Key Points

  • The Nevada Supreme Court, sitting en banc, explicitly declined to adopt the mode-of-operation approach to premises liability, which it had recognized but not adopted in FGA, Inc. v. Giglio (2012).
  • Regardless of the business model, a plaintiff may establish constructive notice of a hazard with evidence that the dangerous condition was reasonably foreseeable, shown either by the duration of the particular hazard or by the general foreseeability of that type of risk.
  • Even with constructive notice established, the injured party must also show that the business did not act reasonably in addressing the foreseeable risk.
  • The district court erred by granting summary judgment on the ground that Moore offered no evidence that employees traditionally dispensed fuel or that self-service fueling was a newer merchandising technique, because Moore was not required to make that showing. The court vacated and remanded the negligence claims.
  • The court affirmed summary judgment on Moore's unchallenged negligent hiring, training, supervision and retention claim and withdrew the Court of Appeals' decision.

The Nevada Supreme Court on Thursday declined to adopt the mode-of-operation theory of premises liability, a doctrine that lets an injured customer prove a business was on notice of a hazard by tying the hazard to the way the business operates. The unanimous ruling revived a truck driver's negligence suit over a fall in spilled fuel at a truck stop's self-service fueling station.

Writing for the seven-member court sitting en banc, Justice Cadish held that the district court asked the wrong question when it granted summary judgment against the driver, Ronny Moore. The Supreme Court vacated in part that ruling, which had favored the truck stop's owner, The Primadonna Company, LLC, doing business as Whiskey Pete's Hotel & Casino, and its janitorial contractor, Full Service Systems Corporation.

The decision closes a question the court left open in 2012, when it recognized the mode-of-operation approach in FGA, Inc. v. Giglio without explicitly adopting it. In its place, the court held that a plaintiff in any type of business setting may establish constructive notice by showing that the dangerous condition was reasonably foreseeable. The plaintiff must then also show that the business responded unreasonably to that risk.

"Therefore, we now explicitly decline to adopt the mode-of-operation approach to premises liability and instead clarify that, regardless of the particular business model used, constructive notice of a hazard may be established by evidence that the dangerous condition is reasonably foreseeable," Justice Cadish wrote.

Moore was working as a truck driver in 2019 when he stopped for fuel at Primadonna's station and slipped on a substance believed to be gasoline. After the fall, he reported the spill to a Primadonna employee, and another employee put an absorbent on the spill. Evidence in the case showed that Primadonna kept a log documenting gasoline spills of one gallon or more.

Moore sued Primadonna for negligence and later added claims against Full Service Systems, which Primadonna had brought into the case through a third-party complaint. Judge Veronica Barisich of the Eighth Judicial District Court in Clark County granted summary judgment to both companies.

The judge found that Moore failed to produce evidence that an employee caused the spill or that the spill had been present long enough to establish notice. The judge also held that Moore offered no evidence that self-service fueling was a newer merchandising technique or that Nevada truck stop employees traditionally dispensed fuel. The Nevada Court of Appeals affirmed in part and reversed in part, and the Supreme Court granted Primadonna's petition for review.

Moore argued that whether employees traditionally dispensed fuel was a fact question a jury could resolve from common knowledge. He also argued that courts should treat self-service fueling as a new merchandising technique, as caselaw had treated the shift to self-service grocery stores.

Under Nevada law, a business owner owes customers a duty to keep its premises reasonably safe. When a third party causes a substance to be on the floor, the opinion said, the injured customer ordinarily must show that the business had actual or constructive notice of the condition and failed to remedy the hazard. The mode-of-operation approach, as the court described it in Giglio while quoting a Massachusetts decision, provides that a plaintiff satisfies the notice requirement by establishing "that an injury was attributable to a reasonably foreseeable dangerous condition on the owner's premises that is related to the owner's self-service mode of operation."

Justice Cadish reasoned that the doctrine's central question, whether a dangerous condition was reasonably foreseeable, is one Nevada courts already ask. "But foreseeability is already part of Nevada's established negligence framework," the opinion said. The opinion pointed to the Restatement (Third) of Torts, whose general duty of reasonable care to all entrants Nevada has adopted, which provides that this duty includes "reasonable care to discover dangerous conditions on the land and to eliminate or ameliorate them."

The court identified two kinds of proof that can show foreseeability. A plaintiff may offer evidence of constructive notice of the particular hazard, usually based on how long the hazard was present, or "evidence supporting more general foreseeability of this particular type of risk." "We also emphasize that, even if the hazard was reasonably foreseeable and constructive notice was established, the injured party also must show that the business did not act reasonably in addressing that foreseeable risk," Justice Cadish wrote.

Applying that standard, the court held that the district court erred by deciding the case on its conclusions about the mode-of-operation theory. Facts about how fuel has historically been sold, Justice Cadish wrote, "do not, standing alone, resolve whether Primadonna could have reasonably foreseen fuel spills as a risk of its operation." To establish constructive notice, Moore "needed only to present evidence from which a reasonable trier of fact could find that the fuel spill was a reasonably foreseeable risk," the court held.

Because Moore did not challenge summary judgment on his claim for negligent hiring, training, supervision and retention, the court affirmed the district court's ruling on that claim. In a footnote, the court withdrew the Court of Appeals' decision in the case.

Chief Justice Herndon and Justices Pickering, Parraguirre, Bell, Stiglich and Lee joined the opinion.

Moore was represented by Micah S. Echols of Claggett & Sykes Law Firm. Primadonna was represented by Lew Brandon, Jr. of Brandon Smerber Law Firm.

The case now returns to the district court in Clark County. That court must decide whether the fuel spill was a reasonably foreseeable dangerous condition that gave Primadonna or Full Service Systems constructive notice and, if so, whether the companies reasonably addressed the risk.