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Harris v. Rio Hotel & Casino6/21/2001
truction case, relied on Frith and Simon Service, two construction cases, and applied the control test to determine whether a convention exhibit owner was a statutory co-employer immune from common law liability for injuries sustained by a contract laborer dismantling the exhibit under the owner's supervision. The Antonini court noted:
"Thus, we have held that an inactive owner of property does not become an "employer" under the NIIA merely through his status as a contractee for services to his property. Frith v. Harrah's South Shore Corp., 92 Nev. 447, 552 P.2d 337 (1976). Simon Service v. Mitchell, [73 Nev. 9, 307 P.2d 110 (1957)]; Titanium Metals v. District Court, 76 Nev. 72, 349 P.2d 444 (1960). Therefore, in what apparently was [the contractor's] normal contract procedure, in which [a convention] exhibitor merely engaged [the contractor] to erect and disassemble an exhibit under the direction of [the contractor] personnel, the inactive exhibitor did not become, by reason of its status as an owner-contractee, an "employer" subject to the NIIA.*fn42"
The footnote in Antonini quoted above discloses the foundational precept underlying the line of construction and non-construction cases that adopted the control analysis after Frith. We stress that, contrary to the quoted language, Frith more precisely holds that a defendant's status as a property owner does not, of necessity, preclude immunity under the NIIA.
The "control" cases decided after Frith seemingly undermine its implied ruling that a landowner that utilizes a general contractor to construct improvements enjoys NIIA immunity. As noted above, however, the control test has now been discarded by our recent decision in Tucker. Accordingly, to the extent that Antonini, Corrao, Alsup, Hosvepian, Whitley, Ortolano, Leslie, or other Nevada cases embrace the control test as a primary method for resolving NIIA immunity issues, they are now expressly overruled.
Karadanis, as the district court noted in its written decision, seemingly conflicts with Frith. Karadanis, a case decided fourteen years after Frith, rejected the contention of a long-term lessee of property (the equivalent of an owner for these purposes) that, under Frith, NIIA immunity shielded it against a negligence claim brought by a general contractor's statutory employee.
In Karadanis, members of a partnership that leased (owned) the property and operated a resort hotel on the premises were also members of a separate partnership retained as the general contractor to improve the hotel property. The Karadanis court attempted to distinguish Frith on the grounds that the partnership that owned and operated the property was a separate entity from the general contracting partnership:
"The [lessee/owner] claim that once immunity attaches to Karadanis and Maloff as partners in the construction firm that immunity also immunizes them as partners in the casino partnership . . . . The clients cite Frith v. Harrah South Shore Corp., 92 Nev. 447, 552 P.2d 337 (1976), in which an injured worker attempted to sue Harrahs as an owner of the premises where the injury occurred even though the Harrahs corporation was immune as the statutory employer of the injured worker. We held in Frith that Harrahs did not lose its immunity as an employer "just because it was also the owner of the real property where the injury occurred."*fn45"
The decision in Karadanis stressed the separate identity of the resort partnership and the contractor partnership, also indicating without explanation that the defendant in Frith was acting both as the owner and the construction company. In fact, the recitation of facts in Frith only notes that Harrah wa
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