When is an employer liable for an employee’s criminal conduct?

Employee Criminal Conduct

Anderson v. Mandalay Corp. (Nev. Supreme Ct. – Oct. 15, 2015)

NRS 41.745(1)(c) makes employers vicariously liable for employees’ intentional torts if a plaintiff can show the intentional conduct was reasonably foreseeable under the facts and circumstances of the case considering the nature and scope of the employee’s employment. The issue is whether it was reasonably foreseeable that an employee would rape a hotel guest.

Anderson and her husband sued Mandalay Bay Resort and Casino (Mandalay) after Gonzalez, a Mandalay employee, raped Anderson in her hotel room at Mandalay. Anderson and her husband asserted claims against Mandalay for negligent hiring, vicarious liability, and loss of consortium. During discovery, Anderson asked for leave to amend her complaint to add claims for negligent security, retention, and supervision. Mandalay sought summary judgment, and at the summary judgment hearing, Anderson’s counsel abandoned all claims except the vicarious liability claim. The district court granted Mandalay’s motion for summary judgment, concluding Mandalay was not vicariously liable for Gonzalez’s criminal act. The district court also denied, as futile, Anderson’s motion to amend her complaint. Anderson appealed.

Anderson came to Las Vegas on September 8, 2008, to attend a trade show on behalf of her employer. She checked into room 8916 at Mandalay. After performing some work-related duties, she and her coworkers went out for dinner and drinks. Anderson became intoxicated and returned to Mandalay around 2 a.m. on September 9, 2008. Surveillance footage shows that she and Gonzalez shared an elevator; both exited on the eighth floor. Anderson entered her room, shut the door behind her, and went to sleep.

Later, Anderson woke up vomiting and felt someone wiping her face with a washcloth. She realized a uniformed man, later identified as Gonzalez, was in her room. Gonzalez raped Anderson. He immediately left the room when Anderson oriented herself. Anderson called the front desk, and Mandalay security interviewed Gonzalez after finding him on the eighth floor. He admitted to entering room 8916 but claimed he only entered to sweep up broken glass that was in the hallway and underneath the room’s door. Gonzalez later claimed to have had consensual sex with Anderson. Las Vegas Metropolitan Police took over the investigation, and Gonzalez ultimately pleaded guilty to sexual assault.

Gonzalez worked at Mandalay as a House Person, whose principle job duties were to clean the common areas of the hotel and assist in cleaning and serving guest rooms, as needed. A House Person working Gonzalez’s shift would have little supervision. Mandalay provided Gonzalez with a keycard that was traceable to him and opened the guest rooms on his assigned floors. On the night in question, floors 8-12 were assigned to him. Gonzalez used that keycard to enter Anderson’s room.

Before hiring Gonzalez, Mandalay performed a criminal background check using a social security number he provided. That number was connected to Gonzalez’s name and indicated he had no criminal record. Mandalay solicited Gonzalez’s employment references and filled out 1-9 documents reporting Gonzalez’s eligibility to work; however, it was not clear that Mandalay contacted those references and properly updated information on Gonzalez’s 1-9.

Gonzalez’s prior disciplinary history showed that Mandalay suspended him for 31 days after he and two other men were implicated in a series of insulting and threatening comments made over Mandalay’s employee radios. The allegations included using the radios to broadcast the sound of toilets flushing, animal noises, and threats to a female supervisor. The threats were “I know where you live Juanita,” “I will be waiting for you in the parking garage,” and “You are a bitch Juanita and you deserve what you are going to get.” Although Mandalay never definitively identified or ruled out Gonzalez as making any threats, it did find that Gonzalez misused employee radios and lied about it.

During district court proceedings, Anderson presented evidence of five prior sexual assaults perpetuated by Mandalay employees on Mandalay’s premises. The victims in three of the assaults were guests, and two were other Mandalay employees. Additionally, evidence was presented showing Mandalay received about one report a month claiming an employee entered an occupied room without authorization. Anderson submitted eight Las Vegas Metropolitan Police reports about Mandalay employees stealing from guest rooms during unauthorized entries. Anderson also presented in court comments from travel sites reporting similar problems. Anderson also presented an expert report indicating Mandalay had insufficient security when Gonzalez attacked Anderson, and ongoing security defects created a volatile environment.

Ultimately, the district court granted Mandalay’s motion for summary judgment, concluding NRS 41.745(1) and Wood v. Safeway, Inc., 121 Nev. 724, 121 P.3d 1026 (2005), barred vicarious liability against Mandalay because Gonzalez’s acts were truly independent, not committed in the course of the very task assigned, and not reasonably foreseeable. The district court also denied as futile Anderson’s request for leave to amend.

On appeal, Anderson argued the district court erred in granting Mandalay’s motion for summary judgment. Additionally, Anderson argued the district court erred in denying her leave to amend her complaint.

NRS 41.745(1)(c) sets forth a factual inquiry

The Supreme Court of Nevada explained that NRS 41.745 makes employers vicariously liable for employees’ intentional torts when—among other circumstances—an employee’s act is reasonably foreseeable under the facts and circumstances of the case considering the nature and scope of his or her employment. Further, the Legislature clarified NRS 41.745(1)(c)’s reasonable foreseeability standard, stating the conduct of an employee is reasonably foreseeable if a person of ordinary intelligence and prudence could have reasonably anticipated the conduct and the probability of injury. Therefore, the Court concluded NRS 41.745(1)(c)’s reasonable foreseeability standard sets forth a factual inquiry.

Could a reasonable jury conclude that Gonzalez’s act was reasonably foreseeable?

The Court explained that it has considered reasonable foreseeability under NRS 41.745(1)(c) in only one published case. In Wood v. Safeway, Inc., 121 Nev. 724, 121 P.3d 1026 (2005), a janitor employed with a cleaning company raped a Safeway employee at the Safeway store where they both worked. There, the janitor had no criminal history; the employer required proof of identification, checked employment references, and filled out the proper immigration documents; and the employer had no sexual harassment complaints over the last ten years. This Wood court held, as a matter of law, that the janitor’s attack was not reasonably foreseeable, and the victim could not hold the janitor’s employer vicariously liable for his intentional acts under NRS 41.745(1)(c).

According to Mandalay, Wood demonstrated that Gonzalez’s criminal conduct was unforeseeable. The Court disagreed. After viewing the evidence and drawing all reasonable inferences in Anderson’s favor, the Court concluded the facts and circumstances were sufficiently distinguishable from Wood for a reasonable jury to determine that Gonzalez’s act was reasonably foreseeable under NRS 41.745(1)(c). The Court explained that the janitor in Wood was never the subject of a sexual harassment complaint, and his employer had not had a complaint of that nature in the past ten years. Here, however, at least five Mandalay employees had sexually assaulted guests and coworkers before Gonzalez attacked Anderson. Additionally, Mandalay knew employees entrusted with keyed access to occupied rooms abused that access to commit property crimes. Therefore, Mandalay had notice its employees were capable of sexual assault, and some employees abused their keycard access to enter guest rooms without authorization. Moreover, Mandalay suspended Gonzalez for 31 days in response to allegations that he harassed and threatened a female supervisor. After Gonzalez’s suspension ended, Mandalay restored his keycard access to occupied rooms and assigned him to a shift with minimal supervision. Considering the prior on-premises attacks, employees’ regular keycard abuse, Gonzalez’s disciplinary history, and Mandalay’s decision to provide Gonzalez keyed access to guest rooms with minimal supervision, the Court believed that a reasonable jury could conclude it was foreseeable that Gonzalez would abuse his keycard access to sexually assault a Mandalay guest.

Mandalay contended that no other state would hold it vicariously liable for Gonzalez’s act because that act could not have fallen within the scope of his employment. The Court explained that this argument lacked merit for two reasons. First, this argument mischaracterized the relevant inquiry. Generally, an employer is only liable for the intentional torts committed within the scope of employment. Reasonable foreseeability is often one of several considerations courts use to determine whether an intentional tort was within the scope of employment. Conversely, NRS 41.745(1) does not contain an overarching scope of employment inquiry. Instead, NRS 41.745(1) promulgates three distinct circumstances in which an employer is liable for an employee’s intentional tort: (1) the employee’s act was not a truly independent venture, (2) the employee acted in the course of the very task assigned, or (3) the employee’s act was reasonably foreseeable under the facts and circumstances of the case considering the nature and scope of his or her employment. Therefore, Nevada will hold an employer vicariously liable for an employee’s intentional tort—even though it was outside the scope of employment—if that intentional tort was reasonably foreseeable under the facts and circumstances of the case considering the nature and scope of his or her employment.

Second, the Court explained that other jurisdictions have concluded that sexual assault can be reasonably foreseeable, either as part of a vicarious liability inquiry or a direct negligence inquiry. For example, in State, Dep’t of Admin. v. Schallock, 941 P.2d 1275 (Ariz. 1997), the Arizona Supreme Court concluded a jury might properly find it was reasonably foreseeable that one employee would rape another because the accused had a history of sexually harassing female coworkers. In Nelson v. Gillette, 571 N.W.2d 332 (N.D. 1997), North Dakota’s Supreme Court similarly concluded a jury could find it was reasonably foreseeable that a social worker would sexually abuse a minor in foster care because such abuse was not uncommon. In Pittard v. Four Seasons Motor Inn, Inc., 688 P.2d 333 (N.M. Ct. App. 1984), New Mexico’s Court of Appeals concluded a jury might find a sexual assault was reasonably foreseeable in a negligence action simply because the employer knew the employee abused alcohol and became violent when drinking. Thus, sexual assault is not unforeseeable, per se, and Nevada is not alone in allowing juries to determine whether the facts and circumstances of a case show that an employee’s tortious conduct was reasonably foreseeable. Considering the facts and circumstances here, the Court believed that a reasonable jury could conclude Gonzalez’s act was reasonably foreseeable.

Did the district court err in concluding it would be futile for Anderson to amend her complaint?

Because the Court held that a reasonable jury could conclude Gonzalez’s attack was foreseeable, it found that Anderson’s proposed amendments were not futile. The Court explained that although unlawful conduct can interrupt and supersede the causation between a negligent act and injury, an unlawful act will not supersede causation if it was foreseeable. Here, the Court already concluded a reasonable jury could find that Gonzalez’s act was reasonably foreseeable; therefore, amendment would not be futile.

Additionally, the Court found that the district court erroneously relied on NRS 651.015 in concluding that Anderson’s negligent security claim was futile. That statute, titled “Civil liability of innkeepers for death or injury of person on premises caused by person who is not employee,” expressly applies only when the injury is caused by a person who is not an employee under the control or supervision of the owner or keeper. Because Gonzalez was Mandalay’s employee, the district court erred in relying on NRS 651.015.

Therefore, the Court concluded that NRS 41.745(1)(c) sets forth a factual inquiry, and a reasonable jury could find that Gonzalez’s conduct was reasonably foreseeable under the facts and circumstances of the case considering the nature and scope of his employment. Thus, the district court erred in granting Mandalay’s motion for summary judgment. The district court also erred in holding that it would be futile for Anderson to amend her complaint to include claims for negligent security, retention, and supervision because Gonzalez’s criminal conduct may not have been a superseding cause, and NRS 651.015 did not apply here. Accordingly, the Court reversed the district court’s order granting Mandalay’s motion for summary judgment and denying Anderson’s motion for leave to amend, and remanded the matter to the district court for further proceedings.

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