Rockwell v. Sun Harbor Budget Suites

• Decision Date: 22 October 1996
• Docket Number: No. 26467,26467
• Citation: 925 P.2d 1175,112 Nev. 1217
• Parties: , 132 Lab.Cas. P 58,179 Vernon E. ROCKWELL, Jr., Individually and Vernon E. Rockwell, Jr., as Guardian Ad Litem of Michael Andrew Rockwell, a Minor, and Vernon E. Rockwell, Jr., as Special Administrator of the Estate of Londa Gail Rockwell, Deceased, Appellant, v. SUN HARBOR BUDGET SUITES, a Nevada Corporation, Respondent.
• Court: Nevada Supreme Court

Page 1175

925 P.2d 1175

112 Nev. 1217, 132 Lab.Cas. P 58,179

Vernon E. ROCKWELL, Jr., Individually and Vernon E Rockwell, Jr., as Guardian Ad Litem of Michael Andrew Rockwell, a Minor, and Vernon E. Rockwell, Jr., as Special Administrator of the Estate of Londa Gail Rockwell Deceased, Appellant, v. SUN HARBOR BUDGET SUITES, a Nevada Corporation, Respondent.

No. 26467.

Supreme Court of Nevada.

Oct. 22, 1996.

Benson & Bertoldo, Chtd. and Ernest D. Roark, III, Las Vegas, for Appellant.

Rawlings, Olson & Cannon and Brian C. Whitaker, Las Vegas, for Respondent.

OPINION

ROSE, Justice:

Appellant Vernon Rockwell, his wife Londa, and their son Andrew lived in an apartment at respondent Sun Harbor Budget Suites (Sun Harbor). Londa was killed by Said Thamar, a Sun Harbor security guard, and Vernon and Andrew sued Sun Harbor on theories of respondeat superior, negligent hiring, training, and supervision, and breach of duty of care owed to the tenants. The district court dismissed all of the causes of action on summary judgment. We conclude that the district court's order granting respondent's motion for summary judgment was improper.

FACTS

Vernon, his wife Londa, and their son Andrew all lived in an apartment in Sun Harbor. While sitting by the swimming pool in mid-1992, Londa and Thamar met for the first time and allegedly began a sexual affair the next day. When Londa attempted to end the affair in January 1993, Thamar shot her eighteen times, killing her.

Thamar was hired by Bigelow Management (Bigelow) as a security guard and was provided to Sun Harbor in the same capacity. Elaine Olsen, the manager of Sun Harbor, claimed that because Bigelow hired and paid him, Thamar was a Bigelow employee. However, Thamar was provided with a free apartment at Sun Harbor as part of his compensation package, but it is unclear from the record whether the apartment was paid for by Bigelow or Sun Harbor. The issue of which entity was paying for Thamar's services and apartment was clouded by the fact that Robert Bigelow was the president and treasurer of Bigelow and was also the treasurer of Sun Harbor, and the address for service of process for both corporations was the same. This raised the inference that Sun Harbor and Bigelow were somehow linked, but no other evidence regarding this issue was presented.

Thamar had a history of aggressive behavior which allegedly resulted in his being terminated from other security jobs. Thamar worked at Jerry's Nugget as a security guard and was allegedly fired for insubordination when he got angry because his superior requested that he come to work clean shaven. Thamar also worked at Vegas World and was allegedly fired due to his aggressive and threatening demeanor. Additionally, on his job application with Bigelow, under the heading "military service," Thamar listed that he was in the "bomb unit" of the Moroccan Marine Corps from 1977 through 1981. ¹ Vernon claimed that a cursory check with the Moroccan embassy or local U.S. recruiter would confirm that the Moroccan military has no marine corps and no bomb unit; however, Vernon provided no evidence as to the truth of this assertion. Finally, Thamar was a convicted sex offender ² and under Nevada law was required to register with the police. On his employment application, Thamar stated that he had not been convicted of any crimes, and there is no indication of whether he registered with the police.

Thamar's aggressive behavior also extended to his relations with Vernon, and during the later stages of the extramarital affair with Londa, Thamar threatened Vernon on several occasions. On one occasion, Thamar flagged down Vernon's car in the parking lot, and according to Vernon, Thamar tried to Vernon made some efforts to inform Olsen, the Sun Harbor manager, of the situation between himself, Londa, and Thamar. On January 23, 1993, Vernon met with Olsen and told her that Thamar and his wife were having an affair and that he wanted Olsen to make Thamar stop pursuing the relationship. However, Vernon did not tell Olsen about the first threatening incident that occurred in the parking lot. Olsen stated that she would relate Vernon's concerns to Thamar, but the record does not indicate if she did so. Additionally, in response to this discussion, Olsen sent Greg Aliano, another Sun Harbor security guard, to Vernon's apartment to further discuss the situation and to gather more information. A second threatening incident occurred on January 26, 1993, when Londa, who had briefly moved into Thamar's apartment, was moving her things out of Thamar's apartment and back into Vernon's apartment after reconciling with Vernon. Thamar came downstairs from his apartment, pointed at Vernon with his finger, and threatened to shoot him. Vernon was a cab driver and was standing next to his cab and, fearing for his life, called the cab dispatcher to ask for help. The dispatcher called the police, who responded to the scene. Vernon informed the responding officer that Londa was attempting to move out of Thamar's apartment and that Thamar was exhibiting aggressive behavior, but he apparently did not inform the officer that Thamar had threatened him. The officer talked with Thamar, and Thamar assured him that everything was fine. The officer then informed the security guard on duty what had happened and told the guard to likewise inform the person in charge.

provoke him into violence so that Thamar could beat him or kill him. Vernon backed away from Thamar and retreated to his apartment.

On January 27, 1993, Vernon met with Olsen a second time and told her that he and his family were vacating the apartment and also told her again of the increasingly volatile situation between Thamar and himself. For the first time, he told her of Thamar's threats and of the police responding to Sun Harbor the night before. Vernon also stated that several of his wife's items still remained in Thamar's apartment, that he wished to retrieve them, and that he was going to have the police escort him when he retrieved the items in order to avert a violent situation. Olsen stated that the police were not required and that she would provide Sun Harbor security personnel to help Londa get the rest of her belongings.

On January 27, 1993, after his meeting with Olsen, Vernon began moving the family's belongings into storage in anticipation of moving into a new apartment complex. Vernon dropped Londa off at work and made several trips between the apartment and the storage facility. Vernon called Londa at work and informed her that they would be staying in a hotel for a few days. Londa indicated that she would be working all day and never stated that she was going to Thamar's apartment. Without Vernon's or Olsen's knowledge, Thamar picked Londa up from work around 1:00 p.m. and took her back to his apartment. At the apartment, Londa told Thamar that the affair was over and that she was returning to her husband, and Thamar became incensed. He got his gun and shot Londa eighteen times, stopping to reload several times.

Thamar then used his radio to call Sun Harbor security to tell them what had happened. Aliano was off duty at the time of the shooting and heard Thamar's call over his radio. He ascertained and went to Thamar's location, handcuffed Thamar, and called the police. Thamar was later convicted of second degree murder with the use of a deadly weapon.

Vernon and Andrew originally sued only Sun Harbor for the wrongful death of Londa but later amended the complaint to include Bigelow as a second defendant. ³ The causes of action against Sun Harbor for respondeat

superior, negligent hiring, training, and supervision, and breach of duty of care were all dismissed on summary judgment. The order granting summary judgment contained no findings of fact or conclusions of law.

DISCUSSION

Summary judgment is only appropriate when, after a review of the record viewed in a light most favorable to the non-moving party, there remain no issues of material fact, and the moving party is entitled to judgment as a matter of law. Butler v. Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 663 (1985). "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).

This court's review of a summary judgment order is de novo. Tore, Ltd. v. Church, 105 Nev. 183, 185, 772 P.2d 1281, 1282 (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).

A. Cause of action for respondeat superior.

"[R]espondeat superior liability attaches only when the employee is under the control of the employer and when the act is within the scope of employment." Molino v. Asher, 96 Nev. 814, 817, 618 P.2d 878, 879 (1980). Therefore, an actionable claim on a theory of respondeat superior requires proof that (1) the actor at issue was an employee, and (2) the action complained of occurred within the scope of the actor's employment.

1. Was Thamar an employee of Sun Harbor?

This court has stated that "[t]he employer can be vicariously responsible only for the acts of his employees not someone else, and one way of establishing the employment relationship is to determine when the 'employee' is under the control of the 'employer.' " National Convenience Stores v. Fantauzzi, 94 Nev. 655, 657, 584 P.2d 689, 691 (1978). "This element of control requires that the employer 'have control and direction not only of the employment to which the contract relates but also of all of its details and the method of performing the work....' " Kennel v. Carson City School District, 738 F.Supp. 376, 378 (D.Nev.1990) (quoting 53 Am.Jur.2d Master and Servant § 2 (1970)).

However, in...