According to Genesis, 4:8-10, after Cain killed his brother Abel, the Lord said to him, "Where is your brother?" Cain replied "Am I my brother's keeper?" There are many additional situations in which society demands that we become our brother's keeper as well. One of those situations is within the context of the employer/employee relationship. With respect to that relationship, the law deals with the dynamic tension articulated in the age old question "Am I my brother's keeper" through the doctrine of Respondeat Superior. Traditionally, the doctrine of Respondeat Superior said that the law will hold an employer liable for the wrongful acts of their employees if an employee commits an act while under the control of the employer and within the scope of employment. Molino v. Asher, 96 Nev. 814, 817, 618 P.2d 878, 879 (1980). The degree of control the employer exercised over the employee determined whether liability would attach for the employees conduct. See, Societa Per Azioni De Navigazione Italia v. City of Los Angeles, 31 Cal. 3d 446, 459, 645 P.2d 102, (Cal. 1982). In fact, "'[c]ontrol is probably the most important factor'" in determining whether an employment relationship exists . . . in common law cases. Id. citing United States v. Webb, Inc., 397 U.S. 179, 192, 25 L. Ed. 2d 207, 215 (1970). And it makes sense that control would be the basis for liability because absent control, the employer has no power to affect the employee's conduct and therefore cannot prevent any harm that may result from it. Society can impose upon no person a duty to accomplish what is impossible.
This article will discuss how, from 1945 to 2015, Nevada has eroded an essential element of the traditional doctrine of Respondeat Superior.
DISCUSSION
In J.C. Penney Co. v. Gravelle, 62 Nev. 439 (1945), the Nevada Supreme Court considered whether it was within the scope of a security officer's employment when he assaulted a third-party after that third-party prevented him from catching a thief. The Court held that "where an assault by an employee is purely personal, having no connection with the employer's business but a merely accidental or incidental one, the doctrine of respondeat superior is inapplicable and cannot be successfully invoked to support a recovery against the employer." The Court further cited section 235, American Law Institute Restatement on Agency, which states: "An act of a servant is not within the scope of employment if it is done with no intention to perform it as a part of or incident to services on account of which he is employed." As of 1945, the Nevada Supreme Court clearly required a showing that the employee's wrongful act was done with the intent of furthering an employers' legitimate business interest. The Court ruled J.C. Penney was not liable because the act was not done with the intent of furthering J.C. Penney's interests but instead was an act of revenge committed by the employee on his own behalf.
In Prell Hotel Corporation v. Antonacci, 86 Nev. 390 (1970), the Court again considered the issue of whether employers can be held liable for the intentional torts committed by their employees. In Prell, a guest playing "21" at the Aladdin Hotel got drunk, lost a significant amount of money, got angry and called the dealer a derogatory name. The dealer acted like nothing happened, dealt one card to each player and promptly knocked the guest unconscious with a single punch to the face. In discussing whether the employer should be held liable, the Court noted that:
Early doctrine would not admit that a willful tort could be within the scope of employment. Laski, Basis of Vicarious Liability, 26 Yale L.J. 105, 118 (1916). This inflexible, arbitrary view has gradually been eroded, and the concept of scope of employment enlarged. Of course, if the employee's tort is truly an independent venture of his own and not committed in the course of the very task assigned to him, the employer is not liable. Chapman v. City of Reno, 85 Nev. 365, 455 P.2d 618 (1969); J. C. Penney Co. v. Gravelle, 62 Nev. 434, 155 P.2d 477 (1945). Where, however, the willful tort is committed in the course of the very task assigned to the employee, liability may be extended to the employer. This is particularly true in those cases where the employer, by contract, has entered into some relation requiring him to be responsible for the protection of the plaintiff. Forrester v. Southern Pacific Co., 36 Nev. 247, 134 P. 753 [392] (1913); Quigley v. Central Pac. Ry. Co., 11 Nev. 350 (1876).
Prell, 86 Nev. at 391-92. The Prell Court held that the employer was responsible because the employee's wrongful act "occurred within the scope of the very task assigned to him, that of dealing '21.' In these circumstances the employer is responsible." Id. at 392.
A comparison of J.C. Penney and Prell shows that as of 1970, Nevada no longer required the employee's wrongful conduct be committed with the intent of furthering an employer's legitimate business interests so long as the act occurred within the scope of the assigned task. This is an important distinction because the first analysis looks to the intent of the act and the second looks only to the scope of the act. Under the "intent analysis," an employer would not necessarily be liable if an employee deliberately drove a work vehicle onto a crowded sidewalk with the intent to harm another but under the "scope analysis" that employer would be liable if the tortfeasor was employed as a driver at the time of the incident. A comparison of the two cases shows the Nevada Supreme Court significantly expanded the doctrine of Respondeat Superior between 1945 and 1970. The purpose of the expansion was to preclude the harsh rulings which occurred when an employee committed a wrongful act, not in furtherance of his employer's interest, which the employer had the power to control, alter or affect.
In Rockwell v. Sun Harbor Budget Suites, 112 Nev. 1217 (1996), the Court again considered the scope of the doctrine of Respondeat Superior. In that case, a security guard shot and killed a female tenant of the property the security guard was charged with guarding, after the she ended an extramarital relationship the two were engaged in. The woman's husband sued the property owner and the District Court granted summary judgment on the Respondeat Superior claims on behalf of the property owner. In considering whether the District Court erred in granting summary judgment, the Nevada Supreme Court noted there were genuine issues of material fact because there was conflicting evidence about whether the security officer carried his radio, while off-duty, for the purpose of responding to emergency situations. The Court ruled that the District Court erred when granting summary judgment on the Respondeat Superior claim because there was a genuine issue of material fact about whether the security guard was acting in the scope of his employment when he killed his girlfriend. Rockwell not only confirms the scope of activity test articulated in Prell, but seems to expand it by positing the idea that an employee can potentially be on-duty where the incidents of employment are part of his off-duty activities.
In State, Dep't of Human Resources, Division of Mental Hygiene & Mental Retardation v. Jimenez, 113 Nev. 356 (1997), the Court made a radical departure from precedent when it articulated an entirely new standard for determining when an employer can be held responsible for the intentional wrongs of its employees. In that case, the Court held that if "in the context of a particular enterprise, 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" then the employer will be held liable for the employee's wrongful conduct. The Court distinguished between foreseeability in negligence actions and foreseeability in Respondeat Superior actions by saying that in a negligence action, foreseeability means the employer had evidence which would lead a prudent person to take effective precautions, and in Respondeat Superior actions foreseeability depends on "whether the risk was one that may fairly be regarded as typical of or broadly incidental to the enterprise undertaken by the employer." This radical expansion of the doctrine of Respondeat Superior shifted the foreseeability (and hence "control"1) element in a fundamental way. The Court held that if the employee's intentional act was foreseeable given the scope of the employer's enterprise, then liability would attach. Previously, liability would only attach if there was evidence that a particular employee had a propensity for committing a harmful intentional act which the employer ignored.
In response to the Nevada Supreme Court's vast expansion of Respondeat Superior liability, the Nevada Legislature passed NRS 41.745 and explicitly overruled Jimenez. Anderson v. Mandalay Corporation, 131 Nev. Adv. Op. 82, fn. 3 (Oct. 15, 2015). NRS 41.745 addresses specific circumstances in which an employer is not liable for harm or injury caused by an employee's intentional conduct:
1. An employer is not responsible for harm or injury caused by the intentional conduct of an employee if the conduct of the employee:
(a) Was an independent act of the employee;
(b) Was not committed in the course of the task assigned to the employee; and
(c) Was not reasonably foreseeable given the facts and circumstances of the case considering the nature and scope of his employment.
. . . [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.
2. Nothing in this section imposes strict liability on an employer for any unforeseeable intentional act of an employee.
In contravention of Jimenez, the Nevada Legislature explicitly made employer liability for the intentional acts of its employees a question of whether that particular employee's conduct was foreseeable. The language "considering the nature and scope of his employment" and "[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," that is contained within the statute explicitly limits the inquiry to the specific conduct of the specific employee that committed the intentional wrongful act. (emphasis added). In passing NRS 41.745, the Nevada Legislature expressly overruled the proposition that foreseeability depends on "whether the risk was one that may fairly be regarded as typical of or broadly incidental to the enterprise undertaken by the employer." Consequently, the Nevada Supreme Court withdrew Jimenez in light of the standard codified in NRS 41.745. 113 Nev. 735, 941 P.2d 969 (1997).
Eight years later, in Wood v. Safeway, 121 Nev. 724 (2005), the Nevada Supreme Court considered NRS 41.745 for the first time. In Wood, a night-time janitor, who worked for a company called "Action Cleaning," sexually assaulted a mentally challenged store clerk on several occasions while the two were working the night-shift together at the Safeway grocery store. The clerk's caregivers brought a suit against Action Cleaning, attempting to hold it liable for the janitor's wrongful conduct. The District Court granted summary judgment on behalf of the employer on the issue of Respondeat Superior. The Nevada Supreme Court analyzed the janitor's conduct under NRS 41.745 and found no genuine issue of material fact as to its foreseeability. First, the janitor had no prior criminal history. Further, Action Cleaning required applicants to show proof of identification, checked employment references, and checked for proper immigration and naturalization forms prior to hiring. Also, Action Cleaning's District Manager stated that he had not received complaints of sexual harassment regarding the janitor or any other employee in the previous ten years. While the janitor had little supervision during his night-shift, the court found that under the circumstances of this case, it was not reasonably foreseeable that the janitor would sexually assault the clerk. Moreover, as noted, the assault resulted from the janitor's independent acts (which were performed on premises in areas only the employees had access to) and was not within the course and scope of his employment. Consequently, under NRS 41.745, the employer was not liable for the intentional conduct of its employee, the janitor. While in Wood, per the explicit instruction of the Nevada Legislature, the Nevada Supreme Court made a seeming retreat from its long-standing campaign to expand Respondeat Superior liability, in Anderson v. Mandalay Corporation, 131 Nev. Adv. Op. 82 (Oct. 15, 2015), the Court again advanced an expansion of the doctrine.
In Anderson, Gonzalez, an employee of the Mandalay Bay Resort and Casino, sexually assaulted one of the guests, Mrs. Anderson. The facts were very similar to Wood in that Gonzalez had no prior criminal history, Mandalay Bay required applicants show proof of identification, checked employment references, and checked for proper immigration and naturalization forms prior to hiring them. Gonzalez had received a prior suspension for misusing the company radio to commit pranks but had no disciplinary proceedings that would indicate a propensity to commit sexual assault. Similar to Action Cleaning, Mandalay Bay provided little supervision of the offending employee and Gonzalez had to access the rooms he was supposed to clean and in which the assault took place just as the janitor in Wood had access to secluded areas where the sexual assault of the store clerk took place.
The Mandalay Bay Resort and Casino, relying on Wood, sought summary judgment on the Plaintiffs' Respondeat Superior cause of action, which the District Court granted. The Plaintiffs appealed citing genuine issues of material fact as to the foreseeability of the employee's conduct. The Nevada Supreme Court agreed with the Plaintiffs, concluding that a reasonable jury could find that the employee's conduct was reasonably foreseeable. In coming to the conclusion, the Court relied on evidence that in the prior decades there were five prior sexual assaults committed by Mandalay Bay employees and there was about one report per month of employees abusing key-card privileges by entering rooms without authorization ad stealing property from guests.
The Court's rationale is not persuasive for a number of reasons. Regarding the evidence that Mandalay Bay employees previously abused key-card privileges to steal property, the Court previously stated in Wood that this type of evidence did not support the foreseeability of sexual assault. Wood v. Safeway, Inc., 121 Nev. 724, 741 (2005) (within the context of foreseeability of supervening cause). In Wood, the Nevada Supreme Court relied on Kane v. Hartford Accident and Indemnity Co., 98 Cal. App. 3d 350 (Cal. App., 1st Dist., Nov. 2, 1979) to support the proposition that where an employer has notice that an employee has a history of committing property crimes, that does not give the employer notice of an employee's propensity for sexual assault. Remarkably, despite its reasoning in Wood, the Nevada Supreme Court found in Anderson that Mandalay's employees' property crimes made it foreseeable that Gonzalez would sexually assault Anderson.
Also confusing is the fact that in Anderson, the Court thought it foreseeable that Gonzalez would sexually assault Anderson because Mandalay Bay previously wrote him up for misusing his radio. Per the reasoning contained in Wood and Kane, this is not evidence that goes to foreseeability because committing prior property crimes does not mean a person has a propensity for sexual assault.
Further, that other unknown Mandalay Bay employee's committed prior acts of sexual assault does not make it reasonably foreseeable that Gonzalez would sexually assault Anderson. In fact, this is the exact type of reasoning the Nevada Legislature sought to preclude the Court from engaging in when it passed NRS 41.745. Notably, the only distinguishing fact contained in Anderson that is not contained in Wood is the fact that in the prior decades there were five prior sexual assaults committed by Mandalay Bay employees whereas in the previous ten years, Action Cleaning had reported none. According to the Court's reasoning, what made Gonzalez's conduct foreseeable was the fact that in the previous twenty years, Mandalay Bay had received five reports that its employees engaged in acts of sexual assault. That five Mandalay Bay employees (out of thousands) engaged in sexual assault does not make it foreseeable that Gonzalez would engage in sexual assault because those employees were not Gonzalez. Based on the Court's reasoning, if one employee commits a sexual assault, an employer should be on notice that all employees may commit a sexual assault. It follows from the Court's reasoning that an employer will be liable, under a strict liability standard, for every subsequent act of sexual assault one of its employees commits regardless of whether the act of that employee was actually foreseeable and regardless of whether the employer had any ability to influence or control the act.
The Court's ruling in the case does not make sense unless the term "foreseeability under the facts and circumstances of the case considering the nature and scope of his employment,"2 is expanded to include acts by an employee that are "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 . . . [given] the context of the particular enterprise."3 It is only under the Jimenez standard that the Court's analysis in Anderson makes sense. Once the Court expanded the definition of "foreseeability," the prior acts of Mandalay Bay's employees became relevant because those acts went directly to whether Gonzalez's conduct was unusual given the particular enterprise Mandalay Bay was engaged in. Clearly it was not if it had happened five times before.
The facts of Anderson are nearly identical to Wood except that the employer in Anderson is large, with thousands of employees, whose history spans decades and whose business enterprise is vast, whereas the employer in Wood was a small janitorial service that had a few employees, whose history was limited, and whose business enterprise was small and specialized. Mandalay Bay had five prior reports of sexual assault and Action Cleaners had none because Mandalay Bay's employee pool was exponentially greater, its history longer and the scope of its business enterprise infinitely more varied.
Bringing this reasoning to bear, it seems the Nevada Supreme Court has adopted a policy of holding businesses increasingly liable for the conduct of their employees as the size and scope of their businesses grow. This is the practical import of Jimenez's expansion of the term foreseeability to include acts by an employee that are "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 . . . [given] the context of the particular enterprise." The Court's new approach to Respondeat Superior liability is based not so much on control and scope as it is on whether the employer can absorb a judgment as part of the cost of doing business. What the Court has done is erode the control element of Respondeat Superior and replaced it with an analysis regarding whether it is fair to impose liability based on the size and scope of the employer's business enterprise. While not explicit, the facts and reasoning of Anderson demonstrate the Nevada Supreme Court's renewed campaign to expand Respondeat Superior liability to employers for the intentional torts of its employees.
CONCLUSION
Anderson expands the definition of "foreseeability" for Respondeat Superior claims and in doing so resurrects the standard articulate in Jimenez which the Nevada Legislature expressly overruled when it passed NRS 41.745. Respecting business-owners, Anderson articulates Nevada's new answer to the age old question "Am I my brother's keeper?" as follows: As the size and scope of your business enterprise expands, you are increasingly responsible for the conduct of your employees, regardless of whether the wrongs they commit are actually foreseeable. This inquiry is not whether you have increased ability to foresee or control your employee's conduct - it is whether you can afford it. The Nevada Supreme Court is advancing a policy that makes businesses increasingly liable for the conduct of their employees, not based on control or scope of employment, but based on whether the business entity can absorb the cost of a judgment. In sum, Anderson puts Nevada business owners on notice that as your business expands in size and scope, paying for your employees' wrongful conduct becomes increasingly part of the cost of doing business regardless of whether you have any control over that conduct. As Nevada businesses grow, they increasingly become their "brother's keeper" - regardless of whether they have the ability or power to do so.
Footnotes
1. An employer cannot control the conduct of an employee unless that conduct is foreseeable. The less foreseeable an employee's wrongful conduct, the less ability the employer has to control that conduct. By generalizing the foreseeability requirement within the doctrine of Respondeat Superior, the Court approaches a strict liability standard against employers for the intentional wrongs of its employees.
2. NRS 41.745.
3. Jimenez, 113 Nev. at 365 (internal quotations omitted).
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