Negligent Security and Negligent Hiring, Training, Retention and Supervision
Las Vegas, Nevada is a mecca for gambling and adult entertainment. Consequently, tens of millions of people visit the area annually. With so many people milling about in local casinos carrying cash, often inebriated, and unfamiliar with the area, it is no wonder local hotels, casinos, and stores are constant targets for the criminal elements looking to take advantage of the unsuspecting. Furthermore, the very volume of people coming into contact with each other from all points of the globe almost ensures that violence will occur on hotel or store premises, ranging from the common fist fight to murder.
The question is, when is a store or hotel liable in Nevada for the crimes committed by third parties or employees on store or hotel premises? This article summarizes the law regarding duty and foreseeability in negligent security and negligent hiring, training and supervision claims in Nevada and discusses evidentiary issues in litigating such claims.
Doud v. Las Vegas Hilton Corp., 109 Nev. 1096, (1993)
On February 6, 1988 Plaintiff Darwin Doud was brutally attacked when he entered his motorhome which was parked in the Race and Sports Book parking lot of the Las Vegas Hilton Hotel and Casino. On that date, the attacker shot Doud in the head and chest after he burglarized his motorhome. Doud brought an action against the hotel on a negligent security theory. At the trial level, the District Court granted summary judgment to the Las Vegas Hilton upon a finding that the criminal assault on Doud was neither probable nor foreseeable as a matter of law, and that liability could not be imposed on the Hilton for an unforeseeable criminal attack. Doud appealed the decision to the Nevada Supreme Court.
In Doud v. Las Vegas Hilton Corp., 109 Nev. 1096, (1993), the Nevada Supreme Court held that to establish a negligence claim for innkeeper liability, a Plaintiff must show: (1) duty, (2) breach, (3) proximate causation, and (4) damages. Id. at 1100. At the outset, the Court reiterated that Nevada has adopted the Restatement of Torts, Third with respect to an Innkeeper’s duty to protect against third party criminal conduct. The Restatement provides that:
Since the possessor is not an insurer of the visitor’s safety, he is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur. He may, however, know or have reason to know, from past experience, that there is a likelihood of conduct on the part of third persons in general which is likely to endanger the safety of the visitor, even though he has no reason to expect it on the part of any particular individual. If the place or character of his business, or his past experience, is such that he should reasonably anticipate careless or criminal conduct on the part of third persons, either generally or at some particular time, he may be under a duty to take precautions against it, and to provide a reasonably sufficient number of servants to afford a reasonable protection.
In light of that, with respect to the threshold inquiry of whether an innkeeper owes a duty of care to its patron, the Court held that a duty to prevent wrongful conduct by third parties arises only when the wrongful conduct is foreseeable. Id. at 1101-02. In determining foreseeability for purposes of establishing a duty, the Court provided two distinct approaches: evidence of prior similar acts and a totality of the circumstances. Id. At 1102-03. The Court held that the former is the older rule while the latter is the modern trend. Consequently, the Court considered the totality of the circumstances to determine liability.
Under that approach, the Court found that the crime committed against Doud was foreseeable because the Sports Book parking lot had been the scene of at least one previous armed robbery and one previous attempted armed robbery. Furthermore, in the two years before the attack on Doud, there were eighty-five crimes and arrests reported on the entire Hilton premises. Of those crimes, seventy-eight occurred in parking lots; nine of which occurred in the Sports Book parking lot. In addition, a murder had been committed there several years before the attack on Doud, when the lot was used as an employee parking lot. Moreover, at the trial level, Doud’s security expert expressed by affidavit the following opinion regarding the Hilton’s security: (1) the parking lot was known to be a dangerous place by Hilton Management; and (2) the robbery and attempted murder of Doud was foreseeable given the substantial level of criminal activity occurring on the Hilton premises. Consequently, the court found that the trial court erred in granting summary judgment to the hotel, considering the numerous issues of material fact to be resolved and remanded for further proceedings.
NRS 651.015 et. seq.
Subsequent to Doud, the Nevada Legislature established a statutory limitation on liability with respect to Innkeeper liability for third party criminal conduct. NRS 651.015 et. seq. precludes the imposition of civil liability on an innkeeper unless the death or injury of a patron was caused by the foreseeable wrongful act of a third party (duty), and there is a preponderance of evidence to show a failure to exercise due care (evidentiary threshold for breach). NRS 651.015(1). Pursuant to that statute, the preliminary inquiry in any case involving innkeeper liability is whether “[t]he wrongful act which caused the death or injury was foreseeable,” and thus, whether a duty of care was owed to the plaintiff. NRS 651.015(2)(a). If an injury is unforeseeable, then the innkeeper owes no duty, and the district court has no reason to consider the remaining elements of the plaintiff’s cause of action, including breach, which is addressed in NRS 651.015(2)(b). The statute makes clear that the determination of foreseeability is a matter of law left to the District Court Judge to decide. See NRS 651.015(2). NRS 651.015(3) provides that a wrongful act is not “foreseeable” unless:
(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.
NRS 651.015(3) (emphases added).
Unfortunately, this definition is ambiguous because “due care” is generally used to describe the negligence element of breach—an element typically reserved for determination by the jury. However, as previously stated, NRS 651.015(2) expressly provides that duty is a question of law to be decided by a judge. This disconnect between statutory law and case law formed the basis of an appeal which was recently decided by the Nevada Supreme Court in Estate of Smith v. Mahoney’s Silver Nugget, 127 Nev. Adv. Op. No. 76, November 23, 2011.
Estate of Smith v. Mahoney’s Silver Nugget, 127 Nev. Adv. Op. No. 76, November 23, 2011
That case arose from an incident occurring on June 25, 2006. On that day, Daniel Ott entered the Silver Nugget casino with two friends, Paris Lee and Lakiva Campbell. Ott and company proceeded to the Touchdown Lounge and joined a group of people crowded around several pool tables near the bar. The group had already caught the attention of casino security because they were loud and disorderly, and within five minutes of Ott’s arrival, the entire group was asked to leave.
At the same time, Allen Tyrone Smith, Jr., was seated at a bar adjacent to the Touchdown Lounge. At some point, one of Smith’s friends began arguing with Lee as Ott’s group exited the Touchdown Lounge. Over a period of approximately ten seconds, Smith rose from his barstool, pushed his way through the crowd, and punched Lee in the face. In response to what he believed to be an unprovoked attack on his friend, Ott immediately revealed a concealed firearm and shot Smith, killing him. As a result,the Smith’s Estate and his wife, Sandra O. Smith, filed suit against the Silver Nugget asserting negligence, wrongful death, and loss of consortium. The Silver Nugget filed a motion for summary judgment, which the district court granted on the ground that the Silver Nugget did not owe Smith a duty of care under NRS 651.015.
After discussing the rule elucidated in Doud and the subsequent statute enacted in response to Doud, NRS 615.015 et. seq., the Nevada Supreme Court reviewed the legislative history of that statute to determine how to resolve the ambiguity. The Court found that the legislative history indicated that the “due care” language in NRS 651.015(3)(a) was intended as authority for a judge to look beyond the existence of “similar wrongful acts” under NRS 651.015(3)(b) in determining the existence of a duty, and to consider other circumstances regarding the basic minimum precautions that are reasonably expected of an innkeeper. Estate of Smith v. Mahoney’s Silver Nugget, 127 Nev. Adv. Op. No. 76, November 23, 2011 citing Hearing on S.B. 474 Before the Senate Judiciary Comm., 68th Leg. (Nev., June 10, 1995).
Furthermore, in elucidating the phrase “similar wrongful acts”, the Court turned again to the legislative history of NRS 651.015, wherein several commentators noted that the phrase could be interpreted in different ways. See, e.g., Estate of Smith v. Mahoney’s Silver Nugget, 127 Nev. Adv. Op. No. 76, November 23, 2011 citing the Hearing on S.B. 474 Before the Assembly Judiciary Comm., 68th Leg. (Nev., June 10, 1995). The Court noted that the statutes drafters deliberately left NRS 651.015 ambiguous:
When we crafted this language we used the term “similar” for purposes associated with its common usage. That is, letting the judge decide whether in fact the particular wrongful act was similar to another wrongful act. . . . The phrase we used was chosen very specifically to allow the judge to have some leeway to make the determination as to whether they were alike and that is the way the bill was drafted.
Id. The Court further noted that the legislative history documents several hypothetical situations that implicitly recognize the distinction between events occurring in the inner versus the outer areas of a casino, as well as the contrast in different levels of violence. Id. (noting the dissimilarities between an armed robbery in a casino elevator as compared to a car burglary in the parking lot). The Court hypothesized that one possible explanation for the distinctions in determining the similarity of two events relates to a question of whether the events involve similar security issues. Id. (noting that casinos in different towns should not be considered similar because “[t]hey are not similar in the way they handle security”).
Nevertheless, the Court found that proof of prior incidents of similar wrongful acts “are sufficient, but not always necessary”, for establishing the existence of a duty because the circumstances surrounding the commission of a wrongful act may provide the requisite foreseeability for imposing a duty even where no prior incidents of similar wrongful conduct have occurred on the premises in the past. The Court ruled that the legislative history of NRS 651.015(3)(a) indicates the same.
The Court explained that although an innkeeper cannot guarantee the safety of guests, the Legislature recognized that certain minimum precautions are necessary and concluded that a judge should be given broad leeway in evaluating foreseeability on a case-by-case basis. Id. As a result, the Legislature added the phrase “the owner or keeper failed to exercise due care for the safety of the patron or other person on the premises” to the definition of “foreseeable,” which ensured that a duty could be imposed “regardless of whether or not there had been prior [similar] incidents” of wrongful conduct. Id. Consequently, the Court found that the standard enumerated in NRS 615.015(3) is akin to the “totality of the circumstances” approach established in Doud, 109 Nev. At 1101-04. As discussed above, Doud imposed a duty on an innkeeper where there is reasonable cause to anticipate a wrongful act, regardless of past experience.
Therefore, after reviewing the legislative history, in Estate of Smith the Court concluded that NRS 651.015(3) allows a judge to evaluate evidence of “[p]rior incidents of similar wrongful acts”or any other circumstances related to the exercise of “due care” when imposing a duty under NRS 651.015(2). The Court explained that “This aligns the statute’s definition of “foreseeable” with Doud’s “totality of the circumstances” approach by allowing a judge to look beyond the existence of “similar wrongful acts” in determining the existence of a duty.” Estate of Smith v. Mahoney’s Silver Nugget, 127 Nev. Adv. Op. No. 76, November 23, 2011.
Proving Negligent Security Claims In Nevada Post Estate of Smith v. Mahoney’s Silver Nugget
Today, it is clear that an intervening criminal act and an absence of “prior similar wrongs” is not a defense to liability for negligent security. Rather, the court will consider the “totality of the circumstances” to determine the critical issue of foreseeability and the existence of a duty. If, after considering the “totality of the circumstances”, the court determines a duty in fact exists, the key issue then becomes whether security measures would have deterred a particular crime and what the defendant did to prevent the criminal act.
To answer that question, the following checklist of items should be included in any investigation of a negligent security claim:
• crime grids;
• marketing material;
• prior claims and suits;
• preservation of any surveillance video;
• representative photos of the area;
• internal communications both before and after the incident;
• security documents, including contracts, invoices, schedules, and correspondence;
• police reports;
• incident reports;
• prior insurance claims;
• lighting records;
• gate, fence, and wall records;
• security surveys, either private or through law enforcement;
• witness information, including statements, employee personnel files, and tenant files;
• community association meeting minutes;
• courtesy officer and meeting records;
• notice to tenants, customers and/or the public regarding prior crimes;
• policies and procedures manual, including hiring issues, reporting crimes, maintenance issues, safety and security;
• copies of budgets, both drafts and final budgets;
• management agreements; repair requests form tenants;
• prior expert reports from litigation;
• code enforcement notices or citations;
• affordable housing documents;
• personnel files;
• security officers file or a contract with the security company;
• documentation concerning client-specific security measures, such as guard monitoring systems, a tresspass program, drug testing, or premises inspections; and
• any documentation of recommendations concerning the use of off-duty police officers, and whether those recommendations were either followed or disregarded.
Special Considerations Regarding Criminal Acts Committed By An Employee
If the criminal act is committed by an employee, the general rule is that the employer is not liable for the intentional criminal acts of an employee because they are outside the scope and course of employment. The Nevada Supreme Court has stated that “[t]he employer can be vicariously responsible only for the acts of his employees not someone else, and one way of establishing the employment relationship is to determine when the ’employee’ is under the control of the ’employer.’ ” National Convenience Stores v. Fantauzzi, 94 Nev. 655, 657, 691 (1978). The Court further stated that “This element of control requires that the employer ‘have control and direction not only of the employment to which the contract relates but also of all of its details and the method of performing the work….’ ” Kennel v. Carson City School District, 738 F.Supp. 376, 378 (D.Nev.1990) (quoting 53 Am.Jur.2d Master and Servant § 2 (1970)).
Thus, the following facts are to be considered in determining whether an employee’s conduct is within the course and scope of his or her employment:
• whether the conduct is the kind that the employee was employed to perform;
• whether the conduct occurs substantially within the time and space limitations authorized or required by the work to be performed; and
• whether the conduct is activated at least in part by a purpose to serve the employer.
With respect to the last consideration, the case of Prell Hotel Corp. v. Antonacci is instructive and on point. There, the Nevada Supreme Court held that an employer was vicariously liable when the employee, a blackjack dealer, hit a customer in the face while dealing a game because the assault occurred within the scope of the task assigned to the dealer, that of dealing blackjack. Prell Hotel Corp. v. Antonacci, 86 Nev. 390, 391 (1970). Pursuant to Prell, if a convenience store clerk assaults and batters a customer in an effort to eject him from his employer’s premises to enforce a trespass order, that employee may be acting within the course and scope of his employment and his employer may be held liable for his wrongful conduct if the victim asserts a claim for negligent hiring, retention, supervision and training.
In Nevada, an employer has a duty to use reasonable care in hiring an employee. See, Generally, Hall v. SSF, Inc., 112 Nev. 1384, (1996); citing Connes v. Molalla Transport System, Inc., 831 P.2d 1316, 1321 (Colo. 1992) (stating that “liability [for negligent hiring] is predicated on the employer’s hiring of a person under circumstances antecedently giving the employer reason to believe that the person, by reason of some attribute of character or prior conduct, would create an undue risk of harm to others in carrying out his or her employment responsibilities”); Yunker v. Honeywell, Inc., 496 N.W.2d 419, 422 (Minn. Ct. App. 1993) (stating that negligent hiring liability is imposed “when the employer knew or should have known that the employee was violent or aggressive and might engage in injurious conduct”). Furthermore, it is generally accepted that an employer has a duty to use reasonable care in the training, supervision, and retention of his or her employees to make sure that the employees are fit for their positions. See 27 Am.Jur.2d Employment Relationship §§ 475-76 (1996).
Under such a theory of liability, the following considerations will implicate an employer’s duty and breach of that duty:
• pre-employment background check;
• anticipated degree of contact that the criminal employee would have with the public;
• whether the employer was unreasonable in hiring the employee given his background;
• the established policy and procedures for dealing with customers and/or criminal activity on the premises;
• the degree of training and the frequency thereof to inculcate the policies and procedures identified above;
• the quality and degree of supervision and continuing evaluation of an employee;
• whether an employer discovered unsuitability of an employee after hiring but before the criminal act was committed;
• any prior complaints against the criminal employee and what, if any, action was taken by the employer;
• whether the employer has any policies or procedures in effect for discovering unsuitable employees and for handling complaints against employees; and
• the degree to which those policies and procedures were actually adhered to.
Premises liability for third party or employee criminal conduct are not easy cases to litigate and it may not be immediately discernible whether the circumstances: a) impose a duty upon the owner of the premises, or b) that duty was breached. This is so because the answer to those questions lie at the end of extensive and thorough discovery and investigation. Nevertheless, if a person is injured due to the criminal conduct of a third party or employee in Nevada the law is clear that the criminal’s conduct does not absolve the premises owner of liability and a claim may exist either for negligent security or negligent hiring, training, retention or supervision