IN THE SUPREME COURT OF THE STATE OF NEVADA
PAMELA CAMPBELL; AND JAMES No. 77589
CAMPBELL,
Appellants,
vs.
DONALD LAUGHLIN, FILE
Res • ondent.
- DEC I 6 2020
ELMS A. BROWN
PREME COURT
ORDER OF AFFIRMANCE
This is an appeal from a district court summary judgment in a
tort action. Eighth Judicial District Court, Clark County; Joseph Hardy,
Jr., Judge. As part of her employment duties as a security emergency
medical technician for non-party Riverside Resort and Casino (Riverside),
appellant Pamela Campbell was assigned to care for respondent Donald
Laughlin while he recovered from surgery at his Riverside residence.
Pamela and her husband, appellant James Campbell, later sued Laughlin,
Riverside, and another party based on her allegation that she contracted a
communicable disease from Laughlin while caring for him. As pertinent to
this appeal, the district court entered summary judgment in favor of
Laughlin.
1Pursuant to NRAP 34(f)(1), we have determined that oral argument
is not warranted in this appeal.
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Appellants argue that the district court erroneously granted
summary judgment on their tort claims. We review de novo, see Wood v.
Safeway, Inc., 121 Nev. 724, 729,
121 P.3d 1026, 1029 (2005) (reviewing a
district court's grant of summary judgment de novo), and disagree because
appellants claims fail on the merits.2 Regarding false misrepresentation,
the parties do not dispute that respondent made no affirmative false
statement to Pamela, and appellants fail to demonstrate that respondent
had a duty to disclose his medical condition, such that an omission would
constitute a false representation.3 See Barrnettler v. Reno Air, Inc., 114 Nev.
2In light of our conclusion, we need not address the district court's
alternative basis for granting summary judgment.
3We decline to address appellants' arguments that NRS 441A.180(1)
(providing that "[a] person who has a communicable disease in an infectious
state shall not conduct himself or herself in any manner likely to expose
others to the disease or engage in any occupation in which it is likely that
the disease will be transmitted to others") and NRS 441A.220 (addressing
permissible disclosures of confidential health information in communicabledisease or drug-overdose circumstances) provided a duty to disclose as they
did not raise that below. See Old Aztec Mine, Inc. v. Brown, 97 Nev. 49, 52,
623 P.2d 981, 983 (1981) (holding that this court need not address issues
not raised below). Moreover, appellants fail to cite to relevant controlling
authority supporting their argument that respondent had a duty to disclose
under these statutes. See Edwards v. Emperor's Garden Rest., 122 Nev.
317, 330,
130 P.3d 1280, 1288 (2006) (holding that an appellant must
present relevant authority in support of his or her contentions). And the
authorities they do cite to are distinguishable in that they address a sexual
partner's failure to inform the other that they were infected with a
communicable disease. See Doe v. Johnson, 817 F. Supp. 1382, 1385 (W.D.
Mich. 1993) (partner failed to inform the other that he was HIV positive
before engaging in consensual sex); Behr v. Redrnond, 123 Cal. Rptr. 3d 97,
103 (Ct. App. 2011) (man engaged in sexual relationship with a partner
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441, 447, 956 P.2d 1382, 1386 (1998) (requiring a defendant to supply false
information or make a false representation for fraudulent
misrepresentation claims); Midwest Supply, Inc. v. Waters,
89 Nev. 210,
212-13,
510 P.2d 876, 878 (1973) (holding that the suppression of a material
fact which defendant has a duty to disclose is equivalent to a false
representation).
Appellants also fail to demonstrate any affirmative action that
respondent took to transmit the disease to Pamela, precluding liability for
battery, assault, and negligent infliction of emotional distress. See NRS
200.481(1)(a) (defining battery); NRS 200.471(1)(a) (defining assault); see
also Clark Cty. Sch. Dist. v. Payo, 133 Nev. 626, 636,
403 P.3d 1270, 1279
(2017) (holding that to prevail on a negligence claim, the plaintiff must first
establish a duty of care); Nelson v. City of Las Vegas,
99 Nev. 548, 556 11.4,
665 P.2d 1141, 1146 n.4 (1983) (explaining that the basis for a negligent
infliction of emotional distress claim is a negligence cause of action);
Restatement (Third) of Torts: Inten. Torts to Persons § 101 cmt. c (2015)
(In addition to requiring that the actor's conduct be voluntary, both battery
and assault liability require affirmative conduct, i.e., an act or course of
activity. A mere omission is insufficient for liability.").
Lastly, regarding appellants intentional infliction of emotional
distress claim, because respondent did not have a duty to inform the public
of his disease, and because Pamela's employment posed an elevated risk for
these types of exposures, we conclude that respondent's failure to disclose
after lying that he had no sexually transmitted disease), as rnodified (Mar.
25, 2011).
3
his medical status here did not constitute extreme and outrageous conduct.
Maduike v. Agency Rent-A-Car, 114 Nev. 1, 4,
953 P.2d 24, 26 (1998)
(describing extreme and outrageous conduct needed for an intentional
infliction of emotional distress claim as that which falls "outside all possible
bounds of decency" and is regarded as "utterly intolerable in a civilized
community" (internal quotation marks omitted)). We therefore,
ORDER the judgment of the district court AFFIRMED.
Alztpu-0 , J.
Stiglich
L1Z6,(,,D
Silver
, J.
cc: Hon. Joseph Hardy, Jr., District Judge
Persi J. Mishel, Settlement Judge
H&P Law, PLLC
Claggett & Sykes Law Firm
Brandon Sinerber Law Firm
Eighth District Court Clerk
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