Miller v. Republic Servs., Inc.

• Decision Date: 08 October 2009
• Docket Number: No. 53648.,53648.
• Citation: 281 P.3d 1201
• Parties: Jeffrey MILLER and Kristianna Miller, Husband and Wife, Appellants, v. REPUBLIC SERVICES, INC. and Anthony Griffin, Respondents.
• Court: Nevada Supreme Court

281 P.3d 1201

Jeffrey MILLER and Kristianna Miller, Husband and Wife, Appellants,

v.REPUBLIC SERVICES, INC. and Anthony Griffin, Respondents.

No. 53648.

Supreme Court of Nevada.

Oct. 8, 2009.

Simon Law Office

Floyd, Skeren & Kelly

ORDER OF AFFIRMANCE

This is an appeal from a district court order granting summary judgment in a tort action.¹ Eighth Judicial District Court, Clark County; Abbi Silver, Judge.

On appeal, appellants Jeffrey and Kristianna Miller argue that the district court erred in granting summary judgment because their complaint properly set forth claims for intentional torts.²

We review a district court order granting summary judgment de novo. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Having reviewed the parties' briefs and the record on appeal, we conclude that while Nevada law recognizes the possibility that an intentional tort committed against an employee by an employer may allow the employee to avoid the conclusion that the workers' compensation statutes are the exclusive remedy, see Barjesteh v. Faye's Pub, 106 Nev. 120, 787 P.2d 405 (1990), appellants' complaint fails to properly allege an intentional tort. Appellants allege that respondents committed an intentional tort by failing to correct a known potentially injurious condition, but such an allegation is insufficient to subject an employer to liability beyond that available via the workers' compensation statutes. See Conway v. Circus Circus Casinos, Inc., 116 Nev. 870, 874–75, 8 P.3d 837, 840–41 (2000) (explaining that, in order to avoid the workers' compensation law's exclusive remedy provision, an employee must plead a deliberate and specific intent to cause injury and therefore allegations of knowledge coupled with substantial certainty of injury are not enough). Accordingly, as respondents were entitled to judgment as a matter of law, see Wood, 121 Nev. at 729, 121 P.3d at 1029, we

ORDER the judgment of the district court AFFIRMED.³

1. Pursuant to NRAP 34(f), we have determined that oral argument is not necessary in this appeal.

2. As it appears that the district court considered matters outside of the pleadings in resolving respondents' combined motion to dismiss the complaint and motion for summary judgment, the district court's dismissal order will be reviewed as a summary judgment. NRCP 12(b)(5); Schneider v. Continental Assurance Co., 110 Nev. 1270, 1271, 885 P.2d 572, 573 (1994).

3. As we affirm the district court's decision based on appellants' failure to adequately plead intentional tort claims, we need not consider the issue regarding Jeffrey Miller's receipt of workers' compensation benefits. Additionally, nothing in the record before us indicates that appellants ever argued to the district court that they were entitled to discovery before entry of summary judgment under NRCP 56(f), thus we do not consider this argument. See Canyon Villas v. State, Tax...