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Racine v. PHW Las Vegas, LLC

United States District Court, D. Nevada

September 2, 2014

VANESSA RACINE, Plaintiff,
v.
PHW LAS VEGAS, LLC, and PHW MANAGER, LLC, Defendants

For Vanessa Racine, Plaintiff: Richard A Schonfeld, LEAD ATTORNEY, Chesnoff & Schonfeld, Las Vegas, NV.

For PHW Las Vegas, LLC, doing business as Planet Hollywood Resort and Casino, PHW Manager, LLC, Defendants: Jennifer W. Arledge, Virginia T. Tomova, LEAD ATTORNEYS, Wilson Elser Moskowitz Edelman & Dicker LLP, Las Vegas, NV; Dana L Howell, Jackson Lewis, Las Vegas, NV; Richard A Schonfeld, Chesnoff & Schonfeld, Las Vegas, NV.

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ORDER

Lloyd D. George, United States District Judge.

The plaintiff, Vanessa Racine, alleges that she was physically and sexually assaulted by an unidentified man while she was staying at the Planet Hollywood Resort and Casino (" Planet Hollywood" ). She brought the instant suit against the defendants, PHW Las Vegas, LLC, and PHW Manager, LLC, (" PHW" ) as the owners of Planet Hollywood. Racine brings her claim against PHW pursuant to Nevada Revised Statute 651.015, which establishes a duty for innkeepers to protect their patrons from foreseeable harms.

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Racine is additionally alleging that PHW was grossly negligent, and is seeking punitive damages. Both parties have moved for summary judgment regarding the element of duty under NRS 651.015 (#71 & #75). Racine additionally seeks summary judgment on all remaining elements of NRS 651.015. PHW additionally seeks summary judgment as to

Racine's gross negligence claim and her prayer for punitive damages. For the reasons stated below, the Court will deny Racine's motion, and grant PHW's motion.

Background

As suggested by the evidence in this case, the Planet Hollywood property includes a casino, a mall, a hotel with a lobby and rooms located in what the Court will refer to as the Casino Tower, and a hotel with a lobby and rooms located in what the Court will refer to as the Westgate Tower, and a parking garage. PHW employs a single security force for the property, but has separate dispatch offices for the Casino Tower and the Westgate Tower.

On June 20, 2010, shortly after 3 a.m., an unidentified man approached Keanna Alamsahebpour and placed his arm around her waist while she was walking in the mall area of Planet Hollywood (#70, ¶ 4). Alamsahebpour moved away from the man, entered the lobby of the Westgate Tower hotel, and described the man and the incident to someone she believed was a member of the hotel's security staff (#70, ¶ 5). The Court will refer to this as the Alamsahebpour incident.

Shortly thereafter, an unidentified man followed Susan Lee (who was staying in the same set of adjoining hotel rooms as Alamsahebpour) through the casino and mall. At about 3:40 a.m., Lee and the man got into a Westgate Tower elevator, and both exited the elevator on the 56th floor. The man followed Lee to her room. Lee told the man to leave after he inappropriately touched her, and then entered room 5620. About five minutes after Lee first entered the room, someone (who had not been invited into the room) grabbed Lee's buttocks from behind, and attempted to push her onto the bed. He subsequently fled from the room when Lee screamed (#70, ¶ 11, 14; #75, ¶ 31). The Court will refer to this as the Lee incident.

At about 3:46 a.m., the man who had accompanied Lee onto the elevator to the 56th floor got onto the elevator on the 56th floor, and took that elevator to the lobby. He then walked and ran through the lobby area.

At about 3:54 a.m., a call was placed from hotel room 5620 in the Westgate Tower to security in which the caller reported that she and another guest had been sexually assaulted, and requested the presence of a security officer in their hotel room.

At about 3:56 a.m., the man who had accompanied Lee onto the elevator to the 56th floor of the Westgate Tower accompanied another, unknown woman down the escalator going from the PHW casino area to the valet area, placing his hand on her back while riding the escalator. The two then sat down and remained in the valet area.

At about 3:58 a.m., Security Officer Scott Koss arrived at room 5620, and took statements from Lee and Alamsahebpour. Alamsahebpour reported that Lee had arrived at the room 10-15 minutes earlier, and had been followed by and inappropriately touched by a man. Alamsahebpour further reported that the same man [1] who

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assaulted Lee had followed and touched her in the mall. Lee then described her incident with the man to Officer Koss. At 4:20 a.m., Koss contacted the Las Vegas Metropolitan Police Department (LVMPD) ( #75, Exhibit E).

At about 4:03 a.m., the plaintiff, Vanessa Racine, arrived at Planet Hollywood by taxi. She wandered around the valet parking area for several minutes. Just prior to 4:10 a.m., Racine got onto an elevator in the Casino Tower. The same man who had accompanied Lee onto the elevator to the 56th floor of the Westgate Tower also got onto the elevator with Racine, placed his hand on her back, then her hair, and appeared to talk with Racine. The man exited the elevator with Racine. (#70, ¶ 19-20; #75, ¶ 33). At about 4:35 a.m., the man got onto the elevator in the Casino Tower on the floor of Racine's room, holding a bag. (#70, ¶ 25; #75, ¶ 31).

Racine did not awake until much later that day. She subsequently contacted hotel security and the LVMPD and reported that she had been sexually assaulted. A subsequent examination by the Sexual Assault Nurse Examiner showed the presence of semen on Racine, which semen that did not belong to her boyfriend. (#70, ¶ 32-34; #75, ¶ 35). Racine thereafter brought this action against PHW.

Standard of Review

In considering a motion for summary judgment, the court performs " the threshold inquiry of determining whether there is the need for a trial--whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); United States v. Arango, 670 F.3d 988, 992 (9th Cir. 2012). To succeed on a motion for summary judgment, the moving party must show (1) the lack of a genuine issue of any material fact, and (2) that the court may grant judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Arango, 670 F.3d at 992.

A material fact is one required to prove a basic element of a claim. Anderson, 477 U.S. at 248. The failure to show a fact essential to one element, however, " necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323. Additionally, " [t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient." United States v. $133,420.00 in U.S. Currency, 672 F.3d 629, 638 (9th Cir. 2012) (quoting Anderson, 477 U.S. at 252).

" [T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322. " Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of 'the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323.

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As such, when the non-moving party bears the initial burden of proving, at trial, the claim or defense that the motion for summary judgment places in issue, the moving party can meet its initial burden on summary judgment " by 'showing'--that is, pointing out to the district court--that there is an absence of evidence to support the nonmoving party's case." Id. at 325. Conversely, when the burden of proof at trial rests on the party moving for summary judgment, then in moving for summary judgment the party must establish each element of its case.

Once the moving party meets its initial burden on summary judgment, the non-moving party must submit facts showing a genuine issue of material fact. Fed.R.Civ.P. 56(e); Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1103 (9th Cir. 2000). As summary judgment allows a court " to isolate and dispose of factually unsupported claims or defenses," Celotex, 477 U.S. at 323-24, the court construes the evidence before it " in the light most favorable to the opposing party." Adickes v. S. H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The allegations or denials of a pleading, however, will not defeat a well-founded motion. Fed.R.Civ.P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). That is, the opposing party cannot " 'rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that 'sets forth specific facts showing that there is a genuine issue for trial.'" Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir. 2008) (quoting Fed. R. Civ. Pro. 56(e)).

Cross-Motions for Summary Judgment on Innkeeper Liability

To " succeed on a negligence claim for innkeeper liability," a plaintiff must establish four elements: " (1) duty, (2) breach, (3) proximate causation, and (4) damages." Smith v. Mahoney's Silver Nugget, Inc., 265 P.3d 688, 690 (2011) (citing Doud v. Las Vegas Hilton Corp., 109 Nev. 1096, 864 P.2d 796 (1993)). Both parties move for summary judgment as to the duty element. Racine argues that PHW is civilly liable for her injuries under Nevada Revised Statute 651.015, which states:

1. An owner or keeper of any hotel, inn, motel, motor court, boardinghouse or lodging house is not civilly liable for the death or injury of a patron or other person on the premises caused by another person who is not an employee under the control or supervision of the owner or keeper unless:
(a) The wrongful act which caused the death or injury was foreseeable; and
(b) There is a preponderance of evidence that the owner or keeper did not exercise due care for the safety of the patron or other person on the premises.
2. An owner or keeper of any hotel, inn, motel, motor court, boardinghouse or lodging house is civilly liable for the death or injury of a patron or other person on the premises caused by another person who is not an employee ...

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