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Conway v. Circus Circus Casinos9/15/2000
The question in this case is whether the claims contained in the appellants' second amended complaint were properly dismissed by the district court. To answer this question, we are called upon to decide whether the exclusive remedy provision of the Nevada Industrial Insurance Act ("NIIA") bars appellants' claims.
We conclude that the appellants' claims for damages were properly dismissed as being barred by the exclusive remedy provision of the NIIA. However, we conclude that the district court erred by dismissing the appellants' claim for injunctive relief on the ground that it was barred by the exclusive remedy provision of the NIIA.
Because this case was dismissed at the pleading stage, the underlying facts are derived from the appellants' second amended complaint. Appellants ("Employees") are all employees or former employees of respondent Circus Circus Casinos, Inc. ("Circus Circus"), which operates a hotel-casino in downtown Reno, Nevada. The Employees work in the PBX office, which is the communication switchboard room for the hotel. Prior to 1991, the PBX office was located in the hotel near the casino. In approximately October of 1991, in conjunction with the expansion of the casino, the PBX office was moved to a basement.
After several weeks of working in the new location, the Employees began to complain of noxious fumes accumulating in the PBX office. Many of them became sick to their stomachs, experienced headaches and became dizzy while working.
In the fall of 1992, one of the Employees was hospitalized. Some of the Employees underwent medical testing at the behest of Circus Circus. The results of the tests were not made known to the Employees. The Employees continued to complain to Circus Circus management about the poor air quality, the noxious fumes and the physical ailments they were experiencing.
In October of 1996, some of the Employees had their blood gases tested immediately following their shifts, after having worked a full five-day workweek. The results of the tests indicated that the carbon monoxide levels in the Employees' blood streams were dangerously high. Just prior to returning to work from their days off, their blood gases were tested again. At that time, the carbon monoxide levels were within normal limits.
The Employees filed a complaint in the district court alleging various claims of tortious conduct by Circus Circus. The Employees' first amended complaint alleged the following claims for relief: (1) injunctive relief for failure to provide a safe workplace; (2) intentional infliction of physical harm; (3) failure to advise of a dangerous condition; and (4) negligent infliction of mental and physical damage.
Pursuant to NRCP 12(b)(5), Circus Circus moved to dismiss the second, third and fourth claims for relief. The district court dismissed the third and fourth claims with prejudice as barred by the NIIA. The district court dismissed the second claim without prejudice, finding that intentional infliction of physical harm is not a legally cognizable cause of action. The court indicated that while a cause of action is recognized for battery or assault, it had not been properly set out in the second cause of action. The district court allowed the Employees ten days to amend their complaint to state a cognizable claim for relief.
The Employees then filed their second amended complaint. This complaint contained the same claims for relief as the previous complaint and added three additional claims: (5) battery; (6) intentional infliction of mental harm; and (7) outrage. Circus Circus moved to dismiss the second through seventh claims for relief. The district court ultimately
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