Scialabba v. Brandise Const. Co., Inc., 24632

• Court: Supreme Court of Nevada
• Citation: 112 Nev. 965,921 P.2d 928
• Docket Number: No. 24632,24632
• Parties: Penny R. SCIALABBA, Appellant, v. BRANDISE CONSTRUCTION COMPANY, INC., a Nevada Corporation, Respondent.
• Decision Date: 16 August 1996

Page 928

921 P.2d 928 112 Nev. 965 Penny R. SCIALABBA, Appellant,
v.
BRANDISE CONSTRUCTION COMPANY, INC., a Nevada Corporation, Respondent. No. 24632. Supreme Court of Nevada. Aug. 16, 1996.

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Joseph I. Cronin, Minden, for Appellant.

Corby D. Arnold, Las Vegas, for Respondent.

[112 Nev. 966] OPINION

SHEARING, Justice:

On December 9, 1988, appellant Penny R. Scialabba, was a resident of Summerhill Pointe Apartments in Las Vegas, Nevada. On that evening, Scialabba returned home from work following a short trip to the grocery store. Just after unlocking the door of her apartment, Scialabba was assaulted from the rear, stabbed in the back and then pushed into her apartment. Once in her apartment, Scialabba received multiple stab, slash, and defensive wounds. Scialabba is permanently disfigured as a result of the attack.

[112 Nev. 967] The assailant, Stanley Bernard Harris, also a resident of Summerhill Pointe Apartments at that time, had hidden in a vacant apartment across the hall from Scialabba's apartment in preparation for the attack. Harris gained access to the vacant apartment by simply opening the door, as it was unlocked. Harris was tried and convicted of attempted murder and is presently serving time in the Nevada State Prison.

At the time of the attack, the apartment building (one of 18 in a complex) was newly constructed and only a few of the units were occupied by tenants. By October 1988, the apartment building had been substantially completed with the exception of "punch list" items, including installing hardware, adjusting doors, and ensuring the functioning of the electrical outlets. On November 2, 1988, the Clark County Building Department approved the buildings for occupancy. Scialabba and Harris signed leases in mid-November, only one month prior to the attack.

Scialabba brought a negligence suit for money damages against the owner of Summerhill Pointe Apartments, the property management company, the security company, and respondent Brandise Construction Company ("BCC"). Scialabba settled her suit against the property owner and the property management company on the eve of trial. The district court granted summary judgment in favor of the security company, which this court affirmed. Thus, the only remaining action is against the construction company, respondent BCC.

Scialabba's negligence action against BCC is based upon its failure to lock the doors after working on "punch list" items in the vacant apartments. Just prior to trial, BCC filed its third motion for summary judgment. BCC asserted that it owed no contractual or other duty of care to Scialabba, citing a factually similar case, Doe v. Linder Const. Co., Inc., 845 S.W.2d 173 (Tenn.1992).

The district court granted BCC's motion for summary judgment, concluding that Harris's criminal act was not foreseeable. The district court analyzed foreseeability in the context of both duty and proximate cause. It relied heavily upon the rationale of the Linder case from the Tennessee Supreme Court to reach its decision.

On appeal, Scialabba contends that the district court erred in granting summary judgment, arguing that BCC retained control over the property and that the criminal attack was reasonably foreseeable and therefore,

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BCC owed a duty to Scialabba comparable to the property owner's duty. Scialabba further asserts that BCC breached its duty by failing to lock the doors to keep the premises secure and that the breach proximately caused her injuries.

[112 Nev. 968] BCC contends that summary judgment was proper because it owed no duty to Scialabba, legal or otherwise. BCC also asserts that Harris's tenancy did not create a reasonably foreseeable probability of harm. BCC argues that an unlocked door to a vacant apartment is not the proximate cause of Scialabba's injuries as a matter of law.

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); 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).

Scialabba sued BCC on a theory of negligence. To prevail on a negligence theory, a plaintiff must generally 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, 521, 815 P.2d 151, 154 (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 BCC owed any duty to Scialabba.

Whether a defendant owes a plaintiff a duty of care is a question of law. Dubus v. Dresser Industries, 649 P.2d 198, 202 (Wyo.1982). As a general rule, a private person does not have a duty to protect another from a criminal attack by a third person. Kline v. 1500 Massachusetts Ave. Apartment Corp., 439 F.2d 477 (D.C.Cir.1970). However, courts have imposed liability where a "special relationship" exists between the parties,...