Smith v. Coast Hotels & Casinos C/W 62589 ( 2014 )

 Asia Jeter, left the room and went to the casino floor. The parties dispute
whether Jeter possessed a room key when she left the room.
Upon arriving downstairs, Jeter met with Roderick Sawyer.
Jeter and Sawyer then returned to Smith's guest room, again passing The
Orleans' security staff at the key watch stand.' Sawyer entered Smith's
room and shot him. The Orleans maintains that Sawyer was Jeter's pimp
and that he orchestrated this "trick-roll," in which Jeter would gain access
to Smith's room and then accompany Sawyer back to Smith's room so that
Sawyer could rob him
As a result of his injuries sustained in the alleged "trick-roll,"
Smith filed a complaint against The Orleans, alleging (1) negligence; (2)
negligent hiring, training and/or supervision; (3) respondeat superior; and
(4) res ipsa loquitur. The Orleans filed a motion for summary judgment,
arguing that Sawyer's and Jeter's acts were not foreseeable because (1)
The Orleans took the basic minimum precautions to ensure the safety of
its patrons under NRS 651.015(3)(a); and (2) there were no prior similar
acts that would impart knowledge—and thus a duty—on The Orleans
under NRS 651.015(3)(b).
In his opposition to the motion for summary judgment, Smith
argued that while The Orleans implemented a key watch stand, it failed to
follow its own procedures because its security guard failed to prevent a
non-guest from entering the guest room tower without showing a key card.
1 Theparties dispute whether Jeter or Sawyer showed a key while
passing security at the key watch stand. However, this fact goes to the
issues of breach and causation in a negligence action, which are both
beyond the scope of our inquiry here.
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Smith's opposition cited deposition testimony from The Orleans' security
officers who stated that the key watch stand was created to "protect from
crimes," to "keep the riffraff out," and generally for the safety of the guests
in their hotel rooms. Smith also cited a security expert regarding general
industry practices. Smith argued that both the security videotape and his
expert would demonstrate that there was a breakdown in security at the
key watch stand based on general hotel security industry standards, and
The Orleans' own policies, procedures, and practices.
At oral argument, the district court deferred ruling on the
motion for summary judgment in order to review the videotape of Sawyer
and Jeter walking past the key watch stand. One week later, the court
granted The Orleans' motion for summary judgment. 2 The district court
concluded that (1) "no admissible evidence has been presented that
establishes that The Orleans had knowledge of prior similar intentional
criminal acts," (2) "The Orleans took basic minimum precautions to
prevent criminal conduct," and (3) the actions of Sawyer and the woman
did not "establish a breach of duty by the hotel." Smith now appeals. 3
Standard of review
"In a negligence action, summary judgment should be
considered with caution." Doud v. Las Vegas Hilton Corp., 109 Nev. 1096,
1100, 864 P.2d 796, 798 (1993), superseded by statute on other grounds as
stated in Estate of Smith v. Mahoney's Silver Nugget, Inc., 127 Nev. ,
2 Thedistrict court order does not include any findings of fact
regarding what the videotape actually showed.
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, 265 P.3d 688, 691 (2011). Summary judgment is appropriate when,
after viewing the evidence and any reasonable inferences drawn from the
evidence in the light most favorable to the nonmoving party, there is no
genuine issue of material fact and the moving party is entitled to
judgment as a matter of law. Wood v. Safeway, Inc., 121 Nev. 724, 729,
121 P.3d 1026, 1029 (2005). An issue of material fact is genuine when the
evidence is such that a rational jury could return a verdict in favor of the
nonmoving party. Id. at 731, 121 P.3d at 1031. "This court reviews a
district court's grant of summary judgment and its statutory construction
determinations de novo." Mahoney's Silver Nugget, 127 Nev. at , 265
P.3d at 690.
The district court erred in ruling that an alleged "trick-roll" was
unforeseeable as a matter of law
In an innkeeper negligence action, a plaintiff must establish
the four basic elements of negligence: "(1) duty, (2) breach, (3) proximate
causation, and (4) damages." Mahoney's Silver Nugget, 127 Nev. at ,
265 P.3d at 690. The duty element is at issue here. Under NRS
651.015(2), an innkeeper has a duty to protect patrons from foreseeable
wrongful acts. "The determination of foreseeability as it relates to an
innkeeper's duty of care to a patron must be made by the district court as
a matter of law." Mahoney's Silver Nugget, 127 Nev. at , 265 P.3d at
691. This determination is governed by NRS 651.015(3). Id.
NRS 651.015(3) provides that a wrongful act is not foreseeable
unless: (a) the owner failed to exercise due care; or (b) similar prior
incidents occurred on the premises and the owner had notice or knowledge
of those incidents. In analyzing the "due care" language in the first option,
this court has concluded that "due care" allows a judge to "look beyond the
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existence of similar wrongful acts in determining the existence of a duty,"
and evaluate "any other circumstances related to the exercise of due care."
Mahoney's Silver Nugget, 127 Nev. at , 265 P.3d at 692 (internal
quotations omitted). Thus, in order to survive summary judgment, Smith
was required to establish that the wrongful act was foreseeable under
either NRS 651.015(3)(a) or NRS 651.015(3)(b).
Here, the record supports the conclusion that The Orleans was
on notice that "trick-rolls" or other violent crimes could occur if non-guests
were allowed access to casino hotel room towers. While Mahoney's Silver
Nugget provides the appropriate legal structure for this court's analysis,
this case is factually distinguishable from Mahoney's Silver Nugget. In
Mahoney's Silver Nugget, a group of patrons arrived at a public lounge,
were spotted by security, and were asked to leave within five minutes of
their arrival. 127 Nev. at , 265 P.3d at 690. As the group was being
escorted out of the casino by security, one member of the group began
arguing with a patron who was sitting at a bar adjacent to the lounge. Id.
Over a period of approximately ten seconds, the two engaged in a physical
altercation, during which one man was fatally shot. Id. Based on those
facts, this court concluded that Mahoney's Silver Nugget did not owe a
duty to the victim as a matter of law. Id. at 693. However, unlike in
Mahoney's Silver Nugget, where the event occurred in a public area on the
casino-lounge floor, this event occurred in the guest room tower beyond
the security key checkpoint. The location of this alleged "trick-roll"—the
guest room tower—is an area of heightened security in which guests are
more vulnerable to certain crimes, such as robberies or sexual assaults,
making such an occurrence foreseeable.
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Here, the record demonstrates that the district court failed to
view the competing evidence in the light most favorable to Smith. First,
the very fact that The Orleans itself refers to this crime as a "trick-roll"
indicates that it was aware that such crimes may occur if non-guests are
allowed access to guest room towers. Additionally, The Orleans' security
staff acknowledged that it has a duty to keep non-guests from reaching the
hotel tower to "protect from crimes" and for the general safety of its
guests. As a result, we conclude that the district court erred in granting
summary judgment on the issue of duty.
We note that under NRS 651.015, the district court was only
tasked with determining whether such a crime was foreseeable, thereby
imposing a duty on The Orleans. In light of this limitation, the district
court's conclusions of law finding (1) that Jeter showed a room key card to
security, solely based on the deposition testimony of Donald Moore; and (2)
that "[am n alleged prostitute or the perpetrator . . . gaining entrance with
the use of a room card key does not establish a breach of duty by the hotel"
were error because the issues of breach, causation, and damages are
factual issues that should be left to the trier of fact. Additionally, there is
conflicting evidence in the record regarding whether Jeter possessed a
room key card when she initially left Smith's room and whether Jeter and
Sawyer showed a key card when returning to Smith's room. These are
disputed material issues that must be resolved by a trier of fact. As a
result, we conclude that the district court erred in making findings of fact
and conclusions of law that (1) are reserved for the trier of fact, and (2)
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that did not view the conflicting evidence in the light most favorable to
Smith. Accordingly, we 4
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for further proceedings
consistent with this order.
J.
Hardesty
Douglas
cc: Hon. Michael Villani, District Judge
Hon. J. Charles Thompson, District Judge
Carolyn Worrell, Settlement Judge
Hawkins Melendrez, P.C.
Thorndal Armstrong Delk Balkenbush & Eisinger/Las Vegas
Eighth District Court Clerk
4 Inlight of this disposition, we vacate the district court order
granting in part The Orleans' motion for attorney fees and costs. See
Miller v. Jones, 114 Nev. 1291, 1300, 970 P.2d 571, 577-78 (1998)
(vacating a district court award of attorney fees upon reversing the district
court order granting summary judgment). Additionally, we need not
address the parties' remaining arguments.
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