DISTRICT COURT
CLARK COUNTY, NEVADA
SERGIO HARON, an individual, and HIRMIS HARON, d/b/a STEWART MARKET,
Plaintiffs,
vs.
NEVADA STATE BANK, a Nevada corporation, SMITH'S FOOD AND DRUG CENTERS, INC., an Ohio corporation, DONAHUE SCHRIBER REALTY GROUP, L.P. a Delaware limited partnership; and DOES I-X and ROES I through X,
Defendants.
CASE NO. A543705
DEPT NO.: XVII
DEFENDANT SMITH'S FOOD & DRUG CENTERS, INC.'S MOTION FOR PARTIAL SUMMARY JUDGMENT ON ALL CLAIMS ASSERTED BY PLAINTIFFS AGAINST SMITH'S
DATE OF HEARING:
TIME OF HEARING:
AND RELATED ACTIONS.
COMES NOW Defendant SMITH'S FOOD & DRUG CENTERS, INC. by and through its counsel of record, JERRY S. BUSBY, ESQ. of the law firm COOPER LEVENSON APRIL NIEDELMAN & WAGENHEIM, P.A., and hereby moves this Honorable Court for Partial Summary Judgment on all Claims Asserted by Plaintiffs against Smith's. This Motion is made pursuant to and based upon the dictates of the Nevada Rules of Civil Procedure, Rule 56(c) in that there are no genuine issues of material fact and Defendant SMITH'S FOOD AND DRUG CENTERS, INC. is entitled to judgment as a matter of law.
Further, this Motion is made and based upon all of the files and records on file herein, the Memorandum of Points and Authorities and upon such other and further oral and documentary evidence as the Court may allow at the hearing on said Motion.
NOTICE OF MOTION
TO: SERGIO HARON, Plaintiff;
TO: GERALD I. GILLOCK, ESQ., Attorney for Plaintiff;
PLEASE TAKE NOTICE that Defendant SMITH'S FOOD AND DRUG CENTERS, INC. will bring the foregoing MOTION FOR SUMMARY JUDGMENT on for hearing before the above-entitled Court in Department XIII, on the _______ day of , 2009, at a.m., or as soon thereafter as counsel may be heard.
Dated this 15th day of June, 2009.
COOPER LEVENSON APRIL NIEDELMAN & WAGENHEIM, P.A
By Jerry S. Busby
Nevada Bar #001107
900 South Fourth Street
Las Vegas, Nevada 89101
Attorneys for Defendant
SMITH'S FOOD AND DRUG CENTERS, INC.
STATEMENT OF FACTS MATERIAL TO THE DISPOSITION OF THIS MOTION
1. On October 15, 2005 Plaintiff SERGIO HARON was shot in the parking lot located at 450 N. Nellis Blvd., Las Vegas, NV. (See XIV of the First Cause of Action in PLAINTIFF'S COMPLAINT).
2.Defendant SMITH'S FOOD & DRUG CENTERS, INC. has never owned any of the property located at 450 N. Nellis Blvd., Las Vegas, NV. At the time of the shooting, the property located at 450 N. Nellis was owned by Defendant DONAHUE SCHRIBER REALTY GROUP, L.P. (See grant deeds attached as Exhibits 'A' and 'B')
3. Prior to the shooting on October 12, 2005 Defendant SMITH'S FOOD & DRUG CENTERS, INC. had entered into a lease agreement with Defendant DONAHUE SCHRIBER REALTY GROUP, L.P. to rent building space at 450 N. Nellis Blvd. in order to operate a grocery store. (See affidavit of Charlotte Wightman which includes a copy of lease agreement attached as Exhibit 'C'.)
4. Under the express terms of the lease agreement, Defendant SMITH'S FOOD & DRUG CENTERS, INC. leases only a portion of the premises located 450 N. Nellis Blvd. from the owner, namely, the building in which the grocery store currently operates. (See section 1 of lease agreement attached as Exhibit 'C')
5.Under the express terms of the lease agreement, the parking lot area of 450 N. Nellis Blvd. is a "Common Facility" which is maintained and controlled by the lessor, who at the time was Defendant DONAHUE SCHRIBER REALTY GROUP, L.P. (See section 9 of lease agreement attached as Exhibit 'C').
Dated this 15th day of June, 2009.
COOPER LEVENSON APRIL NIEDELMAN & WAGENHEIM, P.A.
By
Jerry S. Busby
Nevada Bar #001107
900 South Fourth Street
Las Vegas, Nevada 89101
Attorneys for Defendant
SMITH'S FOOD AND DRUG CENTERS, INC.
MEMORANDUM OF POINTS AND AUTHORITIES
I.
STATEMENT OF FACTS
Plaintiff Sergio Haron is an employee of his father, Plaintiff Hermis Haron d/b/a Stewart Market, which is located at 2021 Stewart Ave., Las Vegas, NV 89101. Among other things, Stewart Market runs a lucrative check cashing business. This check cashing business requires very large amounts of cash to distribute to individuals cashing checks at the Stewart Market premises. To meet the business needs of Stewart Market, Plaintiff was required to withdraw up to $140,000 in cash from Nevada State Bank four times a week. (See Deposition of Sergio Haron, pages 30-31 attached hereafter as Exhibit 'D'). Plaintiffs would regularly withdraw over half of a million dollars in cash every single week for the several years that they owned the business. However, despite the consistent and predictable need for incredibly large sums of cash and despite earning huge profits, Plaintiffs never saw fit to invest in an armored car service. (Deposition of Hermis Haron, page 100 attached hereafter as Exhibit 'E'). Instead, Plaintiffs would personally carry all this cash from the bank to Stewart Market in a hand-carried bag. (Id. at pages 105-106).
The incident that gave rise to this suit occurred just after Plaintiff had withdrawn $104,000 in cash from the Nevada State Bank located inside of the grocery store operated by Defendant SMITH'S FOOD & DRUG CENTERS, INC. (hereafter "SMITH'S") and located in the shopping center at 450 N. Nellis, Las Vegas, NV 89101. At approximately 1:00 pm on Saturday, October 15, 2005, Plaintiff left Nevada State Bank, exited the Smith's grocery store, and walked toward his car in the parking lot while carrying $104,000 in a laptop computer carrier. (Exhibit 'D' page 37). When Plaintiff arrived at his car, he tossed the bag containing the money onto the front passenger seat. Before he shut the car door, he was accosted by two men. One of these men demanded that he hand over the bag. Plaintiff refused and there was a physical struggle while the two assailants tried to reach the bag. One of the assailants pulled out a pistol, but Plaintiff wrestled it out of his hand knocking it to the ground. One assailant was able to reach the gun and then shot Plaintiff in the chest. (Id. at pages 41- 56). The two assailants made off with the bag of cash. It is undisputed that all of this occurred in the parking lot in front of Smiths' grocery store. (Id. at 39).
II.
LEGAL ARGUMENT
A. SUMMARY JUDGMENT IS APPROPRIATE WHEN THERE ARE NO GENUINE ISSUES OF MATERIAL FACT AND MOVANT IS ENTITLED TO JUDGMENT AS A MATTER OF LAW
NRCP 56(b) provides, in pertinent part, that a party against whom a claim is asserted may, at any time, move for summary judgment in his favor. NRCP 56(c) provides that "judgment shall be entered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with affidavits, if any, show that there is no genuine issue of material fact and that the moving party is entitled to a judgment as a matter of law."
In Collins v. Union Fed. Savings & Loan, 99 Nev. 284, 302 (1983), the Nevada Supreme Court held:
Although a party opposing a motion for summary judgment is entitled to all favorable inferences from the pleadings and documentary evidence, citation omitted, the opposing party is not entitled to build a case on the gossamer threads of whimsy, speculation and conjecture. Citation omitted.
The non-moving party must demonstrate the existence of a genuine issue of material fact. Elizabeth E. v. ADT Security Systems West, 108 Nev. 889, 892 (1992). The non-moving party cannot rely on the "mere hope" that he will be able to discredit the movant's evidence at trial. Hickman v. Meadow Wood Reno, 96 Nev. 782 (1980).
In his Complaint, Plaintiff has pled that (1) Smith's had control over the parking lot in which he was shot; (2) Smith's owed Plaintiff a duty of reasonable care; (3) Smith's negligently and carelessly controlled that parking lot; and (4) that Smith's negligence caused his injury. As will be shown below, there are no genuine issues of material fact that would preclude the granting of Summary Judgment to Smith's on all causes of action alleged in Plaintiff's Complaint.
B. SMITH'S IS ENTITLED TO SUMMARY JUDGMENT ON THE ISSUE OF CONTROL OVER THE PARKING LOT.
Defendant Smith's and Co-Defendant DONAHUE SCHRIBER REALTY GROUP, L.P. (hereafter "DSRG") had entered into a real estate lease agreement (hereafter "agreement") for the premises on which Plaintiff was shot and robbed of his money. In the agreement, Smith's is the Lessee and DSRG is the Lessor. The lease states, in pertinent part, the following:
9. PARKING AND COMMON FACILITIES AND EXPENSES
9.01 The term "Common Facilities" shall include the parking areas.
9.02 The parties agree that the areas reserved for parking. will be maintained as such during the term of this Lease by Lessor
9.03 Lessee shall pay its prorata portion of . the cost of liability, fire and extended coverage insurance.
Said agreement is contained in Exhibit 'C'. The agreement only grants Smith's dominion and control over their leased premises. (See, generally, section 1 of the lease contained in Exhibit 'C' which describes the portions of the property leased by SMITH'S). The common facilities itemized in section 9.01 are not under Smith's control. Rather they are under the complete control and dominion of DSRG as is outlined by section 9.02. This is further evidenced by section 9.03 which requires Smith's to pay DSRG a portion of the cost of liability insurance to be procured by DSRG. It is undisputed that Smith's paid its prorata portion of the "Operating Costs" for maintaining liability insurance on the parking area. Therefore, according to the agreement between Smith's and DSRG, the parking area in which Plaintiff was shot and robbed was not under the dominion or control of Smith's, rather it was under the dominion or control of DSRG. Thus, Summary Judgment on this issue is appropriate.
C. SMITH'S DUTY TO PLAINTIFF DID NOT EXTEND BEYOND THE BOUNDARIES OF ITS STORE WHICH WAS UNDER ITS DOMINION AND CONTROL.
Under Nevada law, a business owner's duty to protect an invited guest from injury caused by a third person is preempted by the reasonable foreseeability of the third person's actions and injuries resulting therefrom. Doud v. Las Vegas Hilton Corp. 109 Nev. 1096, 864 P.2d 796 (Nev, 1993). Moreover, a business owner does not owe a duty to an individual to protect them from injuries caused by a third person when said injuries do not occur on the property that is under its dominion and control. Scialabba v. Brandise Construction Co., 112 Nev. 965, 921 P.2d 928 (Nev. 1996). In Scialabba, the Plaintiff was attacked at her apartment by another resident of the apartment complex who hid in an adjacent vacant apartment. The door to the vacant apartment was left unlocked by an agent of the defendant, the construction company who had been doing work there. The Scialabba Court reaffirmed its holding in Doud regarding the duty of a land owner/occupier to prevent harm from the actions of a third person. Additionally, the Court defines the location where such a duty may arise. On this point the court held:
Thus, whether BBC owes Scialabba a duty of care turns on whether it exercised control over the premises and whether the criminal attack was foreseeable. (italics added).
The Court properly concluded that the defendant owed a duty to Scialabba as a matter of law because (1) it exercised control over the premises, and (2) the failure to lock the doors to the vacant apartments created a foreseeable risk of criminal activity and harm to Scialabba.
Additionally, other jurisdictions that have been confronted with the issue of whether a business owner's duty to protect an individual extends beyond its property are in accord with the Scialabba Court. In Balard v. Bassman Event Sec., Inc., 210 Cal. App.3d 243, 246 (Cal. Ct. App. 1989), a restaurant patron brought suit against a restaurant and a security guard company hired to provide security services to the restaurant after she was attacked by third parties on a public street outside the restaurant. Apparently, while plaintiff was in the process of entering the restaurant she was verbally harassed by a group of inebriated men in a car. The woman reported the matter to a security guard stationed outside of the restaurant. The security guard took no action. The men in the car then parked across the street. Later that evening, the woman was kidnapped and sexually assaulted by the men in the car.
The assailant filed an action against the security guard company arguing that it had a duty to protect her from the assault by either warning her of the danger or by taking some action to ward away the group of intoxicated men. The court, in assessing whether the security guard company owed the plaintiff such a duty, applied premises liability law. Id.at 248. The California Court of Appeals affirmed the trial court's granting of demurer brought by the defendants. It held that any duty owed by the security guard company to plaintiff regarding third party criminal activity was confined to the premises of the restaurant. Id. At 250. The Court affirmed its holding in Steinmetz v. Stockton City Chamber of Commerce (169 Cal.App.3d 1142 (Cal Ct. App. 1985
when it stated that duty will not be imposed "for injuries to an invitee from criminal activity occurring off the landowner's premises." Id. at 247. See also Southland Corp. v. Superior Ct., 203 Cal.App.3d 656,666 (Call Ct. App. 1988) where the absence of control has been unequivocally established, no basis for finding a duty or imposing liability exists.
CONCLUSION
In order for Plaintiff to prevail on his cause of action for negligence he must sustain his burden of proof on all of the elements of negligence. As noted in Perez v. Las Vegas Medical Center, 107 Nev. 1, 805 P.2d 589 (1991), the elements of a negligence cause of action include the defendant owing the plaintiff a duty of care.
In the case at bar, in order for Smith's to have owed a duty to Plaintiff, two conditions must be met; (1) Defendants exercised control over the premises where the injuries occurred; and (2) The criminal attack against Plaintiff was foreseeable. Failure of either condition requires a finding that no duty existed. According to the lease agreement between Smith's and DSRG, the parking lot was not under Smith's dominion or control. Thus, according to Nevada law, Smith's did not owe a duty to Plaintiff when he was mugged in the parking lot. Therefore, Smith's is entitled to Summary Judgment as a matter of law. Accordingly, Defendant respectfully prays this Honorable Court to grant its motion for Summary Judgment.
Dated this 29th day of January, 2009.
COOPER LEVENSON APRIL NIEDELMAN & WAGENHEIM, P.A.
By
Jerry S. Busby
Nevada Bar #001107
900 South Fourth Street
Las Vegas, Nevada 89101
Attorneys for Defendant
SMITH'S FOOD AND DRUG CENTERS, INC.
