United States District Court, D. Nevada
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).
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).
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).
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.
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. 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.
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.
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. (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.”
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.
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.
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).
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
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.
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).
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 ...