Anderson v. Mandalay Corp.
| Citation | 131 Nev. Adv. Op. 82,358 P.3d 242 |
| Decision Date | 15 October 2015 |
| Docket Number | 61871.,Nos. 61305,s. 61305 |
| Parties | Cristie N. ANDERSON, individually; and Jamaar Anderson, Appellants, v. MANDALAY CORPORATION, a Nevada Corporation d/b/a Mandalay Bay Resort and Casino, Respondent. Cristie N. Anderson, individually; and Jamaar Anderson, Appellants/Cross–Respondents, v. Mandalay Corporation, a Nevada Corporation d/b/a Mandalay Bay Resort and Casino, Respondent/Cross–Appellant. |
| Court | Nevada Supreme Court |
David T. Wall, Las Vegas; Eglet Prince and Robert T. Eglet, Tracy A. Eglet, and Danielle A. Tarmu, Las Vegas, for Appellants/Cross–Respondents.
Kravitz, Schnitzer & Johnson, Chtd., and Martin J. Kravitz and Jordan P. Schnitzer, Las Vegas, for Respondent/Cross–Appellant.
Before the Court En Banc.1
NRS 41.745(1)(c) makes employers vicariously liable for employees' intentional torts if a plaintiff can show the intentional conduct was “reasonably foreseeable under the facts and circumstances of the case considering the nature and scope of [the employee's] employment.” Here, we are asked to determine whether it was reasonably foreseeable that an employee would rape a hotel guest. We are also asked to determine whether the employee's criminal conduct was so unforeseeable that direct negligence claims against the employer would be futile. Based on the particularized facts of this case, which are detailed below, we conclude a reasonable jury could find that the employee's criminal conduct was reasonably foreseeable. Similarly, we conclude direct negligence claims against the employer would not be futile because a reasonable jury might find that the criminal conduct was foreseeable. Accordingly, we reverse and remand.
Cristie Anderson and her husband sued Mandalay Bay Resort and Casino (Mandalay) after Alonzo Monroy Gonzalez, a Mandalay employee, raped Anderson in her hotel room at Mandalay. Anderson and her husband asserted claims against Mandalay for negligent hiring, vicarious liability, and loss of consortium. During discovery, Anderson asked for leave to amend her complaint to add claims for negligent security, retention, and supervision. Mandalay sought summary judgment, and at the summary judgment hearing, Anderson's counsel abandoned all claims except the vicarious liability claim. The district court granted Mandalay's motion for summary judgment, concluding Mandalay was not vicariously liable for Gonzalez's criminal act. The district court also denied, as futile, Anderson's motion to amend her complaint. Anderson timely appealed those decisions.2
Anderson came to Las Vegas on September 8, 2008, to attend a trade show on behalf of her employer. She checked into room 8916 at Mandalay. After performing some work-related duties, she and her coworkers went out for dinner and drinks. Anderson became intoxicated and returned to Mandalay around 2 a.m. on September 9, 2008. Surveillance footage shows that she and Gonzalez shared an elevator; both exited on the eighth floor. Anderson entered her room, shut the door behind her, and went to sleep.
Later, Anderson woke up vomiting and felt someone wiping her face with a washcloth. She realized a uniformed man, later identified as Gonzalez, was in her room. Gonzalez raped Anderson. He immediately left the room when Anderson oriented herself. Anderson called the front desk, and Mandalay security interviewed Gonzalez after finding him on the eighth floor. He admitted to entering room 8916 but claimed he only entered to sweep up broken glass that was in the hallway and underneath the room's door. Gonzalez later claimed to have had consensual sex with Anderson. Las Vegas Metropolitan Police took over the investigation, and Gonzalez ultimately pleaded guilty to sexual assault.
Gonzalez worked at Mandalay as a House Person, whose principle job duties are to clean the common areas of the hotel and assist in cleaning and serving guest rooms, as needed. A House Person working Gonzalez's shift would have little supervision. Mandalay provided Gonzalez with a keycard that was traceable to him and opened the guest rooms on his assigned floors. On the night in question, floors 8–12 were assigned to him. Gonzalez used that keycard to enter Anderson's room.
Before hiring Gonzalez, Mandalay performed a criminal background check using a social security number he provided. That number was connected to Gonzalez's name and indicated he had no criminal record. Mandalay solicited Gonzalez's employment references and filled out I–9 documents reporting Gonzalez's eligibility to work; however, it is not clear that Mandalay contacted those references and properly updated information on Gonzalez's I–9.
Gonzalez's prior disciplinary history shows that Mandalay suspended him for 31 days after he and two other men were implicated in a series of insulting and threatening comments made over Mandalay's employee radios. The allegations included using the radios to broadcast the sound of toilets flushing, animal noises, and threats to a female supervisor. The threats were “I know where you live Juanita,” “I will be waiting for you in the parking garage,” and “You are a bitch Juanita and you deserve what you are going to get.” Although Mandalay never definitively identified or ruled out Gonzalez as making any threats, it did find that Gonzalez misused employee radios and lied about it.
During district court proceedings, Anderson presented evidence of five prior sexual assaults perpetuated by Mandalay employees on Mandalay's premises. The victims in three of the assaults were guests, and two were other Mandalay employees. Additionally, evidence was presented showing Mandalay received about one report a month claiming an employee entered an occupied room without authorization. Anderson submitted eight Las Vegas Metropolitan Police reports about Mandalay employees stealing from guest rooms during unauthorized entries. Anderson also presented in court comments from travel sites reporting similar problems. Anderson also presented an expert report indicating Mandalay had insufficient security when Gonzalez attacked Anderson, and ongoing security defects created a volatile environment.
Ultimately, the district court granted Mandalay's motion for summary judgment, concluding NRS 41.745(1) and Wood v. Safeway, Inc., 121 Nev. 724, 121 P.3d 1026 (2005), barred vicarious liability against Mandalay because Gonzalez's acts were truly independent, not committed in the course of the very task assigned, and not reasonably foreseeable. The district court also denied as futile Anderson's request for leave to amend.
On appeal, Anderson argues the district court erred in granting Mandalay's motion for summary judgment. Additionally, Anderson argues the district court erred in denying her leave to amend her complaint.
Mandalay was not entitled to summary judgment
This court reviews summary judgment rulings de novo. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Summary judgment is appropriate when the record shows there is no genuine issue of material fact remaining, and the movant is entitled to judgment as a matter of law. Id. (citing NRCP 56(c) ). Therefore, summary judgment is improper whenever “a reasonable jury could return a verdict for the non-moving party.” Sprague v. Lucky Stores, Inc., 109 Nev. 247, 249, 849 P.2d 320, 322 (1993). When reviewing the record, “the evidence, and any reasonable inferences drawn from it, must be viewed in a light most favorable to the nonmoving party.” Wood, 121 Nev. at 729, 121 P.3d at 1029.
NRS 41.745(1)(c) sets forth a factual inquiry
NRS 41.745 makes employers vicariously liable for employees' intentional torts when—among other circumstances—an employee's act is “reasonably foreseeable under the facts and circumstances of the case considering the nature and scope of his or her employment.” NRS 41.745(1)(c). Inquiries focused on the facts and circumstances of a case are typically factual, not legal. See , e.g., Mayfield v. Koroghli, 124 Nev. 343, 352, 184 P.3d 362, 368 (2008) ; Basile v. Union Plaza Hotel & Casino, 110 Nev. 1382, 1384, 887 P.2d 273, 275 (1994) ; see also 65 C.J.S. Negligence § 8 (2010) ().
Further, the Legislature clarified NRS 41.745(1)(c)'s reasonable foreseeability standard, stating the “conduct of an employee is reasonably foreseeable if a person of ordinary intelligence and prudence could have reasonably anticipated the conduct and the probability of injury.” NRS 41.745(1)(c). This definition of reasonable foreseeability stems from premises liability cases, Hearing on A.B. 595 Before the Assembly Judiciary Comm., 69th Leg. 13–14 (Nev., June 19, 1997) (citing El Dorado Hotel, Inc. v. Brown, 100 Nev. 622, 627, 691 P.2d 436, 440 (1984), overruled on other grounds by Vinci v. Las Vegas Sands, Inc., 115 Nev. 243, 245, 984 P.2d 750, 751 (1999) ), and this court has held its determination presents an issue of fact, Basile, 110 Nev. at 1384, 887 P.2d at 275. Therefore, we conclude NRS 41.745(1)(c)'s reasonable foreseeability standard sets forth a factual inquiry.3
A reasonable jury could conclude Gonzalez's act was reasonably foreseeable
Because NRS 41.745(1)(c) presents a factual inquiry, summary judgment is only proper if a reasonable jury could not rule in Anderson's favor. Sprague, 109 Nev. at 249, 849 P.2d at 322. More specifically, we must determine whether a reasonable jury could conclude Gonzalez's conduct was “reasonably foreseeable under the facts and circumstances of the case considering the nature and scope of [Gonzalez's] employment.” NRS 41.745(1)(c). We conclude a reasonable jury could find that Gonzalez's conduct was reasonably foreseeable; therefore the district court erred in granting Mandalay's motion for summary judgment. See Wood, 121 Nev. at 729, 121 P.3d at 1029 ().
This court has...
To continue reading
Request your trial
-
Prescott v. Slide Fire Solutions, LP
...between a negligent act and injury, an unlawful act will not supersede causation if it was foreseeable." Anderson v. Mandalay Corp. , 131 Nev. 825, 358 P.3d 242, 248 (2015). Plaintiffs point the Court to other cases in which courts have held a firearm manufacturer or seller may be liable in......
-
Russo v. Shac, LLC
...occurs outside the scope of employment if that intentional tort was reasonably foreseeable under NRS 4l.745(1)(c). 131 Nev. 825, 831-32, 358 P.3d 242, 247 (2015). Assuming arguendo that Lee's conduct was an independent venture and not committed in the course of the very task assigned him, s......
-
Russo v. Shac, LLC
...if it occurs outside the scope of employment if that intentional tort was reasonably foreseeable under NRS 41.745(1)(c). 131 Nev. 825, 831-32, 358 P.3d 242, 247 (2015). Assuming arguendo that Lee's conduct was an independent venture and not committed in the course of the very task assigned ......
-
Phipps v. Clark Cnty. Sch. Dist.
...under the facts and circumstances of the case considering the nature and scope of his or her employment.’ ” Anderson v. Mandalay Corp. , 358 P.3d 242, 247 (Nev.2015) (quoting Nev. Rev. Stat. § 41.745(1) ).In the instant case, Plaintiffs have sufficiently shown that Defendant James acted “in......