By the Court, PARRAGUIRRE, J.:
In this opinion, we consider the apparent disconnect between NRS 651.015's limitation on innkeeper liability and our decision in Doud v. Las Vegas Hilton Corp., 109 Nev. 1096, 864 P.2d 796 (1993). Having concluded that this discord arises from the multifaceted concept of "foreseeability," we clarify that the duty element of a negligence cause of action must be determined as a matter of law by considering whether the wrongful act that precipitated the plaintiffs injury was foreseeable. We further conclude that NRS 651.015(3)'s definition of "foreseeable" provides the appropriate framework for conducting this inquiry in the context of innkeeper liability by codifying the common-law approach that we set forth in Doud. Because the district court in this case properly applied NRS 651.015(3) in determining that the act which led to the victim's death was not foreseeable, respondent Mahoney's Silver Nugget, Inc., did not owe the victim a duty as a matter of law. We therefore affirm the district court's summary judgment in favor of the Silver Nugget.
In the early morning hours of June 25, 2006, Daniel Ott entered the Silver Nugget casino with two friends, Paris Lee and Lakiva Campbell. They proceeded into the Touchdown Lounge and joined a boisterous group of people crowded around several pool tables near the bar. This group had already caught the attention of casino security, and within five minutes of Ott's arrival, the entire group was asked to leave.
At this same time, Allen Tyrone Smith, Jr., was seated at a bar adjacent to the Touchdown Lounge. While not entirely clear, the record indicates that 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 the perceived attack on his friend, Ott immediately revealed a concealed weapon and fatally shot Smith.
Following Smith's death, appellants—the Estate of Allen Tyrone Smith, Jr., Allen Tyrone Smith, Sr., and Sandra O. Smith (collectively, Smith's Estate)—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. This appeal followed.
Smith's Estate argues that the district court erred in granting summary judgment in favor of the Silver Nugget because Smith's murder was foreseeable, and thus, the Silver Nugget owed Smith a duty of care under NRS 651.015.
Before reaching the merits of this appeal, it is necessary to draw a distinction between foreseeability as it relates to duty and foreseeability as it relates to causation in assessing innkeeper liability.
In Doud v. Las Vegas Hilton Corp., 109 Nev. 1096, 864 P.2d 796 (1993), we addressed the four elements a plaintiff must establish to succeed on a negligence claim for innkeeper liability: (1) duty, (2) breach, (3) proximate causation, and (4) damages. Id. at 1100, 864 P.2d at 798. In determining the threshold inquiry of whether an innkeeper owes a duty of care to its patron, we recognized that a duty to prevent wrongful conduct by third parties only occurs when the wrongful conduct is foreseeable. Id. at 1101-02, 864 P.2d at 799-800. In determining foreseeability for purposes of establishing a duty, we considered two distinct approaches: evidence of prior similar acts and a totality of the circumstances.
The Legislature subsequently enacted NRS 651.015 to resolve a perceived defect in Doud
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 occasion to consider the remaining elements of the plaintiffs cause of action, including breach, which is addressed in NRS 651.015(2)(b). The determination of foreseeability as it relates to an innkeeper's duty of care to a patron must be made by the district court as a matter of law. See NRS 651.015(2).
In determining whether a wrongful act is "foreseeable" and thus gives rise to a duty as a matter of law, the Legislature provided a definition in NRS 651.015(3). The subsection provides that a wrongful act is not "foreseeable" unless:
NRS 651.015(3) (emphases added).
At first blush, this definition appears counterintuitive because "due care" is a term of art generally used to describe the negligence element of breach—an element typically reserved for determination by the jury. See Doud, 109 Nev. at 1104, 864 P.2d at 801. However, as previously stated, NRS 651.015(2) expressly provides that duty is a question of law to be decided by a judge.
The legislative history indicates 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. Hearing on S.B. 474 Before the Senate Judiciary Comm., 68th
This standard is akin to Nevada's "totality of the circumstances" approach established in Doud, 109 Nev. at 1101-04, 864 P.2d at 799-801 (imposing a duty where there is reasonable cause to anticipate a wrongful act, regardless of past experience). Other jurisdictions have similarly articulated that "duty encompasses a responsibility to take reasonable steps to secure the premises against foreseeable criminal acts of third parties that are likely to occur in the absence of such precautionary measures." Lopez v. Baca, 98 Cal.App.4th 1008, 120 Cal.Rptr.2d 281, 286 (2002) (quotations and citations omitted). In other words: an innkeeper's outright failure to take reasonable precautions to protect its patrons would increase the likelihood of injury caused by a third party (without regard to the issues of breach or proximate causation), thus making a third party's wrongful act more "foreseeable."
After review of the legislative history, we conclude 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). 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. Having thus interpreted NRS 651.015's foreseeability requirement, we must now determine whether the fatal shooting in this case was foreseeable to the Silver Nugget.
Smith's Estate argues that the shooting was foreseeable based on prior incidents of similar wrongful acts that had occurred at the Silver Nugget. We disagree.
To begin, NRS 651.015(3)(b) provides that foreseeability may be determined by an owner's knowledge of prior similar wrongful acts. However, it does not provide any guidance as to which acts should be considered "similar." Smith's Estate contends that all violent acts occurring anywhere on an innkeeper's premises—whether inside or outside the casino— should be considered similar. The Silver Nugget responds that violent acts occurring outside of the casino raise different safety concerns and are not similar to acts of violence within the casino. Moreover, the Silver Nugget contends that violent acts that do not concern firearms or other deadly weapons are dissimilar to a murder involving a firearm.
Accordingly, we return to the legislative history of NRS 651.015, in which several commentators noted that the phrase prior incidents of "similar wrongful acts" could be interpreted in different ways. See, e.g., Hearing on S.B. 474 Before the Assembly Judiciary Comm., 68th Leg. (Nev., June 10, 1995). The drafters of the provision explained that such ambiguity was deliberate:
Id.
The legislative history proceeds to document 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
In this case, Smith's Estate points to multiple criminal incidents occurring in and around the Silver Nugget, which it contends are similar enough to Smith's murder to have provided the casino with notice that additional precautions were necessary. Most notably, Smith's Estate points to a number of fistfights and robberies that occurred inside the casino within five years prior to the murder. However, after reviewing the record, it does not appear that weapons were used in any of these incidents, and no serious injuries resulted.
Smith's Estate also references several incidents that occurred in the Silver Nugget's parking lot outside of the casino. In particular, Smith's Estate notes that there was a report of shots fired in or near the parking lot approximately four years prior to Smith's murder, and that there had been two other reports of people possibly brandishing firearms in the parking lot after that time. Nobody was shot in any of these instances, nor does it appear from the record that any of the participants in these events were patrons of the Silver Nugget.
Therefore, we conclude that the district court properly determined that the fatal shooting was unforeseeable under NRS 651.015(3)(b) "because there were no prior incidents of similar wrongful acts [that] occurred on the premises."
However, as discussed in Doud, proof of prior incidents of similar wrongful acts are sufficient, but not always necessary, for establishing the existence of a duty. The 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. Although Smith's Estate focuses solely on "prior similar acts," we note that the district court's findings support its conclusion that a duty could not have been imposed under either prong of NRS 651.015(3).
After carefully reviewing the record, it is apparent that the Silver Nugget took basic minimum precautions to ensure the safety of its patrons. There is no evidence to suggest that the Silver Nugget should have known that Ott was carrying a concealed weapon when he entered the premises. Also, the Silver Nugget promptly deployed security to request that the boisterous group leave the Touchdown Lounge. Thus, we are convinced that the circumstances leading up to Smith's murder did not provide the requisite foreseeability for imposing a duty upon the Silver Nugget under NRS 651.015(3)(a).
In conclusion, the district court made detailed findings in its order granting summary judgment in favor of the Silver Nugget. The district court found that "the undisputed evidence revealed that there were no prior criminal acts that involved firearms or handguns in the premises," and that the Silver Nugget exercised the requisite precautions for the safety of its patrons by deploying security to control the group. Accordingly, the district court concluded that the fatal shooting was "unforeseeable," as defined by both prongs of NRS 651.015(3).
We agree with the district court. Because the Silver Nugget did not owe Smith a duty under NRS 651.015 as a matter of law, we conclude that the district court properly granted summary judgment in favor of the Silver Nugget. See Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005); Doud, 109 Nev. at 1100, 864 P.2d at 798 ("In order to establish entitlement to judgment as a matter of law, a moving defendant must show that one of the elements of the plaintiffs prima facie case is clearly lacking as a
We concur: SAITTA, C.J., and HARDESTY, J.