Sparks v. the Alpha Tau Omega Fraternity Inc.

• Decision Date: 26 May 2011
• Docket Number: No. 50668.,50668.
• Parties: Roy SPARKS and Andrea Sparks, Husband and Wife; and Roy Sparks, III, by and through his Guardian Ad Litem, Roy Sparks, Appellants,v.The ALPHA TAU OMEGA FRATERNITY, INC., a Maryland Corporation; Alpha Tau Omega Eta Epsilon Chapter, UNLV, an Unidentified Entity; Doug Foley, its President; Alpha Tau Omega Delta Iota Chapter, UNR, an Unidentified Entity; Robert Rojas, its President; Alpha Tau Omega Nevada Southern Alumni Association; University of Nevada Alumni Association, Inc.; Julie Ardito, its President; and Southern Nevada Young Alumni Chapter, Respondents.
• Court: Nevada Supreme Court

255 P.3d 238

127 Nev. Adv. Op. 23

Roy SPARKS and Andrea Sparks, Husband and Wife; and Roy Sparks, III, by and through his Guardian Ad Litem, Roy Sparks, Appellants,

v.The ALPHA TAU OMEGA FRATERNITY, INC., a Maryland Corporation; Alpha Tau Omega Eta Epsilon Chapter, UNLV, an Unidentified Entity; Doug Foley, its President; Alpha Tau Omega Delta Iota Chapter, UNR, an Unidentified Entity; Robert Rojas, its President; Alpha Tau Omega Nevada Southern Alumni Association; University of Nevada Alumni Association, Inc.; Julie Ardito, its President; and Southern Nevada Young Alumni Chapter, Respondents.

No. 50668.

Supreme Court of Nevada.

May 26, 2011.

Sterling Law, LLC, and Beau Sterling and Richard Vilkin, Las Vegas; Simon Law Office and Daniel S. Simon, Las Vegas, for Appellants.Maupin, Cox & LeGoy and Michael E. Malloy and Carolyn K. Renner, Reno, for Respondents University of Nevada Alumni Association, Inc.; Julie Ardito; and Southern Nevada Young Alumni Chapter.Stephenson & Dickinson and Bruce Scott Dickinson and Michael E. Hottman, Las Vegas, for Respondents Alpha Tau Omega Fraternity, Inc.; Alpha Tau Omega Eta Epsilon Chapter, UNLV; Doug Foley; Alpha Tau Omega Delta Iota Chapter, UNR; Robert Rojas; and Alpha Tau Omega Nevada Southern Alumni Association.Before DOUGLAS, C.J., PICKERING and HARDESTY, JJ.

OPINION

By the Court, HARDESTY, J.:

Appellant Roy Sparks and Jeffrey Clack engaged in a fight during a college football tailgate event that resulted in an injury to Roy. Roy and his wife, appellant Andrea Sparks, filed suit against Clack and a number of other entities allegedly involved with the tailgate event, asserting several causes of action, including negligence and intentional torts. The Sparkses also named fictitious Doe and Roe defendants because they did not know the true identity of all of the potentially liable parties. Eventually, the Sparkses attempted to substitute the UNR Alumni Association, Inc., Julie Ardito, and the Southern Nevada Young Alumni Chapter (collectively, the Alumni respondents) in place of the fictitious Doe and Roe defendants. The district court dismissed claims against the Alumni respondents based on the statute of limitations and granted summary judgment in favor of the other entities. The Sparkses appealed.

In this appeal, we address three main issues: (1) whether the Sparkses exercised reasonable diligence under Nurenberger Hercules–Werke v. Virostek, 107 Nev. 873, 822 P.2d 1100 (1991), in ascertaining the identities of the Doe and Roe defendants, such that their amended complaint could relate back to the date that they filed the first complaint, pursuant to NRCP 10(a); (2) whether respondents Alpha Tau Omega Fraternity, Inc. (ATO National); Alpha Tau Omega Eta Epsilon Chapter (ATO–UNLV); Doug Foley, president of ATO–UNLV; Alpha Tau Omega Delta Iota Chapter, UNR (ATO–UNR); Robert Rojas, president of ATO–UNR; and Alpha Tau Omega Nevada Southern Alumni Association (ATO–NSAA) (collectively, the ATO respondents) owed a duty of care to the Sparkses, which is needed to proceed with their negligence claims; and (3) whether a factual dispute exists as to the ATO respondents' exercise of control over Clack or subsequent ratification of his actions sufficient to hold them liable for his intentional torts, if any. After explaining what constitutes reasonable diligence under the third element of the Nurenberger test, we conclude that the Sparkses did not exercise reasonable diligence in ascertaining the identities of the Doe and Roe defendants and, thus, the statute of limitations ran on their causes of action against the Alumni respondents. We further conclude that the ATO respondents owed no duty of care to the Sparkses and did not possess the ability to control Clack or ratify his actions sufficient to be held liable for Clack's intentional torts. Therefore, we affirm.

FACTS

In October 2002, prior to a football game between the University of Nevada, Reno (UNR) and the University of Nevada, Las Vegas (UNLV) in Las Vegas, the Sparkses and some of their friends had a birthday party for the Sparkses' son in a designated family tailgate area at Sam Boyd Stadium. Clack and a group of his friends attended a separate tailgate gathering across from the Sparkses, in a section reserved by respondents University of Nevada Alumni Association, Inc. (UNR Alumni Association), and the Southern Nevada Young Alumni Chapter (SNYAC). Also present at the tailgate gathering were members of ATO–UNR and ATO–UNLV.

After their son's birthday party, the Sparkses returned to their vehicle to put away gifts and the birthday cake. Clack and two other young men gathered near the Sparkses' car, and Andrea asked them to get off the car. Roy then repeated Andrea's request, after which an altercation ensued. At some point during the brief fracas, Clack bit off a piece of Roy's nose. Roy has since had two surgeries to repair the damage caused by the bite.

In February 2004, the Sparkses filed a complaint against Clack, UNLV Foundation, UNLV, Sam Boyd Silver Bowl, Sam Boyd Stadium, Greek Life at UNLV, Alpha Tau Omega Chapter, ATO–NSAA, and unnamed Doe and Roe corporation defendants. The Sparkses then amended their complaint to add ATO–UNLV and its president Doug Foley, ATO–UNR and its president Robert Rojas, and ATO National as defendants.

During the course of discovery, which lasted for over a year, the Sparkses learned that the UNR Alumni Association was the party responsible for the tailgate function, and that SNYAC was the party responsible for arranging pre-game transportation to the stadium for Clack and other attendees. In July 2006, over two years after filing their initial complaint, the Sparkses moved for and were granted leave to file a second amended complaint to substitute the UNR Alumni Association, its president, Julie Ardito, and SNYAC for unnamed Doe and Roe defendants, pursuant to NRCP 10(a).¹ Almost eight months after the motion was granted, the Sparkses filed their second amended complaint, which added claims against the three UNR Alumni respondents.

The Alumni respondents did not answer the complaint but instead filed a motion to dismiss or, in the alternative, for summary judgment. Among other arguments, the Alumni respondents asserted that the two-year statute of limitations had expired for the Sparkses' claims. Moreover, according to the Alumni respondents, the Sparkses had not satisfied the elements that must be met for an amended complaint to relate back to the filing date of the initial complaint set forth by this court in Nurenberger Hercules–Werke v. Virostek, 107 Nev. 873, 822 P.2d 1100 (1991).² Following a hearing, the district court granted the Alumni respondents' motion, granting summary judgment in favor of the UNR Alumni Association, Ardito, and SNYAC. The district court concluded that the Sparkses failed to satisfy the third Nurenberger requirement, which is “exercising reasonable diligence in ascertaining the true identity of the intended defendants and promptly moving to amend the complaint in order to substitute the actual for the fictional,” and that the statute of limitations had expired. Id. at 881, 822 P.2d at 1106.

The ATO respondents³ answered the complaint and later moved for summary judgment. The motion rested on four grounds: (1) “[n] either Mr. Sparks nor Mr. Clack were members of ATO or otherwise under the control of ATO at the time of the fight”; (2) the tailgate area was not subject to ATO's control; (3) “ATO did not direct, authorize or ratify the actions of Mr. Clack”; and (4) “[n]either Robert Rojas nor Doug Foley were the president of ATO–UNR or ATO–UNLV, respectively, at the time the fight occurred.”

The Sparkses opposed the motion on numerous grounds, including, among others, that because ATO–UNLV, ATO–UNR, ATO National, and ATO–NSAA failed to supervise their ATO members, they were responsible for their members' various actions; and “ATO–UNR and ATO–UNLV directed, authorized and ratified the actions of Mr. Clack.” The district court granted the ATO respondents' motion for summary judgment, finding that the Sparkses failed to show any genuine issues of material fact and, therefore, the ATO respondents were entitled to judgment as a matter of law. This appeal followed.

DISCUSSION

In this appeal, we must initially determine whether, prior to amending their complaint pursuant to NRCP 10(a), the Sparkses exercised reasonable diligence in ascertaining the identities of the Doe and Roe defendants. In doing so, we explain what constitutes reasonable diligence under the third element of the Nurenberger test and, based on that explanation, we conclude that the district court properly dismissed the Alumni respondents because the Sparkses did not exercise reasonable diligence in ascertaining the identity of the Doe and Roe defendants.

We then examine the duty of care, if any, the ATO respondents owed to protect the Sparkses from Clack and whether the ATO respondents exercised sufficient control over Clack or subsequently ratified his actions, making them liable for any intentional torts. We conclude that the ATO respondents did not owe a duty to protect the Sparkses and that they are not liable for Clack's intentional torts.

The district court did not err in granting summary judgment in favor of the Alumni respondents Standard of review

The alumni respondents filed a “motion to dismiss or in the alternative for summary judgment.” The district court granted this motion “in its entirety,” but did not specify which motion it granted. Where the court considers matters outside the pleadings, such as affidavits, we treat the motion as a motion for summary judgment. Stevens v. McGimsey, 99 Nev. 840, 841, 673 P.2d 499, 500 (1983); see also MacDonald v. Kassel, 97 Nev. 305, 307, 629 P.2d 1200, 1200 (1981). Here, the district court presumably considered the affidavit of Ardito, which the Alumni respondents attached to its motion. Therefore, the district court effectively...