Vanessa Racine v. Phw Las Vegas, LLC , 669 F. App'x 845 ( 2016 )

NOT FOR PUBLICATION FILED
UNITED STATES COURT OF APPEALS OCT 19 2016
MOLLY C. DWYER, CLERK
U.S. COURT OF APPEALS
FOR THE NINTH CIRCUIT
VANESSA RACINE, No. 14-16707
Plaintiff-Appellant, D.C. No.
2:10-cv-01651-LDG-VCF
v.
PHW LAS VEGAS, LLC, DBA Planet MEMORANDUM*
Hollywood Resort and Casino; PHW
MANAGER, LLC,
Defendants-Appellees.
Appeal from the United States District Court
for the District of Nevada
Lloyd D. George, District Judge, Presiding
Submitted October 17, 2016**
San Francisco, California
Before: HAWKINS, CALLAHAN, and HURWITZ, Circuit Judges.
In this diversity action, Vanessa Racine sued PHW Las Vegas, LLC and PHW
Manager, LLC (collectively, “Planet Hollywood”) for failing to prevent her from
*
This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
**
The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
being assaulted at the Las Vegas Planet Hollywood hotel. The district court granted
summary judgment for Planet Hollywood, and we affirm.
1. To establish negligence under Nevada law, Racine was required to offer
evidence that “[p]rior incidents of similar wrongful acts occurred on the premises”
or that Planet Hollywood “failed to exercise due care.” Nev. Rev. Stat. § 651.015(3).
The prior incidents she identified, however, either did not occur in the hotel towers
of the Planet Hollywood property or involved different levels of violence, and thus
were not sufficiently “similar” wrongful acts. See Estate of Smith ex rel. Smith v.
Mahoney’s Silver Nugget, Inc., 265 P.3d 688, 692–93 (Nev. 2011). Moreover,
Planet Hollywood’s failure to locate and apprehend the assailant within fifteen
minutes of learning of a previous assault on Planet Hollywood property was not a
failure to exercise due care. See id. at 691–92 (defining due care as “minimum
precautions”).
2. Nor did Racine present evidence that Planet Hollywood acted with gross
negligence, defined in Nevada as without “even a slight degree of care.” Hart v.
Kline, 116 P.2d 672, 674 (Nev. 1941). Planet Hollywood’s on-site security officers
timely responded to initial complaints about the assailant made earlier that night and
promptly contacted local police.
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3. Having failed to establish a right to compensatory damages, Racine was
not entitled to punitive damages. See Nev. Rev. Stat. § 42.005(1) (permitting
punitive damages “in addition to the compensatory damages”).
AFFIRMED.
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