LLOYD D. GEORGE, District Judge.
The plaintiff, Vanessa Racine, alleges that she was physically and sexually assaulted by an unidentified man while she was staying at the Planet Hollywood Resort and Casino ("Planet Hollywood"). She brought the instant suit against the defendants, PHW Las Vegas, LLC, and PHW Manager, LLC, ("PHW") as the owners of Planet Hollywood. Racine brings her claim against PHW pursuant to Nevada Revised Statute 651.015, which establishes a duty for innkeepers to protect their patrons from foreseeable harms.
As suggested by the evidence in this case, the Planet Hollywood property includes a casino, a mall, a hotel with a lobby and rooms located in what the Court will refer to as the Casino Tower, and a hotel with a lobby and rooms located in what the Court will refer to as the Westgate Tower, and a parking garage. PHW employs a single security force for the property, but has separate dispatch offices for the Casino Tower and the Westgate Tower.
On June 20, 2010, shortly after 3 a.m., an unidentified man approached Keanna Alamsahebpour and placed his arm around her waist while she was walking in the mall area of Planet Hollywood (#70, ¶ 4). Alamsahebpour moved away from the man, entered the lobby of the Westgate Tower hotel, and described the man and the incident to someone she believed was a member of the hotel's security staff (#70, ¶ 5). The Court will refer to this as the Alamsahebpour incident.
Shortly thereafter, an unidentified man followed Susan Lee (who was staying in the same set of adjoining hotel rooms as Alamsahebpour) through the casino and mall. At about 3:40 a.m., Lee and the man got into a Westgate Tower elevator, and both exited the elevator on the 56th floor. The man followed Lee to her room. Lee told the man to leave after he inappropriately touched her, and then entered room 5620. About five minutes after Lee first entered the room, someone (who had not been invited into the room) grabbed Lee's buttocks from behind, and attempted to push her onto the bed. He subsequently fled from the room when Lee screamed (#70, ¶ 11, 14; #75, ¶ 31). The Court will refer to this as the Lee incident.
At about 3:46 a.m., the man who had accompanied Lee onto the elevator to the 56th floor got onto the elevator on the 56th floor, and took that elevator to the lobby. He then walked and ran through the lobby area.
At about 3:54 a.m., a call was placed from hotel room 5620 in the Westgate Tower to security in which the caller reported that she and another guest had been sexually assaulted, and requested the presence of a security officer in their hotel room.
At about 3:56 a.m., the man who had accompanied Lee onto the elevator to the 56th floor of the Westgate Tower accompanied another, unknown woman down the escalator going from the PHW casino area to the valet area, placing his hand on her back while riding the escalator. The two then sat down and remained in the valet area.
At about 3:58 a.m., Security Officer Scott Koss arrived at room 5620, and took statements from Lee and Alamsahebpour. Alamsahebpour reported that Lee had arrived at the room 10-15 minutes earlier, and had been followed by and inappropriately touched by a man. Alamsahebpour further reported that the same man
At about 4:03 a.m., the plaintiff, Vanessa Racine, arrived at Planet Hollywood by taxi. She wandered around the valet parking area for several minutes. Just prior to 4:10 a.m., Racine got onto an elevator in the Casino Tower. The same man who had accompanied Lee onto the elevator to the 56th floor of the Westgate Tower also got onto the elevator with Racine, placed his hand on her back, then her hair, and appeared to talk with Racine. The man exited the elevator with Racine. (#70, ¶ 19-20; #75, ¶ 33). At about 4:35 a.m., the man got onto the elevator in the Casino Tower on the floor of Racine's room, holding a bag. (#70, ¶ 25; #75, ¶ 31).
Racine did not awake until much later that day. She subsequently contacted hotel security and the LVMPD and reported that she had been sexually assaulted. A subsequent examination by the Sexual Assault Nurse Examiner showed the presence of semen on Racine, which semen that did not belong to her boyfriend. (#70, ¶ 32-34; #75, ¶ 35). Racine thereafter brought this action against PHW.
In considering a motion for summary judgment, the court performs "the threshold inquiry of determining whether there is the need for a trial — whether, in other words, there are any genuine factual issues that properly can be resolved only by a finder of fact because they may reasonably be resolved in favor of either party." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); United States v. Arango, 670 F.3d 988, 992 (9th Cir.2012). To succeed on a motion for summary judgment, the moving party must show (1) the lack of a genuine issue of any material fact, and (2) that the court may grant judgment as a matter of law. Fed.R.Civ.P. 56(c); Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); Arango, 670 F.3d at 992.
A material fact is one required to prove a basic element of a claim. Anderson, 477 U.S. at 248, 106 S.Ct. 2505. The failure to show a fact essential to one element, however, "necessarily renders all other facts immaterial." Celotex, 477 U.S. at 323, 106 S.Ct. 2548. Additionally, "[t]he mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient." United States v. $133,420.00 in U.S. Currency, 672 F.3d 629, 638 (9th Cir. 2012) (quoting Anderson, 477 U.S. at 252, 106 S.Ct. 2505).
"[T]he plain language of Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex, 477 U.S. at 322, 106 S.Ct. 2548. "Of course, a party seeking summary judgment always bears the initial responsibility of informing the district court of the basis for its motion, and identifying those portions of `the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any,' which it believes demonstrate the absence of a genuine issue of material fact." Id. at 323, 106 S.Ct. 2548.
Once the moving party meets its initial burden on summary judgment, the non-moving party must submit facts showing a genuine issue of material fact. Fed. R.Civ.P. 56(e); Nissan Fire & Marine Ins. Co. v. Fritz Companies, Inc., 210 F.3d 1099, 1103 (9th Cir.2000). As summary judgment allows a court "to isolate and dispose of factually unsupported claims or defenses," Celotex, 477 U.S. at 323-24, 106 S.Ct. 2548, the court construes the evidence before it "in the light most favorable to the opposing party." Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 26 L.Ed.2d 142 (1970). The allegations or denials of a pleading, however, will not defeat a well-founded motion. Fed. R.Civ.P. 56(e); Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 586-87, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986). That is, the opposing party cannot "`rest upon the mere allegations or denials of [its] pleading' but must instead produce evidence that `sets forth specific facts showing that there is a genuine issue for trial.'" Estate of Tucker v. Interscope Records, 515 F.3d 1019, 1030 (9th Cir.2008) (quoting Fed. R. Civ. Pro. 56(e)).
To "succeed on a negligence claim for innkeeper liability," a plaintiff must establish four elements: "(1) duty, (2) breach, (3) proximate causation, and (4) damages." Smith v. Mahoney's Silver Nugget, Inc., 265 P.3d 688, 690 (2011) (citing Doud v. Las Vegas Hilton Corp., 109 Nev. 1096, 864 P.2d 796 (1993)). Both parties move for summary judgment as to the duty element. Racine argues that PHW is civilly liable for her injuries under Nevada Revised Statute 651.015, which states:
As both parties recognize, "[t]he 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." Smith, 265 P.3d at 692 (citing NRS 651.015(2)(a)). The court makes this determination as a matter of law. Id. Pursuant to NRS 651.015(3), the court "evaluate[s] 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)." Id., at 692. The "due care" language allows the court "to consider other circumstances regarding the basic minimum precautions that are reasonably expected of an innkeeper." Id., at 691. As further noted by the Nevada Supreme Court in Smith, "[t]he legislative history of NRS 651.015(3)(a) likewise indicates that 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." Id., at 693.
For purposes of determining foreseeability, the Court assumes that the same man assaulted Alamsahebpour in the mall and followed Lee through the mall and to her room on the 56th floor of the Westgate Tower at about 3:40 a.m. He assaulted Lee in her room, and was then recorded getting onto an elevator on the 56th floor at 3:46 a.m. At 3:56 a.m., he was recorded descending an escalator to the PHW valet area, in the company of an unidentified woman. At some time no earlier than 3:58 a.m., Alamsahebpour notified PHW that a man had assaulted both her and Lee. The man then sexually assaulted Racine in her room after following her onto an elevator in the Casino Tower at about 4:10 a.m.
Initially, the Court concludes that Racine has not shown that there were prior incidents of similar wrongful acts that rendered foreseeable the wrongful act against Racine. As argued by Racine, the attacker's wrongful act, as it concerned Racine, was to follow her into an elevator, follow her off the elevator, and then follow her into her room where he sexually assaulted her. None of the incidents identified by Racine in her moving papers at pages 16-18 concern an individual following a guest into her room to commit a sexual assault, or concern an individual following a guest into his or her room to commit any act of violence or other wrongful act. As understood by this Court, the "prior incidents" inquiry under NRS 651.015 requires a determination whether a pattern exists of similar incidents, and whether the incidents establishing this pattern were known to the innkeeper. The knowledge of such a pattern of incidents places the innkeeper on notice of a particular set of circumstances that increase the likelihood of further similar incidents. This knowledge imposes a duty on the innkeeper to take reasonable precautions to alter those circumstances so as to protect patrons against the foreseeable wrongful act. As an example, a pattern of violent crimes in a particular area of an innkeeper's property (a dark corner of the garage) would render foreseeable that further violent crimes would occur in that particular area. By contrast, and using as
In the foregoing determination of foreseeability under NRS 651.015(3)(b), the Court has not considered the Alamsahebpour and Lee incidents for several reasons. First, Racine has not argued that the Alamsahebpour and Lee incidents were "prior incidents of similar wrongful acts." Second, as suggested in Smith, given that the Alamsahebpour and Lee incidents occurred immediately prior to the attack on Racine, and given that they involved the same individual that attacked Racine, it would appear to the Court that they are appropriately considered as part of the circumstances surrounding the commission of the wrongful act committed against Racine, and thus should be considered under NRS 651.015(3)(a). Third, even if the Alamsahebpour and Lee incidents are considered "prior incidents of similar wrongful acts," under subsection 3(b), the facts of those prior incidents that appear relevant to the Court under 3(b) are the same facts that appear relevant to the Court as circumstances to be considered under subsection 3(a), including the circumstance that all incidents were committed by the same individual within a short period of time. Whether the Court considers the Alamsahebpour and Lee incidents under 3(a) or (b), the Court would apply the same analysis to determine whether, as a matter of law, those incidents rendered the man's subsequent attack on Racine foreseeable to PHW.
In considering the circumstances of the Alamsahebpour and Lee incidents to determine whether the assault of Racine was foreseeable to PHW, the Court is mindful that foreseeability is not to be determined with the benefit of hindsight. Racine's arguments and characterization of the evidence, however, rely upon hindsight. For example, in presenting her arguments, Racine asserts that security was contacted by room 5620 at 3:54 a.m., and advised that a guest in that room had been sexually assaulted. She then asserts that "the attacker from room 5620 is seen on the video evidence getting on the elevator from the 56th floor after attacking that guest, and then `sprinting' out of the elevator." She further asserts that the attacker is seen on an escalator going toward valet parking at 3:56 a.m., and that this was at a time when PHW "should have been on the lookout for the suspect." Racine further asserts the "attacker's whereabouts is tracked for the entire time between 3:56 a.m. and the time he attacked Racine," and that this same video footage was at the fingertips of the security department in real time. She
The Court, however, will not consider the events with the benefit of hindsight. Rather, the Court finds that PHW received a report from Alamsahebpour in the early morning hours of June 20, 2010, in the lobby of the Westgate Tower regarding an incident in the mall.
At about 3:54 a.m., a person from room 5620 of the Westgate tower called PHW security and reported that she and another person had been sexually assaulted. The call was received by Officer Koss of PHW's security, who was working in the dispatch office for the Westgate Tower. The caller requested the presence of a security officer. The record lacks any evidence that, during the phone call, PHW received any information indicating where the sexual assaults had taken place, describing when the assaults had taken place, describing the person (or persons) who had committed the assaults, or providing any other information regarding the assaults.
At about 3:58 a.m., Officer Koss arrived at room 5620. As described in Officer Koss's report, he initially spoke with Alamsahebpour who reported that Susan Lee, who had arrived in the room 10-15 minutes earlier, had been followed and inappropriately touched by a man. Alamsahebpour then informed Officer Koss that she had seen the same man in the mall,
Officer Koss then talked with Lee. Lee described having been lost in the mall, and that a man had approached her. She told the man that she was lost. Lee further informed Officer Koss that the man escorted Lee through the mall, and Lee told the man she was no longer lost. The man continued to follow her. She went into a restroom and waited for ten minutes hoping the man would leave. When she left the restroom, however, he was still waiting for her and followed her onto the elevator in the lobby. He exited the elevator with her on the 56th floor, and followed her to her room. The man inappropriately touched her, and Lee told him to stop. She then entered room 5620, and went into the adjoining room (5622) to the kitchen area to eat. Lee then informed Koss that when she returned to room 5620 (after about 5 minutes), someone grabbed her from behind, and began groping her. Lee screamed, "causing the [man] to run out the door, and to the elevators." Lee described the man as having the same perceived ethnicity as described by Alamsahebpour, and wearing a grey shirt and blue jeans.
Officer Koss's report does not identify the exact time Alamsahebpour and Lee provided each item of information that he recorded in his report, or when he received their descriptions of the man. However, Officer Koss's report indicates he had asked Lee if she would like to file a report with the Las Vegas Metropolitan Police Department, that Lee had accepted, and that the LVMPD were notified at approximately 4:20 a.m.
An additional fact known to PHW at that time was that it had two video surveillance systems
The video surveillance systems recorded video of the following events, which are significant to the present matter. These events occurred at the time the recordings were made. At about 3:46:45 a.m., before any call was made from room 5620 to security, one of PHW's video surveillance systems recorded a man getting onto the elevator on the 56th floor of the Westgate Tower. Having reviewed the video recordings, the Court notes that this video recording does not reveal the man's actions just prior to the recording. Nor does the video recording, by itself, allow a determination that the man was a "predator," or an "attacker." A person viewing the video as it was being recorded would have described the video as depicting a man (not a predator, or an attacker) getting onto an elevator on the 56th floor. The remainder of the elevator video also lacks any indication of the man's actions
The elevator camera also recorded the man walking off the elevator at about 3:47:30 a.m. By 3:47:33, the man left the elevator camera's field of view.
Eight minutes later, at about 3:56:33 a.m. (and two minutes before Alamsahebpour and Lee would began describing the man and their incidents to Officer Koss), a different PHW video surveillance system recorded the man from behind as he descended an escalator. The man entered the camera's field of view from the bottom of its field of view, as he stepped onto the escalator. As the camera recorded the man descending the escalator, he was moving away from the camera's position. The camera also recorded a woman who appeared to be accompanying the man. While in the camera's field of view, and while on the escalator, the man placed his hand on the woman's back, and the man and woman appeared to act as if they already know each other. This camera continued to record the man and woman until about 3:57, when they exited the escalator. A camera with a field of view directed towards the bottom of the escalator recorded the man and woman exit the escalator at about 3:57, and promptly leave the field of view. A third camera, with a field of view covering the valet area, shows
In the seconds just prior to 4:10 a.m., PHW's video surveillance system recorded the man getting onto an elevator with the plaintiff. A camera on that elevator also recorded the man getting onto the elevator with Racine, and then exiting the elevator with her.
Racine argues that PHW was on "actual notice" that there was a predator on their property, had a description of the predator, and had recorded camera coverage of the areas where the attacker was located. She further provides the following characterizations of events and evidence: "the attacker from room 5620 is seen on the video evidence getting onto the elevator," "the attacker is seen on the Planet Hollywood Casino escalator," "the attacker's whereabouts is tracked for the entire time between 3:56 a.m. and the time he attacked Plaintiff Racine." The argument, and characterization of the evidence, appears to recognize that the critical circumstance in determining whether the man's attack against Racine was foreseeable was whether PHW knew, or should have known, that the man who descended the escalator to valet parking at 3:56:30, and who then remained in valet parking until just prior to 4:10 a.m., was either "an attacker" or "the attacker."
The Court does not disagree that the man who grabbed Alamsahebpour's waist, and who attacked Lee in her room, can be labeled as an attacker. The reports given by Alamsahebpour and Lee would establish, at the time the reports were given, that each was attacked by a man, an "attacker." Further, that the same man was involved in both incidents indicates an increased likelihood that the man would engage in further inappropriate conduct against woman.
That the man can be described as an attacker by those aware of his acts against Alamsahebpour and Lee does not, however, establish that the man would be recognized, or "seen," or "tracked" as an attacker by someone unaware of the man's prior conduct. The only conduct of the man recorded on video that Racine suggests is indicative of the man's attack on Lee is that he broke into a run in the lobby. The video also shows that he maintained the run only briefly, and then returned to a walk. The Court cannot agree that a person observing the Westgate lobby at 3:48 a.m., (a time prior even to the call first reporting generally the Lee incident) would have recognized the man as "an attacker" because he briefly broke into a run. A person observing the Westgate Tower elevator at 3:46 a.m. would not have recognized that the man getting on the elevator on the 56th floor, and pushing a button for the lobby, was "an attacker." A person observing the escalator descending from the PHW casino to the valet area at 3:56 a.m., in the company of a woman that the man appeared to know, would not have recognized the man as "an attacker." Further, while the call had already been made at 3:54 a.m. from room 5620 to security that reported a sexual assault had occurred, an observer with knowledge of that call would not have recognized the man descending the escalator as "the attacker." The man's conduct, as recorded in the video, does not identify him as either "an attacker" or "the attacker."
While Racine argues that "the attacker's whereabouts is tracked for the entire time between 3:56 a.m. and the time he attacked Plaintiff Racine," the record does
Thus, while Racine suggests the man was seen and tracked after attacking Lee, the evidence establishes only that PHW possessed recordings made by its video surveillance systems from which some of the man's movements, and his location at certain times, can be reconstructed. PHW's possession of the recordings made by its surveillance systems during the time period between the Lee incident and the attack on Racine did not render foreseeable the attack against Racine.
Racine also argues that the video surveillance recordings were not immediately
Reviewing the video recordings to confirm that the man seen at 3:46:45 a.m. was the man who had attacked Lee, for example, by identifying and reviewing the 3:40 a.m. video of Lee and the man ascending in the elevator to the 56th floor together, would have required additional time. However, Racine offers no evidence, or argument, of the necessary, and minimum, additional time required to accomplish this confirmation.
Racine has shown that PHW's video surveillance systems would have allowed PHW to reconstruct the man's movements (and thus location) from 3:46:43 a.m. until about 3:48:35 a.m., as the man moved through five adjacent areas, each area being recorded by a different camera. This reconstruction of the man's movement (by tracking him from one location to the next) would have further indicated, at one point, and for a short period of time, he ran away from the Westgate Tower. As previously noted, however, this reconstruction of the man's movements could not have commenced until after 3:58, and could not have started until someone had first identified the 3:46:45 a.m. elevator recording as having captured images of the man who attacked Lee. Racine offers no evidence as to the necessary, and minimum, amount of additional time that would be required for a review of the video surveillance that would have only established (a) the man's location at 3:48:35 a.m., and (b) that the man was leaving that location at 3:48:35 a.m.
Further, even assuming the reconstruction of the man's 3:46:45 through 3:48:35 a.m. movements could have been completed prior to 4:10 a.m., the additional information resulting from this review of the video evidence would not have rendered foreseeable the attack on Racine. The additional information revealed in these video recordings did not indicate that the man decided to remain on the property after his attack on Lee had been ended by her screams. Rather, the additional information would have established only that two minutes after the Lee incident, and ten minutes before PHW started receiving
More critically, however, starting at 3:48:35 a.m., and continuing until about 3:56:30 a.m., PHW's video surveillance systems did not record the man's movements and location.
A different PHW surveillance system next recorded the man nearly eight minutes after the last prior recording of the man, when he was descending the escalator at 3:56:30 a.m. Racine does not offer any evidence as to the necessary, and minimum, amount of time that PHW would have required to not only locate that particular recording but to also recognize its significance as a recording of the man. The Court cannot find the attack against Racine was foreseeable to PHW based solely on evidence that it is now possible to establish, from recorded video, that the man remained on the property after the Lee incident. That PHW's surveillance system recorded the man's location at 3:56:30 a.m., does not establish that PHW could have identified and recognized the significance of the 3:56:30 recording before 4:10 a.m.
In sum, for purposes of determining foreseeability, the wrongful act against Racine was that a man she did not know followed her into her room at about 4:10 a.m., and then sexually assaulted her in her room. The record lacks evidence of prior incidents of similar wrongful acts.
The circumstances of the sexual assault of Racine include Alamsahebpour's report to PHW, sometime before 3:30 a.m., that a man had inappropriately touched her while she was in the mall area. Alamsahebpour's
Prior to the assault against Racine, PHW's video surveillance systems recorded various locations of PHW's property. Some of the recordings depicted the man who had assaulted Alamsahebpour and Lee. PHW's possession of the recordings from its video surveillance systems that depicted the man did not make foreseeable the sexual assault of Racine.
The record suggests it is extremely unlikely that PHW could have commenced a meaningful review of its video surveillance recordings prior to the sexual assault against Racine. Further, even assuming a meaningful review of PHW's video surveillance recordings could have started prior to 4:10 a.m., the record precludes a conclusion that such a review could have disclosed (before 4:10 a.m.) that the man had not left the PHW property after his assault on Lee. Rather, the first video recordings likely to have been reviewed would have depicted the man leaving the location of the sexual assault against Lee by both walking and running. This video evidence, even if its significance could have been ascertained prior to 4:10 a.m., would not have rendered foreseeable the sexual assault against Racine. (Rather, this video sequence would have suggested the man was in the process of leaving the property at 3:48 a.m., 6 minutes before PHW first received any notification concerning the man's assault of Lee, and at least 10 minutes before PHW received any details of that assault, including a description of the man.)
PHW's video surveillance system recorded the man's location starting at 3:56:30 a.m. The record, however, lacks any evidence that such a review of the recordings made by PHW's video surveillance systems that would have resulted in recognizing the significance of the 3:56:30 a.m. recording of the man could have been completed prior to 4:10 a.m. PHW's video surveillance system continued to record the man's presence in the valet area until at least 4:06 a.m. Due to the circumstances of that recording (poor quality, location of camera, location of man), the significance of the valet area recording requires first identifying the significance of the 3:56:30 and the 3:57 video recordings of the man descending and exiting the escalator to the valet area. PHW's possession, prior to 4:10 a.m., of these video surveillance recordings does not render foreseeable his wrongful act against Racine.
PHW was notified of the details of the assault against Lee, including a description of her attacker, beginning at 3:58 a.m. Racine seeks a determination, as a matter of law, that PHW had a duty to protect her from the attack against her that began twelve minutes later. At its essence, she seeks a determination as a matter of law that PHW had a duty, to be completed within twelve minutes, of identifying, locating, and apprehending the man who had fled from room 5620 eight minutes before PHW first received any notice of the attack against Lee. Any such duty, however, arises only if the sexual assault of Racine was foreseeable (as a matter of law) because of a failure to exercise due care; a failure to engage "in the basic minimum precautions that are reasonably expected of an innkeeper." Smith, 265 P.3d at 691. This determination is made in the context of the totality of the circumstances. As relevant to a determination of whether the sexual assault of Racine was foreseeable to PHW, those circumstances occurred during the sixteen minutes between the first call and the attack of Racine, and more critically, during the twelve minutes after PHW first received a description of the man, and the sexual assault of Racine. The circumstances that occurred, or that could have occurred, did not and could not have rendered the sexual assault of Racine foreseeable to PHW.
The Court's conclusion, as a matter of law, that the sexual assault against Racine was not foreseeable rests upon a consideration of all circumstances (including all circumstances of both the Alamsahebpour and Lee incidents, and all the video surveillance recordings that have been submitted to the Court) both individually and in totality. Therefore, the Court will grant the defendant's motion for summary judgment as to the duty element of NRS 651.015, and will deny the plaintiff's motion for summary judgment.
The Ninth Circuit has held that "[w]hat is `gross' in the particular case is a matter of fact that must be left to the determination of the reasonable persons making up the trier of fact." Chemical Bank v. Security Pacific Nat. Bank, 20 F.3d 375 (9th Cir.1994). This is particularly true when "witness credibility ... is clearly at issue, especially in view of the fact that the only evidence submitted is the testimony of the defendant and of experts." F.D.I.C. v. Jackson, 133 F.3d 694 (9th Cir.1998) (citing Hanon v. Dataproducts Corp., 976 F.2d 497, 507 (9th Cir.1992)). Nevertheless, "Rule 56(c) mandates the entry of summary judgment, after adequate time for discovery and upon motion, against a party who fails to make a showing sufficient to establish the existence of an element essential to that party's case, and on which that party will bear the burden of proof at trial." Celotex Corp. v. Catrett, 477 U.S. 317, 322, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986).
In the instant case, both parties cite to various statements made by their respective security experts to argue that PHW's efforts after learning of the first alleged assault were or were not reasonable. Ken Braunstein, a security expert retained by Racine, drafted a report dated Dec. 3, 2012, included with Racine's motion for summary judgment, in which he concluded:
Braunstein thereafter submitted a supplement to his report, dated Apr. 28, 2013, wherein he concluded:
Both parties cite to Hart v. Kline, 61 Nev. 96, 116 P.2d 672 (1941) for Nevada's definition of gross negligence. In Hart, the Supreme Court of Nevada adopted the definition of the Supreme Court of Vermont, which stated:
In the instant case, no reasonable trier of fact would be able to determine that PHW acted with gross negligence, even if each of the criticisms raised by Braunstein were believed. The record, even when viewed in the light most favorable to Racine, establishes that PHW had security personnel on the premises, who were accessible to receive complaints from Alamsahebpour and Lee; that these security personnel met with both women and took statements from them; that PHW security personnel contacted LVMPD; and that PHW maintained video surveillance of the premises (#70). Racine has not shown that PHW "fail[ed] to exercise even a slight degree of care." Because no reasonable trier of fact would be able to find that PHW was grossly negligent, the Court will grant PHW's motion for summary judgment as to this claim.
The Nevada Supreme Court has held that punitive damages may be awarded only after "the district court makes a threshold determination that a defendant's conduct is subject to this form of civil
Under NRS 42.001, which defines each of those terms, malice includes both "express" malice, which is defined as having intent to injure a person, and "implied" malice, which is defined as a "conscious disregard of the rights or safety of others." Oppression is similarly described as requiring a "conscious disregard" of a persons' rights. Racine never alleged that Planet Hollywood acted with intent, so accusations of express malice are inapplicable. Moreover, the Nevada Supreme Court has held that "in defining what conduct would amount to conscious disregard... we conclude that NRS 42.001(1) denotes conduct that, at a minimum, must exceed mere recklessness or gross negligence." Id. As this Court has already discussed, Racine's claims do not rise to the level of gross negligence, so accusations of implied malice or oppression are also inapplicable.
Finally, Racine never alleged fraud within her complaint. Instead, she argues in her opposition that PHW committed fraud by attempting to replace one security report with a second, more detailed report during the discovery period. If Racine believes such an incident occurred, and amounted to fraud, then Racine must amend her complaint to include sufficient allegations to satisfy the particularity requirements of Rule 9(b). Without such allegations, Racine cannot use fraud as the basis of her prayer for punitive damages. The Court accordingly makes a threshold determination that punitive damages will not be available in the instant case, and will therefore grant Planet Hollywood's motion for summary judgment as to this claim.
Therefore, for good cause shown,
THE COURT
THE COURT
