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Deatherage v. Schindler Elevator Corp.

United States District Court, D. Nevada

July 24, 2017

JOHN DEATHERAGE, Plaintiff,
v.
SCHINDLER ELEVATOR CORPORATION, ABC CORPORATIONS, 1 - 10 and JOHN DOES 1 - 10, Defendants.

          ORDER

          MIRANDA M. DU UNITED STATES DISTRICT JUDGE

         I. SUMMARY

         This case arises from an incident where Plaintiff John Deatherage (“Deatherage”) suffered back injuries after an elevator allegedly descended several floors rapidly and then abruptly stopped. Before the Court is Defendant Schindler Elevator Corporation's (“Schindler”) Motion for Summary Judgment (“Motion”) (ECF No. 38). The Court has reviewed Plaintiff's response (ECF No. 39) and Defendant's reply (ECF No. 40). For the reasons discussed herein, Schindler's Motion is granted in part and denied in part. It is granted with respect to Deatherage's claim against Schindler for negligence as a common carrier and is denied in all other respects.

         II. BACKGROUND

         The following facts are taken from the complaint.[1] (ECF No. 1.)

         On July 19, 2014, while Deatherage and his nephew were riding in an elevator at Harvey's Lake Tahoe Resort and Casino (“Harvey's”), the elevator purportedly dropped rapidly before violently coming to a stop. As a result, Deatherage claims he sustained pre-impact terror, severe and permanent back injury, extreme pain to his groin and leg, as well as continuing physical pain and emotional distress including loss of enjoyment of life. Deatherage claims he then received multiple epidural injections, physical therapy, and eventually spinal fusion surgery, to treat his back pain.

         At the time of the incident, Schindler provided preventative maintenance to the elevators located at Harvey's premises pursuant to an agreement with Harvey's.

         Deatherage asserts three claims for relief against Schindler: (1) negligence for failure to exercise reasonable care so as to ensure the safety of Harvey's guests and other users of the elevators located at Harvey's; (2) negligence as a common carrier for failure to exercise the highest degree of care; and (3) res ipsa loquitur. Deatherage also alleges that Schindler acted with reckless disregard of human safety, “constituting malice under NRS [§] 42.005(1), ” which entitles him to an award of punitive damages. (ECF No. 1 at 4.)

         III. LEGAL STANDARD

         The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court. Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the pleadings, the discovery and disclosure materials on file, and any affidavits show “there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.” Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is “genuine” if there is a sufficient evidentiary basis on which a reasonable fact-finder could find for the nonmoving party and a dispute is “material” if it could affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). Where reasonable minds could differ on the material facts at issue, however, summary judgment is not appropriate. See id. at 250-51. “The amount of evidence necessary to raise a genuine issue of material fact is enough ‘to require a jury or judge to resolve the parties' differing versions of the truth at trial.'” Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat'l Bank v. Cities Service Co., 391 U.S. 253, 288-89 (1968)). In evaluating a summary judgment motion, a court views all facts and draws all inferences in the light most favorable to the nonmoving party. Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986).

         The moving party bears the burden of showing that there are no genuine issues of material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). “In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial.” Nissan Fire & Marine Ins. Co., Ltd v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). Once the moving party satisfies Rule 56's requirements, the burden shifts to the party resisting the motion to “set forth specific facts showing that there is a genuine issue for trial.” Anderson, 477 U.S. at 256. The nonmoving party “may not rely on denials in the pleadings but must produce specific evidence, through affidavits or admissible discovery material, to show that the dispute exists, ” Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and “must do more than simply show that there is some metaphysical doubt as to the material facts.” Orr v. Bank of Am., NT & SA, 285 F.3d 764, 783 (9th Cir. 2002) (internal citations omitted). “The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient.” Anderson, 477 U.S. at 252.

         IV. DISCUSSION

         Schindler argues that it is not a common carrier, Deatherage cannot establish negligence through the doctrine of res ipsa loquitur and because he has not demonstrated causation, and Deatherage cannot establish entitlement to punitive damages. The Court will address each argument in turn.

         A. Common Carrier Negligence

         Under Nevada law, a common carrier of passengers must “exercise the highest degree of care that human judgment and foresight are capable of to make his passenger's journey safe.” Forrester v. Southern Pac. Co., 134 P. 753, 774 (Nev. 1913). Here, Deatherage alleges that Schindler, in “inspecting, servicing and maintaining the elevators at [Harvey's], and in determining whether to warn guests and other users of the risks attendant to the use of the elevators, ” was a common carrier under Nevada law and, as such, was required to exercise the highest degree of care. (ECF No. 1 at 4-5.) The Court disagrees and finds that Schindler was acting merely as an independent contractor, [2] not a common carrier, and therefore owed no heightened duty of care.

         Schindler contends that Nevada law has held only an elevator owner to be a common carrier for purposes of tort liability. (See ECF No. 38 at 9.) In response, Deatherage asserts that Nevada law has found that the responsibility a defendant has over the maintenance and inspection of an elevator determines whether the defendant is considered a common carrier. (ECF No. 39 at 17-18 (citing Smith v. Odd Fellows Bldg. Ass'n, 206 P. 796 (Nev. 1922).)[3] However, this is a misstatement of law. While it is true that the Nevada Supreme Court has found an owner of a building that operates the elevators within its building to be a common carrier for purposes of tort liability, ...


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