Before Justices Saitta, Hardesty, and Parraguirre. Opinion by Justice Parraguirre.
In this appeal from the grant of summary judgment in a wrongful death case, the Court reviewed the process for determining the legal duty of an innkeeper when a person is injured or killed by a third party on the innkeeper’s premises under NRS 651.015. The deceased, Smith, punched another patron of the Silver Nugget and a third patron fatally shot Smith in retaliation. Resolving an apparent conflict between NRS 651.015 and the Court’s decision in Doud v. Las Vegas Hilton Corp., 109 Nev. 1096 (1993), the Court concluded that NRS 651.015 requires a district court to determine duty as a matter of law by considering the foreseeability of the wrongful act and a jury must determine proximate cause by considering the foreseeability of the injury or consequences of the wrongful act. The Court then addressed the two methods of determining the foreseeability of a wrongful act set forth in NRS 651.015: (1) failure to exercise due care (2) prior similar acts. The “failure to exercise due care” approach allows for consideration of the totality of the circumstances as applied in Doud; it allows a Court to impose a duty despite the absence of prior similar wrongful acts if the “innkeeper’s outright failure to take reasonable precautions to protect its patrons” increased the likelihood of the wrongful act. The Court also attempted to clarify the extent of similarity required to establish a duty based on prior similar acts. Noting that the Legislature intended courts to have some discretion in considering the similarity of wrongful acts, the Court stated that whether acts are similar is, at least in part, determined by looking at whether the acts implicated similar security concerns. Because there had been no prior security incidents involving serious injury or concealed handguns at the Silver Nugget, the Court affirmed the district court’s conclusion that the shooting here was not foreseeable in a manner that created a duty on the part of the Silver Nugget. Affirmed. (Kerry S. Doyle, Associate in the Reno office of McDonald Carano Wilson).
