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                                                    131 Nev., Advance Opinion
                         IN THE SUPREME COURT OF THE STATE OF NEVADA


                CRISTIE N. ANDERSON,                                   No. 61305
                INDIVIDUALLY; AND JAMAAR
                ANDERSON,
                Appellants,
                vs.
                                                                            FILED
                MANDALAY CORPORATION, A                                            1 5 2015
                NEVADA CORPORATION D/B/A                                  TF24CIK. LINDEMAN
                                                                       CLERKFJUPREME QOUET
                MANDALAY BAY RESORT AND                                W
                CASINO,                                                    CHIEF DEN I

                Respondent.


                CRISTIE N. ANDERSON,                                   No. 61871
                INDIVIDUALLY; AND JAMAAR
                ANDERSON,
                Appellants/Cross-Respondents,
                vs.
                MANDALAY CORPORATION, A
                NEVADA CORPORATION D/B/A
                MANDALAY BAY RESORT AND
                CASINO,
                Respondent/Cross-Appellant.



                            Consolidated appeals from a district court order granting
                summary judgment, certified as final under NRCP 54(b), and an order
                granting, in part, a motion for attorney fees, costs, and interest in a tort
                action. Eighth Judicial District Court, Clark County; Valerie Adair,
                Judge.
                            Reversed and remanded.




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                David T. Wall, Las Vegas; Eglet Prince and Robert T. Eglet, Tracy A.
                Eglet, and Danielle A. Tarmu, Las Vegas,
                for Appellants/Cross-Respondents.

                Kravitz, Schnitzer & Johnson, Chtd., and Martin J. Kravitz and Jordan P.
                Schnitzer, Las Vegas,
                for Respondent/Cross-Appellant.




                BEFORE THE COURT EN BANC.'

                                                 OPINION

                By the Court, PARRAGUIRRE, J.:
                            NRS 41.745(1)(c) makes employers vicariously liable for
                employees' intentional torts if a plaintiff can show the intentional conduct
                was "reasonably foreseeable under the facts and circumstances of the case
                considering the nature and scope of [the employee's] employment." Here,
                we are asked to determine whether it was reasonably foreseeable that an
                employee would rape a hotel guest. We are also asked to determine
                whether the employee's criminal conduct was so unforeseeable that direct
                negligence claims against the employer would be futile. Based on the
                particularized facts of this case, which are detailed below, we conclude a
                reasonable jury could find that the employee's criminal conduct was
                reasonably foreseeable. Similarly, we conclude direct negligence claims
                against the employer would not be futile because a reasonable jury might



                      'The Honorable Kristina Pickering, Justice, voluntarily recused
                herself from participation in the decision of this matter.


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                     find that the criminal conduct was foreseeable. Accordingly, we reverse
                     and remand.
                                                       FACTS
                                 Cristie Anderson and her husband sued Mandalay Bay Resort
                     and Casino (Mandalay) after Alonzo Monroy Gonzalez, a Mandalay
                     employee, raped Anderson in her hotel room at Mandalay. Anderson and
                     her husband asserted claims against Mandalay for negligent hiring,
                     vicarious liability, and loss of consortium. During discovery, Anderson
                     asked for leave to amend her complaint to add claims for negligent
                     security, retention, and supervision. Mandalay sought summary
                     judgment, and at the summary judgment hearing, Anderson's counsel
                     abandoned all claims except the vicarious liability claim. The district
                     court granted Mandalay's motion for summary judgment, concluding
                     Mandalay was not vicariously liable for Gonzalez's criminal act. The
                     district court also denied, as futile, Anderson's motion to amend her
                     complaint. Anderson timely appealed those decisions. 2
                                 Anderson came to Las Vegas on September 8, 2008, to attend
                     a trade show on behalf of her employer. She checked into room 8916 at
                     Mandalay. After performing some work-related duties, she and her
                     coworkers went out for dinner and drinks. Anderson became intoxicated
                     and returned to Mandalay around 2 a.m. on September 9, 2008.
                     Surveillance footage shows that she and Gonzalez shared an elevator; both


                           2Mandalay filed a notice of cross-appeal seeking attorney fees, costs,
                     and interest from Anderson. However, Mandalay never filed an opening
                     brief on cross-appeal, as required by NRAP 28.1(c)(2), and its answering
                     brief does not set forth its cross-appeal arguments. Therefore, Mandalay
                     has not actually presented this court with a cross-appeal.


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                     exited on the eighth floor. Anderson entered her room, shut the door
                     behind her, and went to sleep.
                                 Later, Anderson woke up vomiting and felt someone wiping
                     her face with a washcloth. She realized a uniformed man, later identified
                     as Gonzalez, was in her room. Gonzalez raped Anderson. He immediately
                     left the room when Anderson oriented herself. Anderson called the front
                     desk, and Mandalay security interviewed Gonzalez after finding him on
                     the eighth floor. He admitted to entering room 8916 but claimed he only
                     entered to sweep up broken glass that was in the hallway and underneath
                     the room's door. Gonzalez later claimed to have had consensual sex with
                     Anderson. Las Vegas Metropolitan Police took over the investigation, and
                     Gonzalez ultimately pleaded guilty to sexual assault.
                                 Gonzalez worked at Mandalay as a House Person, whose
                     principle job duties are to clean the common areas of the hotel and assist
                     in cleaning and serving guest rooms, as needed. A House Person working
                     Gonzalez's shift would have little supervision. Mandalay provided
                     Gonzalez with a keycard that was traceable to him and opened the guest
                     rooms on his assigned floors. On the night in question, floors 8-12 were
                     assigned to him. Gonzalez used that keycard to enter Anderson's room.
                                 Before hiring Gonzalez, Mandalay performed a criminal
                     background check using a social security number he provided. That
                     number was connected to Gonzalez's name and indicated he had no
                     criminal record. Mandalay solicited Gonzalez's employment references
                     and filled out 1-9 documents reporting Gonzalez's eligibility to work;
                     however, it is not clear that Mandalay contacted those references and
                     properly updated information on Gonzalez's 1-9.



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                            Gonzalez's prior disciplinary history shows that Mandalay
                suspended him for 31 days after he and two other men were implicated in
                a series of insulting and threatening comments made over Mandalay's
                employee radios. The allegations included using the radios to broadcast
                the sound of toilets flushing, animal noises, and threats to a female
                supervisor. The threats were "I know where you live Juanita," "I will be
                waiting for you in the parking garage," and "You are a bitch Juanita and
                you deserve what you are going to get." Although Mandalay never
                definitively identified or ruled out Gonzalez as making any threats, it did
                find that Gonzalez misused employee radios and lied about it.
                            During district court proceedings, Anderson presented
                evidence of five prior sexual assaults perpetuated by Mandalay employees
                on Mandalay's premises. The victims in three of the assaults were guests,
                and two were other Mandalay employees. Additionally, evidence was
                presented showing Mandalay received about one report a month claiming
                an employee entered an occupied room without authorization. Anderson
                submitted eight Las Vegas Metropolitan Police reports about Mandalay
                employees stealing from guest rooms during unauthorized entries.
                Anderson also presented in court comments from travel sites reporting
                similar problems. Anderson also presented an expert report indicating
                Mandalay had insufficient security when Gonzalez attacked Anderson,
                and ongoing security defects created a volatile environment.
                            Ultimately, the district court granted Mandalay's motion for
                summary judgment, concluding NRS 41.745(1) and WoodS v. Safeway, Inc.,
                121 Nev. 724, 121 P.3d 1026 (2005), barred vicarious liability against
                Mandalay because Gonzalez's acts were truly independent, not committed
                in the course of the very task assigned, and not reasonably foreseeable.

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                 The district court also denied as futile Anderson's request for leave to
                 amend.
                                                  DISCUSSION
                               On appeal, Anderson argues the district court erred in
                 granting Mandalay's motion for summary judgment. Additionally,
                 Anderson argues the district court erred in denying her leave to amend
                 her complaint.
                 Mandalay was not entitled to summary judgment
                               This court reviews summary judgment rulings de novo. Wood
                 v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026, 1029 (2005). Summary
                 judgment is appropriate when the record shows there is no genuine issue
                 of material fact remaining, and the movant is entitled to judgment as a
                 matter of law. Id. (citing NRCP 56(c)). Therefore, summary judgment is
                 improper whenever "a reasonable jury could return a verdict for the non-
                 moving party." Sprague v. Lucky Stores, Inc., 109 Nev. 247, 249, 849 P.2d
                 320, 322 (1993). When reviewing the record, "the evidence, and any
                 reasonable inferences drawn from it, must be viewed in a light most
                 favorable to the nonmoving party."       Wood, 121 Nev. at 729, 121 P.3d at
                 1029.
                         IVRS 41.745(1)(c) sets forth a factual inquiry
                               NRS 41.745 makes employers vicariously liable for employees'
                 intentional torts when—among other circumstances—an employee's act is
                 "reasonably foreseeable under the facts and circumstances of the case
                 considering the nature and scope of his or her employment." NRS
                 41.745(1)(c). Inquiries focused on the facts and circumstances of a case are
                 typically factual, not legal. See, e.g., Mayfield v. Koroghli, 124 Nev. 343,
                 352, 184 P.3d 362, 368 (2008); Basile v. Union Plaza Hotel & Casino, 110
                 Nev. 1382, 1384, 887 P.2d 273, 275 (1994); see also 65 C.J.S. Negligence § 8
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                (2010) (stating that the question of negligence is "determined by a
                consideration of all the particular set of facts and circumstances").
                              Further, the Legislature clarified NRS 41.745(1)(c)'s
                reasonable foreseeability standard, stating the "conduct of an employee is
                reasonably foreseeable if a person of ordinary intelligence and prudence
                could have reasonably anticipated the conduct and the probability of
                injury." NRS 41.745(1)(c). This definition of reasonable foreseeability
                stems from premises liability cases, Hearing on A.B. 595 Before the
                Assembly Judiciary Comm., 69th Leg. 13-14 (Nev., June 19, 1997) (citing
                El Dorado Hotel, Inc. v. Brown, 100 Nev. 622, 627, 691 P.2d 436, 440
                (1984), overruled on other grounds by Vinci v. Las Vegas Sands, Inc., 115
                Nev. 243, 245, 984 P.2d 750, 751 (1999)), and this court has held its
                determination presents an issue of fact, Basile, 110 Nev. . at 1384, 887 P.2d
                at 275. Therefore, we conclude NRS 41.745(1)(c)'s reasonable
                foreseeability standard sets forth a factual inquiry. 3


                      3 NRS  41.745's legislative history clearly supports this conclusion.
                The Legislature intended for NRS 41.745(1)(c) to reject this court's
                conclusion that employers would be liable for the intentional torts of
                employees when, "in the context of the particular enterprise Li an
                employee's conduct is not so unusual or startling that it would seem unfair
                to include the loss resulting from it among other costs of the employer's
                business." State, Dep't of Human Res., Div. of Mental Hygiene & Mental
                Retardation v. Jimenez, 113 Nev. 356, 365, 935 P.2d 274, 280 (1997)
                (emphasis omitted) (quoting Rogers v. Kemper Constr, Co., 124 Cal. Rptr.
                143, 148-49 (Ct. App. 1975)), opinion withdrawn, 113 Nev. 735, 941 P.2d
                969 (1997); see Nev. Legis. Counsel Bureau, Research Div., AB595.EN, Bill
                Summary: A.B. 595 1 (1997); Hearing on A.B. 595 Before the Assembly
                Judiciary Comm., 69th Leg. 8-9, 14-15 (Nev., June 19, 1997). The bills
                proponents read Jimenez as making employers strictly liable for
                employees' intentional torts, and they believed NRS 41.745(1)(c)'s
                reasonable foreseeability standard would allow employers to submit the
                                                                  continued on next page . . .
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                      A reasonable jury could conclude Gonzalez's act was reasonably
                      foreseeable
                             Because NRS 41.745(1)(c) presents a factual inquiry, summary
                judgment is only proper if a reasonable jury could not rule in Anderson's
                favor. Sprague, 109 Nev. at 249, 849 P.2d at 322. More specifically, we
                must determine whether a reasonable jury could conclude Gonzalez's
                conduct was "reasonably foreseeable under the facts and circumstances of
                the case considering the nature and scope of [Gonzalez's] employment."
                NRS 41.745(1)(c). We conclude a reasonable jury could find that
                Gonzalez's conduct was reasonably foreseeable; therefore the district court
                erred in granting Mandalay's motion for summary judgment. See Wood,
                121 Nev. at 729, 121 P.3d at 1029 (this court reviews summary judgment
                rulings de novo).

                             This court has considered reasonable foreseeability under NRS
                41.745(1)(c) in only one published case.   See id. at 739-40, 121 P.3d at
                1036-37. In Wood, a janitor employed with a cleaning company raped a
                Safeway employee at the Safeway store where they both worked.         Id. at
                727-28, 121 P.3d at 1028-29. There, the janitor had no criminal history;
                the employer required proof of identification, checked employment
                references, and filled out the proper immigration documents; and the
                employer had no sexual harassment complaints over the last ten years.
                Id. at 740, 121 P.3d at 1037. This court held, as a matter of law, that the
                janitor's attack was not reasonably foreseeable, and the victim could not


                . . . continued
                issue of vicarious liability to a jury. See Hearing on A.B. 595 Before the
                Assembly Judiciary Comm., 69th Leg. 9-10 (Nev., June 19, 1997).


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                 hold the janitor's employer vicariously liable for his intentional acts under
                 NRS 41.745(1)(c). Id.
                             According to Mandalay, Wood demonstrates that Gonzalez's
                 criminal conduct was unforeseeable. We disagree. After viewing the
                 evidence and drawing all reasonable inferences in Anderson's favor, Wood,
                 121 Nev. at 729, 121 P.3d at 1029, we conclude the facts and
                 circumstances here are sufficiently distinguishable from        Wood for a
                 reasonable jury to determine that Gonzalez's act was reasonably
                 foreseeable under NRS 41.745(1)(c). The janitor in Wood was never the
                 subject of a sexual harassment complaint, and his employer had not had a
                 complaint of that nature in the past ten years. See id. at 740, 121 P.3d at
                 1037. Here, however, at least five Mandalay employees had sexually
                 assaulted guests and coworkers before Gonzalez attacked Anderson.
                 Additionally, Mandalay knew employees entrusted with keyed access to
                 occupied rooms abused that access to commit property crimes. Therefore,
                 Mandalay had notice its employees were capable of sexual assault, and
                 some employees abused their keycard access to enter guest rooms without
                 authorization. Moreover, Mandalay suspended Gonzalez for 31 days in
                 response to allegations that he harassed and threatened a female
                 supervisor. After Gonzalez's suspension ended, Mandalay restored his
                 keycard access to occupied rooms and assigned him to a shift with minimal
                 supervision. Considering the prior on-premises attacks, employees'
                 regular keycard abuse, Gonzalez's disciplinary history, and Mandalay's
                 decision to provide Gonzalez keyed access to guest rooms with minimal
                 supervision, a reasonable jury could conclude it was foreseeable that
                 Gonzalez would abuse his keycard access to sexually assault a Mandalay
                 guest.

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                               Mandalay contends that no other state would hold it
                   vicariously liable for Gonzalez's act because that act could not have fallen
                   within the scope of his employment. This argument lacks merit for two
                   reasons. First, this argument mischaracterizes the relevant inquiry.
                   Generally, an employer is only liable for the intentional torts committed
                   within the scope of employment.            See 27 Am. Jur. 2d Employment
                   Relationship § 356; Restatement (Second) of Agency § 219(1) (2010).
                   Reasonable foreseeability is often one of several considerations courts use
                   to determine whether an intentional tort was within the scope of
                   employment. See Restatement (Second) of Agency §§ 228(1)(d), 229(2)(f)
                   (201W; see also State, Dep't of Admin. v. Schallock, 941 P.2d 1275, 1282-84
                   (Ariz. 1997); Sage Club v. Hunt, 638 P.2d 161, 162-63 (Wyo. 1981).
                   Conversely, NRS 41.745(1) does not contain an overarching "scope of
                   employment" inquiry. Instead, NRS 41.745(1) promulgates three distinct
                   circumstances in which an employer is liable for an employee's intentional
                   tort: (1) the employee's act was not "a truly independent venture," (2) the
                   employee acted "in the course of the very task assigned," or (3) the
                   employee's act was "reasonably foreseeable under the facts and
                   circumstances of the case considering the nature and scope of his or her
                   employment." Therefore, Nevada will hold an employer vicariously liable
                   for an employee's intentional tort—even though it was outside the scope of
                   employment—if that intentional tort was "reasonably foreseeable under
                   the facts and circumstances of the case considering the nature and scope of
                   his or her employment." NRS 41.745(1)(c).
                               Second, other jurisdictions have concluded that sexual assault
                   can be reasonably foreseeable, either as part of a vicarious liability inquiry
                   or a direct negligence inquiry. For example, the Arizona Supreme Court

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                 concluded a jury might properly find it was reasonably foreseeable that
                 one employee would rape another because the accused had a history of
                 sexually harassing female coworkers.      Schallock, 941 P.2d at 1282-83
                 ("One can hardly be surprised when sexual harassment that has occurred
                 for years continues."). North Dakota's Supreme Court similarly concluded
                 a jury could find it was reasonably foreseeable that a social worker would
                 sexually abuse a minor in foster care because such abuse was not
                 uncommon Nelson v. Gillette, 571 N.W.2d 332, 341-42 (N.D. 1997). New
                 Mexico's Court of Appeals concluded a jury might find a sexual assault
                 was reasonably foreseeable in a negligence action simply because the
                 employer knew the employee abused alcohol and became violent when
                 drinking. Pittard v. Four Seasons Motor Inn, Inc., 688 P.2d 333, 341 (N.M.
                 Ct. App. 1984). Thus, sexual assault is not unforeseeable, per se, and
                 Nevada is not alone in allowing juries to determine whether the facts and
                 circumstances of a case show that an employee's tortious conduct was
                 reasonably foreseeable. Considering the facts and circumstances here, a
                 reasonable jury could conclude Gonzalez's act was reasonably foreseeable.
                 The district court erred in concluding it would be futile for Anderson to
                 amend her complaint
                             The district court denied as futile Anderson's motion for leave
                 to amend her complaint because it believed Anderson's claims for
                 negligent security, retention, and supervision could not succeed. We
                 disagree. Although we generally review a district court's decision on a
                 motion for leave to amend for abuse of discretion, Whealon v. Sterling, 121
                 Nev. 662, 665, 119 P.3d 1241, 1244 (2005), futility is a question of law
                 reviewed de novo because it is essentially an NRCP 12(b)(5) inquiry,
                 asking whether the plaintiff could plead facts that would entitle her to
                 relief See Buzz Stew, LLC v. City of N. Las Vegas,   124 Nev. 224, 227-28,
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                181 P.3d 670, 672 (2008); see also Sanford v. Member Works, Inc., 625 F.3d
                550, 557 (9th Cir. 2010) ("Where, as here, the district court denies leave to
                amend on futility grounds, we will uphold such denial if it is clear, upon de
                nova review, that the complaint would not be saved by any amendment."
                (internal quotation marks omitted)).

                            Because we hold that a reasonable jury could conclude
                Gonzalez's attack was foreseeable, Anderson's proposed amendments are
                not futile. Although unlawful conduct can interrupt and supersede the
                causation between a negligent act and injury, an unlawful act will not
                supersede causation if it was foreseeable.    Bower v. Harrah's Laughlin,
                Inc., 125 Nev. 470, 491-92, 215 P.3d 709, 724-25 (2009). Here, we have
                already concluded a reasonable jury could find that Gonzalez's act was
                reasonably foreseeable; therefore, amendment would not be futile.
                            Additionally, the district court erroneously relied on NRS
                651.015 in concluding that Anderson's negligent security claim was futile.
                That statute, titled "Civil liability of innkeepers for death or injury of
                person on premises caused by person who is not employee," expressly
                applies only when the injury is caused by a "person who is not an
                employee under the control or supervision of the owner or keeper." NRS
                651.015(1), (2) (emphasis added). Because Gonzalez was Mandalay's
                employee, the district court erred in relying on NRS 651.015 at all.
                                               CONCLUSION
                            We conclude that NRS 41.745(1)(c) sets forth a factual inquiry,
                and a reasonable jury could find that Gonzalez's conduct was "reasonably




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                foreseeable under the facts and circumstances of the case considering the
                nature and scope of his employment." NRS 41.745(1)(c). Therefore,
                the district court erred in granting Mandalay's motion for summary
                judgment. The district court also erred in holding that it would be futile
                for Anderson to amend her complaint to include claims for negligent
                security, retention, and supervision because Gonzalez's criminal conduct
                may not have been a superseding cause, and NRS 651.015 does not apply
                here. Accordingly, we reverse the district court's order granting
                Mandalay's motion for summary judgment and denying Anderson's motion
                for leave to amend, and we remand this matter to the district court for
                further proceedings.


                                                     Parraguirre

                We concur:


                                              C.J.
                Hardesty




                Gibbons



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