Krainski v. State, Bd. of Regents ( 2015 )

 VEGAS POLICE DEPARTMENT;
LAURA TRAMPOSCH, INDIVIDUALLY
AND AS A POLICE OFFICER WITH
THE UNIVERSITY OF NEVADA, LAS
VEGAS POLICE DEPARTMENT; JON
CULVER, INDIVIDUALLY AND AS A
POLICE OFFICER WITH THE
UNIVERSITY OF NEVADA, LAS
VEGAS POLICE DEPARTMENT;
KENYA POLEE, INDIVIDUALLY;
JEFFREY J. GREEN, INDIVIDUALLY
AND AS A POLICE OFFICER WITH
THE UNIVERSITY OF NEVADA LAS
VEGAS POLICE DEPARTMENT;
RICHARD DOHME, INDIVIDUALLY
AND AS A POLICE OFFICER WITH
THE UNIVERSITY OF NEVADA, LAS
VEGAS POLICE DEPARTMENT,
Resoondents.
ORDER OF AFFIRMANCE
This is an appeal from a district court order granting
summary judgment in a tort action. Eighth Judicial District Court, Clark
County; Nancy L. Allf, Judge.
After being arrested on charges of assault with a deadly
weapon and being formally disciplined by the University of Nevada, Las
Vegas (UNLV), for lunging at her roommate with a pair of scissors,
appellant Megan Krainski filed suit against respondents UNLV, its
individual employees, and Kenya Polee—Krainski's former roommate at
the UNLV dorm. Krainski alleged the following: (1) breach of contract for
UNLV's breach of the express and implied contract pursuant to the UNLV
Student Conduct Code, the Nevada System of Higher Education Code, and
the UNLV Student Handbook; (2) negligence/negligent hiring, training,
and supervision by UNLV for hiring individuals likely to commit unlawful
SUPREME COURT
OF
NEVADA
2
(0) 1.947A
acts and for failing to properly train and supervise their employees; (3)
intentional infliction of emotional distress (TIED); (4) civil conspiracy by
respondents to fraudulently arrest Krainski, falsely charge her with a
crime, and baselessly punish her for student code violations; (5)
defamation, libel, and slander per se for making false oral and written
statements to third parties; (6) false arrest; (7) malicious prosecution; and
(8) civil rights violations.
After hearing both parties' summary judgment motions, the
district court granted summary judgment on most of the causes of action.
The court denied summary judgment of Krainski's causes of action for:
breach of contract; negligence; negligent hiring, training, and supervision;
TIED; and civil conspiracy. The court ordered that Krainski could not
proceed against the individual UNLV employees on• the basis of
discretionary immunity. On a subsequent motion for reconsideration, the
court ordered that UNLV was also entitled to discretionary immunity.
Accordingly, the court granted summary judgment to UNLV on Krainski's
causes of action for breach of contract; negligence; negligent hiring,
training, and supervision; and TIED. The parties subsequently entered
into a stipulation, which the district court adopted in its order for
dismissal with prejudice, that reserved the right for Krainski to appeal the
district court's resolution of her causes of action for: breach of contract;
negligence; negligent hiring, training, and supervision; TIED; malicious
prosecution; and false arrest. Krainski appealed the district court order
granting UNLV's summary judgment motion for probable cause; malicious
prosecution; breach of contract; negligence; negligent hiring, training, and
supervision; and TIED. Krainski also requested that this court grant an
SUPREME COURT
OF
NEVADA
3
(0) 1947A sem
adverse inference against UNLV due to the spoliation of material
evidence.' For the following reasons, we affirm.
Waiver of discretionary immunity argument on appeal
Until her reply brief, Krainski failed to challenge the district
court's order granting UNLV summary judgment due to discretionary
immunity on Krainski's causes of action for: breach of contract; negligence;
negligent hiring, training, and supervision; and IIED. 2 Because Krainski
failed to raise the district court's grant of immunity in her opening brief,
we will not upset the district court's immunity ruling. See Edelstein v.
Bank of N.Y. Mellon, 128 Nev_ Adv. Op. 48, 286 P.3d 249, 261 n.13 (2012).
Accordingly, we affirm the district court's grant of summary judgment. 3
Malicious prosecution
Krainski asserts that she suffered malicious prosecution
because the police lacked probable cause to arrest her owing to their
"Krainski claimed that UNLV failed to preserve the scissors that she
purportedly used to attack Polee, despite being on notice of her claims.
2Instead of arguing that UNLV was not entitled to discretionary
immunity, which was the basis of the district's court order granting
summary judgment to UNLV, Krainski solely argued that genuine issues
of material fact remained and that summary judgment was therefore
precluded.
3Although we decline to reach the merits of these issues, we note, for
clarity, that intentional torts and bad faith conduct are exempt from
statutory discretionary-function immunity. Franchise Tax Bd. of Cal. v.
Hyatt, 130 Nev. Adv. Op. 71, 335 P.3d 125, 135 (2014), petition for cert.
filed, U.S.L.W. , (U.S. Mar. 25, 2015) (No. 14-1175). A government
employee is not entitled to immunity under NRS 41.032 "for intentional
torts or bad-faith misconduct, as such misconduct, 'by definition, [cannot]
be within the actor's discretion." Id. (alteration in original) (quoting
Falline v. GNLV Corp., 107 Nev. 1004, 1009, 823 P.2d 888, 892 (1991)).
SUPREME COURT
OF
NEVADA
4
(0) 1947A e
failure to conduct a more thorough investigation prior to her arrest. The
lack of probable cause is essential to every malicious prosecution claim.
See LaMantia v. Redisi, 118 Nev. 27, 30, 38 P.3d 877, 879 (2002) (listing
the elements of a malicious prosecution claim). Where, as here, the facts
are undisputed, the existence of probable cause is a question of law.
Bonamy v. Zenoff, 77 Nev. 250, 252, 362 P.2d 445, 447 (1961). We have
held that "[p]robable cause to conduct a warrantless arrest exists when
police have reasonably trustworthy information of facts and circumstances
that are sufficient in themselves to warrant a person of reasonable caution
to believe that an offense has been or is being committed by the person to
be arrested." Doleman v. State, 107 Nev. 409, 413, 812 P.2d 1287, 1289
(1991); see NRS 289.350(1)(a) (stating that campus police are state peace
officers when exercising their power or authority on the university
campus). Further, probable cause to arrest may be based on a witness's
statement. Thomas v. Sheriff, Clark Cnty., 85 Nev. 551, 552-54, 459 P.2d
219, 220-21 (1969) (holding that witness's statement to police sufficient for
police to have probable cause for arrest).
Krainski's argument that police lacked probable cause to
arrest her is unpersuasive. See id. Polee's statement and demeanor and
the officer's determination that the scissors could have injured Polee were
sufficient to warrant "a person of reasonable caution to believe that an
offense . . . [was] committed by [Krainski]." See Doleman, 107 Nev. at 413,
812 P.2d at 1289. Therefore, we conclude that the evidence was sufficient
for the district court to determine that the police had probable cause to
arrest Krainski. Thus, because the record reflects that UNLV police had
probable cause to arrest Krainski, we conclude that summary judgment
was proper on Krainski's malicious prosecution claim.
SUPREME COURT
OF
NEVADA
5
10/ 1947A en>
Spoliation of material evidence
Despite the stipulation defining which causes of action
Krainski may raise on appeal, Krainski also raised the issue of spoliation
in her appeal. "[Mild stipulations are controlling and conclusive and
both trial and appellate courts are bound to enforce them." Lehrer
McGovern Bovis, Inc. v. Bullock Insulation, Inc., 124 Nev. 1102, 1118, 197
P.3d 1032, 1042 (2008) (internal quotation omitted). Further, parties'
stipulations concerning the issues that may be raised before an appellate
court are enforceable. See S.F. Baykeeper v. Cargill Salt Div., 481 F.3d
700, 709 (2007). Here, the parties entered into a stipulation, which the
district court adopted in its order for dismissal with prejudice, in which
the parties agreed that Krainski could only present certain issues on
appeal. The spoliation of material evidence was not included in that
stipulation and thus not preserved for this court's review. Therefore, we
conclude that Krainski's claim that UNLVs actions led to spoliation of
material evidence is precluded by the parties' settlement agreement and is
not properly before this court.
Accordingly, we
ORDER the judgment of the district court AFFIRMED.
-Az>ct-ot /4k J.
Douglas
J.
SUPREME COURT
OF
NEVADA
6
(0) 1947A Otto
cc: Hon. Nancy L. Allf, District Judge
Hon. Kenneth C. Cory, District Judge
Paul H. Schofield, Settlement Judge
The Bach Law Firm, LLC
University of Nevada, Las Vegas, Office of General Counsel
Gabroy Law Offices
Eighth District Court Clerk
SUPREME COURT
OF
NEVADA
7
10) 1947A •9110PD