CAREY HUMPHRIES, AN INDIVIDUAL; AND LORENZA ROCHA, III, AN INDIVIDUAL, Appellants,
NEW YORK-NEW YORK HOTEL & CASINO, A NEVADA LIMITED LIABILITY COMPANY, D/B/A NEW YORK-NEW YORK HOTEL & CASINO, Respondent.
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
Kravitz, Schnitzer & Johnson, Chtd., and Martin J.
Kravitz and Kristopher T. Zeppenfeld, Las Vegas, for
PICKERING, HARDESTY and PARRAGUIRRE, J J.
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
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
FACTS AND PROCEDURAL HISTORY
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
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.
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.
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
651.015's duty of care
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 ...