MIRANDA M. DU, District Judge.
This case arises from an incident where Plaintiff John Deatherage ("Deatherage") suffered back injuries after an elevator allegedly descended several floors rapidly and then abruptly stopped. Before the Court is Defendant Schindler Elevator Corporation's ("Schindler") Motion for Summary Judgment ("Motion") (ECF No. 38). The Court has reviewed Plaintiff's response (ECF No. 39) and Defendant's reply (ECF No. 40). For the reasons discussed herein, Schindler's Motion is granted in part and denied in part. It is granted with respect to Deatherage's claim against Schindler for negligence as a common carrier and is denied in all other respects.
The following facts are taken from the complaint.
On July 19, 2014, while Deatherage and his nephew were riding in an elevator at Harvey's Lake Tahoe Resort and Casino ("Harvey's"), the elevator purportedly dropped rapidly before violently coming to a stop. As a result, Deatherage claims he sustained pre-impact terror, severe and permanent back injury, extreme pain to his groin and leg, as well as continuing physical pain and emotional distress including loss of enjoyment of life. Deatherage claims he then received multiple epidural injections, physical therapy, and eventually spinal fusion surgery, to treat his back pain.
At the time of the incident, Schindler provided preventative maintenance to the elevators located at Harvey's premises pursuant to an agreement with Harvey's.
Deatherage asserts three claims for relief against Schindler: (1) negligence for failure to exercise reasonable care so as to ensure the safety of Harvey's guests and other users of the elevators located at Harvey's; (2) negligence as a common carrier for failure to exercise the highest degree of care; and (3) res ipsa loquitur. Deatherage also alleges that Schindler acted with reckless disregard of human safety, "constituting malice under NRS [§] 42.005(1)," which entitles him to an award of punitive damages. (ECF No. 1 at 4.)
The purpose of summary judgment is to avoid unnecessary trials when there is no dispute as to the facts before the court. Nw. Motorcycle Ass'n v. U.S. Dep't of Agric., 18 F.3d 1468, 1471 (9th Cir. 1994). Summary judgment is appropriate when the pleadings, the discovery and disclosure materials on file, and any affidavits show "there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law." Celotex Corp. v. Catrett, 477 U.S. 317, 330 (1986). An issue is "genuine" if there is a sufficient evidentiary basis on which a reasonable fact-finder could find for the nonmoving party and a dispute is "material" if it could affect the outcome of the suit under the governing law. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248-49 (1986). Where reasonable minds could differ on the material facts at issue, however, summary judgment is not appropriate. See id. at 250-51. "The amount of evidence necessary to raise a genuine issue of material fact is enough `to require a jury or judge to resolve the parties' differing versions of the truth at trial.'" Aydin Corp. v. Loral Corp., 718 F.2d 897, 902 (9th Cir. 1983) (quoting First Nat'l Bank v. Cities Service Co., 391 U.S. 253, 288-89 (1968)). In evaluating a summary judgment motion, a court views all facts and draws all inferences in the light most favorable to the nonmoving party. Kaiser Cement Corp. v. Fishbach & Moore, Inc., 793 F.2d 1100, 1103 (9th Cir. 1986).
The moving party bears the burden of showing that there are no genuine issues of material fact. Zoslaw v. MCA Distrib. Corp., 693 F.2d 870, 883 (9th Cir. 1982). "In order to carry its burden of production, the moving party must either produce evidence negating an essential element of the nonmoving party's claim or defense or show that the nonmoving party does not have enough evidence of an essential element to carry its ultimate burden of persuasion at trial." Nissan Fire & Marine Ins. Co., Ltd v. Fritz Cos., Inc., 210 F.3d 1099, 1102 (9th Cir. 2000). Once the moving party satisfies Rule 56's requirements, the burden shifts to the party resisting the motion to "set forth specific facts showing that there is a genuine issue for trial." Anderson, 477 U.S. at 256. The nonmoving party "may not rely on denials in the pleadings but must produce specific evidence, through affidavits or admissible discovery material, to show that the dispute exists," Bhan v. NME Hosps., Inc., 929 F.2d 1404, 1409 (9th Cir. 1991), and "must do more than simply show that there is some metaphysical doubt as to the material facts." Orr v. Bank of Am., NT & SA, 285 F.3d 764, 783 (9th Cir. 2002) (internal citations omitted). "The mere existence of a scintilla of evidence in support of the plaintiff's position will be insufficient." Anderson, 477 U.S. at 252.
Schindler argues that it is not a common carrier, Deatherage cannot establish negligence through the doctrine of res ipsa loquitur and because he has not demonstrated causation, and Deatherage cannot establish entitlement to punitive damages. The Court will address each argument in turn.
Under Nevada law, a common carrier of passengers must "exercise the highest degree of care that human judgment and foresight are capable of to make his passenger's journey safe." Forrester v. Southern Pac. Co., 134 P. 753, 774 (Nev. 1913). Here, Deatherage alleges that Schindler, in "inspecting, servicing and maintaining the elevators at [Harvey's], and in determining whether to warn guests and other users of the risks attendant to the use of the elevators," was a common carrier under Nevada law and, as such, was required to exercise the highest degree of care. (ECF No. 1 at 4-5.) The Court disagrees and finds that Schindler was acting merely as an independent contractor,
Schindler contends that Nevada law has held only an elevator owner to be a common carrier for purposes of tort liability. (See ECF No. 38 at 9.) In response, Deatherage asserts that Nevada law has found that the responsibility a defendant has over the maintenance and inspection of an elevator determines whether the defendant is considered a common carrier. (ECF No. 39 at 17-18 (citing Smith v. Odd Fellows Bldg. Ass'n, 206 P. 796 (Nev. 1922).)
Generally, where common carriers hire independent contractors to perform work for them, the common carrier may still be held liable in certain instances for the negligence of the independent contractor. Specifically, an employer may be found negligent in "selecting, instructing, or supervising" the independent contractor or where the employer's duties that arise out of some relation toward the public cannot be delegated to the independent contractor.
To prevail on a negligence claim under Nevada law, a plaintiff must establish four elements: (1) the existence of a duty of care, (2) a breach of that duty, (3) legal causation, and (4) damages. Sanchez ex rel. Sanchez v. Wal-Mart Stores, Inc., 221 P.3d 1276, 1280 (Nev. 2009).
In its Motion, Schindler contends that no evidence exists to suggest that they breached their duty of care by negligently maintaining the elevator or that such a breach proximately caused Deatherage's injuries. (See ECF No. 38 at 12.) The Court disagrees. To rebut Deatherage's allegation that they negligently maintained the elevator, Schindler points to evidence in the record to claim that they provided maintenance at regular intervals (see id. at 4), conducted preventative maintenance (see id.), and responded to service calls promptly. (Id. at 12-13.) For instance, Schindler points to work performed on the elevator on April 5, 2014, wherein the technician conducted testing of the "normal and final terminal stopping device, the safeties, the ascending car overspeed protection and unintended car movement devices, and the standby (or emergency) power." (Id. at 4; see also ECF No. 38-10 at 4 (2014 Maintenance Completion Report).) Schindler also claims that Deatherage has failed to demonstrate that Schinder's purported negligent maintenance produced a "harmful, non-code
In response, Deatherage relies heavily on its elevator expert to rebut Schindler's assertions that it provided adequate preventative maintenance and that the "abrupt stopping event" was code compliant.
In the alternative, Schindler states that even if a material question of fact exists regarding a breach, Deatherage has produced no evidence to suggest that Schindler's negligent maintenance of the elevator was the legal cause of the harmful condition that led to Deatherage's injuries. (ECF No. 38 at 13.) Schindler relies exclusively on Stabler's deposition testimony where he purportedly admitted that the stopping forces generated by the elevator met the standards he claims that Schindler violated. (Id. at 14.) Yet, during Stabler's deposition, he indicated that his preliminary report did not factor in the stopping force of the dynamic brake and that it instead factored in only the force of the elevator's mechanical or machine break. (See ECF No. 38-17 at 7.) With the mechanical brake only considered, the stopping force would be code-compliant, as Stabler determined that this brake produced a peak G-force or 0.6g, which is below the 1g code requirement (or 2g code requirement when including the force of gravity). (See ECF No. 39 at 15; see also ECF No. 38-17 at 34.) However, once Stabler realized that the elevator also included a dynamic braking system that was activated during the incident by the emergency terminal stopping device, he determined that, based on his experience, the dynamic brake performed at about 0.7g. (ECF No. 39 at 15; ECF No. 38-17 at 9-10, 34.) Deatherage therefore claims that the two brakes worked in tandem during the incident to create a stopping force slightly greater than 1g, which with the addition of gravity at 1g was twice his body weight and 30 to 40 times greater than a normal elevator stop. (ECF No. 39 at 15; see also ECF No. 38-16 at 6; see also ECF No. 38-17 at 8-9, 42.) Ultimately, Stabler claims that this excessive stopping force was the cause of Deatherage's injuries.
On a final note, Schindler relies on Soldano v. United States, 453 F.3d 1140 (9th Cir. 2006), to argue that Stabler's expert opinion alone is insufficient to demonstrate that the elevator was in an unsafe condition when Deatherage encountered it. (ECF No. 38 at 14.) However, the expert in Soldano did not base his decision on anything other than his observation of the accident site four years later. By contrast, Stabler based his opinion on a combination of: Deatherage and his nephew's deposition testimony;
In sum, the Court finds that viewing the evidence, including Stabler's expert reports and deposition testimony, in the light most favorable to Deatherage and drawing all reasonable inferences in his favor, a reasonable jury may find that Deatherage established both elements of breach of duty and causation,
"Res ipsa loquitur is an exception to the general negligence rule, and it permits a party to infer negligence, as opposed to affirmatively proving it, when certain elements are met." Woosley v. State Farm Ins. Co., 18 P.3d 317, 321 (Nev. 2001). In Nevada, to satisfy a claim under the doctrine of res ipsa loquitur, a plaintiff must show: "(1) the event must be of a kind which ordinarily does not occur in the absence of someone's negligence; (2) the event must be caused by an agency or instrumentality within the exclusive control of the defendant; [ ] (3) the event must not have been due to any voluntary action or contribution on the part of the plaintiff;" and (4) the defendant has "superior knowledge of or [is] in a better position to explain the accident[.]" Woosley, 18 P.3d at 321.
Schindler contends that Deatherage fails to demonstrate the second element of res ipsa loquitur because the "power outage/surge which precipitated Plaintiff's descent was not within Schindler's exclusive control" and because Harvey's did not grant Schindler control over the elevators but required Schindler to recommend (not make ultimate decisions) regarding replacements, upgrades, or modernization of the elevators. (ECF No. 38 at 11; ECF No. 40 at 7.) In response, Deatherage contends that he is not attributing his injuries to the power outage/surge; rather, he attributes the cause of his injuries to "how the elevator behaved in response to the power interruption." (ECF No. 39 at 21.) Deatherage also points to the Nevada Supreme Court's decision to uphold a jury instruction on res ipsa loquitur in American Elevator Co. v. Briscoe, 572 P.2d 534, 535-6 (Nev. 1977), where a company had exclusive contractual duty to service and maintain elevators in a hotel. (Id.) Schindler does not aver in its reply that another company had additional control over the maintenance and service of the elevators or that Harvey's itself employed an individual able to maintain or service the elevators. Moreover, unlike the defendant in Briscoe, Schindler does not contend that the elevator was improperly installed or manufactured. See Briscoe, 572 P.2d at 536. Because Deatherage is only required to produce sufficient evidence "from which it can be said that it was more likely than not that it was negligence on part of his adversary" that caused the elevator to abruptly stop, see id. at 537, the Court finds that expert opinions in combination with the maintenance logs and deposition testimony amounts to circumstantial evidence with sufficient probative force by which a jury may reasonably infer negligence. See Otis Elevator Co. v. Reid, 706 P.2d 1378, 1381 (Nev. 1985) (internal citation omitted).
Finally, Schindler maintains that it does not have superior knowledge of the subject incident because its mechanic, Rick Slater, was not aware of the incident when he re-initialized the elevator and examined it on July 19, 2014. (ECF No. 38 at 12.) Given Slater's lack of knowledge of the incident, it is reasonable that the service he performed on that date was minimal. (See ECF No. 38-5 at 29.) However, Schindler, as seemingly the only entity providing maintenance services to Harvey's elevators, was in the best position to discern and explain why the elevator may have abruptly stopped or to determine what further maintenance, if any, was needed. Instead, Schindler apparently chose not to generate a report of the incident due to liability concerns after Harvey's employee, Carl Paulson, followed up with them about the incident on July 21.
"Whether the record contains sufficient evidence to justify an award of punitive damages is a question of law, and for the court to decide." Austin v. C & L Trucking, Inc., 610 F.Supp. 465, 472 (D. Nev. 1985) (citing U.S. Fidelity v. Peterson, 540 P.2d 1070 (1975)). Under Nevada law, to recover punitive damages a plaintiff has to show that a defendant acted with "malice, express or implied." NRS § 42.005(1). "Malice" means "conduct which is intended to injure a person or despicable conduct which is engaged in with a conscious disregard of the rights or safety of others." NRS § 42.001(3). A court may infer the existence of malice where the defendant shows a conscious disregard of an accepted safety procedure. Leslie v. Jones Chemical Co., 551 P.2d 234 (1976).
Schindler asks this Court to dismiss Plaintiff's request for punitive damages given that Deatherage "wholly fails to establish by any evidence that Schindler acted with malice or any level of culpable intent." (ECF No. 38 at 15.) However, the Court finds that Deatherage has presented sufficient evidence concerning Schindler's possible conscious disregard of safety procedures to rebut this assertion. For instance, Stabler testified that the record shows that Schindler's maintenance control program occurred on a roughly semi-annual basis, yet the machine braking system and controllers should have been dynamically tested, not merely visually inspected, every two weeks.
Thus, the Court finds there is sufficient evidence in the record to deny summary judgment on Schindler's request to dismiss Deatherage's claim for punitive damages. However, the Court's ultimate determination of whether an instruction on punitive damages will be given to the jury will depend on the evidence presented at trial and whether the jury finds Schindler liable for Deatherage's injuries.
The Court notes that the parties made several arguments and cited to several cases not discussed above. The Court has reviewed these arguments and cases and determines that they do not warrant discussion as they do not affect the outcome of Schindler's Motion.
It is therefore ordered that Schindler's Motion for Summary Judgment is denied as to Deatherage's negligence and res ipsa loquitur claims and as to Deatherage's request for punitive damages. The Motion for Summary Judgment is granted as to Deatherage's claim for common carrier negligence.
