Anderson v. Mandalay Corp.

f32_
131 Nev., Advance Opinion
IN THE SUPREME COURT OF THE STATE OF NEVADA
CRISTIE N. ANDERSON, No. 61305
INDIVIDUALLY; AND JAMAAR
ANDERSON,
Appellants,
vs.
FILED
MANDALAY CORPORATION, A 1 5 2015
NEVADA CORPORATION D/B/A TF24CIK. LINDEMAN
CLERKFJUPREME QOUET
MANDALAY BAY RESORT AND W
CASINO, CHIEF DEN I
Respondent.
CRISTIE N. ANDERSON, No. 61871
INDIVIDUALLY; AND JAMAAR
ANDERSON,
Appellants/Cross-Respondents,
vs.
MANDALAY CORPORATION, A
NEVADA CORPORATION D/B/A
MANDALAY BAY RESORT AND
CASINO,
Respondent/Cross-Appellant.
Consolidated appeals from a district court order granting
summary judgment, certified as final under NRCP 54(b), and an order
granting, in part, a motion for attorney fees, costs, and interest in a tort
action. Eighth Judicial District Court, Clark County; Valerie Adair,
Judge.
Reversed and remanded.
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David T. Wall, Las Vegas; Eglet Prince and Robert T. Eglet, Tracy A.
Eglet, and Danielle A. Tarmu, Las Vegas,
for Appellants/Cross-Respondents.
Kravitz, Schnitzer & Johnson, Chtd., and Martin J. Kravitz and Jordan P.
Schnitzer, Las Vegas,
for Respondent/Cross-Appellant.
BEFORE THE COURT EN BANC.'
OPINION
By the Court, PARRAGUIRRE, J.:
NRS 41.745(1)(c) makes employers vicariously liable for
employees' intentional torts if a plaintiff can show the intentional conduct
was "reasonably foreseeable under the facts and circumstances of the case
considering the nature and scope of [the employee's] employment." Here,
we are asked to determine whether it was reasonably foreseeable that an
employee would rape a hotel guest. We are also asked to determine
whether the employee's criminal conduct was so unforeseeable that direct
negligence claims against the employer would be futile. Based on the
particularized facts of this case, which are detailed below, we conclude a
reasonable jury could find that the employee's criminal conduct was
reasonably foreseeable. Similarly, we conclude direct negligence claims
against the employer would not be futile because a reasonable jury might
'The Honorable Kristina Pickering, Justice, voluntarily recused
herself from participation in the decision of this matter.
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find that the criminal conduct was foreseeable. Accordingly, we reverse
and remand.
FACTS
Cristie Anderson and her husband sued Mandalay Bay Resort
and Casino (Mandalay) after Alonzo Monroy Gonzalez, a Mandalay
employee, raped Anderson in her hotel room at Mandalay. Anderson and
her husband asserted claims against Mandalay for negligent hiring,
vicarious liability, and loss of consortium. During discovery, Anderson
asked for leave to amend her complaint to add claims for negligent
security, retention, and supervision. Mandalay sought summary
judgment, and at the summary judgment hearing, Anderson's counsel
abandoned all claims except the vicarious liability claim. The district
court granted Mandalay's motion for summary judgment, concluding
Mandalay was not vicariously liable for Gonzalez's criminal act. The
district court also denied, as futile, Anderson's motion to amend her
complaint. Anderson timely appealed those decisions. 2
Anderson came to Las Vegas on September 8, 2008, to attend
a trade show on behalf of her employer. She checked into room 8916 at
Mandalay. After performing some work-related duties, she and her
coworkers went out for dinner and drinks. Anderson became intoxicated
and returned to Mandalay around 2 a.m. on September 9, 2008.
Surveillance footage shows that she and Gonzalez shared an elevator; both
2Mandalay filed a notice of cross-appeal seeking attorney fees, costs,
and interest from Anderson. However, Mandalay never filed an opening
brief on cross-appeal, as required by NRAP 28.1(c)(2), and its answering
brief does not set forth its cross-appeal arguments. Therefore, Mandalay
has not actually presented this court with a cross-appeal.
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exited on the eighth floor. Anderson entered her room, shut the door
behind her, and went to sleep.
Later, Anderson woke up vomiting and felt someone wiping
her face with a washcloth. She realized a uniformed man, later identified
as Gonzalez, was in her room. Gonzalez raped Anderson. He immediately
left the room when Anderson oriented herself. Anderson called the front
desk, and Mandalay security interviewed Gonzalez after finding him on
the eighth floor. He admitted to entering room 8916 but claimed he only
entered to sweep up broken glass that was in the hallway and underneath
the room's door. Gonzalez later claimed to have had consensual sex with
Anderson. Las Vegas Metropolitan Police took over the investigation, and
Gonzalez ultimately pleaded guilty to sexual assault.
Gonzalez worked at Mandalay as a House Person, whose
principle job duties are to clean the common areas of the hotel and assist
in cleaning and serving guest rooms, as needed. A House Person working
Gonzalez's shift would have little supervision. Mandalay provided
Gonzalez with a keycard that was traceable to him and opened the guest
rooms on his assigned floors. On the night in question, floors 8-12 were
assigned to him. Gonzalez used that keycard to enter Anderson's room.
Before hiring Gonzalez, Mandalay performed a criminal
background check using a social security number he provided. That
number was connected to Gonzalez's name and indicated he had no
criminal record. Mandalay solicited Gonzalez's employment references
and filled out 1-9 documents reporting Gonzalez's eligibility to work;
however, it is not clear that Mandalay contacted those references and
properly updated information on Gonzalez's 1-9.
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Gonzalez's prior disciplinary history shows that Mandalay
suspended him for 31 days after he and two other men were implicated in
a series of insulting and threatening comments made over Mandalay's
employee radios. The allegations included using the radios to broadcast
the sound of toilets flushing, animal noises, and threats to a female
supervisor. The threats were "I know where you live Juanita," "I will be
waiting for you in the parking garage," and "You are a bitch Juanita and
you deserve what you are going to get." Although Mandalay never
definitively identified or ruled out Gonzalez as making any threats, it did
find that Gonzalez misused employee radios and lied about it.
During district court proceedings, Anderson presented
evidence of five prior sexual assaults perpetuated by Mandalay employees
on Mandalay's premises. The victims in three of the assaults were guests,
and two were other Mandalay employees. Additionally, evidence was
presented showing Mandalay received about one report a month claiming
an employee entered an occupied room without authorization. Anderson
submitted eight Las Vegas Metropolitan Police reports about Mandalay
employees stealing from guest rooms during unauthorized entries.
Anderson also presented in court comments from travel sites reporting
similar problems. Anderson also presented an expert report indicating
Mandalay had insufficient security when Gonzalez attacked Anderson,
and ongoing security defects created a volatile environment.
Ultimately, the district court granted Mandalay's motion for
summary judgment, concluding NRS 41.745(1) and WoodS v. Safeway, Inc.,
121 Nev. 724, 121 P.3d 1026 (2005), barred vicarious liability against
Mandalay because Gonzalez's acts were truly independent, not committed
in the course of the very task assigned, and not reasonably foreseeable.
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The district court also denied as futile Anderson's request for leave to
amend.
DISCUSSION
On appeal, Anderson argues the district court erred in
granting Mandalay's motion for summary judgment. Additionally,
Anderson argues the district court erred in denying her leave to amend
her complaint.
Mandalay was not entitled to summary judgment
This court reviews summary judgment rulings de novo. Wood
v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Summary
judgment is appropriate when the record shows there is no genuine issue
of material fact remaining, and the movant is entitled to judgment as a
matter of law. Id. (citing NRCP 56(c)). Therefore, summary judgment is
improper whenever "a reasonable jury could return a verdict for the non-
moving party." Sprague v. Lucky Stores, Inc., 109 Nev. 247, 249, 849 P.2d
320, 322 (1993). When reviewing the record, "the evidence, and any
reasonable inferences drawn from it, must be viewed in a light most
favorable to the nonmoving party." Wood, 121 Nev. at 729, 121 P.3d at
1029.
IVRS 41.745(1)(c) sets forth a factual inquiry
NRS 41.745 makes employers vicariously liable for employees'
intentional torts when—among other circumstances—an employee's act is
"reasonably foreseeable under the facts and circumstances of the case
considering the nature and scope of his or her employment." NRS
41.745(1)(c). Inquiries focused on the facts and circumstances of a case are
typically factual, not legal. See, e.g., Mayfield v. Koroghli, 124 Nev. 343,
352, 184 P.3d 362, 368 (2008); Basile v. Union Plaza Hotel & Casino, 110
Nev. 1382, 1384, 887 P.2d 273, 275 (1994); see also 65 C.J.S. Negligence § 8
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(2010) (stating that the question of negligence is "determined by a
consideration of all the particular set of facts and circumstances").
Further, the Legislature clarified NRS 41.745(1)(c)'s
reasonable foreseeability standard, stating the "conduct of an employee is
reasonably foreseeable if a person of ordinary intelligence and prudence
could have reasonably anticipated the conduct and the probability of
injury." NRS 41.745(1)(c). This definition of reasonable foreseeability
stems from premises liability cases, Hearing on A.B. 595 Before the
Assembly Judiciary Comm., 69th Leg. 13-14 (Nev., June 19, 1997) (citing
El Dorado Hotel, Inc. v. Brown, 100 Nev. 622, 627, 691 P.2d 436, 440
(1984), overruled on other grounds by Vinci v. Las Vegas Sands, Inc., 115
Nev. 243, 245, 984 P.2d 750, 751 (1999)), and this court has held its
determination presents an issue of fact, Basile, 110 Nev. . at 1384, 887 P.2d
at 275. Therefore, we conclude NRS 41.745(1)(c)'s reasonable
foreseeability standard sets forth a factual inquiry. 3
3 NRS 41.745's legislative history clearly supports this conclusion.
The Legislature intended for NRS 41.745(1)(c) to reject this court's
conclusion that employers would be liable for the intentional torts of
employees when, "in the context of the particular enterprise Li an
employee's conduct is not so unusual or startling that it would seem unfair
to include the loss resulting from it among other costs of the employer's
business." State, Dep't of Human Res., Div. of Mental Hygiene & Mental
Retardation v. Jimenez, 113 Nev. 356, 365, 935 P.2d 274, 280 (1997)
(emphasis omitted) (quoting Rogers v. Kemper Constr, Co., 124 Cal. Rptr.
143, 148-49 (Ct. App. 1975)), opinion withdrawn, 113 Nev. 735, 941 P.2d
969 (1997); see Nev. Legis. Counsel Bureau, Research Div., AB595.EN, Bill
Summary: A.B. 595 1 (1997); Hearing on A.B. 595 Before the Assembly
Judiciary Comm., 69th Leg. 8-9, 14-15 (Nev., June 19, 1997). The bills
proponents read Jimenez as making employers strictly liable for
employees' intentional torts, and they believed NRS 41.745(1)(c)'s
reasonable foreseeability standard would allow employers to submit the
continued on next page . . .
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A reasonable jury could conclude Gonzalez's act was reasonably
foreseeable
Because NRS 41.745(1)(c) presents a factual inquiry, summary
judgment is only proper if a reasonable jury could not rule in Anderson's
favor. Sprague, 109 Nev. at 249, 849 P.2d at 322. More specifically, we
must determine whether a reasonable jury could conclude Gonzalez's
conduct was "reasonably foreseeable under the facts and circumstances of
the case considering the nature and scope of [Gonzalez's] employment."
NRS 41.745(1)(c). We conclude a reasonable jury could find that
Gonzalez's conduct was reasonably foreseeable; therefore the district court
erred in granting Mandalay's motion for summary judgment. See Wood,
121 Nev. at 729, 121 P.3d at 1029 (this court reviews summary judgment
rulings de novo).
This court has considered reasonable foreseeability under NRS
41.745(1)(c) in only one published case. See id. at 739-40, 121 P.3d at
1036-37. In Wood, a janitor employed with a cleaning company raped a
Safeway employee at the Safeway store where they both worked. Id. at
727-28, 121 P.3d at 1028-29. There, the janitor had no criminal history;
the employer required proof of identification, checked employment
references, and filled out the proper immigration documents; and the
employer had no sexual harassment complaints over the last ten years.
Id. at 740, 121 P.3d at 1037. This court held, as a matter of law, that the
janitor's attack was not reasonably foreseeable, and the victim could not
. . . continued
issue of vicarious liability to a jury. See Hearing on A.B. 595 Before the
Assembly Judiciary Comm., 69th Leg. 9-10 (Nev., June 19, 1997).
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hold the janitor's employer vicariously liable for his intentional acts under
NRS 41.745(1)(c). Id.
According to Mandalay, Wood demonstrates that Gonzalez's
criminal conduct was unforeseeable. We disagree. After viewing the
evidence and drawing all reasonable inferences in Anderson's favor, Wood,
121 Nev. at 729, 121 P.3d at 1029, we conclude the facts and
circumstances here are sufficiently distinguishable from Wood for a
reasonable jury to determine that Gonzalez's act was reasonably
foreseeable under NRS 41.745(1)(c). The janitor in Wood was never the
subject of a sexual harassment complaint, and his employer had not had a
complaint of that nature in the past ten years. See id. at 740, 121 P.3d at
1037. Here, however, at least five Mandalay employees had sexually
assaulted guests and coworkers before Gonzalez attacked Anderson.
Additionally, Mandalay knew employees entrusted with keyed access to
occupied rooms abused that access to commit property crimes. Therefore,
Mandalay had notice its employees were capable of sexual assault, and
some employees abused their keycard access to enter guest rooms without
authorization. Moreover, Mandalay suspended Gonzalez for 31 days in
response to allegations that he harassed and threatened a female
supervisor. After Gonzalez's suspension ended, Mandalay restored his
keycard access to occupied rooms and assigned him to a shift with minimal
supervision. Considering the prior on-premises attacks, employees'
regular keycard abuse, Gonzalez's disciplinary history, and Mandalay's
decision to provide Gonzalez keyed access to guest rooms with minimal
supervision, a reasonable jury could conclude it was foreseeable that
Gonzalez would abuse his keycard access to sexually assault a Mandalay
guest.
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Mandalay contends that no other state would hold it
vicariously liable for Gonzalez's act because that act could not have fallen
within the scope of his employment. This argument lacks merit for two
reasons. First, this argument mischaracterizes the relevant inquiry.
Generally, an employer is only liable for the intentional torts committed
within the scope of employment. See 27 Am. Jur. 2d Employment
Relationship § 356; Restatement (Second) of Agency § 219(1) (2010).
Reasonable foreseeability is often one of several considerations courts use
to determine whether an intentional tort was within the scope of
employment. See Restatement (Second) of Agency §§ 228(1)(d), 229(2)(f)
(201W; see also State, Dep't of Admin. v. Schallock, 941 P.2d 1275, 1282-84
(Ariz. 1997); Sage Club v. Hunt, 638 P.2d 161, 162-63 (Wyo. 1981).
Conversely, NRS 41.745(1) does not contain an overarching "scope of
employment" inquiry. Instead, NRS 41.745(1) promulgates three distinct
circumstances in which an employer is liable for an employee's intentional
tort: (1) the employee's act was not "a truly independent venture," (2) the
employee acted "in the course of the very task assigned," or (3) the
employee's act was "reasonably foreseeable under the facts and
circumstances of the case considering the nature and scope of his or her
employment." Therefore, Nevada will hold an employer vicariously liable
for an employee's intentional tort—even though it was outside the scope of
employment—if that intentional tort was "reasonably foreseeable under
the facts and circumstances of the case considering the nature and scope of
his or her employment." NRS 41.745(1)(c).
Second, other jurisdictions have concluded that sexual assault
can be reasonably foreseeable, either as part of a vicarious liability inquiry
or a direct negligence inquiry. For example, the Arizona Supreme Court
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concluded a jury might properly find it was reasonably foreseeable that
one employee would rape another because the accused had a history of
sexually harassing female coworkers. Schallock, 941 P.2d at 1282-83
("One can hardly be surprised when sexual harassment that has occurred
for years continues."). North Dakota's Supreme Court similarly concluded
a jury could find it was reasonably foreseeable that a social worker would
sexually abuse a minor in foster care because such abuse was not
uncommon Nelson v. Gillette, 571 N.W.2d 332, 341-42 (N.D. 1997). New
Mexico's Court of Appeals concluded a jury might find a sexual assault
was reasonably foreseeable in a negligence action simply because the
employer knew the employee abused alcohol and became violent when
drinking. Pittard v. Four Seasons Motor Inn, Inc., 688 P.2d 333, 341 (N.M.
Ct. App. 1984). Thus, sexual assault is not unforeseeable, per se, and
Nevada is not alone in allowing juries to determine whether the facts and
circumstances of a case show that an employee's tortious conduct was
reasonably foreseeable. Considering the facts and circumstances here, a
reasonable jury could conclude Gonzalez's act was reasonably foreseeable.
The district court erred in concluding it would be futile for Anderson to
amend her complaint
The district court denied as futile Anderson's motion for leave
to amend her complaint because it believed Anderson's claims for
negligent security, retention, and supervision could not succeed. We
disagree. Although we generally review a district court's decision on a
motion for leave to amend for abuse of discretion, Whealon v. Sterling, 121
Nev. 662, 665, 119 P.3d 1241, 1244 (2005), futility is a question of law
reviewed de novo because it is essentially an NRCP 12(b)(5) inquiry,
asking whether the plaintiff could plead facts that would entitle her to
relief See Buzz Stew, LLC v. City of N. Las Vegas, 124 Nev. 224, 227-28,
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181 P.3d 670, 672 (2008); see also Sanford v. Member Works, Inc., 625 F.3d
550, 557 (9th Cir. 2010) ("Where, as here, the district court denies leave to
amend on futility grounds, we will uphold such denial if it is clear, upon de
nova review, that the complaint would not be saved by any amendment."
(internal quotation marks omitted)).
Because we hold that a reasonable jury could conclude
Gonzalez's attack was foreseeable, Anderson's proposed amendments are
not futile. Although unlawful conduct can interrupt and supersede the
causation between a negligent act and injury, an unlawful act will not
supersede causation if it was foreseeable. Bower v. Harrah's Laughlin,
Inc., 125 Nev. 470, 491-92, 215 P.3d 709, 724-25 (2009). Here, we have
already concluded a reasonable jury could find that Gonzalez's act was
reasonably foreseeable; therefore, amendment would not be futile.
Additionally, the district court erroneously relied on NRS
651.015 in concluding that Anderson's negligent security claim was futile.
That statute, titled "Civil liability of innkeepers for death or injury of
person on premises caused by person who is not employee," expressly
applies only when the injury is caused by a "person who is not an
employee under the control or supervision of the owner or keeper." NRS
651.015(1), (2) (emphasis added). Because Gonzalez was Mandalay's
employee, the district court erred in relying on NRS 651.015 at all.
CONCLUSION
We conclude that NRS 41.745(1)(c) sets forth a factual inquiry,
and a reasonable jury could find that Gonzalez's conduct was "reasonably
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foreseeable under the facts and circumstances of the case considering the
nature and scope of his employment." NRS 41.745(1)(c). Therefore,
the district court erred in granting Mandalay's motion for summary
judgment. The district court also erred in holding that it would be futile
for Anderson to amend her complaint to include claims for negligent
security, retention, and supervision because Gonzalez's criminal conduct
may not have been a superseding cause, and NRS 651.015 does not apply
here. Accordingly, we reverse the district court's order granting
Mandalay's motion for summary judgment and denying Anderson's motion
for leave to amend, and we remand this matter to the district court for
further proceedings.
Parraguirre
We concur:
C.J.
Hardesty
Gibbons
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