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Blanc v. Aloha Airport Express, LLC

United States District Court, D. Nevada

September 23, 2019

SANDRA DE BLANC, Plaintiff
v.
ALOHA AIRPORT EXPRESS, LLC, Defendant

          ORDER DENYING DEFENDANT’S MOTION FOR SUMMARY JUDGMENT AND GRANTING DEFENDANT’S MOTION IN LIMINE [ECF NOS. 25, 27]

          ANDREW P. GORDON UNITED STATES DISTRICT JUDGE.

         Plaintiff Sandra De Blanc sues defendant Aloha Airport Express, LLC for injuries she sustained while stepping out of Aloha’s van. De Blanc brings claims for negligence and negligent hiring, training, and supervision, but did not sue the driver of the van. Aloha moves for summary judgment, arguing that (1) the expiration of the statute of limitation against the driver extinguishes Aloha’s vicarious liability and (2) De Blanc’s negligent hiring, training, and supervision claim is duplicative of her vicarious liability claim. I predict that the Supreme Court of Nevada would (1) not hold that the expiration of the statute of limitations against the driver discharges Aloha’s liability and (2) allow both vicarious liability and negligent hiring, training, and supervision claims. I therefore deny Aloha’s motion for summary judgment.

         Aloha also moves to exclude De Blanc’s expert, Lane Swainston. I grant Aloha’s motion to exclude him because Swainston’s opinions do not assist the jury and are not the product of reliable principles and methods.

         I. BACKGROUND

         On August 9, 2016, De Blanc was a passenger on an Aloha shuttle driven by Aloha employee Daniel Leivas. ECF No. 25 at 21. Upon arrival at McCarran Airport in Las Vegas, Leivas placed a step stool next to the van. Id. at 19-20. De Blanc fell as she used the step stool to disembark the van, but she was able to board her flight that day. Id.

         De Blanc filed this suit on October 20, 2017, and Aloha removed it to federal court on January 26, 2018. ECF No. 1. Aloha disclosed Leivas as a fact witness and produced his handwritten incident report on March 14, 2018. ECF No. 25 at 23-28. By agreement of the parties, the final deadline to add parties and amend pleadings was June 25, 2018. ECF No. 21 at 2. De Blanc did not move to join Leivas before the limitation period expired on August 9, 2018.

         De Blanc offers Swainston’s expert opinion in support of her claims. Swainston examined the stool and concluded that the “locking mechanism is not reliable and is subject to operator error or failure of the mechanism to latch shut.” ECF No. 25-1 at 2. He also concluded that the stool “is not stable under loading that is not deliberately centered on the platform. If the platform is not properly placed by the driver, it is especially unsafe when used to exit a vehicle.” Id.

         II. MOTION FOR SUMMARY JDUGMENT

         Summary judgment is appropriate if the movant shows “there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a), (c). A fact is material if it “might affect the outcome of the suit under the governing law.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 (1986). A dispute is genuine if “the evidence is such that a reasonable jury could return a verdict for the nonmoving party.” Id.

         The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett, 477 U.S. 317, 323 (1986). The burden then shifts to the non-moving party to set forth specific facts demonstrating there is a genuine issue of material fact for trial. Fairbank v. Wunderman Cato Johnson, 212 F.3d 528, 531 (9th Cir. 2000); Sonner v. Schwabe N. Am., Inc., 911 F.3d 989, 992 (9th Cir. 2018) (“To defeat summary judgment, the nonmoving party must produce evidence of a genuine dispute of material fact that could satisfy its burden at trial.”). I view the evidence and reasonable inferences in the light most favorable to the non-moving party. James River Ins. Co. v. Hebert Schenk, P.C., 523 F.3d 915, 920 (9th Cir. 2008).

         A. Vicarious Liability

         Aloha argues that when the limitation period against Leivas expired, De Blanc’s vicarious liability claim against Aloha was extinguished because Aloha’s liability is derivative of Leivas’s. De Blanc responds that vicarious liability requires only that the employee is under the employer’s control and acts within the scope of his employment.

         Aloha relies on a brief reference in Van Cleave v. Gamboni Construction Company to “a harsh [common law] rule” that the “release of an employee automatically releases the vicariously liable employer.” 706 P.2d 845, 846 (Nev. 1985). In Van Cleave, the Supreme Court of Nevada held that under the Uniform Contribution Among Tortfeasors Act, a release signed by the employee did not discharge the employer of vicarious liability. Id. at 849. Here, however, the facts present a different question of whether the expiration of the limitation period against the employee discharges the employer of vicarious liability. The parties agree that there is no Nevada case law directly on point. ECF No. 25 at 5; ECF No. 32 at 5. So I must predict how the Supreme Court of Nevada would decide the issue.[1]

         I predict that the Supreme Court of Nevada would hold that the expiration of the of limitation period against the employee does not discharge the employer of vicarious liability. First, Nevada decisions on vicarious liability require “proof that (1) the actor at issue was an employee, and (2) the action complained of occurred within the scope of the actor’s employment.” Rockwell v. Sun Harbor Budget Suites, 925 P.2d 1175, 1179 (Nev. 1996); see also Nat’l Convenience Stores, Inc. v. Fantauzzi, 584 P.2d 689, 691 (Nev. 1978). Aloha has not ...


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