YOLANDA FRANCO v. PETSMART LLC (2026)

ORDER AFFIRMING IN PART, REVERSING IN PART, AND REMANDING

Yolanda Franco appeals from a district court order granting summary judgment in favor of respondent PetSmart, LLC. Eighth Judicial District Court, Clark County; Erika L. Mendoza, Judge.

In July 2020—the early months of the COVID-19 pandemic— PetSmart permitted only one customer at a time in the lobby of its pet salon at 7050 Arroyo Crossing Parkway in Las Vegas, and the door contained a sign advising customers of that policy. That same month, Franco was standing in the lobby of the pet salon awaiting grooming services for her dog when another patron, Ajia Stringer, opened the lobby door to inquire about grooming services for her own dog.¹ After Franco expressed concern about Stringer violating the COVID-19 pandemic-occupancy policy, Stringer barged into the pet salon lobby and initiated a confrontation with Franco.

For approximately 40 seconds, the two women argued with one another while a PetSmart employee stood watching from behind the counter. Then, over the next ten seconds, Franco and Stringer approached one another, continued to argue, and bumped chests. During that time, the PetSmart employee claimed to have unsuccessfully tried to call her manager while a second PetSmart employee entered the lobby.

For another 20 seconds, Franco and Stringer stood chest-to-chest and continued arguing in the presence of both employees, until Franco pulled a canister of pepper spray from her purse, backed away from Stringer, and aimed the canister at Stringer. At that point, one of the PetSmart employees said something to Franco and Stringer, and the confrontation became physical for approximately 50 seconds. Franco sprayed Stringer with pepper spray, and Stringer responded by pushing Franco onto a counter, reaching for Franco's face and throat, and repeatedly yanking on and twisting Franco's arm before retrieving the pepper spray and throwing it across the room. When Franco sought to defend herself by pushing Stringer backwards, Stringer flung Franco to the ground and repeatedly punched her. Franco again sought to defend herself by pulling Stringer's hair and repeatedly kicking Stringer—all in front of the PetSmart employees who primarily appeared to be standing by watching. At some point during the fight, the first PetSmart employee attempted to call 9-1-1, but was unable to get through. Shortly after the attempted call, Franco let go of Stringer's hair and the two left the lobby.

Franco sustained physical injuries during the altercation that required stitches and later received treatment for scarring on her forehead. In addition, Franco testified that she sought therapy for emotional distress. Meanwhile, Stringer pleaded guilty to and was convicted of a felony in connection with the physical altercation.

In July 2022, Franco sued PetSmart for negligence; respondeat superior; and negligent hiring, training, supervision, and policies/procedures. PetSmart answered and filed a third-party complaint against Stringer.² After two years of litigation, in August 2024, PetSmart moved for summary judgment on Franco's claims, arguing that Franco failed to establish the requisite duty of care or causation. The district court granted PetSmart's motion.

In granting summary judgment on Franco's negligence and respondeat superior claims, the district court concluded, as a matter of law, that PetSmart did not owe Franco a duty of care because Franco failed to establish that she had a “special relationship” with PetSmart or that the physical altercation was foreseeable when there were no prior incidents of criminal activity at that PetSmart location and the verbal conflict lasted only 30-to-40 seconds before turning violent. As to causation, the district court found that Franco failed to produce evidence that the PetSmart employees could have taken any action that would have prevented her from being injured during those 30-to-40 seconds. Finally, the district court found that Franco did not oppose summary judgment as to her negligent hiring, training, supervision, and policies/procedures claim, so PetSmart was also entitled to summary judgment on that claim.

Franco moved for reconsideration, arguing that the incident was foreseeable based on the heightened tensions that existed during the COVID-19 pandemic and based on PetSmart's policies and procedures to address potential violence by customers, but the district court denied that request. Although the court noted that caselaw supports “that there is a generally accepted special relationship generally between businesses and patrons,” it found that Franco failed to argue that point in opposition to the motion for summary judgment and declined to reconsider the existence of a special relationship. The district court likewise declined to reconsider its finding as to foreseeability. The court did not consider Franco's new argument that tensions surrounding COVID-19 made the incident foreseeable and concluded that PetSmart's policies and procedures did not alter the foreseeability analysis. The district court further concluded that there needed to be a temporal break between Franco and Stringer's verbal argument and their physical altercation for the physical altercation to be foreseeable.

As to causation, the district court again faulted Franco for failing to produce evidence establishing a genuine dispute of material fact. And the court found that Franco's opposition to the motion for summary judgment did not contain legal authority or analysis as to her negligent hiring, training, supervision, and policies/procedures claim, so it did not reconsider granting summary judgment as to that claim either. After denying Franco's motion for reconsideration, the district court entered an order awarding PetSmart its costs as the prevailing party on the motion for summary judgment. Franco timely appeals.

“This court reviews an order granting summary judgment de novo.” Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123 Nev. 598, 602, 172 P.3d 131, 134 (2007). “[S]ummary judgment is appropriate ‘when the pleadings, depositions, answers to interrogatories, admissions, and affidavits, if any, that are properly before the court demonstrate that no genuine [dispute] of material fact exists, and the moving party is entitled to judgment as a matter of law.’ ” Id. (quoting Wood, 121 Nev. at 731, 121 P.3d at 1031); accord NRCP 56(a). “The party moving for summary judgment bears the initial burden of production to show the absence of a genuine [dispute] of material fact.” Cuzze, 123 Nev. at 602, 172 P.3d at 134. “A genuine [dispute] of material fact exists if, based on the evidence presented, a reasonable jury could return a verdict for the nonmoving party.” Butler ex rel. Biller v. Bayer, 123 Nev. 450, 457-58, 168 P.3d 1055, 1061 (2007).

Franco's negligence and respondeat superior claims

“[T]o prevail on a negligence claim, a plaintiff must establish four elements: (1) the existence of a duty of care, (2) breach of that duty, (3) legal causation, and (4) damages.” Sanchez ex rel. Sanchez v. Wal-Mart Stores, Inc., 125 Nev. 818, 824, 221 P.3d 1276, 1280 (2009). In this case, the district court granted summary judgment to PetSmart on Franco's negligence claim because it concluded that (1) PetSmart did not owe Franco a duty of care where Franco had no special relationship with PetSmart and the incident was not foreseeable and (2) PetSmart did not cause Franco's injuries. And because a respondeat superior claim requires an underlying cause of action for negligence, the court also granted PetSmart summary judgment on that claim. We conclude that the district court erred in making these determinations, and we therefore reverse the grant of summary judgment on these claims.

PetSmart owed Franco a duty of care as a business invitee

The existence of a legal duty is a question of law that this court reviews de novo.³ See Turner v. Mandalay Sports Ent., LLC, 124 Nev. 213, 220-21, 180 P.3d 1172, 1177 (2008). “[U]nder common-law principles, no duty is owed to control the dangerous conduct of another or to warn others of the dangerous conduct.” Sanchez, 125 Nev. at 824, 221 P.3d at 1280. Nevertheless, “an affirmative duty to aid others is recognized when (1) a special relationship exists between the parties or between the defendant and the identifiable victim, and (2) the harm created by the defendant's conduct is foreseeable.” Id. at 824, 221 P.3d at 1280-81. “[F]oreseeability is determined on a totality-of-the-circumstances basis.” Scialabba v. Brandise Constr. Co., 112 Nev. 965, 970, 921 P.2d 928, 931 (1996).

In Doud, v. Las Vegas Hilton Corp., the Nevada Supreme Court addressed a proprietor's duty of care to protect “an invited guest from injury caused by a third person.” 109 Nev. 1096, 1101, 864 P.2d 796, 799 (1993) (internal quotation marks omitted), superseded in part by statute, NRS 651.015, as stated in Est. of Smith ex rel. Smith v. Mahoney's Silver Nugget, Inc., 127 Nev. 855, 858-60, 265 P.3d 688, 690-92 (2011). In that case, a casino patron was brutally attacked while entering a motorhome parked in a hotel and casino's parking lot. Id. at 1098-99, 864 P.2d at 797. After summary judgment was granted on the patron's negligence complaint against the hotel, the patron appealed. Id. at 1100, 864 P.2d at 798.

Although the supreme court did not use the magic words “special relationship,” to describe the relationship between the patron and the proprietor in Doud, the court treated the relationship as such. Id. at 1100-04, 864 P.2d at 798-801. In doing so, the court held that a “proprietor” owes an “invitee” a duty of care “to take affirmative action to reasonably attempt to prevent the wrongful acts of third persons ․ only where there is reasonable cause to anticipate such acts and the probability of injury resulting therefrom.” Id. at 1101-02, 864 P.2d at 799 (emphasis added). The supreme court then analyzed whether it was “foreseeable” that a third party would attack a patron in the hotel's parking lots and, concluding that it was, imposed a duty of care on the hotel. Id. at 1102-04, 1106 864 P.2d at 799-802.

Both below and on appeal, Franco has consistently relied on Doud to argue that PetSmart owed her a duty of care to prevent foreseeable violence. Although Doud was superseded by statute for purposes of innkeeper liability, see NRS 651.015; Est. of Smith ex rel. Smith, 127 Nev. at 858-60, 265 P.3d at 690-92, it has never been overruled by the supreme court and thus remains good law outside of the innkeeper context. Indeed, the supreme court relied heavily on Doud in Scialabba, explaining that Doud “addressed the duty of a landowner to protect against third-party criminal activity,” 112 Nev. at 969, 921 P.2d at 930, and established the modern test for foreseeability, id. at 970, 921 P.2d at 931 (“As this court stated in Doud, ‘[t]he modern trend holds that foreseeability of a violent crime being perpetrated on a patron is not absolutely dependent upon notice of prior crimes of a similar nature occurring on or near the premises, but may also be determined from all of the circumstances present.’ ” (quoting Doud, 109 Nev. at 1102, 864 P.2d at 799-800)).

Franco's failure to use the magic words, “special relationship,” in her briefing below does not alter the fact that her relationship with PetSmart is the same relationship that was at issue in Doud: a proprietor-invitee relationship.⁴ Because Franco (an invitee) was injured by Stringer (a third-party) on PetSmart's (the proprietor's) premises, the existence of a duty of care was governed by Doud and is therefore dependent on foreseeability.⁵

Turning now to the element of foreseeability, we conclude that the district court erred as a matter of law when it found PetSmart had no duty of care because it deemed Stringer's acts unforeseeable.⁶ As explained in Doud, foreseeability is determined under the totality-of-the-circumstances and is not wholly dependent upon prior crimes of a similar nature occurring on or near the premises. 109 Nev. at 1102, 864 P.2d at 799-800. In analyzing foreseeability, Doud “approved the position of The Restatement (Second) of Torts which provides,” in relevant part, that a possessor of land who holds it open to the public for business purposes “is ordinarily under no duty to exercise any care until he knows or has reason to know that the acts of the third person are occurring, or are about to occur.” Id. at 1101, 864 P.2d at 799 (emphasis added) (quoting Restatement (Second) of Torts § 344 cmt. f (A.L.I. 1965)).

While PetSmart argues that there is no evidence of prior crimes on its premises and that the place and character of its business do not make violent crime foreseeable there, those facts, even if true, are not dispositive. Criminal conduct on the part of third persons can alternatively be foreseeable when a proprietor “knows or has reason to know that the acts of [a] third person are occurring, or are about to occur.” Id. (quoting-Restatement (Second) of Torts § 344 cmt. f (A.L.I. 1965)). And here, the record reflects that PetSmart had reason to know that violence was imminent based on the verbal exchange between Franco and Stringer and the events leading up to their violent encounter. Further, once the physical altercation started, PetSmart knew that the verbal exchange had become violent.

The surveillance footage and deposition testimony in the record establish that a PetSmart employee was present and watching when Stringer and Franco began yelling and arguing with one another in the pet salon, which lasted for approximately 40 seconds.⁷ Then, for an additional 30 seconds, Stringer and Franco approached one another (while still arguing), bumped into each other, and prepared to fight. The record reflects that another PetSmart employee entered the room during this period. Given that PetSmart employees saw the two customers argue, approach one another, and prepare to fight, PetSmart could have foreseen that the verbal exchange was about to turn violent. In addition, the surveillance video and deposition testimony demonstrate that both employees were present and witnessed the altercation after it turned violent, for another 50 seconds. Under these circumstances, we conclude that PetSmart knew or had reason to know “that the acts of the third person [were] occurring or [were] about to occur,” such that the incident at issue in this case was foreseeable as to the duty of care. See Doud, 109 Nev. at 1101, 864 P.2d at 799 (quoting-Restatement (Second) of Torts § 344 cmt. f (A.L.I. 1965)).

To the extent the district court suggested, in its order denying Franco's motion for reconsideration, that there had to be a temporal gap between Stringer and Franco's verbal exchange and their physical altercation for the physical altercation to be foreseeable, we disagree. None of the cases the district court relied on for that proposition established a temporal-gap requirement. See Est. of Smith ex rel. Smith v. Mahoney's Silver Nugget, Inc., 127 Nev. 855, 265 P.3d 688 (2011); Rockwell v. Sun Harbor Budget Suites, 112 Nev. 1217, 925 P.2d 1175 (1996); Elko Enters., Inc. v. Broyles ex rel. Rogers, 105 Nev. 562, 779 P.2d 961 (1989); Delgado v. Trax Bar & Grill, 113 P.3d 1159 (Cal. 2005). And absent any authority otherwise supporting the application of a temporal-gap requirement, we decline to apply one here. Thus, because we conclude the occurrence of the physical altercation was foreseeable, both during the verbal exchange and during the ensuing physical altercation, the district court erred in finding PetSmart had no duty of care.

There is a genuine dispute of material fact as to causation

In a negligence case, issues of causation are “generally questions of fact and not of law and are thus best left for the jury to decide.” Doud, 109 Nev. at 1106, 864 P.2d at 802. Causation “consists of two components: cause in fact and foreseeability.” Id. at 1105, 864 P.2d at 801. Cause in fact requires proof that the proprietor's breach was a substantial factor in bringing about the injury. Id. Meanwhile, “foreseeability[ ] is essentially a policy consideration that limits a proprietor's liability to consequences that have a reasonably close connection with both the proprietor's conduct and the harm that conduct originally created.” Id.

In this case, based on the surveillance video and deposition testimony that was presented to the district court in connection with the summary judgment motion, Franco argued that PetSmart's employees failed to enforce its COVID-19 pandemic-distancing protocols or take sufficient action to prevent or stop the fight from occurring once it started, which caused her injury. However, rather than viewing the evidence in the light most favorable to Franco in addressing causation, the district court acted as factfinder, drawing inferences in PetSmart's favor and concluding that there was nothing PetSmart could have done to prevent Franco's injuries in light of the brief nature of the altercation. This was error.

Viewing the evidence in the light most favorable to Franco, as the party opposing summary judgment, we conclude that genuine disputes of material fact exist as to causation which require Franco's negligence claim to proceed to a jury.⁸ See Cuzze, 123 Nev. at 602, 172 P.3d at 134 (explaining that “summary judgment is appropriate ‘when the pleadings, depositions, answers to interrogatories, admissions, and affidavits, if any, that are properly before the court demonstrate that no genuine [dispute] of material fact exists, and the moving party is entitled to judgment as a matter of law.’ ” (quoting Wood, 121 Nev. at 731, 121 P.3d at 1031)); Butler, 123 Nev. at 457-58, 168 P.3d at 1061 (“A genuine [dispute] of material fact exists if, based on the evidence presented, a reasonable jury could return a verdict for the nonmoving party.”); Wood, 121 Nev. at 732, 121 P.3d at 1031 (explaining that in ruling on a motion for summary judgment, “the pleadings and other proof must be construed in a light most favorable to the nonmoving party”).

For the reasons set forth above, we conclude that PetSmart owed Franco a duty of care and that the issue of causation should have gone to the jury. As a result, the district court erred in granting summary judgment to PetSmart on Franco's negligence claim. See Cuzze, 123 Nev. at 602, 172 P.3d at 134. And because summary judgment was improperly granted on Franco's underlying negligence claim, the district court also erred in granting summary judgment on Franco's respondeat superior claim. See id. We therefore reverse the grant of summary judgment on the negligence and respondeat superior claims and remand those issues to the district court for further proceedings.

Summary judgment was proper as to the negligent hiring, training, supervision, and policies/procedures claim

In ruling on the motion for summary judgment, the district court concluded that Franco did not oppose PetSmart's motion as to her negligent hiring, training, supervision, and policies/procedures claim, which entitled PetSmart to summary judgment on that claim. On appeal, Franco asserts that she did, in fact, oppose summary judgment as to that claim while PetSmart argues that she did not. We agree with PetSmart.

A claim for negligent hiring, training, retention, or supervision requires “ (1) a duty of care defendant owed the plaintiff; (2) breach of ‘that duty by hiring, training, retaining, and/or supervising an employee even though defendant knew, or should have known, of the employee's dangerous propensities; (3) the breach was the cause of plaintiff's injuries; and (4) damages.’ ” Freeman Expositions, LLC v. Eighth Jud. Dist. Ct., 138 Nev. 775, 784, 520 P.3d 803, 811 (2022) (emphasis added) (quoting Peterson v. Miranda, 57 F. Supp. 3d 1271, 1280 (D. Nev. 2014)). And “[i]t is a basic tenet that for an employer to be liable for negligent hiring, training, or supervision of an employee, the person involved must actually be an employee.” Rockwell, 112 Nev. at 1226, 925 P.2d at 1181.

A review of Franco's opposition reveals that she did not oppose summary judgment as to her negligent hiring, training, supervision, and policies/procedures claim. Not only did Franco fail to provide any legal authority in support of her claim, but she failed to even mention the claim in her opposition. Because the failure to file a timely opposition to a summary judgment motion, in and of itself, is “sufficient grounds for the district court to deem [the] motion unopposed and thus meritorious,” King v. Cartlidge, 121 Nev. 926, 928, 124 P.3d 1161, 1162 (2005), summary judgment was appropriate on this claim. Additionally, in presenting this claim in her complaint, Franco did not allege that PetSmart breached a duty of care by hiring or retaining an employee who it knew or should have known had dangerous propensities, nor did she allege that she was harmed by a dangerous PetSmart employee, so this claim necessarily fails as a matter of law. See Cuzze, 123 Nev. at 602, 172 P.3d at 134 (stating that summary judgment is appropriate when no genuine dispute of material fact exists and the moving party is entitled to judgment as a matter of law). Under these circumstances, we conclude the district court did not err in granting summary judgment on Franco's negligent hiring, training, supervision, and policies/procedures claim and we therefore affirm that determination. See id.

Accordingly, for the reasons set forth above, we

ORDER the judgment of the district court REVERSED in part as to the granting of summary judgment on Franco's negligence and respondeat superior claims: AFFIRMED in part as to the granting of summary judgment on Franco's negligent hiring, training, supervision, and policies/procedures claim; and REMAND this matter to the district court for further proceedings consistent with this order.⁹

Bulla, C.J.

Gibbons, J.

Westbrook, J.

FOOTNOTES

1.   Our recitation of the facts is based on a de novo review of the record, including the surveillance video and deposition testimony, in the light most favorable to Franco as the nonmoving party. See Wood v. Safeway, Inc., 121 Nev. 724, 729, 732, 121 P.3d 1026, 1029, 1031 (2005) (noting that this court reviews a district court order granting summary judgment de novo and explaining that in ruling on a motion for summary judgment, “the pleadings and other proof must be construed in a light most favorable to the nonmoving party”).

2.   Because Stringer did not make an appearance in the district court below, she never became a party to the underlying case and thus is not a party to this appeal. See Valley Bank of Nev. v. Ginsburg, 110 Nev. 440, 448, 874 P.2d 729, 735 (1994) (explaining that, to become a party to a case, a person must be served with process, appear in the district court, and be named as a party of record below).

3.   Although Franco relies on Basile v. Union Plaza Hotel & Casino, 110 Nev. 1382, 887 P.2d 273 (1994), to argue that the element of foreseeability necessary to establish a duty of care is a question of fact for the jury to determine, the supreme court subsequently held that duty is a question of law for the court to determine. See Lee v. GNLV Corp., 117 Nev. 291, 295, 22 P.3d 209, 212 (2001) (stating that “in a negligence action, the question of whether a ‘duty’ to act exists is a question of law solely to be determined by the court”); PetSmart, Inc. v. Eighth Jud. Dist. Ct., 137 Nev. 726, 730, 499 P.3d 1182, 1186 (2021) (“Whether a defendant owes the plaintiff a duty of care is a question of law.”).

4.   Although the district court found that Franco failed to properly raise the special relationship issue below, we conclude that the court erred in this determination. A review of Franco's opposition to the summary judgment motion demonstrates that—despite not using the phrase “special relationship”—Franco unequivocally asserted that that she had such a relationship with PetSmart. See Rayford v. Am. House Roseville I, LLC, ________ N.W.3d ___ , __, No. 163989, 20.25 WL 2177754, at *20 n.32 (Mich. July 31, 2025) (“Plaintiff need not recite magic words to preserve her issues when she clearly made the argument.”); M.E. v. T.J., 869 S.E.2d 624, 637 (N.C. 2022) (explaining that the rules of appellate procedure do not “require a party to recite certain magic words in order to preserve an issue” and that a party has preserved an issue for appellate review by implicitly raising it before the trial court).

5.   While PetSmart relies on Scialabba to support its argument that it had to have “exclusive control” over its premises to have a “special relationship” with Franco, and the district court agreed, Scialabba does not support this proposition. In Scialabba, the supreme court found that a construction company had sufficient control over an apartment building to establish a duty of care even though the construction company shared joint control of the building with the building's owner. 112 Nev. at 969-70, 921 P.2d at 931. Rather than requiring “exclusive” control, the supreme court looked only for “the element of control.” Id. at 969, 921 P.2d at 930. Here, PetSmart does not contend that it lacked control over its premises in a general sense, and thus this argument is without merit.

6.   Although the parties argue extensively about whether COVID-19 pandemic-related tensions made the altercation foreseeable, the district court declined to address this argument, which was made for the first time on reconsideration, and thus we likewise do not consider it. See Arnold v. Kip, 123 Nev. 410, 417, 168 P.3d 1050, 1054 (2007).

7.   On appeal, PetSmart argues that this court's foreseeability analysis should be limited to the evidence, or lack thereof, identified in Franco's interrogatory responses as an automatic and self-executing NRCP 37(c)(1) sanction for failing to supplement her interrogatory responses as required by NRCP 26(e)(1). But sanctions under NRCP 37(c)(1) are not mandatory. Indeed, a failure to supplement is not sanctionable if it was “substantially justified or [wa]s harmless” and, even if it does not fall into those categories, a district court may nonetheless impose alternative sanctions. NRCP 37(c)(1); see also Lora v. Reyes, No. 87033-COA, 2024 WL 4783619, at *2 (Nev. Ct. App. Nov. 13, 2024) (Order of Reversal and Remand) (holding that “the district court erred by failing to consider all of the possible appropriate discovery sanctions by concluding that NRCP 37(c)(1) provides that the exclusion of evidence constituted a self-executing, automatic sanction”). Therefore, we decline to limit our foreseeability analysis to Franco's interrogatory responses.

8.   In the district court proceedings, PetSmart did not seek summary judgment with regard to whether it breached any duty to Franco. And to the extent the district court mentioned this issue, it did so only in conjunction with addressing whether any alleged breach caused Franco's injuries. Thus, the question of whether a breach occurred is not before us in this case.

9.   Franco also challenges the district court's award of costs to PetSmart asserting that PetSmart should not have been the prevailing party and, even if it was, PetSmart should not have been awarded costs related to its third-party complaint against Stringer. But the costs award was independently appealable as a special order entered after final judgment. See Lee v. GNLV Corp., 116 Nev. 424, 426, 996 P.2d 416, 417 (2000) (“A post-judgment order awarding attorney's fees and/or costs may be appealed as a special order made after final judgment ․”). Because no separate notice of appeal was filed as to that post-judgment order, the costs award is not properly before us as part of this appeal and we do not reach Franco's arguments. Given that we are reversing summary judgment as to Franco's negligence and respondeat superior claims, however, the district court will nonetheless need to revisit the prevailing-party costs award on remand and can then consider the third-party complaint issue in the first instance. Cf. Iliescu v. Reg'l Transp. Comm'n of Washoe Cnty., 138 Nev. 741, 752, 522 P.3d 453, 462 (Ct. App. 2022) (vacating an award of costs under NRS 18.020 when affirming in part and reversing in part a district court's order granting summary judgment in favor of the defendant because the defendant “might not be the prevailing party” on remand).Insofar as the parties raise other arguments not specifically addressed in this order, we have considered the same and conclude that they either do not present a basis for relief or need not be reached given the disposition of this appeal.