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Joinder and Effects of Necessary and Indispensable Parties in Assault and Battery Cases in Nevada

In negligent security cases, where the plaintiff alleges that he or she was assaulted, the active tortfeasor who commits the battery may be brought in under Nevada Rule of Civil Procedure (“NRCP) 19(a) as an indispensable party to the lawsuit, even if the plaintiff did not name that party as a direct defendant.

NRCP 19 governs the joinder of parties to an action who are necessary and indispensable. NRCP 19(a) provides, in pertinent part:

A person who is subject to service of process and whose joinder will not deprive the court of jurisdiction over the subject matter of the action shall be joined as a party in the action if (1) in the person’s absence complete relief cannot be accorded among those already parties or (2) the person claims an interest relating to the subject of the action and is so situated that the disposition of the action in the person’s absence may...(ii) leave any of the persons already parties subject to a substantial risk of incurring double, multiple or otherwise inconsistent obligations by reason of the claimed interest...(emphasis added).

The failure to join a necessary party does not serve the interest of justice or comply with NRCP 19(a). Crowley v. Duffrin, 109 Nev. 597, 602, 855 P.2d 536, 539-40 (Nev. 1993). Joinder of necessary parties is required:

if the defendants actually before the court may be subjected to undue inconvenience, or to danger of loss, or to future litigation, or to a liability, under the decree, more extensive and direct, than if the absent parties were before the court, that of itself will, in many cases, furnish a sufficient ground to enforce the rule of making the absent persons parties.

Robinson v. Kind, 23 Nev. 330, 335-36 (Nev. 1896) (overruled on other grounds) (emphasis added).

All persons materially interested, either legally or beneficially in the subject matter of a suit, are to be made parties to it, either as plaintiffs or as defendants, however numerous they may be, so that there may be a complete decree which shall bind them all.

Id. at 335.

“If the interest of absent parties may be affected or bound by the decree, they must be brought before the court or it will not proceed to decree.” Id., at 335-36.

Under Nevada’s comparative negligence statute, both the active tortfeasor (assailant) and the passive tortfeasor (property owner) can be held liable. However, only the active tortfeasor (assailant) can be jointly and severally liable. A passive tortfeasor, such as an owner of the property where the assault took place, would only be severally liable for its own negligence. NRS 41.141 is Nevada’s comparative fault statute. NRS 41.141 provides, in pertinent part:

4. Where recovery is allowed against more than one defendant in such an action, except as otherwise provided in subsection 5, each defendant is severally liable to the plaintiff only for that portion of the judgment which represents the percentage of negligence attributable to that defendant.

5. This section does not affect the joint and several liability, if any, of the defendants in an action based upon:

. . .

(b) an intentional tort.

See, NRS 41.141 (emphasis added).

In Café Moda, LLC v. Palma, 272 P.3d 137, 138 (Nev. 2012), the Nevada Supreme Court determined whether NRS 41.141 allows liability to be apportioned between a negligent tortfeasor and an intentional tortfeasor. In Café Moda, Richards and Palma were patrons of Café Moda. Id. They had an altercation at the restaurant which resulted in Richards repeatedly stabbing Palma. Id. Palma brought suit against Café Moda under a theory of negligence. Id. Palma sued Richards under an intentional tort theory of liability. Id. The jury rendered a verdict in favor of Palma and apportioned 80% of the fault to Richards and the remaining 20% to Café Moda. Id. The District Court determined that under NRS 41.141, Richards and Café Moda were jointly and severally liable for 100% of Palma’s damages. Id. Café Moda appealed. Id.

The Nevada Supreme Court overturned the District Court and concluded that the several liability provision contained in subsection 4 of NRS 41.141 applied to an action involving a negligence cause of action and intentional tort cause of action against multiple defendants. Café Moda, 272 P.3d at 141. The Court found that the Legislature placed the several liability provision for multiple defendants into the statute to prevent the deep pocket doctrine. Id., at 140 citing Hearing on A.B. 249 Before the Senate Judiciary Comm., 65th Leg (Nev., March 8, 1999). In light of this rationale, the Nevada Supreme Court found that several liability should be apportioned amongst all defendants even though subsection 4 of NRS 41.141 refers to percentage of negligence only. Id. Thus, the Court construed subsection 4’s use of the word “negligence” to actually mean “fault” Id. The Court reasoned that a defendant should not receive the benefits of several liability only if his codefendant is also being sued on a negligence theory:

runs counter to the Legislature’s design of NRS 41.141, but it produces the unreasonable result of hinging the extent of a negligent defendant’s liability on another party’s mindset.

Id., at 141.

The Court concluded that the District Court should have determined that Café Moda was severally liable for 20% of Palma’s damages and that Richards remained jointly and severally liable for 100% of Palma’s damages. Café Moda, LLC v. Palma, 272 P.3d 137, 141 (Nev. 2012).

That decision left defendants filing motions to name assailants as indispensable parties under NRCP 19(a) in hopes that they would only be severally liable for their respective negligence. However, the plaintiffs’ bar argued that a plaintiff has the right to sue whomever he wants under whatever theory of liability he wishes to use (i.e., a plaintiff can sue just the property owner for negligent security and does not have to sue the assailant for assault and battery, if he does not want to). This prompted a further interpretation of the Café Moda case, which the Nevada Supreme Court took up in 2013.

The Nevada Supreme Court recently clarified its stance regarding a plaintiff’s joinder of a tortfeasor as a necessary party under NRCP 19(a). Humphries v. Eighth Judicial Dist. Ct., 129 Nev. Adv. Op. 85 (2013).

The Humphries case involved an altercation that occurred between Plaintiffs Humphries and Rocha II and Defendant Ferrell at the New York-New York Hotel and Casino in Las Vegas, Nevada. security officers and police stopped the altercation and detained Ferrell. Ferrell was arrested and subsequently convicted of one count of attempted battery with substantial bodily harm.

In May 2011, Plaintiffs filed a complaint against Defendant New York-New York Hotel and Casino, alleging various negligence causes of action. Plaintiffs did not make any allegations or claims against Ferrell. New York-New York subsequently moved the Court to compel Plaintiffs to join Ferrell as a necessary party under NRCP 19(a). The Court granted New York-New York’s motion pursuant to the Nevada Supreme Court’s decision in Café Moda, L.L.C. v. Palma, 272 P.3d 137 (Nev. 2012). In Café Moda, the Court held that in a case alleging comparative negligence, an intentional tortfeasor’s liability is joint and several, but a merely negligent co-tortfeasor’s liability is several, even if the injured party is not comparatively negligent. Plaintiffs petitioned the Nevada Supreme Court for a writ of mandamus, challenging the Court’s order.

The Nevada Supreme Court clarified its holding in Café Moda and determined that the District Court erred in compelling Plaintiffs to join Ferrell as a necessary party. The Court reasoned that a plaintiff may still be afforded complete relief under NRCP 19(a) against the liable defendant(s) he sues, regardless of the existence of other co-tortfeasors. The Court reasoned that the named defendant may have a cause of action for contribution against a co-tortfeasor, which does not preclude complete relief between the plaintiff and defendant. The Court further concluded that under NRCP 19(a)(2), a co-tortfeasor’s ability to dispute his liability to the plaintiffs will not be impacted by an action to which the co-tortfeasor is not a party, and the defendant will not be subject to inconsistent obligations.

The Nevada Supreme Court also determined that public policy considerations weigh against a per se rule requiring a plaintiff to join co-tortfeasors in a lawsuit as necessary and indispensable parties. A plaintiff who is unable to join a tortfeasor because the tortfeasor is unknown, immune from liability or outside of the court’s jurisdiction would face the harsh sanction of dismissal under a per se rule. As a result, a plaintiff would bear the entire burden of damages, regardless of the original defendant’s availability of fault. The Court stated that placing the risk of an unknown, immune or unavailable tortfeasor on an available and at-fault tortfeasor is more equitable than dismissal for failure to join a necessary party.

The Nevada Supreme Court also noted that a defendant tortfeasor has the ability to implead a co-tortfeasor on a theory of contribution under NRCP 14(a). The ability to seek contribution from a co-tortfeasor affords the named defendant some relief without requiring joinder of a co-tortfeasor under NRCP 19(a). Specifically, impleading the co-tortfeasor provides the named defendant with an avenue to apportion fault when the plaintiff chooses not to pursue a claim against a potential tortfeasor. The Court concluded that permitting the defendant to implead the other tortfeasor properly places the burden of joining a nonparty on the party that stands to benefit the most from joining the nonparty.

The Humphries Court concluded that complete relief could be afforded between Plaintiffs and Defendant New York-New York without requiring that Plaintiffs join Ferrell as a necessary and indispensable party under NRCP 19(a). The Court further determined that Defendant New York-New York could pursue apportionment of fault without Ferrell’s joinder through impleader under NRS 17.225(1) and NRCP 14(a).1 In the event that Defendant New York-New York joined Ferrell, the Supreme Court instructed that the jury should render a special verdict indicating the percentage of negligence attributable to each party including Ferrell as the third-party defendant. Thus, the ruling prevented Defendant New York-New York from obtaining the benefits of several liability apportioned amongst multiple defendants pursuant to NRS 41.141(4).

Analysis of the current state of law in Nevada

If a plaintiff alleges both assault and battery and negligent security and sues both the active tortfeasor (assailant(s)) and the passive tortfeasor (property owner/security company), the active tortfeasor is both jointly and severally liable, whereas the passive tortfeasor is only severally liable for its proportionate liability.
Where a plaintiff chooses to sue only the passive “deep pockets” defendant, that defendant can file a third party complaint against the active tortfeasor. While the passive defendant will be held liable for the entire judgment if the plaintiff proves his case, the passive defendant may seek proportionate contribution from the active tortfeasor whom it has named as a third party defendant.

 

1 NRS 17.225(1) states: “Except as otherwise provided in this section and NRS 17.235 to 17.305, inclusive, where two or more persons become jointly or severally liable in tort for the same injury to person or property or for the same wrongful death, there is a right of contribution among them even though judgment has not been recovered against all or any of them.”

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