Nevada Supreme Court Addresses An Employer's Liability For An Employee's Intentional Conduct

Volume 14, Issue 26
November 30, 2015

The Nevada Supreme Court recently addressed when an employer can be found liable for an employee's intentional conduct in Anderson v. Mandalay Corp. In this case, a hotel guest sued the Mandalay Bay after a House Person who entered her hotel room while she was sleeping raped her. The Court considered whether Mandalay Bay could be required to pay civil damages to the hotel guest under Nevada's "vicarious liability" statute, NRS 41.745. That statute provides, in part, that an employer can be liable for an employee's intentional conduct if the conduct was "reasonably foreseeable," considering the nature and scope of the employee's employment.

The employee, Gonzalez, cleaned common areas and assisted with guest rooms as needed. He had been issued a keycard that opened the guest rooms on his assigned floors. He worked graveyard shift with little supervision. Mandalay Bay had conducted a criminal background check on Gonzalez prior to hire and obtained references, but it was not clear whether the references had been checked. Gonzalez had been given a 31-day suspension due to a complaint that he and others had harassed and threatened a supervisor over the radio. While Mandalay Bay was not able to prove that Gonzalez had made the threats, it did find that he had misused the radio and lied about it.

The guest offered evidence that five prior sexual assaults by employees had occurred on Mandalay Bay's property - three upon guests and two upon employees. She also offered eight police reports about Mandalay Bay employees stealing from guest rooms during unauthorized entries. Her expert witness provided a report indicating that Mandalay Bay's security was insufficient at the time of the attack.

The Nevada Supreme Court ruled that the case should be submitted to a jury to determine whether it was reasonably foreseeable that Gonzalez would rape a hotel guest. The Court found it significant that five other sexual assaults had occurred on Mandalay Bay's property and that the employer knew employees had improperly accessed rooms to steal property. The Court also focused on the employer's handling of Gonzalez's discipline, especially that after his suspension, he was returned to his graveyard shift and again provided a keycard. The Court did not rule that Mandalay Bay was liable for damages - only that the case should be presented to a jury which would make that determination.

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