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Wesco Insurance Co. v. Smart Industries Corp.

United States District Court, D. Nevada

July 17, 2018

WESCO INSURANCE COMPANY, Plaintiff(s),
v.
SMART INDUSTRIES CORPORATION, Defendant(s).

          ORDER

         Presently before the court is a motion for summary judgment filed by defendants Hi-Tech Security, Inc. (“Hi-Tech”) and William Roseberry (“Roseberry”). (ECF No. 37). Plaintiffs, the heirs and estate of decedent Charles Wyman (“Mr. Wyman”), filed a response (ECF No. 46), to which defendants replied. (ECF No. 48).

         Also before the court is defendant Smart Industries Corporation's (“Smart Industries”) motion for summary judgment. (ECF No. 38). The heirs and estate of Mr. Wyman filed a response (ECF No. 44), to which Smart Industries replied. (ECF No. 50).

         I. Facts

         The instant action involves a wrongful death and survival claim filed against the defendants after an allegedly defective arcade machine induced Mr. Wyman's death on October 4, 2015. (ECF No. 18-A at 5).

         Five days prior to his death, Mr. Wyman, acting in his role as a route manager employed by Nickels and Dimes Incorporated (“Nickels and Dimes”), inspected an arcade vending machine at the Boulevard Mall in Las Vegas, Nevada. (ECF No. 1 at 3). The scope of Mr. Wyman's employment frequently necessitated the servicing of similar machines and the removal of coins from these machines. Id. at 2.

         Smart Industries manufactured, distributed, and/or sold the vending machine named the “Clean Sweep 69 Dual 7th Generation, ” a “claw” arcade game wherein the user pays coins in an attempt to obtain a prize. Id. at 3. A reversal of the green wire grounding conductor and the hot black ungrounded wire inside the machine catalyzed the incident, as the machine operated in a dangerously energized electric state.[1] Nickels and Dimes ordered the machine at issue as part of a lot of twelve units on November 15, 2004. (ECF No. 38 at 3). The machines left Smart Industries' hands on December 16, 2004. Id.

         On September 29, 2015, Mr. Wyman was in the Boulevard Mall for the purpose of maintaining or servicing the arcade game. (ECF No. 37 at 3). Unaware of the mechanism's defective nature, Mr. Wyman commenced his duties and started to examine the machine. (ECF No. 1 at 3). Upon inspecting the machine, Mr. Wyman came into contact with its energized parts and received an electric shock. Id.

         Roseberry, a security guard employed by Hi-Tech, received an alert by an employee of the store Shoe Palace at approximately 9:20 a.m. that someone was lying on the ground next to the device.[2] (ECF No. 37 at 3). Roseberry asked Mr. Wyman if he was okay, to which he received no response. Id. Because Roseberry was unable to move Mr. Wyman, he radioed for his supervisor, Kim Anderson (“Anderson”), who arrived within a couple minutes. Id. at 4. When attempting to grab Mr. Wyman by his arm, Anderson received an electrical shock. Id. At about the same time, a mall dispatcher named Blake told her that 911 said to “stand down.” Id.

         When the Clark County Fire Department arrived to unplug the machine, Mr. Wyman had already remained in an energized state for fifteen minutes. (ECF No. 1 at 3). Paramedics transported the unconscious Mr. Wyman to Sunrise Hospital, where he remained until his death. Id.

         Wesco Insurance Company (“Wesco”) is the subrogree of its insured, Nickels and Dimes. (ECF No. 19). Jennifer and Bear Wyman (“heirs”) are the widow and son of the late Mr. Wyman, and brought a wrongful death claim against Smart Industries as his lawful heirs pursuant to NRS 41.085. (ECF No. 18-A at 2). Jennifer Wyman and Vivian Soof, the joint special administrators of Mr. Wyman's estate (“the estate”), also brought an action under NRS. 41.100, Nevada's survival statute. Id.

         Mr. Wyman's heirs and estate allege that Hi-Tech and Roseberry failed to remove Mr. Wyman away from the arcade vending machine, and also failed to take reasonable measures, such as unplugging the device, to stop the machine from electrocuting him. (ECF No. 1 at 5).

         The heirs and estate of Mr. Wyman filed their complaint in the Eighth Judicial District Court of Clark County, Nevada, on October 10, 2016. (ECF No. 18-A). The heirs and estate assert five claims against Smart Industries: (1) strict products liability; (2) negligence; (3) breach of express and/or implied warranties; (4) res ipsa loquitur; and (5) corporate negligence/vicarious liability. (ECF No. 18-B at 6-10, 29-30.) They further assert two claims against Hi-Tech: (1) negligent training, hiring, and supervision; and (2) corporate negligence/vicarious liability. Finally, the lone claim against Roseberry is for negligence. Id. at 14-17.

         Wesco filed its complaint in the Eighth Judicial District Court of Clark County, Nevada on May 31, 2016. (ECF No. 1). In its complaint, Wesco asserts general negligence and strict liability claims solely against Smart Industries. Id.

         Following removal of the case to federal court on May 31, 2016, Smart Industries moved to consolidate the family's suit with the action brought by Wesco on April 20, 2017. (ECF No. 19). The court granted the motion on August 4, 2017. (ECF No. 33).

         On November 1, 2017, Smart Industries filed a motion for summary judgment, contending that the estate may not seek recovery for Mr. Wyman under NRS 41.100. (ECF No. 40). The ...


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