2d 281, 286 (2002) (quotations and citations omitted). In other words: an innkeeper's outright failure to take...