121 P.3d 1026 (Nev. 2005), 40048, Wood v. Safeway, Inc.

Docket Nº:40048.
Citation:121 P.3d 1026
Opinion Judge:[10] Per curiam.
Party Name:Paul Alan WOOD, Individually, and Judy Wood, Individually, and as Guardian ad Litem for Jane Doe and as Guardian ad Litem for Baby Doe, Appellants, v. SAFEWAY, INC.; Action Cleaning, Inc.; and Voga Incorporated, d/b/a Action Cleaning, Inc., Respondents.
Case Date:October 20, 2005
Court:Supreme Court of Nevada

Page 1026

121 P.3d 1026 (Nev. 2005)

Paul Alan WOOD, Individually, and Judy Wood, Individually, and as Guardian ad Litem for Jane Doe and as Guardian ad Litem for Baby Doe, Appellants,


SAFEWAY, INC.; Action Cleaning, Inc.; and Voga Incorporated, d/b/a Action Cleaning, Inc., Respondents.

No. 40048.

Supreme Court of Nevada

October 20, 2005

Appeal from district court orders granting summary judgment in a negligence-based tort case. First Judicial District Court, Carson City; William A. Maddox, Judge.

Page 1027

[Copyrighted Material Omitted]

Page 1028

Bradley Drendel & Jeanney and William C. Jeanney and Mark C. Wenzel, Reno, for Appellants.

Beesley, Peck, Matteoni & Cossitt, Ltd., and Paul A. Matteoni, Reno; Erickson Thorpe & Swainston, Ltd., and Thomas P. Beko, Reno; Littler Mendelson and Brent H. Harsh and Susan Heaney Hilden, Reno, for Respondent Safeway.

Watson Rounds and Kelly G. Watson, Reno, for Respondents Action Cleaning and Voga, Inc.




Jane Doe, a mentally handicapped female, was working for Safeway Stores, Inc., when she was sexually assaulted by Emilio Ronquillo-Nino, who was employed by a company that provided janitorial services at the Safeway where Doe worked. Doe, through her guardian ad litem, filed a complaint against Safeway and Ronquillo-Nino's employer, Action Cleaning, alleging five causes of action as a result of the sexual assault. The district court granted summary judgment in favor of Safeway, determining that it was immune from suit because of coverage provided by the Nevada Industrial Insurance Act (NIIA). The district court also granted summary judgment in favor of Action Cleaning pursuant to NRS 41.745 because it was not liable for intentional torts committed by its employee and because Ronquillo-Nino's intervening criminal acts were a superseding cause that relieved Action Cleaning of responsibility.

We conclude that the district court properly granted summary judgment in favor of Safeway and Action Cleaning. We also take this opportunity to clarify that the "slightest doubt” standard in our summary judgment jurisprudence is an incorrect statement of the law and should no longer be used when analyzing motions for summary judgment.


Safeway hired Doe through the store's special hiring program to work as a part-time courtesy clerk. Doe's I.Q. score is in the range of 68-70, qualifying her as mildly mentally retarded. A program offered at Carson High School provided job coaches to assist Doe with the hiring and orientation process, to transport her to and from work, and to provide her with on-the-job training. Doe also received assistance from a job coach at Easter Seals and a vocational rehabilitation counselor provided by the state. Doe was a minor when Safeway initially hired her, but she turned 18 before the events that are the subject of this case.

As a courtesy clerk, Doe bagged groceries, cleaned and replenished supplies at the check stands, cleaned the break room and various public areas of the store, and collected shopping carts from the parking lot. Safeway paid Doe $5.45 an hour, and she received regular paychecks made out in her name. Doe's employment duties required her to be in many areas of the store, including the outside areas, at various times. She was working the swing shift (4 p.m. to midnight) at the time of the assaults.

Before beginning her employment, Doe attended a daylong orientation session for new employees where she received training specific to her job duties. The orientation also covered information on Safeway's employment policies, including its policies on sexual harassment in the workplace. One of Doe's job coaches attended the orientation session with her and helped her to understand the materials and information presented. Doe worked at Safeway part-time during high

Page 1029

school and then full-time following her graduation in June 1998.

Doe met Ronquillo-Nino through her employment at Safeway. Ronquillo-Nino worked as a nighttime janitor for Action Cleaning, a cleaning subcontractor hired by Building One Service Solutions (Building One) to provide on-site cleaning services at the Safeway store where Doe worked. Under its contract with Safeway, Building One is an independent contractor.

On three separate occasions Ronquillo-Nino sexually assaulted Doe while she was at work on the Safeway premises. The first assault occurred in a cleaning supply room, and the second and third assaults occurred behind a dumpster while Doe was outside collecting shopping carts from the parking lot. Ronquillo-Nino pleaded guilty to one count of attempted sexual assault.

As a result of the sexual assaults, Doe became pregnant and gave birth to a healthy child, who is now under the care of Doe and Alan and Judy Wood. The Woods and Doe, through her guardian ad litem, (collectively Doe) filed a complaint alleging five causes of action against Safeway and Action Cleaning: (1) negligent failure to train employees and maintain a safe work environment; (2) negligent selection, appointment, training, supervision, and retention of Emilio Ronquillo-Nino; (3) sexual harassment; (4) negligent infliction of emotional distress; and (5) due to the above negligent acts, the Woods are now responsible for the care and maintenance of Jane Doe and her child, Baby Doe.

Safeway and Action Cleaning filed separate motions for summary judgment. The district court granted Safeway's motion for summary judgment, concluding that Doe's tort claims against Safeway allege injuries that arose out of and during the course of her employment and therefore her claims are barred by the NIIA, under NRS 616A.020(1)-(2) and NRS 616B.612(4). The district court subsequently granted Action Cleaning's motion for summary judgment, concluding that Doe's claims were barred because Ronquillo-Nino's intervening criminal acts were a superseding cause precluding liability and because, under NRS 41.745, Action Cleaning is not liable for the intentional torts committed by one of its employees. Doe filed a motion for reconsideration, which the district court denied. Doe now appeals the district court's orders granting summary judgment in favor of Safeway and Action Cleaning.


Standard of review

This court reviews a district court's grant of summary judgment de novo, without deference to the findings of the lower court.1 Summary judgment is appropriate and "shall be rendered forthwith” when the pleadings and other evidence on file demonstrate that no "genuine issue as to any material fact [remains] and that the moving party is entitled to a judgment as a matter of law.”2 This court has noted that when reviewing a motion for summary judgment, the evidence, and any reasonable inferences drawn from it, must be viewed in a light most favorable to the nonmoving party.3

The "slightest doubt” standard

Doe argues on appeal, however, that summary judgment is precluded in the trial court when there is the "slightest doubt as to the operative facts.” The "slightest doubt” standard became part of Nevada's summary judgment analysis in 1954, when this court quoted language from a federal circuit court's decision in Doehler Metal Furniture Co. v. United States.4 Although we have continued to use that standard, courts and

Page 1030

commentators have criticized it as unduly limiting the use of summary judgment.5

In 1986, the United States Supreme Court decided two cases that undermine the "slightest doubt” standard: Celotex Corp. v. Catrett 6 and Anderson v. Liberty Lobby, Inc. [7 While not addressing the "slightest doubt” standard directly, the Supreme Court in Celotex noted that Rule 56 should not be regarded as a "disfavored procedural shortcut” but instead "as an integral part of the Federal Rules as a whole, which are designed ‘to secure the just, speedy and inexpensive determination of every action.'”8 In Liberty Lobby, the Supreme Court went further in abrogating the slightest doubt standard when it focused on the rule's requirement that there be no "genuine” issues of "material” fact:

By its very terms [the summary judgment standard] provides that the mere existence of some alleged factual dispute between the parties will not defeat an otherwise properly supported motion for summary judgment; the requirement is that there be no genuine issue of material fact.

. . . [T]he substantive law will identify which facts are material. Only disputes over facts that might affect the outcome of the suit under the governing law will properly preclude the entry of summary judgment. Factual disputes that are irrelevant or unnecessary will not be counted.9

Liberty Lobby is incompatible with the slightest doubt standard because colorable evidence may, in any given case, raise doubts as to a factual dispute between the parties while, at the same time, not being probative on the operative facts that are significant to the outcome under the controlling law.10

A number of this court's summary judgment cases employ language that seemingly rejects the slightest doubt standard. This court has often stated that the nonmoving party may not defeat a motion for summary judgment by relying "‘"on the gossamer threads of whimsy, speculation and conjecture.”'”11 As this court has made abundantly clear, "[w]hen a motion for summary judgment is made and supported as required by NRCP 56, the non-moving party may not rest upon general allegations and conclusions, but must, by affidavit or otherwise, set forth specific facts demonstrating

Page 1031

the existence of a genuine factual issue.”12 The United States Supreme Court employed similar language in Matsushita Electric Industrial Co. v. Zenith Radio.13

We take this opportunity to put to rest any...

To continue reading