Rodriguez v. Primadonna Company

• Decision Date: 01 October 2009
• Docket Number: No. 49409.,49409.
• Citation: 216 P.3d 793
• Parties: Martin RODRIGUEZ, Individually and as Guardian ad Litem of Fabian Santiago, A Minor Child, Appellant/Cross-Respondent, v. The PRIMADONNA COMPANY, LLC, a Nevada Corporation, d/b/a Buffalo Bill's Resort and Casino, a/k/a Primm Valley Casino Resorts; and MGM Mirage, Respondents/Cross-Appellants.
• Court: Nevada Supreme Court

216 P.3d 793

Martin RODRIGUEZ, Individually and as Guardian ad Litem of Fabian Santiago, A Minor Child, Appellant/Cross-Respondent, v. The PRIMADONNA COMPANY, LLC, a Nevada Corporation, d/b/a Buffalo Bill's Resort and Casino, a/k/a Primm Valley Casino Resorts; and MGM Mirage, Respondents/Cross-Appellants.

No. 49409.

Supreme Court of Nevada.

October 1, 2009.

White, Meany & Wetherall, LLP, and Peter C. Wetherall, Las Vegas, for Appellant/Cross-Respondent.

Kravitz, Schnitzer, Sloane, Johnson & Eberhardy, Chtd., and Martin J. Kravitz, Regina M. McConnell, and Gina M. Mushmeche-Buras, Las Vegas, for Respondents/Cross-Appellants.

Before HARDESTY, C.J., PARRAGUIRRE and DOUGLAS, JJ.

OPINION

By the Court, HARDESTY, C.J.

Fabian Santiago, then 17 years old, and his two adult step-uncles Manuel and Daniel Garibay, were asked to leave a hotel property after an evening of drinking and disorderly behavior. Manuel drove the three from the hotel parking lot. Mistaking a frontage road for the freeway, Manuel rolled the vehicle while driving at approximately 80 miles per hour. Fabian suffered severe spinal injuries in the accident. His guardian brought suit in district court alleging that the hotel acted negligently when it evicted Fabian and his step-uncles from the property by allowing or directing Fabian to be a passenger in a motorized vehicle driven by an intoxicated driver.

In this appeal, we consider whether the district court properly entered summary judgment in favor of the respondent hotel corporations, dismissing appellant's negligence claim. Appellant's claim was grounded, in part, on allegations that respondents' security personnel acted unreasonably when they evicted an intoxicated minor patron, who was injured in a motor vehicle accident. We conclude that the eviction was reasonable as a matter of law. We further conclude that Nevada's rejection of dram-shop liability applies to a claim for damages made by an intoxicated patron that occur after the patron is reasonably evicted.

Second, in this appeal, we are asked to review whether the district court properly denied respondents' motion for attorney fees and costs, which was grounded on an assertion that appellant's negligence action was frivolous. According to respondents, the action was frivolous because it was barred by relevant legal authority. Because appellant's claims are based upon a nonfrivolous argument for the extension of the law defining negligent eviction, we conclude that the district court properly denied respondents' motion for attorney fees and costs.

Finally, we are asked to determine whether a cross-claimant can maintain an implied indemnity claim when the underlying liability action is dismissed through summary judgment without a finding of fault against the proposed indemnitor. Having considered persuasive authority from other jurisdictions, we conclude that a prerequisite to recovery on an implied indemnity claim is a finding that the third-party defendant is liable for damages to the plaintiff on the underlying claim. Implied indemnity cannot be used to allow one innocent party to recover its defense costs from another innocent party. Accordingly, the district court's dismissal of the third-party claim was ultimately proper because no right to implied indemnity exists for defense fees and costs when the district court has dismissed the underlying claim but has not determined the fault of the third-party defendant.

FACTS

On March 6, 2005, Marlene Garibay, her 17-year-old son, Fabian Santiago, and Fabian's adult step-uncles, Manuel and Daniel Garibay, checked into respondent/cross-appellant Primadonna Company, LLC's, hotel in Primm, Nevada. Fabian, Manuel, and Daniel spent the evening gambling and drinking alcoholic beverages on the Primadonna's premises. Daniel, who purchased the alcohol from the hotel's liquor store, shared it with Manuel and Fabian, who became intoxicated.

Fabian, Manuel, and Daniel admit engaging in disruptive behavior on Primadonna's premises. In particular, Fabian, Manuel, and Daniel were involved in at least two altercations with other hotel guests, and otherwise disturbed guests by kicking and knocking on hotel room doors. During one of the altercations, Manuel punched another hotel guest in the face. Primadonna's security personnel intervened and, at the security officers' request, Fabian, Manuel, and Daniel agreed to leave the hotel property.

Three hotel security officers accompanied Fabian, Manuel, and Daniel to their room to gather their belongings. While waiting outside of the hotel room door while the three men had gathered their belongings, a security officer overheard one of the men tell a woman inside of the room that they had been asked to leave the hotel for fighting. Manuel testified that he told the woman, Marlene Garibay, that the three men were going to sleep in the car in the parking lot. Manuel also testified that Marlene had expressed her concern with his level of intoxication. She then exited the hotel room and spoke with the hotel security officers, telling them that Fabian, Manuel, and Daniel could not leave, and that they would stay in the room and "sleep it off." Nevertheless, the hotel security officers escorted the three men to their vehicle, which was located in the hotel's parking lot.

According to Fabian, the three men were going to leave the hotel premises and "sleep it off" in the car. Similarly, the appellate record indicates that Manuel, who did not have a valid driver's license, did not intend to drive because he believed his blood-alcohol concentration level was higher than the legal limit. Once at their vehicle, however, Manuel told Daniel that he was sober enough to drive and sat in the driver's seat. After they were seated in the vehicle, hotel security officers approached, knocked on the window, and informed the young men that they had to leave Primadonna's parking lot.

Consequently, Manuel drove the vehicle out of the Primadonna's parking lot. Mistaking a frontage road for the freeway entrance, Manuel rolled the vehicle while driving at approximately 80 miles per hour. Fabian was seriously injured in the accident, suffering extreme spinal injuries, leaving him a quadriplegic.

PROCEDURAL HISTORY

Fabian's grandfather and guardian ad litem, appellant/cross-respondent Martin Rodriguez, filed a negligence action against Primadonna in both his individual capacity and on Fabian's behalf, seeking damages for Fabian's injuries, based on allegations that the Primadonna's staff acted unreasonably in evicting Fabian from the premises. During the underlying proceedings, Primadonna filed a third-party complaint against Marlene, Fabian's mother, for indemnity, alleging that Primadonna was entitled to indemnification and contribution of the fees and costs incurred to defend the action because Marlene knowingly permitted Fabian, her minor child, to ride with an intoxicated driver who did not have a valid driver's license.

After the close of discovery, Primadonna filed two summary judgment motions. In its first motion for summary judgment, Primadonna argued that it had a duty and a right to evict disruptive individuals from its premises. Primadonna also contended that even though Fabian was a minor and Manuel was intoxicated, it did not owe a duty to keep Fabian on the premises or to prevent Manuel from driving. Asserting that it did not require Fabian, Manuel, and Daniel to leave by driving their own car, Primadonna maintained that it was not liable for damages related to Fabian's injuries.

In opposition, Rodriguez argued, among other things, that the Primadonna was obligated to act reasonably when evicting Fabian, Manuel, and Daniel. And because the Primadonna directed or allowed Fabian into a vehicle with an intoxicated driver, Rodriguez argued that whether the hotel complied with this duty was a question of fact for the jury.

The district court granted the motion for summary judgment, finding that Primadonna had the right and duty to evict Fabian, Manuel, and Daniel from the hotel premises and that Primadonna used reasonable force in effectuating the eviction. Because the district court entered summary judgment on Rodriguez's negligent-eviction claim, it also dismissed as moot Primadonna's counterclaim for indemnity and contribution against Marlene. Therefore, no further claims remained for the district court's adjudication.

As the prevailing party, Primadonna filed a motion for attorney fees and costs against Rodriguez, arguing that Rodriguez had brought and maintained a frivolous action. In particular, according to Primadonna, Rodriguez instituted and pursued the underlying action despite the absence of a legal duty owed to Fabian and despite clear law negating dram-shop liability in Nevada. Further, Primadonna pointed out that Rodriguez did not attempt to sue all potentially liable parties, but sued only Primadonna, the "deep pocket" defendant.

Rodriguez opposed the motion, arguing that the action is not frivolous because there are multiple factual bases upon which to ground liability, and Primadonna erroneously classified the claim as one for dramshop liability. Ultimately, the district court denied the motion for attorney fees and costs, finding that the action was based on negligent eviction and not based on the dram-shop liability bar. The district court also found that no legal authority supported Primadonna's contention that the action was frivolous because Rodriguez chose to sue only Primadonna.

Primadonna filed a second motion for summary judgment on its third-party claim for indemnity for its defense fees and costs against Marlene. Primadonna argued that Marlene had an affirmative duty to protect her child from harm and that she breached that duty when she knowingly allowed him to leave the hotel premises with a drunk driver who did not have a valid driver's license. The district court denied Primadonna's motion, finding that any claim for indemnity...