Doud v. Las Vegas Hilton Corp.

• Decision Date: 29 November 1993
• Docket Number: No. 23513,23513
• Citation: 109 Nev. 1096,864 P.2d 796
• Parties: Darwin D. DOUD, Appellant, v. LAS VEGAS HILTON CORPORATION, a Nevada Corporation; Hilton Nevada Corporations, a Nevada Corporation; Hilton Hotels Corporation, a Delaware Corporation; William Barron Hilton, John T. Fitzgerald, and John V. Giovenco, all Doing Business as the Las Vegas Hilton Hotel and Casino, Las Vegas, Nevada, Respondents.
• Court: Nevada Supreme Court

Page 796

864 P.2d 796

109 Nev. 1096

Darwin D. DOUD, Appellant, v. LAS VEGAS HILTON CORPORATION, a Nevada Corporation; Hilton Nevada Corporations, a Nevada Corporation; Hilton Hotels Corporation, a Delaware Corporation; William Barron Hilton John T. Fitzgerald, and John V. Giovenco, all Doing Business as the Las Vegas Hilton Hotel and Casino, Las Vegas, Nevada Respondents.

No. 23513.

Supreme Court of Nevada.

Nov. 29, 1993.

[109 Nev. 1097] Joseph I. Cronin, Minden, for appellant.

Keefer, O'Reilly & Ferrario and Kevin E. Helm, Las Vegas, for respondents.

Carl M. Hebert, Reno, for amicus, Nevada Trial Lawyers Ass'n.

Robins, Kaplan, Miller & Ciresti and Corey L. Gordon, Minneapolis, MN, for amicus, American Trial Lawyers Ass'n.

OPINION

PER CURIAM:

Appellant Darwin Doud (Doud) was brutally attacked when he entered his motorhome which was parked in the Race and Sports Book parking lot of the Las Vegas Hilton Hotel and Casino (the Hilton). The attacker shot Doud in the head and chest after he burglarized his motorhome. Doud filed a complaint that alleged the Hilton was negligent in failing to provide sufficient security to avert the attack. After a querulous and protracted course of discovery, the district court granted the Hilton's motion for summary judgment on the grounds that the criminal assault on Doud was unforeseeable as a matter of law. We conclude that the district court erred in granting the Hilton's motion for summary judgment as there are genuine issues of material fact as to whether the Hilton's security was negligent and whether any such negligence was a proximate cause of Doud's injuries. Accordingly, we vacate the award of costs to the Hilton, and reverse and remand for a new trial on the merits.

FACTS

Doud was a regular patron of the Las Vegas Hilton Race and Sports Book (Sports Book). On the evening of February 6, 1988, at approximately 7:00 p.m., Doud left the casino to return to his motorhome, which was parked in the Race and Sports Book parking lot. After Doud entered his darkened motorhome, he was attacked by Monaghan, who had gained entry by smashing a window of the motorhome with a hammer. Monaghan beat Doud about the face and head, robbed him, and ultimately shot him in the head and chest. Monaghan fled the scene and was later apprehended by Las Vegas police officers while hiding in a nearby garbage dump. Monaghan is currently incarcerated for his crimes against Doud.

In April of 1988, Doud filed a complaint that alleged, inter alia, that the Hilton was negligent in failing to provide adequate security to prevent the attack and sought money damages for personal injuries suffered secondary to the assault and attempted murder. Hilton's answer denied all allegations and asserted various affirmative defenses. During an incredibly odious course of discovery, Doud filed four motions to strike Hilton's answer based upon alleged discovery abuse. The district court adopted the Discovery Commissioner's recommendations on each motion, and did not strike Hilton's answer, but rather awarded alternate sanctions.

During Doud's deposition, Doud stated that he had no reason to be concerned for his own safety when he approached his motorhome the evening of the attack as nothing looked suspicious or out of the ordinary to him. Hilton subsequently filed a motion for summary judgment based on Doud's testimony, arguing that the criminal assault on Doud was neither probable nor foreseeable as a matter of law, and that liability could not be imposed on Hilton for an unforeseeable criminal attack. On June 5, 1992, the district court entered summary judgment for the Hilton, the complaint was dismissed with prejudice, and Doud's motion to amend his complaint was denied. Doud's subsequent motion for rehearing and reconsideration of the granting of summary judgment was also denied. The district court also denied, in part, Doud's motion to retax and settle costs. This appeal followed.

DISCUSSION

Summary judgment is only appropriate when a review of the record viewed in a light most favorable to the nonmoving party reveals no triable issues of material fact and judgment is warranted as a matter of law. Butler v. Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 663 (1985); see NRCP 56(c). "In determining whether summary judgment is proper, the nonmoving party is entitled to have the evidence and all reasonable inferences accepted as true." Wiltsie v. Baby Grand Corp., 105 Nev. 291, 292, 774 P.2d 432, 433 (1989). On appeal, this court is "required to determine whether the trial court erred in concluding that an absence of genuine issues of material fact justified its granting of summary judgment." Bird v. Casa Royale West, 97 Nev. 67, 68, 624 P.2d 17, 18 (1981). This court's review of an order granting summary judgment is de novo. Tore, Ltd. v. Church, 105 Nev. 183, 185, 772 P.2d 1281, 1282 (1989).

Doud sued the Hilton on a negligent security theory. To prevail on a negligence theory, a plaintiff generally must show that: (1) the defendant owed a duty of care to the plaintiff; (2) the defendant breached that duty; (3) the breach was the legal cause of the plaintiff's injury; and (4) the plaintiff suffered damages. Perez v. Las Vegas Medical Center, 107 Nev. 1, 4, 805 P.2d 589, 590 (1991). In a negligence action, summary judgment should be considered with caution. See Sims v. General Telephone & Electric, 107 Nev. 516, 815 P.2d 151 (1991). In order to establish entitlement to judgment as a matter of law, a moving defendant must show that one of the elements of the plaintiff's prima facie case is "clearly lacking as a matter of law." Id. at 521, 815 P.2d at 154. Accordingly, the first inquiry is whether the Hilton owed any duty to Doud.

Duty

Doud contends that the past crimes committed on the Hilton premises and the location and character of the Hilton's business provides the requisite foreseeability to give rise to a duty. The Hilton maintains that the criminal attack by Monaghan upon Doud was so sudden and unforeseeable "that even Doud himself was completely unaware of the impending attack until its actual occurrence," and thus reasons no liability can be imposed on Hilton, as the attack on Doud was neither foreseeable nor preventable. ¹ Hilton argues that it had no notice that Monaghan was likely to attack Doud, no reason to anticipate the assault, and no reasonable way to prevent it. Hilton maintains that because the attack on Doud was not reasonably foreseeable, there was no duty owed.

In Nevada, a proprietor owes an invitee a duty to use reasonable care to keep the premises in a reasonably safe condition for use. Elko Enterprises v. Broyles, 105 Nev. 562, 565, 779 P.2d 961, 964 (1989); Early v. N.L.V. Casino Corp., 100 Nev. 200, 203, 678 P.2d 683, 684 (1984). However, "the proprietor's duty to protect an invited guest from injury caused by a third person is circumscribed by the reasonable foreseeability of the third person's actions and the injuries resulting from the condition or circumstances which facilitated the harm." Early, 100 Nev. at 203, 678 P.2d at 684. Nevada has approved the position of The Restatement (Second) of Torts which provides:

Since the possessor is not an insurer of the visitor's safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.

Restatement (Second) of Torts § 344 cmt. f (1977); see Early v. N.L.V. Casino Corp., 100 Nev. 200, 203, 678 P.2d 683, 684 (1984); see also Abbott v. United Venture Capital, Inc., 718 F.Supp. 828, 832-33 (D.Nev.1989); cf. Craigo v. Circus-Circus Enterprises, Inc., 106 Nev. 1, 786 P.2d 22 (1990). Thus, under Nevada law, a proprietor's duty to take affirmative action to reasonably attempt to prevent the wrongful acts of third persons arises only where there is reasonable cause to anticipate such acts and the probability of injury resulting therefrom. Morrison v. MGM Grand Hotel, 570 F.Supp. 1449, 1450 (D.C.Nev.1983); El Dorado Hotel v. Brown, 100 Nev. 622, 627, 691 P.2d 436, 440 (1984); Thomas v. Bokelman, 86 Nev. 10, 13, 462 P.2d 1020, 1022 (1970).

A review of case law that has considered the specific issue of proprietor liability for attacks on patrons occurring in parking lots reveals that courts have generally followed one of two rules with respect to determining the foreseeability of and hence, duty of a proprietor to protect against such attacks. The traditional rule provides that only proof of the occurrence of prior similar crimes on or in the immediate vicinity of the parking lot will establish sufficient foreseeability to create a duty in its proprietor to protect patrons against subsequent attacks. See, e.g., Henley v. Pizitz Realty Co., 456 So.2d 272 (Ala.1984); Rogers v. Jones, 56 Cal.App.3d 346, 128 Cal.Rptr. 404 (1976) (disapproved by Isaacs v. Huntington Memorial Hospital, 38 Cal.3d 112, 211 Cal.Rptr. 356, 695 P.2d 653 (1985)); Washington Rd. Properties, Inc. v. Stark, 178 Ga.App. 180, 342 S.E.2d 327 (1986) (prior robberies did not constitute notice of dangerous condition where no substantial similarity between prior crimes and robbery and rape of motel patron). The modern trend holds that foreseeability of a violent crime being perpetrated on a patron is not absolutely...