Her attacker pleaded guilty to sexual assault, but attorneys for the hotel argued in Anderson v. Mandalay Corp. that it couldn’t be responsible for the worker’s actions, which were unforeseeable and outside the scope of his employment. Trial court agreed and granted summary judgment to the defense.
But not so fast, said the Nevada Supreme Court. There was evidence from which a reasonable jury could conclude the employee’s actions were reasonably foreseeable, and claims of direct negligence and vicarious liability weren’t futile because the conduct was foreseeable.
Vicarious liability is a theory of liability that holds an employer responsible for the actions of an employee simply because it is the superior – regardless of whether it actually did anything wrong. Direct negligence, meanwhile, is the assertion that the hotel failed in its duty of care to plaintiff. Specifically in this case, plaintiff asserted negligent retention, supervision and security.
According to court records, plaintiff came to Las Vegas in the fall of 2008 on a business trip. She checked in, performed some work-related business and then went out for dinner and drinks with co-workers. She became intoxicated and returned to the hotel around 2 a.m. Surveillance footage shows she shared an elevator with the employee in question. She exited on her floor, entered her room, shut the door behind her and went to sleep.
Sometime later, she woke up vomiting. She felt someone wipe her face with a washcloth. That’s when she realized a uniform man – later identified as the employee – was in her room. He raped her. Then he left the room. She immediately called the front desk and security interviewed him after finding him on that floor. Initially, he stated he only entered the room (to which he had a key) in order to sweep glass in the hallway that had fallen underneath the victim’s door. He later stated he and victim had consensual sex. The police took over the investigation, and he later pleaded guilty to committing sexual assault.
The worker’s job was such that he was not closely supervised. The hotel had conducted a background check on employee and that did not return a criminal record. He had been disciplined with a one-month suspension for using the hotel radio systems to make insulting, threatening comments, including some directed toward a female employee that insinuated sexual assault.
In preparation for her personal injury lawsuit against the hotel, plaintiff presented evidence showing there were five sexual assaults perpetrated by the hotel workers on the hotel premises. Three of those incidents involved guests and two involved other employees. Further, she presented evidence that the hotel received about one complaint every month that an employee had entered occupied guest rooms unauthorized. Online travel sites reported to this being a problem. She further presented the expert witness testimony indicating the security provided by the hotel was insufficient, and that ongoing security defects created a dangerous situation.
District court granted defense motion for summary judgment, finding the hotel couldn’t be held vicariously liable because the worker’s actions were independent, not committed in the course of a task assigned and weren’t foreseeable. Plaintiff had attempted at a hearing to add claims of direct negligence, but the court found these too would be “futile.”
The state supreme court reversed and remanded. The court noted this particular employee first of all had been the subject of a sexual harassment complaint, and further, there had been numerous reports of sexual assault by employees on the property in recent years. The hotel had notice that:
- Employees entrusted with keyed access to guest rooms sometimes abused that privilege by entering those rooms to commit property crimes;
- Employees were capable of sexual assault on guests and each other;
- Some employees abused their key card access to guest rooms when they weren’t supposed to;
- This particular employee had been suspended for a month for harassing and threatening a female supervisor.
Despite all of that, the hotel restored worker’s key card access and assigned him to a job with little supervision. Based on all of this, the court ruled, a reasonable jury could conclude the sexual assault was foreseeable.
The case was remanded for trial.
Contact our Carolina personal injury lawyers at Lee Law Offices today by calling 800-887-1965.
Anderson v. Mandalay Corp., Oct. 15, 2015, Nevada Supreme Court
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Regents v. Super. Ct. – University Duty of Care to Students, Oct. 7, 2015, Rock Hill Injury Attorney Blogs