Anderson v. Wells Cargo, Inc.
| Citation | 373 P.3d 891 (Table) |
| Decision Date | 15 November 2011 |
| Docket Number | No. 54962.,54962. |
| Parties | Andy Lee ANDERSON, Appellant, v. WELLS CARGO, INC., a Nevada Corporation and Superior Traffic Services Corp., a Nevada Corporation, Respondents. |
| Court | Supreme Court of Nevada |
J.D. Evans
Marquis Aurbach Coffing
Selman Breitman, LLP
Parker & Edwards
This is an appeal from a district court order in a tort and contract action. Eighth Judicial District Court, Clark County; Michelle Leavitt, Judge.
Appellant Andy Anderson crashed his motorcycle into the median on Rainbow Boulevard in Las Vegas in April 2005 and sustained a brain injury. The median was designed by Clark County and was completed almost three years before Anderson's accident, in early May 2002. Respondent Wells Cargo, Inc., was the general contractor for the median's construction, and respondent Superior Traffic Services Corp. was a subcontractor responsible for temporary traffic control and permanent signs and striping. According to the plans provided by the county, Superior was to install reflectors and an R4–7 sign,1 in addition to painting the median with retro-reflective paint.
Anderson commenced an action against Clark County, Wells Cargo, and Wells Cargo's subcontractors alleging negligence, negligence per se, and breach of contract. Anderson claimed that respondents were negligent in five respects: (1) defective design; (2) failure to maintain; (3) failure to perform the construction in a workmanlike manner; (4) negligent construction; and (5) using defective materials. Prior to the close of discovery, respondents filed motions for summary judgment, which Anderson opposed; Anderson also sought an NRCP 56(f) continuance for further discovery.2 The district court denied Anderson's NRCP 56(f) request and entered summary judgment for respondents. This appeal followed.
On appeal, Anderson argues that the district court abused its discretion in denying his NRCP 56(f) request, and that the district court erred in granting summary judgment in respondents' favor. As explained below, we conclude that these contentions lack merit, and we therefore affirm the district court's order.
The district court did not abuse its discretion in denying Anderson's NRCP 56(f) request
We review a district court's decision denying a motion for an NRCP 56(f) continuance for an abuse of discretion. Aviation Ventures v. Joan Morris, Inc., 121 Nev. 113, 118, 110 P.3d 59, 62 (2005). A party seeking an NRCP 56(f) continuance for further discovery must demonstrate how further discovery will lead to the creation of a genuine issue of material fact. Id.
Anderson argues that summary judgment was premature because he had been diligent in pursuing discovery, less than two years had passed, and the discovery commissioner had recently extended the discovery deadline. A party's diligence in pursuing discovery and the length of time since the complaint was filed are relevant to whether an NRCP 56(f) continuance should be granted. Summerfield v. Coca Cola Bottling Co., 113 Nev. 1291, 1294, 948 P.2d 704, 705–06 (1997) ; Ameritrade, Inc. v. First Interstate Bank, 105 Nev. 696, 700, 782 P.2d 1318, 1320 (1989) ; Halimi v. Blacketor, 105 Nev. 105, 106, 770 P.2d 531, 531–32 (1989) ; Harrison v. Falcon Products, 103 Nev. 558, 560, 746 P.2d 642, 042–43 (1987). However, Anderson's argument that the district court abused its discretion in denying his request because he was diligent in pursuing discovery is without merit.
Whether a party seeking an NRCP 56(f) continuance was diligent in seeking discovery is relevant only after the party has demonstrated that additional discovery was necessary to oppose the motion for summary judgment. Aviation Ventures, 121 Nev. at 118, 110 P.3d at 62 (). It is insufficient for a party seeking such a continuance to merely allege that additional discovery is necessary; instead, the party must identify what additional facts might be obtained that are necessary to oppose the motion for summary judgment. Bakerink v. Orthopaedic Assocsiates, Ltd., 94 Nev. 428, 431, 581 P.2d 9, 11 (1978).
In this case, Anderson's request for a continuance was not supported by an affidavit as required by NRCP 56(f). Anderson's opposition did not identify what additional discovery would enable him to oppose respondents' motion for summary judgment.3 The mere fact that additional discovery could be conducted does not preclude the granting of summary judgment.4 Rather, the district court has no authority to grant an NRCP 56(f) request if the party seeking such a continuance fails to identify what additional discovery is necessary to oppose the motion for summary judgment. Therefore, the district court's denial of NRCP 56(f) relief was not an abuse of discretion.
The district court properly granted summary judgment for respondents
Standard of review
We review orders granting summary judgment de novo. Yeager v. Harrah's Club, Inc., 111 Nev. 830, 833, 897 P.2d 1093, 1094 (1995). Summary judgment is only proper if no genuine issue of material fact exists and the moving party is entitled to judgment as a matter of law. NRCP 56(c) ; see Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005).
In order to establish a claim for negligence, a plaintiff must prove four elements: “(1) an existing duty of care, (2) breach, (3) legal causation, and (4) damages.” Turner v. Mandalay Sports Entm't, 124 Nev. 213, 217, 180 P.3d 1172, 1175 (2008). Furthermore, under the foreseeability doctrine, a construction contractor is liable for the injuries or damages to a third person caused by its negligence.5 Cosgriff Neon Co. v. Mattheus, 78 Nev. 281, 286–87, 371 P.2d 819, 822 (1962). Liability is predicated on the contractor acting negligently, subject to two exceptions: (1) if the contractor establishes that the plans, specifications, and directions given to the contractor have been carefully carried out and that those plans, specifications, and directions are not so obviously defective that a reasonable contractor would not follow them; or (2) the owner discovers the danger, or it is so obvious, that the owner's conduct is an intervening cause of the injury. Terry v. New Mexico State Highway Com'n, 98 N.M. 119, 645 P.2d 1375, 1379 (N.M.1982), abrogated on other grounds by Coleman v. United Engineers & Construct., 118 N.M. 47, 878 P.2d 996 (N.M.1994) ; see also Peters v. Forster, 804 N.E.2d 736, 742 (Ind.2004). Moreover, an owner's acceptance of the work is accompanied by the presumption that the owner made a reasonably careful inspection of the work and accepts any defects that were discoverable. Coleman v. City of Kansas City, Mo., 859 S.W.2d 141, 146 (Mo.Ct.App.1993).
We have recognized that “courts are reluctant to grant summary judgment in negligence cases because foreseeability, duty, proximate cause and reasonableness usually are questions of fact for the jury,” Lee v. GNLV Corp., 117 Nev. 291, 296, 22 P.3d 209, 212 (2001) (internal quotation omitted). However, summary judgment is nevertheless proper if the plaintiff could not recover as a matter of law. Id.
A person only incurs a duty of reasonable care when he or she acts or fails to act when he or she has a duty to act. Restatement (Second) of Torts § 284 (1965). In this case, it is uncontroverted that respondents did not design the median and were not responsible for doing so. Additionally, as other courts have explained:
An independent contractor owes no duty to third persons to judge the plans, specifications or instructions which he has merely contracted to follow. If the contractor carefully carries out the specifications provided him, he is justified in relying upon the adequacy of the specifications unless they are so obviously dangerous that no competent contractor would follow them.
Hunt v. Blasius, 74 Ill.2d 203, 23 Ill.Dec. 574, 384 N.E.2d 368, 371 (Ill.1978). Furthermore, it is undisputed that respondents had no duty to maintain the median after the work had been completed and accepted by the county. Rather, that responsibility resided solely with the county. Therefore, respondents did not owe Anderson a duty of care concerning the median's design or maintenance. Consequently, the district court properly granted summary judgment with respect to Anderson's design and maintenance claims.
The district court was also correct in granting summary judgment on the workmanship and materials claims, but for a different reason. In Cuzze v. University & Community College System of Nevada, 123 Nev. 598, 172 P.3d 131 (2007), we explained that we follow the federal approach with regard to burdens of proof and persuasion when considering a motion for summary judgment. Id. at 602, 172 P.3d at 134. The party moving for summary judgment has the burden of production to demonstrate the absence of a genuine issue of material fact. Id. If the moving party makes such a demonstration, the opposing party takes on a burden of production to demonstrate the existence of a genuine issue of material fact. Id. If the nonmoving party, such as Anderson, bears the burden of persuasion at trial, then the moving party may satisfy its burden by either (1) presenting evidence negating an essential element of the nonmoving party's claim or (2) pointing out the absence of evidence to support an element of the nonmoving party's claim. Id. at 602–03, 172 P.3d at 134. If the nonmoving party fails to make a showing sufficient to establish the existence of an element essential to its case on which it bears the burden of proof, entry of summary judgment is mandatory. Celotex Corp. v. Catrett, 477 U.S. 317, 322–23, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
In this instance, Anderson bears the burden of persuasion at trial, and thus, must present specific facts that show a genuine issue of material fact to defeat summary...
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