131 Nev., Advance Opinion f32_ 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

CRISTIE N. ANDERSON, 

INDIVIDUALLY; AND JAMAAR 

ANDERSON, 

Appellants, 

vs. 

MANDALAY CORPORATION, A 

NEVADA CORPORATION D/B/A 

MANDALAY BAY RESORT AND 

CASINO, 

Respondent. 

CRISTIE N. ANDERSON, 

INDIVIDUALLY; AND JAMAAR 

ANDERSON, 

Appellants/Cross-Respondents, 

vs. 

MANDALAY CORPORATION, A 

NEVADA CORPORATION D/B/A 

MANDALAY BAY RESORT AND 

CASINO, 

Respondent/Cross-Appellant. 

No. 61305 

FILED 

1 5 2015 

TF24CIK. LINDEMAN 

CLERKFJUPREME QOUET 

W 

CHIEF DEN I 

No. 61871 

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 nonmoving 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 

3NRS 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 

12 
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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