Vanessa Racine v. Phw Las Vegas, LLC

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                             NOT FOR PUBLICATION                         FILED
                      UNITED STATES COURT OF APPEALS                     OCT 19 2016
                                                                     MOLLY C. DWYER, CLERK
                                                                       U.S. COURT OF APPEALS
                             FOR THE NINTH CIRCUIT



    VANESSA RACINE,                               No.    14-16707

                    Plaintiff-Appellant,          D.C. No.
                                                  2:10-cv-01651-LDG-VCF
     v.

    PHW LAS VEGAS, LLC, DBA Planet                MEMORANDUM*
    Hollywood Resort and Casino; PHW
    MANAGER, LLC,

                    Defendants-Appellees.

                      Appeal from the United States District Court
                               for the District of Nevada
                       Lloyd D. George, District Judge, Presiding

                             Submitted October 17, 2016**
                               San Francisco, California

Before: HAWKINS, CALLAHAN, and HURWITZ, Circuit Judges.

          In this diversity action, Vanessa Racine sued PHW Las Vegas, LLC and PHW

Manager, LLC (collectively, “Planet Hollywood”) for failing to prevent her from



*
      This disposition is not appropriate for publication and is not precedent except
as provided by Ninth Circuit Rule 36-3.
**
       The panel unanimously concludes this case is suitable for decision without
oral argument. See Fed. R. App. P. 34(a)(2).
being assaulted at the Las Vegas Planet Hollywood hotel. The district court granted

summary judgment for Planet Hollywood, and we affirm.

      1. To establish negligence under Nevada law, Racine was required to offer

evidence that “[p]rior incidents of similar wrongful acts occurred on the premises”

or that Planet Hollywood “failed to exercise due care.” Nev. Rev. Stat. § 651.015(3).

The prior incidents she identified, however, either did not occur in the hotel towers

of the Planet Hollywood property or involved different levels of violence, and thus

were not sufficiently “similar” wrongful acts. See Estate of Smith ex rel. Smith v.

Mahoney’s Silver Nugget, Inc., 265 P.3d 688, 692–93 (Nev. 2011). Moreover,

Planet Hollywood’s failure to locate and apprehend the assailant within fifteen

minutes of learning of a previous assault on Planet Hollywood property was not a

failure to exercise due care. See id. at 691–92 (defining due care as “minimum

precautions”).

      2. Nor did Racine present evidence that Planet Hollywood acted with gross

negligence, defined in Nevada as without “even a slight degree of care.” Hart v.

Kline, 116 P.2d 672, 674 (Nev. 1941). Planet Hollywood’s on-site security officers

timely responded to initial complaints about the assailant made earlier that night and

promptly contacted local police.




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      3. Having failed to establish a right to compensatory damages, Racine was

not entitled to punitive damages. See Nev. Rev. Stat. § 42.005(1) (permitting

punitive damages “in addition to the compensatory damages”).

      AFFIRMED.




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