When is a hotel liable for the wrongful acts of a third party?

Hotel innkeep liability

Humphries vs. New York-New York Hotel & Casino, LLC (Nev. Supreme Ct. – Oct. 5, 2017)

This case deals with a patron that seeks to hold a casino civilly liable for injuries they suffered during an altercation with another patron on the 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 premises. In this case, the district court granted summary judgment in favor of the casino, finding that the casino did not owe a duty to the patrons pursuant to NRS 651.015 because the casino had no “notice or knowledge” the other patron would assault the patrons.

Humphries and Rocha were walking through 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, 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 Ferrell.

An NYNY 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.

NYNY’s 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, finding that NYNY did not owe a duty of care. Humphries and Rocha appealed.

A 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.” “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 has no occasion to consider the remaining elements of the plaintiffs cause of action . .” Estate of Smith, 127 Nev. at 859, 265 P.3d at 691.

For the purposes of determining duty under NRS 651.015(2)(a), NRS 651.015(3) provides that an incident may be foreseeable in two distinct ways:

(a) The owner or keeper failed to exercise due care for the safety of the patron or other person on the premises; or

(b) Prior incidents of similar wrongful acts occurred on the premises and the owner or keeper had notice or knowledge of those incidents.

See Estate of Smith, 127 Nev. at 862, 265 P.3d at 693 (“[P]roof of prior incidents of similar wrongful acts are sufficient, but not always necessary, for establishing the existence of a duty.”).

The district court’s order, citing to Estate of Smith, stated: “Under Nevada law, an innkeeper may owe a duty when the circumstances prior to the subject incident provide ‘requisite foreseeability’ of the resultant crime.” Determining that an innkeeper needed “notice or knowledge” to be liable, the court found that NYNY could not have foreseen the fight because the altercation between Ferrell and Humphries was spontaneous. Therefore, the court concluded that NYNY did not owe a duty of care to Humphries and Rocha.

The Supreme Court of Nevada explained that in Estate of Smith, Ott and two friends joined a “boisterous group of people” that gathered in a casino lounge. The casino deployed security personnel to ask the group to leave the premises within five minutes of Ott’s arrival. Simultaneously, another casino patron, Smith, stood up and punched one of Ott’s friends in the face. In response, Ott immediately revealed a concealed weapon and fatally shot Smith. Smith’s estate sued the casino under a theory of premises liability.

The Court noted that to determine whether the casino owed Smith a duty of care, the Supreme Court of Nevada conducted a foreseeability analysis under both NRS 651.015(3)(a) and (b). In interpreting NRS 651.015(3)(a), the Smith court stated “that the circumstances surrounding the commission of a wrongful act may provide the requisite foreseeability for imposing a duty.” The Smith court also stated that district courts should “consider . . . circumstances regarding the basic minimum precautions that are reasonably expected of an innkeeper” and should “evaluat[e] foreseeability on a case-by-case basis.” The Smith court concluded that the casino exercised due care because “the circumstances leading up to [the patron]’s murder did not provide the requisite foreseeability for imposing a duty. . under NRS 651.015(3)(a)” as security was promptly dispatched and there was no indication that the third party had a gun.

In regard to NRS 651.015(3)(b), the Smith court considered prior similar wrongful acts that had occurred at the casino. The record reflected numerous fistfights and robberies inside the casino, two reports of firearms being brandished in the casino parking lot, and one report of shots fired near the parking lot. However, the Smith court determined that the prior incidents were not “similar” to Ott’s shooting of Smith, and therefore concluded that the casino did not owe Smith a duty of care.

In this case, the Supreme Court of Nevada determined that the district court failed to properly consider NRS 651.015(3) in reaching its decision. The court first impermissibly restricted NRS 651.015(3)(a)’s “fail[ure] to exercise due care” analysis to whether an innkeeper has notice that a specific wrongful act is about to occur. The Court explained that Estate of Smith was not intended to restrict NRS 651.015(3)’s duty analysis in such a way. Indications that a wrongful act is about to occur are relevant, but not dispositive, under paragraph (a). The proper analysis under NRS 651.015(3)(a) “is akin to [a] totality of the circumstances approach.”

Moreover, the Court believed that the district court failed to consider NRS 651.015(3)(b) and whether NYNY had a duty of care because of prior similar on-premise incidents. NRS 651.015(3)’s plain language provides that a duty can be imposed under either (a) or (b) by joining the paragraphs with “or.” See Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of Legal Texts 116 (2012) (stating that when considering a list of options, “or” creates alternatives while “and” creates a conjunctive list). As part of its motion for summary judgment, NYNY included a year’s worth of incident reports detailing on-premise assaults and batteries; however, nothing in the district court’s analysis demonstrated that the court considered this evidence before concluding that the battery on Humphries and Rocha was not foreseeable as a matter of law.

Did the district court err in concluding that NYNY did not owe Humphries and Rocha a duty of care?

The Court explained that under NRS 651.015(2) and 651.015(3)(b), the Court is required to review de novo the district court’s determination as to duty owed. See Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Similarly, foreseeability is a question of law that is also subject to de novo review. As the indicated in Estate of Smith, the court believed that, when determining whether prior wrongful acts are sufficiently similar, district courts should consider, among other things, the location, the level of violence, and security concerns implicated between the wrongful act in the lawsuit and any prior wrongful acts on the premises.

Location

The NYNY incident reports that were part of the record detailed patron-on-patron batteries in night clubs near the casino floor and at the Center Bar adjacent to the casino floor. There were also documented patron-on-security guard incidents on the casino floor, at the Center Bar, and in bathrooms. Importantly, there was also deposition testimony from NYNY’s security manager that there were approximately two to three fights a week on the casino floor:

Q: Could you to your understanding tell us how many fights have occurred on the casino floor at New York-New York in 2010?
A: I don’t have that number.
Q: Can you give us your best estimate? One a month?
A: I wish.
Q: Okay. Well, then can you please elaborate for us, sir?
A: I would say two to three a week.

The Court believed that it was apparent from this testimony that NYNY was aware of numerous similar patron-on-patron incidents occurring on the casino floor.

The Court believed that although nothing in the record demonstrated that any of these prior wrongful acts occurred in the exact location on the casino floor where Humphries and Rocha were attacked, requiring such an occurrence would contradict NRS 651.015(3)(b)’s plain language. A similar occurrence requires only general likeness, not factual conformity. See Similar, Black’s Law Dictionary (6th ed. 1990); cf. Estate of Smith, 127 Nev. at 862, 265 P.3d at 693 (determining that prior wrongful acts involving firearms that occurred in the parking lot of the casino were dissimilar to the fatal shooting of Smith because no one was shot in the parking lot incidents, and there was no indication that any of the participants were actual patrons of the casino). The Court noted that unlike in Estate of Smith, where Smith was shot inside the casino but many of the prior wrongful acts occurred outside the casino and did not involve casino patrons, in the instant case, Humphries and Rocha were attacked by another casino patron on the casino floor within approximately 200 feet of a nightclub and near the Center Bar, where numerous documented prior incidents involving physical altercations had occurred.

Lack of violence

The Court explained that like the battery against Humphries and Rocha, the documented prior wrongful acts at NYNY involved a similar level of violence. There were reports of patron-on-patron violence including a man head-butting another man in a club, a man punching a woman in a club, three women punching each other in the Center Bar, and a man inappropriately touching a woman and then being shoved over an ottoman in the Center Bar. Additionally, there were reports of casino security being punched, attacked, and assaulted on the casino floor.

During the battery on Humphries and Rocha, security footage showed Ferrell punch and kick Humphries several times in the face. Humphries may also have been pushed or thrown into a slot machine. The Court believed that this physical hand-to-hand altercation without the use of weapons shows a proportional level of violence was involved in the prior wrongful acts on and around NYNY’s casino floor.

Security concerns implicated

In moving for summary judgment, Humphries and Rocha argued that NYNY “fail[ed] to provide adequate and reasonable security,” and specifically challenged the security response times and staffing on the large, open casino floor. An NYNY security guard responded to the incident involving Humphries and Rocha 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 Court noted that other prior wrongful acts also appear to call into question NYNY’s staffing and response times.

After consideration of the evidence, the Court concluded that the battery against Humphries and Rocha was foreseeable based on NYNY’s notice or knowledge of “[p]rior incidents of similar wrongful acts [that] occurred on the premises.” NRS 651.015(3)(b). Thus, the Court concluded that the district court erred in finding that, as a matter of law, NYNY did not owe a duty of care to Humphries and Rocha. Accordingly, the Court reversed the district court’s order granting summary judgment and remanded the matter. On this record, the Court found that NYNY owed a duty of care to Humphries and Rocha under NRS 651.015(3)(b).

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