Barmettler v. Reno Air Inc.4/16/1998
armettler did not satisfy the physical injury "or impact" requirement of Chowdhry. Accordingly, Barmettler's argument is without merit.
Negligent misrepresentation
Barmettler maintains that he relied on the promise of confidentiality as expressly stated in Reno Air's Drug and Alcohol Policy when he sought employment with Reno Air. In Bill Stremmel Motors, Inc. v. First Nat'l Bank of Nevada, 94 Nev. 131, 134, 575 P.2d 938, 940 (1978) , we adopted the Restatement (Second) of Torts 552 definition of the tort of negligent misrepresentation:
(1) one who, in the course of his business, profession or employment, or in any other action in which he has a pecuniary interest, supplies false information for the guidance of others in their business transactions, is subject to liability for pecuniary loss caused to them by their justifiable reliance upon the information, if he fails to exercise reasonable care or competence in obtaining or communicating the information.
The thrust of Reno Air's argument is that this tort only applies to business transactions; thus, in the context that Reno Air implemented its Drug and Alcohol Policy, this conduct does not fit squarely within a business or commercial transaction. We agree. Further, beyond this threshold approach to the doctrine, the alleged misrepresentations here do not give rise to this cause of action. Accordingly, Barmettler's claim must fail.
Breach of contract
A. The At-Will Relationship
As a threshold matter, Barmettler was an at-will employee ; therefore, Reno Air could dismiss Barmettler with or without cause as long as the dismissal did not offend public policy. Vancheri v. GNLV Corp., 105 Nev. 417, 421, 777 P. 2d 366, 369 (1989) In Vancheri, we also noted that an employee's subjective expectations cannot create a contract of employment. Id. The at-will employment relationship is rebuttable if the employee can prove by a preponderance of the evidence that a contract, either express or implied, required termination for cause only. Southwest Gas Corp. v. Vargas, 111 Nev. 1064, 1071, 901 P.2d 693, 697 (1995) (citing American Bank Stationary v. Farmer, 106 Nev. 698, 701, 799 P.2d 1100, 1101-02 (1990)).
Barmettler argues that, notwithstanding his at-will. status, Reno Air's Drug and Alcohol Policy placed limitations on its ability to terminate him. As support, Barmettler cites Holmes v. Union Oil Co., 760 P. 2d 1189 (Idaho Ct. App. 1988) In Holmes, a long-term employee notified his employer of a second DUI arrest, fearing that the arrest would lead to incarceration and, thus, termination. Id at 1191. His employer offered to place him in a residential alcohol treatment program with the condition that, he abide by the company's continuing rehabilitation plan following his release from the treatment center. Id. The employer also submitted a five-page letter to the criminal court outlining its rehabilitation plan and reiterating that the employee 's continued employment was conditioned on compliance with the plan. Id. In reliance on the plan, the criminal court suspended proceedings and placed the employee on court supervised probation for eighteen months. Unfortunately, about seven months into the probationary period, the criminal court revoked the probation for a technical violation of the conditions of probation.
In response, the company fired the employee. Id. at 1191-92. Following termination, the employee filed suit alleging that the rehabilitation plan constituted an express or implied contract of continued employment. Specifically, he asserted that, not withstanding his at-will status, the company's five-page letter to the Judge who had agreed to the terms
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