“We Reserve The Right To Refuse Service To Anyone”, But What Would Blackstone Do?

“The common law of England, so far as it is not repugnant to or in conflict with the Constitution and laws of the United States, or the Constitution and laws of this State, shall be the rule of decision in all the courts of this State.”

NRS 1.030.

I’ve previously written about how both California and Nevada have statutorily adopted the common law of England as the rule of decision for courts in those states. See Ahistorical Bedfellows: The California Corporations Code And The Common Law. The common law, however, has changed over time, raising the question of which common law should be applied.

Yesterday, the Nevada Supreme Court adopted the majority common law rule that casino establishments are to be open to the general public but have the common-law right to exclude any individual from the premises pursuant to the majority common-law position. Slade v. Caesar’s Enter. Corp., 132 Nev. Adv. 36 (2016). The individual challenging the eviction argued “Nevada should not recognize the current majority position because the common law to be applied to innkeepers is that of England as it existed in either 1776, at the establishment of the Union, or in 1864 when Nevada became a state.” The Nevada Supreme Court, however, disagreed:

We first note that NRS 463.0129(3)(a) specifically provides that the common law to be applied is that which allows a gaming establishment to “eject any person from the premises of the establishment for any reason.” Moreover, Dr. Slade does not cite to, and this court has not identified, any early cases determining a gaming establishment’s common-law right to exclude. Additionally, the early common law does not appear to apply a uniform rule. Some early common-law cases did not allow a private owner of a public amusement to exclude any person for any reason, see, e.g., Donnell v. State, 48 Miss. 661, 681 (1873), while other cases did allow such exclusions, see, e.g., Madden v. Queens Cty. Jockey Club, Inc., 72 N.E.2d 697, 698 (N.Y. 1947) (“At common law a person engaged in a public calling, such as innkeeper or common carrier, was held to be under a duty to the general public and was obliged to serve, without discrimination, all who sought service. . . . On the other hand, proprietors of private enterprises, such as places of amusement and resort, were under no such obligation, enjoying an absolute power to serve whom they pleased.”). Finally, this court has previously determined that, “[d]espite NRS 1.030, courts may reject the common law where it is not applicable to local conditions.” Rupert v. Stienne, 90 Nev. 397, 399, 528 P.2d 1013, 1014 (1974). Accordingly, we are not persuaded by the argument.

Two justices (Kristina Pickering and Michael Douglas) dissented, arguing that the common law distinguished between inns and places of amusement and that the plaintiff’s exclusion was not just from the casino, but all of the resort properties. According to the dissent, innkeepers “had a duty to serve guests absent good cause to exclude because inns were so far and few between that travelers found themselves at the mercy of the innkeeper and were vulnerable to extortion from the innkeeper”.