This article is not intended as advice for your specific matter. Rather, it is a general article about Nevada law. If you have questions about your particular case, please call Mueller, Hinds and Associates, Chtd. immediately at (702) 940-1234. This information is valid as of August 25, 2017.
In a previous article, we explored the basics of a claim for negligent security. Under Doud v. Las Vegas Hilton, 109 Nev. 1096 (1993), a plaintiff in a civil case can establish a case for liability against a hotel due to the criminal act of a third party where they can show there is a 1) duty, 2) breach of that duty, 3) proximate cause, and 4) damages. The idea is that a hotel has a duty to protect against the wrongful conduct of a third party where wrongful conduct is foreseeable. See Estate of Smith v. Mahoney's Silver Nugget, Inc., 127 Nev. 855, 858 (2011).
The question of whether the Mandalay Bay Resort and Casino is liable, at least partially, for the acts of the shooter, Stephen Paddock, comes down to whether they had “notice” that he was a danger to hurt people and whether his conduct was foreseeable. At this moment, there are many questions left unanswered, but an important new fact has come to light relating to the timeline of the shooting.
According to numerous sources, here, here and here, that six minutes before the shooter began firing on the crowd of 22,000 people, he shot a hotel security guard, Jesus Campos. Mr. Campos had been responding to an unrelated event, an alarm from an open door on the 32nd floor, when he heard drilling coming from the shooter's room. At that point, the shooter had already placed two cameras in the hallway and was possibly placing another camera in his door. Mr. Campos was shot and notified security immediately.
Section 651.015 of the Nevada Revised Statutes provides that an owner of a hotel is not civily liable for the death of a person on the premises caused by another person who is not an employee unless two things are true:
1) “The wrongful act which caused the death of injury was foreseeable; and
2) There is a preponderance of evidence that the owner or keeper did not exercise due care for the safety of the person on the premises
The Nevada Supreme Court looked at this statute in Estate of Smith v. Mahoney's Silver Nugget, Inc., 127 Nev. 855 (2011). In this case, Paris Lee and his friends were being asked to leave the casino, but on the way out, an argument ensued between Lee's friends and Allen Tyrone Smith Jr.'s friends. Smith punched Lee in the case and one of Lee's friends, Daniel Ott, pulled out a firearm and fatally shot Smith. The lower court granted summary judgment in favor of the Silver Nugget because it found that it did not owe Smith a duty of care under NRS 651.015.
The Nevada Supreme Court drew a distinction between foreseeability as it relates to “duty” versus as it related to “causation” in assessing hotel liability. A matter is foreseeable and thus gives rise to a duty where under the “totality of the circumstances” the court looks beyond the evidence of similar wrongful acts and imposes a duty where there is reasonable cause to anticipate a wrongful act, regardless of past experience. Id. at 860 (citing Doud, 109 Nev. 11101-04) (citing Lopez v. Baca, 98 Cal. App. 4th 1008 (Ct. App. 2002). The Court found that none of the prior acts were “similar” and that the Silver Nugget took “basic minimum precautions to ensure the safety of its patrons,” and thus, there was no duty owed to Smith because the event was unforeseeable.
With respect to the 2017 Las Vegas Shooting, it was an unprecedented tragedy of and it is impossible to show that there have been similar incidents. However, the question for the courts will be – did the hotel take basic minimum precautions to protect patrons?
There is a strong argument that the Mandalay Bay did not take basic minimum precautions. First, it allowed a person to bring onto its premises an armory of firearms and munitions. How did he get all those weapons up to his room without being noticed? Did no bellhop or customer service representative notice that he was lugging weapons. If a person can bring that many weapons into a hotel without being noticed, could they bring in a bomb as well? Second, the shooter was able to place cameras in the hallway without being noticed. How did that happen without raising suspicions. Third, as Steve Wynn has made clear, here, allowing a patron to stay in a hotel room without being disturbed for more than 12 hours creates a security issue. That's enough time for a person to create a huge public safety danger. Finally, what are the details about the security guard? At the this moment, the police are saying it was unrelated to the shooter's room, but does that mean it was unrelated to the shooting? Perhaps the shooter opened a door so he could escape. And although the security guard reported the shooting as soon as it happened, why did it take so long for them to get to the shooter's room? Surely the Mandalay Bay has armed guards that are trained to interdict a mass shooter like this.
Depending on the facts that have not been disclosed, the Mandalay Bay faces significant exposure for this mass shooting and the only question will be if the victims will want to hold them accountable.
Were you injured in this tragic incident? Contact the lawyers at Mueller Hinds & Associates for a free consultation and case evaluation at (702) 940-1234