De Blanc v. Aloha Airport Express, LLC

416 F.Supp.3d 1056

Sandra DE BLANC, Plaintiff

v.ALOHA AIRPORT EXPRESS, LLC, Defendant

Case No.: 2:18-cv-00151-APG-DJA

United States District Court, D. Nevada.

Signed September 23, 2019

Ian Estrada, Michaela Wood, Richard Harris Law Firm, Las Vegas, NV, for Plaintiff.

Christopher D. Phipps, Michael P. Lowry, Wilson Elser Moskowitz Edelman & Dicker LLP, Las Vegas, NV, for Defendant.

Order Denying Defendant's Motion for Summary Judgment and Granting Defendant's Motion in Limine

[ECF Nos. 25, 27]

ANDREW P. GORDON, UNITED STATES DISTRICT JUDGE

Plaintiff Sandra De Blanc sues defendant Aloha Airport Express, LLC for injuries she sustained while stepping out of Aloha's van. De Blanc brings claims for negligence and negligent hiring, training, and supervision, but did not sue the driver of the van. Aloha moves for summary judgment, arguing that (1) the expiration of the statute of limitation against the driver extinguishes Aloha's vicarious liability and (2) De Blanc's negligent hiring, training, and supervision claim is duplicative of her vicarious liability claim. I predict that the Supreme Court of Nevada would (1) not hold that the expiration of the statute of limitations against the driver discharges Aloha's liability and (2) allow both vicarious liability and negligent hiring, training, and supervision claims. I therefore deny Aloha's motion for summary judgment.

Aloha also moves to exclude De Blanc's expert, Lane Swainston. I grant Aloha's motion to exclude him because Swainston's opinions do not assist the jury and are not the product of reliable principles and methods.

I. BACKGROUND

On August 9, 2016, De Blanc was a passenger on an Aloha shuttle driven by Aloha employee Daniel Leivas. ECF No. 25 at 21. Upon arrival at McCarran Airport in Las Vegas, Leivas placed a step stool next to the van. Id. at 19-20. De Blanc fell as she used the step stool to disembark the van, but she was able to board her flight that day. Id.

De Blanc filed this suit on October 20, 2017, and Aloha removed it to federal court on January 26, 2018. ECF No. 1. Aloha disclosed Leivas as a fact witness and produced his handwritten incident report on March 14, 2018. ECF No. 25 at 23-28. By agreement of the parties, the final deadline to add parties and amend pleadings was June 25, 2018. ECF No. 21 at 2. De Blanc did not move to join Leivas before the limitation period expired on August 9, 2018.

De Blanc offers Swainston's expert opinion in support of her claims. Swainston examined the stool and concluded that the "locking mechanism is not reliable and is subject to operator error or failure of the mechanism to latch shut." ECF No. 25-1 at 2. He also concluded that the stool "is not stable under loading that is not deliberately centered on the platform. If the platform is not properly placed by the driver, it is especially unsafe when used to exit a vehicle." Id.

II. MOTION FOR SUMMARY JUDGMENT

Summary judgment is appropriate if the movant shows "there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed. R. Civ. P. 56(a), (c). A fact is material if it "might affect the outcome of the suit under the governing law." Anderson v. Liberty Lobby, Inc. , 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986). A dispute is genuine if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id.

The party seeking summary judgment bears the initial burden of informing the court of the basis for its motion and identifying those portions of the record that demonstrate the absence of a genuine issue of material fact. Celotex Corp. v. Catrett , 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). The burden then shifts to the non-moving party to set forth specific facts demonstrating there is a genuine issue of material fact for trial. Fairbank v. Wunderman Cato Johnson , 212 F.3d 528, 531 (9th Cir. 2000) ; Sonner v. Schwabe N. Am., Inc. , 911 F.3d 989, 992 (9th Cir. 2018) ("To defeat summary judgment, the nonmoving party must produce evidence of a genuine dispute of material fact that could satisfy its burden at trial."). I view the evidence and reasonable inferences in the light most favorable to the non-moving party. James River Ins. Co. v. Hebert Schenk, P.C. , 523 F.3d 915, 920 (9th Cir. 2008).

A. Vicarious Liability

Aloha argues that when the limitation period against Leivas expired, De Blanc's vicarious liability claim against Aloha was extinguished because Aloha's liability is derivative of Leivas's. De Blanc responds that vicarious liability requires only that the employee is under the employer's control and acts within the scope of his employment.

Aloha relies on a brief reference in Van Cleave v. Gamboni Construction Company to "a harsh [common law] rule" that the "release of an employee automatically releases the vicariously liable employer." 101 Nev. 524, 706 P.2d 845, 846 (1985). In Van Cleave , the Supreme Court of Nevada held that under the Uniform Contribution Among Tortfeasors Act, a release signed by the employee did not discharge the employer of vicarious liability. Id. at 849. Here, however, the facts present a different question of whether the expiration of the limitation period against the employee discharges the employer of vicarious liability. The parties agree that there is no Nevada case law directly on point. ECF No. 25 at 5; ECF No. 32 at 5. So I must predict how the Supreme Court of Nevada would decide the issue.¹

I predict that the Supreme Court of Nevada would hold that the expiration of the limitation period against the employee does not discharge the employer of vicarious liability. First, Nevada decisions on vicarious liability require "proof that (1) the actor at issue was an employee, and (2) the action complained of occurred within the scope of the actor's employment." Rockwell v. Sun Harbor Budget Suites , 112 Nev. 1217, 925 P.2d 1175, 1179 (1996) ; see also Nat'l Convenience Stores, Inc. v. Fantauzzi , 94 Nev. 655, 584 P.2d 689, 691 (1978). Aloha has not identified, and I have not found, Nevada authority requiring that the employee be held personally liable to impose vicarious liability on the employer.

Second, the Supreme Court of Nevada often looks to the Restatement (Second) of Judgments in this context. See Alcantara ex rel. Alcantara v. Wal-Mart Stores, Inc. , 130 Nev. 252, 321 P.3d 912, 917 n.3 (2014) (collecting cases). Comment (a) to Restatement § 51 recognizes that:

[B]oth the primary [tortfeasor] and the person vicariously responsible for his conduct are ordinarily subject to liability to the injured person. In some situations, the vicariously responsible person is liable only if the liability of the primary obligor is established; this is true, for example, of an insurer's liability for the acts of the insured. Ordinarily, however, the person vicariously responsible may be held liable even though the liability of the primary obligor has not been established. Moreover, in some situations the person vicariously responsible may be held liable even though an action cannot be maintained against the primary obligor.... [U]nder prevailing procedural rules the injured person ordinarily is not required to join both and may decide to bring suit in the first instance against only one of them.

Restatement (Second) of Judgments § 51 (1982). California recognizes that a "plaintiff seeking to hold an employer liable for injuries caused by employees acting within the scope of their employment is not required to name or join the employees as defendants." Perez v. City of Huntington Park , 7 Cal.App.4th 817, 9 Cal. Rptr. 2d 258, 260 (1992).

Third, although other states are split, "the jurisprudential trend is tending toward" the rule I predict here.

Verrastro v. Bayhospitalists, LLC , 208 A.3d 720, 730 (Del. 2019). In fact, two state supreme courts have rejected Aloha's argument since the parties briefed the motion. See id. ; Cameron v. Osler , 930 N.W.2d 661 (S.D. 2019). The Supreme Court of Delaware's decision in Verrastro is illustrative. Verrastro overruled Greco v. University Delaware , 619 A.2d 900 (Del. 1993), which Aloha relies upon, because "it is the negligence of the employee that is imputed to the employer, not the employee's liability." Verrastro , 208 A.3d at 729. So "in a negligence action against a principal based on the doctrine of respondeat superior , the dismissal of the agent on defenses personal to the agent does not automatically eliminate the principal's vicarious liability." Id. at 728-29.

Finally, the Supreme Court of Nevada recognized that the common law rule that "the release of one tortfeasor automatically released all other potential tortfeasors" was "harsh and without any rational basis." Russ v. Gen. Motors Corp. , 111 Nev. 1431, 906 P.2d 718, 720 (1995). The common law rule here is equally harsh. It would make De Blanc's timely claim against Aloha retroactively untimely because she did not sue Leivas. So I predict that the Supreme Court of Nevada would hold that the expiration of the statute of limitations against the employee does not discharge the employer of vicarious liability. I thus deny Aloha's motion for summary judgment on the negligence claim and do not consider De Blanc's alternative motion to amend her complaint to add Leivas.

B. Negligent Hiring, Training, and Supervision

Aloha argues that De Blanc's negligent hiring, training, and supervision claim is extinguished because it is duplicative of her vicarious liability claim against Aloha. De Blanc points to Nevada decisions (1) acknowledging negligent hiring and vicarious liability as separate claims and (2) holding that an employer can be liable for negligent hiring whether or not the employee is acting within the scope of employment, arguing that these cases suggest the claims are not duplicative.

The parties agree that there is no Nevada case law on point, so I must predict how the Supreme Court of Nevada would rule. In Terrell v. Central...