United States District Court, D. Nevada
MIRANDA M. DU UNITED STATES DISTRICT JUDGE
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.
following facts are taken from the complaint. (ECF No. 1.)
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.
time of the incident, Schindler provided preventative
maintenance to the elevators located at Harvey's premises
pursuant to an agreement with Harvey's.
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.)
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).
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.
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.
Common Carrier Negligence
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,  not a common carrier, and
therefore owed no heightened duty of care.
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).) 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