Interpreting Wood v. Safewaw, Inc., 121 P.3d 1026

     This article essentially summarizes my, Eric Roy’s, understanding of the Wood v. Safeway case.  This case was decided Oct 20th of 2005 and provides guidance on three different issues.  The facts of the case are that a Safeway employee, Jane Doe, was raped while on the job.  Her assailant was a janitor who was also working at Safeway though an independent cleaning service, Action Cleaning.  Action Cleaning was an independently contracted agency employed by Safeway.  Jane Doe sued both Safeway as well as Action Cleaning.  Safeway filed for summary judgment against Jane Doe arguing that since the assault occurred within the scope of employment and as a result the Nevada Industrial Insurance Act (NIIA) was Jane Doe’s exclusive remedy.  This motion for summary judgment was granted by the lower court.  Simultaneously, Action Cleaning, also moved for summary judgment arguing that an employer cannot be held legally responsible for harm caused by the intentional torts of one of the employer’s employees, and additionally that the assailant’s criminal act was a superseding cause that relieved Action Cleaning of liability.  The lower court also granted Action Cleaning’s motion for summary judgment.  Thus both issues went up on appeal before the Nevada Supreme Court. 

     The Nevada Supreme Court first addressed the standard for finding summary judgment.  The court stated that it could make a finding of summary judgment in the event that the pleadings and other evidence show that there is no not a material fact in dispute and that the moving party is entitled to judgment as a matter of law.  The court noted that any and all evidence is to be considered in the light favorable of the non-moving party.  The court emphasized that though there may be disagreement as to some facts, the question is whether or those particular facts are material in nature.  Only facts which could be outcome determinative within the law suit are material and thus could preclude a summary judgment finding. 

     The Supreme Court went on to say that despite the benefit of the doubt bestowed on the non-moving party that it is still incumbent upon the non-moving party to provide more than mere speculation in order to defeat a summary judgment motion.  Summary judgment is appropriate if the pleadings and other evidence submitted fail to show that there are material facts in dispute.  The non-moving party must demonstrate more than the existence of “metaphysical doubt” with respect to those material facts. 

     In arguing for summary judgment Safeway argued that it is immune from suit by an employee if the injuries arose from and in the course of employment.  Safeway argued that since the facts arose out of and occurred in the course of employment that Jane Doe’s recourse would be through the Nevada Industrial Insurance Act as that is the exclusive remedy given those facts.  The Supreme Court thus had to determine if this assault both arose out of Jane Doe’s employment and also determine whether the assault occurred in the course of her employment.  The second of these issues was the easier of the two part conjunctive test to rule on.  The “course of employment” simply refers to location and time period of employment.  Thus the question is simply did the injury occur during employment hours and at the work place and was the employee generally conducting his or her job related duties.  In this case it was clear that Jane Doe was at work, during her regular hours, and performing her duties.  Thus the real question was whether the assault “arose out of” her employment.  The Supreme Court used the incidental and or increased risk assessment to determine whether the assault “arose out of” her employment.  Thus the court looked to see whether the course of employment in some way contributed to or increased the likelihood of the tort itself.  The court found that the assault did arise out of her employment given the fact that the assault occurred at her workplace and that the only contact that Jane Doe had with the assailant was through her employment.  The Supreme Court went on to say that it would find otherwise if incident was not related to the scope of employment, for example, if the incident occurred due to issues personal to the assaulted party and the assailant given some type of relationship outside of the workplace.  Thus the Supreme Court affirmed the lower court’s summary judgment finding in favor of Safeway.

     Action Cleaning argued for a summary judgment finding against Jane Doe offering the proposition that per Nevada Law an employer cannot be held legally responsible for the intentional torts of an employee and that the assailant’s superseding criminal actions relieved Action Cleaning of liability.  The court looked to NRS 41.745 for direction as to Action Cleaning’s liability.  This statute absolves an employer of liability for employee’s intentional torts assuming a three part conjunctive test is satisfied.  The three part tests requires that the act truly be an independent venture on the employee’ part, that the tort did not take place within the very course and scope of the job duties assigned to the employee and that the tort not be reasonably foreseeable.  The Supreme Court seemed to easily find that the assailant was not acting on behalf of Action Cleaning when he committed the assault and that the sexual assault did not occur within the course of the tasks assigned to the assailant.  The question then became whether it was foreseeable that such tort would or could occur.  The same statute dictates that an employee’s conduct “becomes reasonably foreseeable if an individual of normal intelligence would have reasonably foreseen the conduct and the likelihood of an injury.  The Supreme Court noted that the assailant had no criminal record and that Action Cleaning, required applicants to show proof of identification, checked employment references, and completed the proper immigration and naturalization forms for all employees.  The court also noted that the district manager had not received any complaints regarding prior acts of sexual harassment by the assailant.  Given these circumstances, the court found the assault to not be foreseeable.  Additionally, the lower court relied on case law to find that a third parties criminal act is a superseding cause absolving respondent superior liability.  The Supreme Court affirmed again finding that the crime was a superseding cause which was not reasonably foreseeable by Action Cleaning. 

     This case thus gives us insight as to a few different issues.  The first being the proper standard for summary judgment.  The court here made it clear that the issue is not whether there is a fact in dispute but whether there is a material fact in dispute.  A fact will be deemed material if it could dispositive to the outcome of the case.  The court also made clear that though the evidence will be viewed in the most favorable light for the non-moving party that the non-moving party must submit some type of evidence to the court to demonstrate a material fact at issue.  Mere conjecture will be insufficient.  We also know from this case when an employer can be personally liable verses when the plaintiff’s remedy will be limited to the Nevada Industrial Insurance Act.  The question here is whether the tort “arose out of” and occurred “within the scope of” employment.  It appears that a tort will arise out of the course of employment if the tort is not a result of some dispute which was created or exacerbated outside of the workplace.  We have learned that what is “within the scope of” employment involves a simple inquiry as to whether the event occurred at the work place and during work hours.  Finally, we learn from this case that respondent superior will be limited when it can be shown that the tortious action was an independent venture on the employee’s part, that the tort was not committed within the course of the task assigned and that the tort not be reasonably foreseeable to the employer.