"Nevada Rejects Mode-of-Operation Rule: What Businesses Should Know."
WWHGD Legal Alert
In Moore v. Primadonna, the Nevada Supreme Court has rejected the mode-of-operation rule for premises liability claims but left open questions about how constructive notice of a hazard may be proven.
Under Nevada law, businesses must maintain their premises in a reasonably safe condition. When a third party creates a spill, a plaintiff generally must show that the business had either actual or constructive notice of the spill but failed to address it. In 2012, FGA V. Giglio seemed to expand Nevada's definition of constructive notice to include mode-of-operation theories.
The mode-of-operation theory was at issue in Moore where a truck driver slipped as a truck stop on a substance believed to be gasoline. He sued the truck stop and its janitorial contractor, arguing that the mode-of-operation rule applied. The district court granted summary judgment for the defendants.
On appeal, the Nevada Supreme Court clarified that it had not adopted the mode-of-operation rule in FGA V. Giglio. The Court declined to adopt the rule, explaining that Nevada law already considers whether a hazard was reasonably foreseeable.
The Court further explained that constructive notice may be established by evidence that a specific hazard existed long enough that the business should have discovered it, or by evidence that the particular type of hazard was generally foreseeable. In Moore, the relevant question was whether the fuel spill was a reasonably foreseeable risk and, if so, whether the defendants reasonably addressed that risk.
What does this mean for businesses? Although Nevada has rejected the mode-of-operation rule, Moore may affect how courts evaluate constructive notice. In Sprague v. Lucky Stores, the court described constructive notice in terms of a virtually continuous condition. Moore did not address that definition directly, but its emphasis on general foreseeability raises the question of whether plaintiffs may establish constructive notice without showing how long a specific hazard existed.
The decision leaves this issue open to further discussion.
