Wishengrad v. Mountain Springs Investors LLC ( 2013 )

 Wishengrad's claim on summary judgment. We affirm, however, the
portion of the district court's order dismissing Shelby as a party.
Standard of review
This court reviews a district court's grant of summary
judgment de novo. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d
1026, 1029 (2005). Looking at the evidence in a light most favorable to
the nonmoving party, this court affirms a grant of summary judgment
"when the pleadings and other evidence on file demonstrate that no
'genuine issue as to any material fact [remains] and that the moving
party is entitled to a judgment as a matter of law." Id. (alteration in
original) (quoting NRCP 56(c)).
Whether the lease's hold harmless provision precludes a gross negligence
cause of action
On appeal, Wishengrad argues that the district court erred in
concluding that no genuine issue of material fact remained regarding the
respondents' liability for the assault by third parties because the
hold-harmless provision of Wishengrad's lease is ambiguous and should
be read in her favor, thus preserving her premises liability cause of
action. Where no factual dispute exists, construction of a contract's
terms is a question of law, which this court reviews de novo. See Shelton
v. Shelton, 119 Nev. 492, 497, 78 P.3d 507, 510 (2003) (citing Grand Hotel
Gift Shop v. Granite State Ins., 108 Nev. 811, 815, 839 P.2d 599, 602
(1992)). "A contract is ambiguous if it is reasonably susceptible to more
than one interpretation." Id. (quoting Margrave v. Dermody Prop., Inc.,
110 Nev. 824, 827, 878 P.2d 291, 293 (1994)). An ambiguous contract is
construed against the drafter. Williams v. Waldman, 108 Nev. 466, 473,
836 P.2d 614, 619 (1992). Summary judgment is improper where
extrinsic evidence is required to discern the parties' intent in resolving an
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ambiguity. Mu //is v. Nev. Nat'l Bank, 98 Nev. 510, 512, 654 P.2d 533,
535-36 (1982). "An interpretation which results in a fair and reasonable
contract is preferable to one that results in a harsh and unreasonable
contract." Dickenson v. State, Dep't of Wildlife, 110 Nev. 934, 937, 877
P.2d 1059, 1061 (1994).
The lease provision in question provides:
18. HOLD HARMLESS: We will not be liable to
you for injury or damage to you in or about the
apartment except where such is due to our gross
negligence. You agree to assume all responsibility
for any damages done or injury incurred while
using any property amenities, including common
areas, parking areas and driveways, pools and
saunas, exercise equipment and outdoor
recreation areas. You agree that we will not be
liable for acts of others occurring on the property,
and we do not provide any security for you or your
guests or your personal property, either in the unit
or in the common and parking areas.
(Emphases added.)
As written, the gross negligence sentence appears to place a
limit to the waiver of the property owners' liability. The first sentence
does not indicate that the injury or damage to the lessee must be caused
directly by the complex owners, and the third-party language could
reasonably be considered to come under the type of damage or injury
indicated in the first sentence. That sentence does not specifically
exclude damage or injury by third parties, and the third-party language
occurs within the same paragraph, without any express indication that
the sentence is not covered by the gross-negligence limitation. Thus, we
conclude that the provision is ambiguous, and now address whether
Wishengrad's proffered interpretation is reasonable.
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Two principles militate in favor of interpreting the contract
provision in Wishengrad's favor. First, where a contract term is
ambiguous, the provision is "construed most strongly against the
authoring party." Mullis, 98 Nev. at 513, 654 P.2d at 535. The result of
applying that principle to the contract provision in the instant case
results in an interpretation in Wishengrad's favor.
The second principle is the preference for a fair and
reasonable contract over a harsh and unreasonable contract. Dickenson,
110 Nev. at 937, 877 P.2d at 1061. The result of interpreting the contract
in the respondents' favor is that a premises owner is protected from
liability where the intervening acts of third parties results in harm to
apartment residents, regardless of their culpability in creating the
circumstances that bring about the third parties' acts. While Wishengrad
has a difficult bar to cross in establishing a duty of care, much less
establishing a breach of that duty constituting gross negligence, one could
imagine countless additional ways in which the respondents' behavior
could lead to injury or damage to residents such that imposing a complete
bar to liability would neither be a fair nor reasonable construction of the
provision. 2 See, e.g., Restatement (Second) of Torts § 496B cmt. d (1965)
2 This court has defined gross negligence as follows:
Gross negligence is equivalent to the failure to
exercise even a slight degree of care. It is
materially more want of care than constitutes
simple inadvertence. It is an act or omission
respecting legal duty of an aggravated character
as distinguished from a mere failure to exercise
ordinary care. It is very great negligence, or the
absence of slight diligence, or the want of even
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4
("[G]eneral clauses exempting the defendant from all liability for
negligence will not be construed to include intentional or reckless
misconduct, or extreme and unusual kinds of negligence, unless such
intention clearly appears."). We conclude, therefore, that the hold-
harmless provision is ambiguous and interpret the provision in
Wishengrad's favor.
Wishengrad also argues that the district court erred by
dismissing Shelby as a party. We reject this argument, as Wishengrad
did not present sufficient evidence of Shelby's ownership sufficient to
overcome the motion for summary judgment. Wood, 121 Nev. at 729, 121
P.3d at 1029. 3 Accordingly, we
...continued
scant care. It amounts to indifference to present
legal duty, and to utter forgetfulness of legal
obligations so far as other persons may be
affected.
Bearden v. City of Boulder City, 89 Nev. 106, 109, 507 P.2d 1034, 1035-36
(1973) (quoting Hart v. Kline, 61 Nev. 96, 100, 116 P.2d 672, 674 (1941)
3 We also reject Wishengrad's argument that the district court judge
should be removed for bias, as Wishengrad has not submitted an affidavit
specifying the facts upon which the disqualification is sought. Lioce v.
Cohen, 124 Nev. 1, 25 n.44, 174 P.3d 970, 985 n.44 (2008). Even if the
bare allegations in Wishengrad's opening brief are construed as an
affidavit, Wishengrad does not allege any extrajudicial source of bias, only
listing the district court's alleged errors of law as evidence of bias.
Goldman v. Bryan, 104 Nev. 644, 651-52, 764 P.2d 1296, 1300 (1988),
abrogated on different grounds by Halverson v. Hardcastle, 123 Nev. 245,
163 P.3d 428 (2007).
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ORDER the judgment of the district court AFFIRMED IN
PART AND REVERSED IN PART AND REMAND this matter to the
district court for proceedings consistent with this order.
J.
Hardesty
Parraguirre
J.
cc: Hon. Valerie Adair, District Judge
Stephen E. Haberfeld, Settlement Judge
Prestige Law Group
Cisneros & Marias
Eighth District Court Clerk
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