Are businesses in Nevada liable when their employees assault others while on the job? The Nevada Supreme Court has never really thought so and still doesn’t.
The Court recently affirmed its longstanding views in this regard in set of holdings on this issue in Wood v. Safeway, decided on October 20, 2005.
There, Jane Doe, a mentally handicapped woman, was working for Safeway Stores when she was sexually assaulted by Emilio Ronquillo-Nino, who was employed by a company that provided janitorial services at the Safeway where Doe worked. Doe, through her guardian ad litem, filed a complaint against Safeway and Ronquillo-Nino’s employer, Action Cleaning, alleging five causes of action as a result of the sexual assault.
The lower court granted summary judgment in favor of Safeway, determining that it was immune from suit because of coverage provided by the Nevada Industrial Insurance Act (NIIA). The district court also granted summary judgment in favor of Action Cleaning pursuant to NRS 41.745 because it was not liable for intentional torts committed by its employee and because Ronquillo-Ninoâ€™s intervening criminal acts were a superseding cause that relieved Action Cleaning of responsibility.
Nevada law has long barred employees from suing employers for injuries that arise in the course of employment. In Wood, the Court recognized that Doe’s employment with Safeway brought her into contact with the assailant. While the nature of her work required her to interact with employees and the public, her specific job duties included cleaning various areas of the store and collecting shopping carts from the parking lot. Two of the sexual assaults occurred while she was collecting carts from a lot that was behind or next to the store, and the other in a cleaning supply room that was presumably in an area off limits to the public. As a result, the Court concluded that Doe’s employment contributed to and increased the risk of assault beyond that of the general public. Her only contact with Ronquillo-Nino was through her employment. Because he worked as a janitor there, he was aware of the store layout and which areas of the store provided vulnerable locations. The sexual assault, reasoned the Court, was not imported into the workplace or otherwise the result of motivations peculiar to the assailant and the victim that are unrelated to the employment. Therefore, Doe’s injury falls within the coverage of the NIIA, and her claims are barred by NRS 616A.020.
The Court also examined the lower court’s grant of summary judgment in favor of Action Cleaning based on the dual grounds that (a) under NRS 41.745 an employer is not liable for harm caused by the intentional torts of an employee, and (b) Ronquillo-Nino’s intervening criminal act was a superseding cause that relieved Action Cleaning of liability. Doe argued against both conclusions on the basis that Ronquillo-Nino’s acts were foreseeable given that Action Cleaning’s workforce is highly transient, untrained, largely unsupervised, and “comprised almost entirely of” illegal aliens.
The Court disagreed. First, said the Court, Ronquillo-Nino had no prior criminal history in the United States or Mexico. Action Cleaning requires applicants to show proof of identification, checks employment references, and completes the proper Immigration and Naturalization forms for every employee. Action Cleaning’s district manager further stated that he had not received complaints of sexual harassment regarding Ronquillo-Nino or any other employee in the past ten years. Under the circumstances of this case, it was therefore not reasonably foreseeable that Ronquillo-Nino would sexually assault a Safeway employee. Moreover, as noted, the assault resulted from Ronquillo-Nino’s independent acts and was not within the course and scope of his employment. Consequently, under NRS 41.745, the Court found that Action Cleaning was not liable for the intentional conduct of its employee, Ronquillo-Nino and the Court similarly concluded that Ronquillo-Nino’s actions were an intervening superseding act that relieves Action Cleaning of liability in this case.
Nevada is a state that protects employers and The Nevada Supreme Court’s conclusion in the Wood case continues Nevada’s tradition of protecting employers from the consequences of intentional harm done by their employees.