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Humphries v. New York-New York Hotel & Casino

Supreme Court of Nevada

October 5, 2017

CAREY HUMPHRIES, AN INDIVIDUAL; AND LORENZA ROCHA, III, AN INDIVIDUAL, Appellants,
v.
NEW YORK-NEW YORK HOTEL & CASINO, A NEVADA LIMITED LIABILITY COMPANY, D/B/A NEW YORK-NEW YORK HOTEL & CASINO, Respondent.

         Appeal from a district court summary judgment in a negligence action. Eighth Judicial District Court, Clark County; Michael Villani, Judge. Reversed and remanded.

          Drummond Law Firm and Craig W, Drummond, Las Vegas; Hofland & Tomsheck and Joshua L. Tomsheck, Las Vegas, for Appellants.

          Kravitz, Schnitzer & Johnson, Chtd., and Martin J. Kravitz and Kristopher T. Zeppenfeld, Las Vegas, for Respondent.

          BEFORE PICKERING, HARDESTY and PARRAGUIRRE, J J.

          OPINION

          HARDESTY, J.

         Appellants seek to hold the respondent casino civilly liable for injuries they suffered during an altercation with another patron on the respondent's casino floor, NRS 651.015 precludes such liability unless the wrongful act that caused the injuries was foreseeable. The statute further provides that a wrongful act is not foreseeable unless the owner or innkeeper failed to exercise due care for the safety of the patron or other person on the premises or had notice or knowledge of prior incidents of similar wrongful acts on the premises.

         In this case, the district court granted summary judgment in favor of respondent, finding that the casino did not owe a duty to appellants pursuant to NRS 651.015 because the casino had no "notice or knowledge" the other patron would assault appellants. We do not view a foresee ability analysis under NRS 651.015 to be so restrictive. Foresee ability based on the failure to exercise due care does not depend solely on notice or knowledge that a specific wrongful act would occur, but instead is about "the basic minimum precautions that are reasonably expected of an [owner or] innkeeper." Estate of Smith v. Mahoney's Silver Nugget, Inc., 127 Nev. 855, 860, 265 P.3d 688, 691 (2011). And foreseeability based on notice or knowledge of "[p]rior incidents of similar wrongful acts, " NRS 651.015(3)(b), requires a case-by-case analysis of similar wrongful acts, including, without limitation, the level of violence, location of attack, and security concerns implicated. Because the district court failed to properly consider NRS 651.015(3)(b), and the record shows respondent's knowledge of prior similar on-premises wrongful acts, we reverse the district court's order granting summary judgment.

          FACTS AND PROCEDURAL HISTORY

         Appellants Carey Humphries and Lorenzo Rocha were walking through respondent New York-New York Hotel & Casino's (NYNY) casino floor at 3:50 a.m. Humphries exchanged pleasantries with a woman who was accompanying another casino patron, Erick Ferrell. Ferrell began conversing with Humphries and allegedly made a vulgar comment to her. Humphries responded and made a spitting motion towards Ferrell and then turned to walk away. Ferrell attacked Humphries, hitting and kicking her multiple times, and allegedly throwing her into a slot machine. Rocha, who was playing a slot machine when the attack began, attempted to intervene and was also hit by Ferrell.

         An NYNY security guard responded and immediately reported the altercation over his radio. The security guard then watched the attack for 12 to 15 seconds until backup arrived before intervening to break up the incident. The attack lasted a total of 17 seconds. As a result of the attack, Humphries suffered a skull fracture and some other minor injuries. Rocha received injuries to his face and head.

         NYNYs casino floor is approximately 85, 000 square feet. NYNY had not conducted a security audit to determine whether the number of guards staffed at any given time was sufficient to cover the casino floor. On the night in question, NYNY staffed five security guards on the casino floor. Two of those security guards could not freely respond to incidents because they were responsible for money drops. However, there were additional security personnel from other parts of the property that could respond to incidents on the casino floor if necessary. Also, two officers from the Las Vegas Metropolitan Police Department were on the premises.

          Humphries and Rocha filed a complaint against NYNY alleging that the casino was liable for the injuries they sustained. After significant discovery, the district court granted summary judgment in favor of NYNY, rinding that NYNY did not owe a duty of care. Humphries and Rocha appeal.

         DISCUSSION

         This court reviews district court summary judgment orders de novo. Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Summary judgment should only be granted when the pleadings and record establish that no genuine issue of material fact exists and "that the moving party is entitled to a judgment as a matter of law." Id. (internal quotation marks omitted). All evidence "must be viewed in a light most favorable to the nonmoving party." Id.

         NRS 651.015's duty of care

         A plaintiff must establish four elements to succeed in an innkeeper liability suit: "(1) duty, (2) breach, (3) proximate causation, and (4) damages." Estate of Smith v. Mahoney's Silver Nugget, Inc., 127 Nev. 855, 858, 265 P.3d 688, 690 (2011). NRS 651.015(2)(a) states that innkeepers owe a duty of care for on-premises injuries caused by third parties when "[t]he wrongful act which caused the death or injury was foreseeable." (Emphasis added.) "The court shall determine as a matter of law whether the wrongful act [referred to in NRS 651.015(2)(a)] was foreseeable . . . ." NRS 651.015(2). "If an injury is unforeseeable, then the innkeeper owes no duty, and the district court ...


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