ROBERT CRAIGO, APPELLANT AND CROSS-RESPONDENT, v. CIRCUS-CIRCUS ENTERPRISES, INC., RESPONDENT AND CROSS-APPELLANT.
No. 18515
January 23, 1990
January 23, 1990
Rehearing denied April 19, 1990
786 P.2d 22
Lawrence J. Semenza and G. David Robertson, Reno, for Appellant and Cross-Respondent.
Petersen & Petersen, Reno; Brown, Wells & Kravitz, Las Vegas, for Respondent and Cross-Appellant.
OPINION
By the Court, STEFFEN, J.:
After being assaulted and robbed in the elevator of the Circus-Circus parking garage, Robert Craigo filed an action seeking both compensatory and punitive damages against Circus-Circus Enterprises, Inc. (Circus-Circus). The trial court, sitting without a jury, awarded Craigo $45,000 in compensatory damages and $1,000,000 in punitive damages. The punitive award was based upon a determination by the trial judge that Circus-Circus had acted with “malice in fact.”1
This court has consistently declared that “the malice contemplated by [the punitive damages] section is malice in fact and that the phrase ‘express or implied’ has reference only to the evidence by which malice is established.” Nevada Credit Rating Bur. v. Williams, 88 Nev. 601, 609, 503 P.2d 9, 14 (1972). We noted in Nevada Credit Rating Bur. that Nevada‘s statute on punitive damages is a verbatim copy of the California punitive damages statute “which was enacted in 1872 and has not been amended since 1905.”3 Id. In interpreting the statutory expression “malice, express or implied,” we have adhered to the rule of statutory interpretation that when a statute is derived from a sister state, it is presumedly adopted with the construction given it by the highest court of the sister state. See, e.g., El Ranco, Inc. v. New York Meat & Prov., 88 Nev. 111, 113, 493 P.2d 1318, 1320 (1972); Astorga v. Ishimatsu, 77 Nev. 30, 32, 359 P.2d 83, 84 (1961); Harris v. Harris, 65 Nev. 342, 346, 196 P.2d 402, 404 (1948).
The California Supreme Court, in Davis v. Hearst, 116 P. 530, 538 (1911), observed that courts have frequently used “express malice” to refer to malice in fact, and “implied malice” to mean the fictive malice of the law. The Davis court then declared that:
It should be apparent that the malice, and the only malice, contemplated by section 3294 [California‘s equivalent of
NRS 42.010 ] is malice in fact, and that the phrase “express or implied” has reference only to the evidence by which that malice is established; “express malice” thus meaning that the malice is established by express or direct evidence going to prove the actual existence of the hatred and ill will; “implied malice” referring to the indirect evidence fromwhich the jury may infer the existence of this malice in fact. We say this should be evident from the reading of the section itself, under the maxim of noscitur a sociis. It is in those cases where the defendant has been guilty of oppression or fraud, or of a malice akin to oppression and fraud, that punitive damages may be awarded. But throughout the whole history of the law, whatever may be the mode of proving the existence of malice in fact, it is only upon some showing regarded by the law as adequate to establish the presence of malice in fact (that is, the motive and willingness to vex, harass, annoy, or injure) that punitive damages have ever been awarded. And this the adjudications abundantly and without controversy establish.
Id. at 539 (emphasis added).
The California courts have continued to reaffirm the Davis holding regarding the meaning of the phrase “malice, express or implied.”4 Moreover, the courts in California from Davis to the present have discussed the shifting contours of the term “malice” and its discrete variants in the form of express malice, or malice in fact, and implied malice, or malice in law. The latter form of malice is in tort law, a legal fiction. As expressed by the California Supreme Court, malice in law is defined as “that malice which the law presumes (either conclusively or disputably) to exist upon the production of certain designated evidence, which malice may be fictional and constructive merely, and which, arising as it usually does from what is conceived to be the necessity of proof following a pleading, which in turn follows a definition, is to be always distinguished from true malice or malice in fact.” Davis v. Hearst, 116 P. at 538.
As noted above, this court has consistently recognized and perpetuated the judicial gloss attributed to Davis since
Unfortunately, neither the California courts nor this court have toed the mark in vigilant conformity with the dictates of Davis concerning the species of malice essential to the imposition of punitive damages. Even as the California courts continue to recognize Davis as the authoritative definitional fountain of malice, the constraints heavily embedded in Davis have expanded or
It would appear from our research of the California cases that although the courts continue to pledge fealty to the Davis concept of malice in fact as the only form of malice that will support an award of punitive damages, the courts have sub silentio overruled Davis on that point and now base punitive awards on both malice in fact and implied malice, or malice in law.
In Nevada, while consistently reaffirming the vitality of the Davis doctrine in our own decisional law (see cases cited above), this court has, on occasion, also affirmed punitive awards based upon malice of a nature foreign to our own rulings on the subject. Thus, in Leslie v. Jones Chemical Co., 92 Nev. 391, 551 P.2d 234 (1976), we affirmed a punitive award based upon a form of non-focused “malice” inferable from a disregard of known safety procedures; punitive damages were also declared appropriate to punish wrongful conduct that was “willful, intentional, and done in reckless disregard of its possible results.” Nevada Cement Co. v. Lemler, 89 Nev. 447, 451-52, 514 P.2d 1180, 1183 (1973). Neither Leslie nor Nevada Cement Co. presented facts reflecting ill-will and hatred that Davis considered to be the very fabric from which malice in fact is woven. Indeed, Davis declared that a prerequisite for punitive damages is “the evil motive—the animus malus—shown by malice in fact, or by its allied malignant traits and characteristics evidenced by fraud or oppression.” Davis, 116 P. at 540. Davis also declared three
The above analysis supports the proposition that
On the other hand, the species of malice known as implied malice or malice in law is “distinguished from [malice in fact] simply by absence of the need to look to the actor‘s motivation and purpose.” 2 J. Ghiardi & J. Kircher, Punitive Damages Law and Practices sec. 19.19, p. 60 (1985). Thus, malice has been implied in law when “a tort resulted from a voluntary act, even if no harm was intended.” Smith v. Wade, 461 U.S. 30, 39 n.8 (1983). The fictive form of malice implied in law focuses on a wrongful act, consciously committed, that results in injury whether intended or not. Therefore, malicious conduct implied by law may be attributed to those who merely disregard known safety measures or disregard the rights of others knowing that harm to others may occur as a result.
It appears to us evident that a critical difference between malice in fact and malice in law is the element of purposeful intent to injure always present in the former. Indeed, the desire to successfully inflict injury on another is the sine qua non of malice in fact, whereas injury to another is usually an unintended, or in any event, an undesired incident of conduct deemed malicious by implication.
As previously observed, Grimshaw purports to advance the common law by, in effect, engrafting the fictional malice implied in law onto the California punitive damages statute. In doing so, the Grimshaw court determined that it was furthering the purposes and objectives of punitive awards. Although we do not dispute such a premise by the Grimshaw court, we are troubled at the thought of following suit by tacitly abandoning the continuing statutory integer of true malice in fact. The truth of the matter is that such an “advancement in the common law” would be tantamount to overruling our long and consistent (albeit not always consistently applied) line of cases declaring the statutory meaning to include only malice in fact. In Nevada, the effect of such a ruling would be to change both the meaning and scope of statu-
If we were to embrace implied malice as a separate basis for punitive awards we would be forced to do so under one of two rationales, neither of which is acceptable. First, we could overrule our lengthy precedents in tacit acknowledgement of error unworthy of continued perpetuation. This we are unwilling to do because we remain unconvinced that Davis is unsound and, in any event, as noted previously, the Davis gloss became part of
Second, the common law evolves by recognition of firmly entrenched social attitudes and practices. The common law does not shape or establish public policy and mores; rather, it is reflective of them. It remains consistent with public policy as expressed by
Great debate is currently prevalent concerning the social costs of punitive awards expanding in scope, amount and volume. Under such conditions, we are constrained to view the demands
We disapprove our prior pronouncements that would indicate that malice in fact can be shown by a willful disregard of the rights of others or a conscious disregard of safety measures unless it can be shown that in connection therewith there was a deliberate intention to injure, vex, annoy or harass. If the Legislature determines that the social benefits to be derived from imposing punitive awards based upon implied malice exceed the social costs thereof, we are confident appropriate supporting legislation will follow.6
express or implied“) seems to us both disingenuous and excessively belated given this court‘s long-standing and consistent pronouncements to the contrary.
We believe that this court could not, with equanimity, embrace our colleague‘s preference without forthrightly overruling our uniform declarations attributing only one form of malice to our statute. Even in the act of reaching results supportive of our colleague‘s position in the Leslie and Nevada Cement cases, this court continued to adhere to the single standard of malice in fact as the linchpin for a punitive award based upon malice. In Leslie, we said: “We here are dealing with a remittitur of punitive damages where the evidence regarding the presence or absence of malice in fact on the part of the defendants is conflicting. . . . Realizing the subjective nature of punitive damages . . . and the arguable conflict of evidence regarding malice in fact, we are wholly unable to find an abuse of discretion by the trial judge. . . .” 92 Nev. at 393-394, 551 P.2d at 235 (emphasis added).
In Nevada Cement, we said: “The record supports a finding of malice in fact. . . . This conduct provided the requisite malice in fact and warranted the trial judge in assessing punitive damages.” 89 Nev. at 452, 514 P.2d at 1183 (emphasis ours).
It thus seems clear to us, that an adoption by this court of our colleague‘s plea for two discrete forms of malice would demand the overruling of all of our precedents on the subject. And, as previously observed, were we to do so, a true adherence to common law principles would still prevent us from judicially embracing our colleague‘s view.
We are constrained to conclude that in the midst of raging controversy concerning the place and scope of punitive awards in civil litigation, this court may not, for scholarly reasons or otherwise, so distort and pervert common law prerogatives as to “declare” malice in law as reflective of established custom and public policy in the State of Nevada. If indeed, the Legislature determines that the California statute permitting punitive awards for “despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others” is worthy of adoption in Nevada—and it may very well be—we are confident the Legislature will act accordingly. In the interim, we prefer to confine our prerogatives to what we perceive to be within reasonable parameters of the common law, and leave the issue to the legislative laboratory where lively debate will supply an enlightenment born of opposing views, conflicting social policies, and varying predicted consequences.
For the reasons specified above, that part of the judgment awarding punitive damages is reversed; in all other respects, the judgment below is affirmed.8
YOUNG, C. J., concurs.
SPRINGER, J., concurring:
I agree that the record in this case does not support a finding of malice which would support a punitive damage award. I strongly disagree, however, with the reasoning of the plurality opinion which, incorrectly I think, would limit the Nevada statutory expression, “malice, express or implied,” to cases of express malice only, that is to say, cases in which the defendant is shown to have harbored a “deliberate intention to injure, vex, annoy or harass” the plaintiff. Plurality Opinion at 9. It is clear to me that “malice, express or implied” necessarily goes beyond the intentional injury by one person of another and that the statute and our cases require a broader definition of malice than that offered by the plurality opinion.
Our statute refers to two kinds of malice, express malice and implied malice. Express malice denotes the deliberate intention to harm someone. Implied malice is a malice of unintended harm, a malice implied in law when wrongdoers, without intending spe-
Similarly, this court recognized the presence of implied malice in the Leslie case in which plaintiffs were injured by escaping chlorine gas. Leslie v. Jones Chemical Co., 92 Nev. 391, 551 P.2d 234 (1976). We approved a punitive award absent even a hint of any “intention to injure” the plaintiffs. Id. at 394, 551 P.2d at 235. Again in Filice we expressly recognized that an unintended injury could still be malicious when harm was the “necessary consequence” of a defendant‘s “willful” acts. Village Development Co. v. Filice, 90 Nev. 305, 315, 526 P.2d 83, 89 (1974). Given our case law and a statute providing for both express malice and implied malice, it is not easy to understand how the plurality can reach the conclusion that there is no such thing as implied malice in Nevada. I think I understand the source of the confusion and believe that this area of law is in need of some clarification.
The United States Supreme Court has recognized that ” ‘malice,’ as used by courts and lawyers in the last century, was a hopelessly versatile and ambiguous term, carrying a broad spectrum of meanings . . . (especially when it was modified by terms such as ‘actual’ or ‘express,’ . . .)” Smith v. Wade, 461 U.S. 30, 39 n.8 (1983). The “hopelessly versatile and ambiguous” term malice has indeed been assigned a “broad spectrum of meaning” in the jurisprudence of this state and its sister state, California.1
without reference to a statute, like ours, which specifies two kinds of malice, “express or implied.” Subsequently, courts in both Nevada and California quoted Davis and ruled that there was only one form of malice, that involving the specific intention to hurt someone. Although California courts frequently cited Davis, at the same time they were recognizing a form of malice which involved unintended injury (implied malice) as one of two predicates for awarding punitive damages. In 1941, the California Supreme Court, in dicta, stated that wanton and reckless misconduct was sufficient to support punitive damages based on malice. Donnelly v. Southern Pacific Co., 118 P.2d 465, 469 (Cal, 1941). In 1960, in Roth v. Shell Oil Co., 8 Cal.Rptr. 514, 517-18 (App. 1960), “conscious disregard for the rights of others” was recognized as malice. These cases were followed by a series of rather confusing cases that again insisted that there was only the one kind of “actual” malice, yet allowed recovery in situations in which there was clearly no actual intent to harm.
In 1965, Nevada adopted California‘s statute verbatim, together with its sometimes inconsistent and confusing judicial gloss. The confusion was to some extent recognized and clarified by the California courts in the case of G. D. Searle & Co. v. Superior Court, 122 Cal.Rptr. 218, 222-23 (App. 1975). Recognizing the divergency in California law, the court said:
In order to test plaintiff‘s allegations as a charge of malice, it is necessary to observe the elements of the malice which justifies an exemplary award. At this point one discovers a plethora of appellate elucidations. California courts have indulged in a profusion of pejorative terms to describe malice. A survey reveals several separate and somewhat divergent currents of California case law.
Searle pointed out that while some courts had repeated the Davis language about malice being limited to intentional harm only and about malice in fact‘s being the only kind of cognizable malice, a number of appellate decisions recognized varying forms of unintentional injury infliction as being sufficient to establish the animus malus, or evil motive, required for punitive damages. Id. at 223-24.
The Searle court concluded that “conscious disregard of safety [was] an appropriate description of the animus malus which may justify an exemplary damage award when nondeliberate injury is alleged.” Id. at 225 (emphasis in original). Citing Roth v. Shell Oil Co., the California Supreme Court also acknowledged that conscious disregard of the plaintiff‘s rights would support a punitive damage award under the statute. Silberg v. California Life Ins. Co., 521 P.2d 1103, 1110 (Cal. 1974). Thus, the California courts resolved the conflict between the Davis requirement of malice in fact and the later cases which also allowed implied malice to support punitive damages by allowing punitive damages to be based on conscious wrongdoing with probable but not intended injurious consequences. Id.
Nevada‘s experience is parallel to California‘s. In its cases Nevada had cited Davis and Nevada Credit Rating Bureau on the requirement of “actual malice” and then approved punitive awards that were clearly based on unintended injury. While paying lip service to the requirement that malice in fact—intent to harm—must be found, this court has regularly allowed recovery for unintended harm in the form of reckless disregard for the rights of others. See e.g., Leslie v. Jones Chemical Co., 92 Nev. 391, 551 P.2d 234 (1976) (stating that malice could be inferred from a disregard of known
Former
Express malice, sometimes called “[m]alice in fact, or actual malice, denotes ill will on the part of the defendant, or his desire to do harm for the mere satisfaction of doing it.” Nevada Credit Rating Bur. v. Williams, 88 Nev. 601, 610, 503 P.2d 9, 14 (1972). Express malice, then, may be seen as a malice of intended harm, the kind of malice which the plurality believes is the only kind of malice.
Implied malice is malice of unintended harm2; it is “distinguished from [express malice] simply by absence of the need to look to the actor‘s motivation and purpose.” 2 J. Ghiardi & J.
safety procedures); Village Development Co. v. Filice, 90 Nev. 305, 526 P.2d 83 (1974) (stating that malice could be found if the act was willful and the damage a necessary result); Nevada Cement Co. v. Lemler, 89 Nev. 447, 514 P.2d 1180 (1973) (citing Toole v. Richardson-Merrell, Inc., 60 Cal.Rptr. 398 (App. 1967), and holding that wanton disregard for the rights of others amounted to legal malice).
In Village Development Co. v. Filice, 90 Nev. 305, 315, 526 P.2d 83, 89 (1974), we accurately noted that in previous cases we had “sustained awards of punitive damages where evidence showed the wrong was willful, and the damage either intended or a necessary consequence” of the willful wrongdoing. (My emphasis.) This court‘s use of the disjunctive in Filice shows rather clearly Nevada‘s acceptance of both a malice of intended harm (express malice) and a malice of conscious wrongdoing but of unintended harm (implied malice).
The language of Filice embraces both kinds of malice. If the defendant intends to harm, the defendant is guilty of express malice. If the defendant does not intend to harm anyone, yet knows that the probable or “necessary consequences” of his or her acts will be harm to some unidentified victim, than the defendant is guilty of implied malice. Otherwise put, when the defendant knows that injury will probably result from his or her
Examples of implied malice are easy to come by. A useful example was given by Senator Cliff Young during legislative hearings on punitive damages as now codified in
Suppose a big drug company puts out a certain drug and they know there is something wrong with it, but they still put. forward a big campaign for it. Then you can sue for punitive damages.
Hearings on S.B. 198 Before the Assembly Judiciary Comm., (1967) (statement of Senator Cliff Young, sponsor of S.B. 198) (my emphasis). Senator Young was, at that time, at least, of the opinion: “An irresponsible attitude toward an individual or a group as a whole is a ground for punitive damages.” Id. Product liability cases such as the hypothetical case suggested by Senator Young are classic instances of the need to punish those who injure others in an irresponsible manner but without having any actual malice or intention to harm any given person.5 The rule proposed
Assuming that “malice express or implied’ is not restricted to the deliberate injury of an intended victim, I think it is necessary to go on to examine how the type of cognition called malice can be applied to an impersonal corporation thus making a corporation liable in punitive damages for its animus malus.
Corporate Malice
Malice is essentially a mental concept, a cognitive process; and definitionally we run into trouble when we start talking about malice‘s being exhibited by a corporate entity. Malice as a state of mind must in some way be accommodated to the “corporate mentality” if corporations are, indeed, to be found guilty of “malice, express or implied.” It is settled law, however, that corporations can be guilty of malice and can be mulcted in punitive damages for such malice. ”[T]o render a corporation liable in exemplary damages, the intent or malice necessary to warrant the imposition of such damages must be brought home to it.” 2 S. Speiser, C. Krause & A. Gans, The American Law of Torts, § 8.51 (1985) (my emphasis).
Punitive damage liability of a corporation for malice may be “brought home” to a corporation directly or vicariously. By “directly” I mean malice and ill will that issues forth from the corporation itself. For example, a corporate board could decide that the corporation was going to inflict wrongful or unwarranted injury on a competitor and thereby render the corporation liable for punitive damages by reason of such express corporate malice. A corporation could also be guilty directly by reason of the implied malice in a case where corporate management orders corporate actions, knowing that the probable consequences of the corporate actions would be injury to others.
A good example of implied malice‘s being directly attributed to or “brought home” to a corporation can be found in the previously mentioned case of Nevada Cement Co. v. Lemler, 89 Nev. 447, 514 P.2d 1180 (1973), in which the corporation “knew” of the probable harmful results of its wrongful acts. The Nevada Cement Company “knew from the outset that a large volume of dust was being discharged” wrongfully into populated areas by one of its cement kilns. 89 Nev. at 452, 514 P.2d at 1183 (my emphasis). After becoming aware of the harmful effects of the emissions from its kiln, the company “intentionally operated” the kiln anyway. The Nevada Cement Company was directly guilty of implied malice, even though this court erroneously labeled the conduct “malice in fact.” Id. at 452, 514 P.2d at 1183.
In Nevada Cement, Murray and Grimshaw the malice in question is that of the corporate entity itself. It is the “institutional mentality” of the corporation (Grimshaw, 174 Cal.Rptr. at 384) that is guilty of this kind of implied malice and which can be blamed for injuries to others even though the corporation had no plan to injure any specific person. It is the corporate entity itself that is acting maliciously in these cases. In Nevada Cement and Grimshaw the corporations, as corporations, acted wrongfully in their corporate guise. Their acts were not intended to do particular harm in the sense that the infliction of injury was not the corporation‘s “conscious object“; rather the corporate decisions were known by corporate management to be likely to produce injury to others. Such corporations are guilty of direct implied malice.
A corporation may also be derivatively liable for malice, express or implied. A management employee may in the course and scope of managerial operations intend to injure someone. The corporation would then be held vicariously liable for the express malice of its managing agent. An example of indirect or vicarious corporate liability for punitive damages can be found in the case Cerminara v. California Hotel and Casino, 104 Nev. 372, 760 P.2d 108 (1988). In Cerminara we recognized the right of an injured plaintiff to recover punitive damages against a corporation where there is an act of malice “on the part of any officer, director or managing agent of the corporation.” Id. at 378, 760 P.2d at 111.
I would hold that a corporation could also be liable vicariously
despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others.” Cal. Civ. Code § 3294(c)(1) (West Supp. 1990). This amendment did not change the malice required for punitive damages but rather made clear, as had decisional law, that implied malice would support an award of punitive damages. See Krusi v. Bear, Stearns & Co., 192 Cal. Rptr. 793, 802 (App. 1983).
In the case at hand there appears to be no direct malice on the part of Circus-Circus Corporation. There is no direct corporate action, as there was in Nevada Cement and Grimshaw, which was either intended to harm or which showed an irresponsible, conscious disregard for the safety of others.
If corporate malice is to be found in this case, it must be derivative in nature, derived vicariously from the malicious acts of the corporation‘s officers, directors or managing agents. Since there is no evidence that any agent of the Circus-Circus Corporation intended to injure Craigo, the only possible malice than can be attributed to the Circus-Circus Corporation is implied malice on the part of a managing agent of the corporation. I now consider the question of whether any agent of the Circus-Circus Corporation has been guilty of implied malice that can be imputed to Circus-Circus.
Malice in Wonderland
The plurality is “constrained to observe that if this court had recognized malice in law (implied malice) as a basis for proving malice under
Although there is evidence in this case that the general manager was made aware of reports of criminal activity in the parking garage (mostly vandalism and petty theft), and although, as
There is some focus in this case on the general manager as the source of punitive damage liability. The general manager did have notice of an array of petty crime in the parking garage area and probably had a duty to “do something” about security in that area. This is a far cry, however, from saying that the manager consciously disregarded a known danger—that he knew a physical assault in the garage was imminent and nevertheless acted (or failed to act) in a manner that he knew would probably result in physical injury by criminal assault.
Craigo‘s counsel argued that malice was present because management “recklessly disregarded known safety measures.” Those safety measures included increasing the number of security officers and installing electronic surveillance devices. If we were to accept the assumption that safety measures of this kind are generally “known” to increase the level of security, this is not to say that failing to increase safety measures amounts to anything more than failing to exercise due care. If the general manager knew that security could be improved by increasing the number of security personnel or by installing electronic devices, this does not mean that he knew that in the absence of increased security a criminal assault such as occurred in this case was probably going to happen. Absent the second-mentioned kind of knowledge, knowledge that certain decisions would probably result in injury, there can be no implied malice as I have described it. As I have indicated, the manager may be seen to have been “reckless” or to have exhibited “unconscionable irresponsibility,” Filice, 90 Nev. at 315, 526 P.2d at 89, in failing to attend to “known safety measures,” but his is not malice. No agent of Circus-Circus can be said to have been aware or conscious of the probability that a criminal assault was going to be the probable or “necessary consequence” of any management decision or decisions in this regard. I would absolve Circus-Circus from punitive damage liability for this reason.
In today‘s society one never knows when or where a murder, a robbery, or a mugging is going to occur. It is hard to conceive of a specific decision that the corporation itself or individuals in management positions could have made that would have prevented crimes from occurring in its parking garage, or any place else. There is no evidence that Circus-Circus, directly or vicariously, made a deliberately wrongful decision, the necessary or probable result of which would have been the robbery and battery of Craigo or other patrons.
Conclusion
Since “[t]hree justices shall constitute a quorum for the transaction of business,”
MOWBRAY, J., dissenting:
Respectfully, I dissent.
Craigo while a guest in the Circus-Circus casino-hotel was criminally assaulted and robbed. He sued seeking compensatory
On appeal, Circus-Circus suggests that the award of punitive damages in the instant case was error. I do not agree. Craigo as a guest in the casino-hotel had a right to be treated as such and not to be criminally assaulted and robbed. Circus-Circus had a duty to secure the safety and security of its guests who are entitled to nothing less. In my opinion, Circus-Circus should have taken the necessary steps to eradicate the criminal element that hide and prey in the parking area, halls and elevators of its premises for the purpose of criminally assaulting and robbing the unsuspecting guests who patronize its place of business. This, as I see it, is the bottom line and real predicate for the award by the district court of punitive damages which I would affirm.