GLOVER-AMONT v. CARGILE , 2018 NV 49 ( 2018 )

134 Nev., Advance Opinion 4 61
IN THE COURT OF APPEALS OF THE STATE OF NEVADA
JAPONICA GLOVER-ARMONT, No. 70988
Appellant,
vs.
JOHN CARGILE; AND CITY OF
NORTH LAS VEGAS, A MUNICIPAL
RLED
CORPORATION EXISTING UNDER JUL 1 2 2018
THE LAWS OF THE STATE OF Er ZETH A. BROWN
NEVADA IN THE COUNTY OF CLARK, SiF
Respondents. ChileF DE.
Japonica Glover-Armont appeals from a district court order
granting summary judgment in a tort action. Eighth Judicial District
Court, Clark County; William D Kephart, Judge.
Affirmed in part, reversed in part, and remanded.
Ganz & Hauf and Adam Ganz, Jeffrey L. Galliher, Marjorie L. Hauf, and
David T. Gluth II, Las Vegas,
for Appellant.
Micaela Rustia Moore, City Attorney, and Christopher D. Craft, Senior
Deputy City Attorney, North Las Vegas,
for Respondents.
Amanda Kellar and Caitlin Cutchin, Bethesda, Maryland; Lewis Brisbois
Bisgaard & Smith, LLP, and Robert W. Freeman and Cheryl A. Grames,
Las Vegas,
for Amicus Curiae International Municipal Lawyers Association.
BEFORE SILVER, C.J., TAO and GIBBONS, JJ.
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OPINION
By the Court, SILVER, C.J.:
In this appeal, we consider whether the discretionary-act
immunity doctrine applies to an action arising from a vehicular accident
involving a police officer responding to an emergency. NRS 41.032(2)
provides immunity to government officials acting within their discretionary
purview. However, that statute is in tension with MRS 484B.700, which
allows a police officer to proceed past a red traffic signal in an emergency,
but also requires that officer to utilize audio and visual or visual signals
only, as required by law, and to drive with due regard for others' safety
when doing so. Having considered the tension between these two statutes,
we conclude that discretionary-act immunity is unavailable in the
circumstance identified above because the language of NRS 484B.700(4)
mandates that the police officer drive with due regard for the safety of
others, and this duty is not discretionary.
While responding to an emergency call early one morning,
North Las Vegas Police Department Sergeant John Cargile made a left turn
against a red light, and collided with Japonica Glover-Armont's vehicle,
injuring her. Glover-Armont thereafter sued Sergeant Cargile and the City
of North Las Vegas, alleging various negligence claims and vicarious
liability. The district court granted summary judgment in favor of Sergeant
Cargile and the City of North Las Vegas, concluding the doctrine of
discretionary-act immunity provided them with qualified immunity to
Glover-Armont's claims.
We conclude that the district court erred by granting summary
judgment based upon discretionary-act immunity as MRS 484B.700(4) does
not confer discretion, and therefore, the discretionary-immunity doctrine
does not apply. We further conclude that the facts regarding the incident
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are highly contested, and a jury, taking the facts in the light most favorable
to Glover-Armont, could conclude that Sergeant Cargile breached NRS
484B.700(4)'s duty of care. Accordingly, summary judgment on Glover-
Armont's negligence, negligent entrustment, and vicarious liability claims
was improper.
FACTS AND PROCEDURAL HISTORY
In the early morning hours of November 5, 2012, appellant
Japonica Glover-Armont drove eastbound towards an intersection
displaying a green traffic signal for eastbound traffic. Simultaneously,
respondent North Las Vegas Police Department Sergeant John Cargile,
responding to an emergency, drove northbound toward the same
intersection. A large hill located off the southwest corner of the intersection
obstructed both Sergeant Cargile's view of eastbound oncoming traffic and
Glover-Armont's view of northbound oncoming traffic. Sergeant Cargile, in
an effort to quickly reach the emergency, attempted to make a left turn
against the red traffic signal for northbound traffic, but his vehicle collided
with Glover-Armont's vehicle within the intersection. Glover-Armont
suffered injuries in the collision. The parties do not dispute that Sergeant
Cargile activated his emergency lights, but Glover-Armont contends that
Sergeant Cargile failed to use his siren.
Glover-Armont sued Sergeant Cargile and respondent City of
North Las Vegas for negligence, vicarious liability, and negligent
entrustment, as well as negligent hiring, training, and supervision. Glover-
Armont alleged that Sergeant Cargile failed to use due care and failed to
engage his siren in the course of responding to an emergency. The City of
North Las Vegas traffic investigator who investigated the accident reported
that Glover-Armont was not speeding and that it was impossible for
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Sergeant Cargile to see oncoming eastbound traffic while traveling
northbound until he entered the intersection.
Sergeant Cargile and the City of North Las Vegas (collectively,
North Las Vegas) moved for summary judgment, arguing that
discretionary-act immunity barred Glover-Armont's claims. North Las
Vegas acknowledged that the hill on the corner obstructed Sergeant
Cargile's visibility, making it nearly impossible for him to see eastbound
oncoming traffic before entering the intersection. Nevertheless, North Las
Vegas argued that Sergeant Cargile's decision to enter the intersection
against a red traffic signal, even if made without due care, was a
discretionary decision in furtherance of public policy because he did so in
response to an emergency call, and, therefore, discretionary-act immunity
barred all of Glover-Armont's claims against North Las Vegas.
Glover-Armont conceded that Sergeant Cargile's decision to
proceed against a red traffic signal in an emergency was discretionary
However, she argued that his decision to do so without a siren and without
due care as required by NRS 484B.700 was not discretionary. Additionally,
Glover-Armont noted in her supplemental opposition to North Las Vegas'
summary judgment motion that the parties still disputed whether Glover-
Armont saw Sergeant Cargile's lights, whether Sergeant Cargile engaged
his siren, whether Glover-Armont had her headlights on, whether Cargile
proceeded through the intersection when Glover-Armont was already in the
intersection, and who hit whom.
During argument on North Las Vegas' summary judgment
motion, the district court noted that the parties still disputed whether
Sergeant Cargile operated his siren when traveling through the red light,
and that both Sergeant Cargile and Glover-Armont acknowledged during
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deposition testimony that each did not see the other until each entered the
intersection due to the hill. The district court denied summary judgment
based on this factual dispute and evidence in the record, concluding that an
officer responding to an emergency still has a duty to notify the public that
he is responding to an emergency, and that the fact that the hill obstructed
Glover-Armont's view of northbound traffic and Sergeant Cargile's view of
eastbound traffic created a genuine issue of material fact as to whether
Sergeant Cargile entered the intersection in a safe manner for the public.
North Las Vegas moved for reconsideration, citing two
additional cases and arguing that discretionary-act immunity applied even
if Sergeant Cargile abused his discretion. Glover-Armont opposed the
motion for reconsideration, arguing that North Las Vegas' motion was
flawed because it incorrectly relied on an exception to the discretionary-act
immunity doctrine for intentional torts. After a hearing, the district court
granted North Las Vegas' motion for reconsideration.
The district court thereafter granted summary judgment as to
Glover-Armont's negligence claim against North Las Vegas, finding,
without addressing NRS 484B.700, that Sergeant Cargile used his
individual judgment in deciding whether and how to proceed against the
red traffic signal and that his decisions were discretionary, such that North
Las Vegas was entitled to discretionary-act immunity. And given that
finding, the district court also concluded that summary judgment was
warranted as to Glover-Armont's remaining claims against North Las
Vegas for negligent entrustment, vicarious liability, and negligent hiring,
training, and supervision. To support its overall decision, the district court
cited public policy concerns, noting that Sergeant Cargile acted to protect
the public, enforce the law, and apprehend criminals.
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ANALYSIS
The primary issue raised in this appeal is whether
discretionary-act immunity, a qualified immunity, provided North Las
Vegas with an affirmative defense to Glover-Armont's claims.'
'Our dissenting colleague suggests that, before addressing
discretionary-act immunity, we must decide whether a private analogue to
the conduct at issue here exists, such that Nevada can be said to have
waived its sovereign immunity under NRS 41.031. But the private-
analogue doctrine is a creature of statutory interpretation, see Feres v.
United States, 340 U.S. 135, 141-42 (1950) (construing the Federal Tort
Claims Act to require a private analogue), and Nevada's appellate courts
have not imposed a private-analogue requirement on NRS 41.031, Instead,
Nevada's jurisprudence in this area proceeds from the principle that the
State has waived sovereign immunity and looks directly to whether
discretionary-act immunity applies. See, e.g., Ortega v. Reyna, 114 Nev. 55,
62, 953 P.2d 18, 23 (1998), abrogated in part on other grounds by Martinez
v. Maruszczak, 123 Nev. 433, 168 P.3d 720 (2007). And our supreme court
has ruled against the State as to liability without addressing the private-
analogue doctrine even where a private analogue may arguably not exist.
See, e.g., Butler v. Bayer, 123 Nev. 450, 464-66, 168 P.3d 1055, 1065-67
(2007) (concluding that genuine issues of material fact remain with regard
to whether the state negligently released an inmate); Golconda Fire Prot.
Dist. v. Cty. of Humboldt, 112 Nev. 770, 774-75, 918 P.2d 710, 712-13 (1996)
(remanding for an accounting to determine whether a county wrongfully
retained interest on taxes that it collected); cf. Tobin v. Fish, 161 Wash.
App. 1019 (Ct. App. 2011) (unpublished) (concluding that Washington did
not require a private analogue because its supreme court had ruled against
the government as to liability for conduct having no private analogue).
Moreover, even if we were to adopt a private-analogue requirement
for NRS 41.031, despite the dissent's suggestion to the contrary, recent
federal jurisprudence on this topic would support a determination that
there is a private analogue to the conduct at issue in this case. Indeed, the
United States Supreme Court has explained that courts should construe the
conduct and claims at issue in a case broadly in searching for a private
analogue. See United States v. Olson, 546 U.S. 43, 46-47 (2005) (holding
that the private-analogue inquiry is not restricted to "the same
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We review a district court's order granting summary judgment
de novo and will uphold summary judgment only where "the pleadings and
other evidence on file demonstrate that no genuine issue as to any material
fact [remains] and that the moving party is entitled to a judgment as a
matter of law." Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026,
1029 (2005) (alteration in original) (internal quotation marks omitted). We
review the pleadings and other proof in a light most favorable to the
nonmoving party. Id. at 732, 121 P.3d at 1031. Genuine issues of material
fact remain if a reasonable jury could return a verdict in favor of the
nonmoving party based on the evidence presented. Butler v. Bayer, 123
Nev. 450, 457-58, 168 P.3d 1055, 1061 (2007). However, Nevada's appellate
courts are reluctant to affirm summary judgment on negligence claims
because the question of whether a defendant exercised reasonable care is
nearly always a question of fact for the jury. Id. at 461, 168 P.3d at 1063.
circumstances," but extends "further afield" and providing, as an example,
that a negligence claim against a private person who undertakes a duty to
warn is a private analogue for the government's failure to maintain a
lighthouse). And in that vein, federal courts have found private analogues
in situations nearly identical to the present case. See, e.g., Lee v. United
States, 570 F. Supp. 2d 142, 150-52 (D.D.C. 2008) (determining that a
private analogue existed for negligent police chases based on general traffic
regulations).
Finally, we note that neither the parties nor the amicus curiae
address the private-analogue doctrine, nor did the district court. While this
is unsurprising given that, as detailed above, this doctrine does not impact
our consideration of the discretionary-act immunity issue presented here,
because the dissent's sua sponte discussion of the doctrine raises
jurisdictional questions, we have briefly addressed this matter here.
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On appeal, Glover-Armont argues that the district court erred
by granting summary judgment, asserting questions of fact remain as to
whether Sergeant Cargile used due care, pursuant to NRS 484B.700, in
proceeding through the intersection against a red traffic signal. North Las
Vegas counters that the district court correctly granted summary judgment
because, under NRS 41.032(2), discretionary-act immunity bars Glover-
Armont's claims . 2
In addressing these arguments, we first consider the
applicability of Nevada's discretionary-act immunity doctrine to a police
officer acting pursuant to NRS 484B.700's exemptions, and thereafter
determine the scope of NRS 484B.700(4)'s duty of care and whether
summary judgment was appropriate under these facts. 3
2The International Municipal Lawyers Association filed an amicus
brief, but we do not specifically address the arguments presented therein,
as they are substantially similar to those raised in North Las Vegas'
answering brief.
3 We have also reviewed Glover-Armont's argument that the district
court improperly considered her traffic citation as evidence when granting
summary judgment. The record shows the district court did not consider
her traffic citation, but instead considered her nob o contendere plea. We
conclude that the district court improperly considered Glover-Armont's nobo
contendere plea to her traffic citation. See NRS 48.125(2) ("Evidence of a
plea of nob o contendere or of an offer to plead nob contendere to the crime
charged or any other crime is not admissible in a civil or criminal proceeding
involving the person who made the plea or offer."). We caution the district
court against considering inadmissible evidence when deciding summary
judgment motions. See Henry Prods. Inc. v. Tarmu, 114 Nev. 1017, 1019,
967 P.2d 444, 445 (1998) ("Evidence introduced in support of or opposition
to a motion for summary judgment must be admissible evidence.").
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Discretionary-act immunity
Nevada generally waives sovereign immunity. NRS 41.031.
However, a doctrine known as discretionary-act immunity, codified as NRS
41.032(2), provides an exception to this general waiver through a qualified
immunity for state agencies and their employees who perform discretionary
acts. City of Boulder City v. Boulder Excavating, Inc., 124 Nev. 749, 754,
756, 191 P.3d 1175, 1178, 1179-80 (2008). In Martinez v. Maruszczak,
Nevada adopted the federal two-part Berkovitz-Gaubert 4 test for
determining whether a state actor is protected by discretionary-act
immunity. 123 Nev. 433, 445-47, 168 P.3d 720, 728-29 (2007). Under the
Berkovitz-Gaubert test, the discretionary-act immunity doctrine applies if
the decision "(1) involve[s] an element of individual judgment or choice and
(2) [is] based on considerations of social, economic, or political policy." Id.
at 446-47, 168 P.3d at 729. Since adopting the federal Berkovitz-Gaubert
test, Nevada's appellate courts have yet to apply this test to actions
permitted by NRS 484B.700.
A critical preliminary step in the discretionary-act immunity
analysis is identifying the specific government action challenged before
turning to the Berkovitz-Gaubert test. See Young v. United States, 769 F.3d
1047, 1053-54 (9th Cir. 2014) (providing that a district court must first
identify the specific agency action challenged before turning to the
Berkovitz-Gaubert test); cf. N. Nev. Ass'n of Injured Workers v. Nev. State
Indus. Ins. Sys., 107 Nev. 108, 113, 807 P.2d 728, 731 (1991).
As a threshold matter, we conclude that the district court
incorrectly applied the Berkovitz-Gaubert test because it failed to pinpoint
United States v. Gaubert, 499 U.S. 315, 322-25 (1991); Berkovitz v.
4
United States, 486 U.S. 531, 536-39 (1988).
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Glover-Armont's specific allegations within her complaint. See Young, 769
F.3d at 1053 ("To identify the particular agency conduct with which
[p]laintiffs take issue, we look to the allegations of [p]laintiffs' complaint ");
see also N. Nev. Ass'n of Injured Workers, 107 Nev. at 113, 807 P.2d at 731
("In analyzing respondents' entitlement to immunity under [NRS 41.0321,
it is necessary to determine whether the acts alleged in appellants' amended
complaint are properly categorized as discretionary."). Below, North Las
Vegas framed Glover-Armont's allegation as a blanket challenge to
Sergeant Cargile's decision to enter the intersection against a red traffic
signal in an emergency, when in fact Glover-Armont alleged that the
conditions and manner in which Sergeant Cargile proceeded through the
red traffic signal did not adhere to NRS 484B.700's standard of care. The
district court did not address NRS 484B.700 and did not determine whether
the statute requires police officers to use their own judgment when acting
under the statute's exemptions. Accordingly, we turn to the first prong of
the Berkovitz-Gaubert test with Glover-Armont's precise allegations in
mind and determine whether NRS 484B.700 confers discretion.
NRS 484B.700 does not confer discretion
Glover-Armont contends that the duty to comply with NRS
484B.700's requirements is not discretionary. We agree.
We review questions of law de novo. Clark Cty. Sch. Dist. v.
Payo, 133 Nev. „ 403 P.3d 1270, 1275 (2017). In Nevada, an act is
discretionary if law or policy allows the public official to use his or her own
judgment and deliberation in acting. Ransdell v. Clark •Cty., 124 Nev. 847,
856-57, 858, 192 P.3d 756, 763, 764 (2008) (holding that Clark County's
actions were discretionary under the Berkovitz-Gaubert test because the
Clark County Code provided its officials with the discretion to take action).
NRS 484B.700 allows an officer to proceed through a red traffic signal when
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responding to an emergency, but requires the officer to "slow[ I down as may
be necessary for safe operation" and to use either "(a) Ealudible and visual
signals; or (b) [v]isual signals only, as required by law." Moreover, NRS
484B.700(4) expressly provides that it does not relieve the officer from "the
duty to drive with due regard for the safety of all persons" or "protect the
[officer] from the consequences of [the officer's] reckless disregard for the
safety of others."
Nevada's appellate courts have not addressed whether this
statute confers discretion or requires the state actor to abide by a
nondiscretionary standard of care. Other jurisdictions have addressed
similar issues with mixed outcomes. For example, North Las Vegas asserts
that this court should follow the Minnesota Supreme Court's reasoning in
Vassallo v. Majeski, 842 N.W.2d 456 (Minn. 2014).
In Vassallo, the Minnesota Supreme Court determined that, as
relevant here, Minnesota's emergency vehicle statute conferred discretion,
and thus, discretionary-act immunity barred the plaintiffs claims. Id. at
463-66. The plaintiff sued for injuries sustained after a police officer
responding to an emergency sped through an intersection against a red
traffic signal and collided with the plaintiffs vehicle. Id. at 460.
Minnesota's emergency vehicle statute provided that when an emergency
vehicle approaches a red traffic signal it must "slow down as necessary for
safety, but may proceed cautiously past such red or stop sign or signal after
sounding siren and displaying red lights." Id. at 461 n.2. The Vassallo court
concluded that the requirement to "slow down as necessary for safety" was
conditioned upon the driver's determination of a safe speed. Id. at 463. In
addition, the court likened the term "proceed cautiously" to a duty to use
due care to avoid a collision and concluded that a due care requirement calls
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for the use of independent judgment. Id. Thus, the court concluded that
these requirements conferred a discretionary duty to which immunity
applied. 6 Id. at 463-64.
However, other courts addressing similar situations have
determined that an emergency vehicle statute does not confer discretion in
circumstances similar to the case at hand. See Legue v. City of Racine, 849
N.W.2d 837, 859 (Wis. 2014). For example, in Legue, the plaintiff sued a
police officer and the City of Racine for injuries sustained in an accident
where the police officer entered an intersection with a red traffic signal en
route to an emergency call. Id. at 842-43. The police officer had lights and
sirens engaged, but a building blocked her view of oncoming traffic Id.
After the jury returned a verdict in favor of the plaintiff, the lower court
granted defendant's motion for judgment notwithstanding the verdict based
upon discretionary-act immunity Id. at 844.
On appeal, the Wisconsin Supreme Court considered whether
the police officer was entitled to immunity based upon subsection 5 of
Wisconsin's emergency vehicle statute, Wis. Stat. Ann § 346.03 (West
2015), 6 and a city policy, which both required emergency responders to drive
with "due regard under the circumstances" for the public's safety. Id. at
858. The court concluded that Wis. Stat. Ann § 346.03(5) (West 2015) and
the city policy imposed a nondiscretionary duty to drive with "due regard
6 TheVassallo court also examined a Minnesota county sheriffs office
policy that required officers to drive with due regard and summarily
concluded that the term "due regard" invited independent judgment, like
the term "due care." 842 N.W.2d at 461 n.3, 464.
6 The Wisconsin statute has been amended since the Wisconsin
Supreme Court entered Legue, see 2015 Wis. Laws, Act 102, at 807-08, but
the amendments were to other portions of the statute.
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under the circumstances" when responding to an emergency. Id. at 859-60,
862. In reaching this conclusion, the court reasoned that § 346.03(5)'s
language qualified the privileges contained in the earlier part of the statute
allowing the emergency responder to disregard speed limits and proceed
through red traffic signals, and that the only reasonable interpretation of
§ 346.03(5)'s conditions was to impose liability on the governmental actor.
Id. at 851 (discussing § 346.03(5)'s declaration that "the exemptions granted
the operator of an authorized emergency vehicle by this section do not
relieve such operator from the duty to drive or ride with due regard under
the circumstances for the safety of all persons" and explaining that "[t] his
language leads us to conclude that an exemption or privilege begets
immunity and a duty begets liability"); see Wis. Stat. Ann § 346.03(1)-(2)
(West 2015). Further, the court reasoned that "§ 346.03(5)DI declar [ationl
that the exemptions or privileges 'do not relieve such operator from the duty
to drive with due regard' was mandatory language. Legue, 849 N.W.2d at
858. The court ultimately concluded that the duty to maintain a particular
standard of care is not discretionary, and reinstated the jury verdict. Id. at
858-59, 862.
Wisconsin's statute, like Nevada's statute, states that "[Wm
exemptions granted the operator of an authorized emergency vehicle by this
section do not relieve such operator from the duty to drive or ride with due
regard under the circumstances for the safety of all persons, nor do they
protect such operator from the consequences of his or her reckless disregard
for the safety of others." Wis. Stat. Ann § 346.03(5) (West 2015) (emphasis
added); see also NRS 484B.700(4) ("Thefl provisions of this section do not
relieve the driver from the duty to drive with due regard for the safety of all
persons and do not protect the driver from the consequences of the driver's
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reckless disregard for the safety of others."). And while Minnesota's statute
shares some similarities with both Nevada's and Wisconsin's statutes, it is
distinctly distinguishable insofar as it does not require an emergency
vehicle operator to drive with due regard for the public's safety, but rather
states the emergency vehicle operator "may proceed cautiously." Minn.
Stat. Ann. § 169.03(2) (West 2016); NRS 484B.700(4); Wis. Stat. Ann
§ 346.03(5) (West 2015). Of course, in Vassallo, the court likened the term
"proceed cautiously" to a duty to use due care, 842 N.W.2d at 463, and
arguably, a duty to use due care is similar to Nevada's duty to drive with
due regard.
But critically, Minnesota's statute uses the phrase "proceed
cautiously" in an open-ended manner, which, as the Minnesota Supreme
Court noted, indicates that officers are allowed to use their personal
judgment in order to determine what constitutes caution under the
circumstances. Vassallo, 842 N.W.2d at 463. Conversely, Nevada's statute,
like Wisconsin's statute, uses mandatory language in providing that the
privileges set forth therein "do not relieve" the driver from the "duty to drive
with due regard," NRS 484B.700(4); see Wis. Stat. Ann. § 346.03(5), which
is indicative of a nondiscretionary duty to act in a certain manner and
liability for failing to do so. Indeed, as the Wisconsin Supreme Court
reasoned in Legue, where there is a duty, there is also liability. See 849
N.W.2d at 851 (asking rhetorically, "[w]hy would the legislature exempt an
operator of an authorized emergency vehicle from complying with certain
rules of the road and impose a duty of due regard unless a violation of the
duty can result in liability?").
The reasoning in Legue and the similarity between Nevada's
and Wisconsin's emergency vehicle statutes are persuasive here, and we
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therefore conclude that NRS 484B.700(4) imposes a mandatory duty, which
gives rise to liability if breached. 7 See id. Accordingly, we hold that a police
officer's duty to drive with due care when responding to an emergency is
mandatory, not discretionary, under the first prong of the Berkovitz-
Gaubert tests Cf. N. Nev. Ass'n of Injured Workers v. Nev. State Indus. Ins.
Sys., 107 Nev. 108, 114, 807 P.2d 728, 731 (1991) (explaining that
mandatory duties entail little or no discretion, and that the discretionary-
act immunity doctrine does not apply to such obligatory acts). This
conclusion is consistent with the approach taken by several other
7 For
the same reason, this court is unpersuaded by the Minnesota
court's conclusion that officers were afforded discretion under the
department policy discussed above.
8 To the extent that Glover-Armont asserts that North Las Vegas
policy also imposes a nondiscretionary duty upon a police officer to utilize
both lights and sirens when responding to an emergency, we conclude that
Glover-Armont fails to support this argument. In particular, while
testimony in the record supports Glover-Armont's assertion, it is impossible
for this court to fully review this matter, as she failed to include North Las
Vegas' policy in the record. Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123
Nev. 598, 603, 172 P.3d 131, 135 (2007) (noting appellant has the burden of
providing this court with an adequate appellate record, and when the
appellant "fails to include necessary documentation in the record, [this
court] necessarily presume [s] that the missing portion supports the district
court's decision"). Moreover, an officer does not breach the duty to drive
with due regard for the safety of all persons merely by failing to operate his
siren. See NRS 484D.400(5)-(6) (providing, among other things, that when
an officer uses warning lamps without sounding the siren, the officer "shall
be deemed to have adequately warned pedestrians and other drivers of [the
officer's] approach for purposes of determining whether the [officer] met the
duty to drive with due regard for the safety of all persons pursuant to MRS
484B.700").
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jurisdictions. 9 See Biscoe v. Arlington Cty., 738 F.2d 1352, 1363 (D.C. Cir.
1984); Legue, 849 N.W.2d at 859; Mason v. Bitton, 534 P.2d 1360, 1365
(Wash. 1975) (en banc). 1 °
In reaching this conclusion, we reject a broad-based view of
discretionary-act immunity that would render any accident involving a
public vehicle responding to an emergency nonactionable. We are mindful
that the Legislature intended to give emergency vehicles privileges to allow
swift response to those in need; however, the Legislature and our courts
have long held that such privileges are to be exercised while keeping the
safety of all members of the public in mind. See NRS 484B.700(4); Johnson
v. Brown, 75 Nev. 437, 445, 345 P.2d 754, 758 (1959). Moreover, this holding
is in line with the purpose behind Nevada's waiver of sovereign immunity,
which is to equally compensate victims of negligence regardless of whether
9 Importantly, cases in other jurisdictions which conclude that
immunity applies to protect police officers from claims arising from a traffic
accident involving an emergency responder are distinguishable. For
example, while discretionary-act immunity is available to first responders
in Virginia, it does not immunize them from suit, but instead, elevates the
standard for liability from negligence to gross negligence. Colby v. Boyden,
400 S.E.2d 184, 186-87 (Va. 1991). And Texas' immunity doctrine likewise
imposes liability for reckless conduct, but does so based on its express
exclusion of emergency vehicle operators from the waiver of immunity for
negligence. City of Amarillo v. Martin, 971 S.W.2d 426, 430 (Tex. 1998).
1 °Likewise, other jurisdictions also hold immunity does not apply to
bar a cause of action when a police officer's negligence causes harm to an
innocent member of the public, albeit on slightly different grounds. Patrick
v. Miresso, 848 N.E.2d 1083, 1086-87 (Ind. 2006); Horta v. Sullivan, 638
N.E.2d 33, 36-37 (Mass. 1994); Jones v. Chieffo, 700 A.2d 417, 420 (Pa.
1997); Haynes v. Hamilton Cty., 883 S.W.2d 606, 611 (Tenn. 1994); Willden
v. Duchesne Cty., 217 P.3d 1143, 1145-46 (Utah Ct. App. 2009).
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the negligent actor is a state official or private citizen. See Martinez, 123
Nev. at 444, 168 P.3d at 727 (discussing the purpose of Nevada's waiver of
sovereign immunity).
Given the foregoing, because we hold that NRS 484B.700 does
not afford discretion, North Las Vegas was not entitled to discretionary-act
immunity as to Glover-Armont's negligence, negligent entrustment, and
vicarious liability claims, and we need not reach the second prong of the
Berkovitz-Gaubert test"- Accordingly, we conclude that the district court
erred by granting North Las Vegas summary judgment as to Glover-
Armont's negligence, negligent entrustment, and vicarious liability claims
based on that conclusion. 12
"In light of our conclusion that North Las Vegas is not entitled to
discretionary-act immunity, we need not address North Las Vegas'
arguments that discretionary-act immunity applies even when a public
official abuses his or her discretion, and that the bad-faith and intentional-
torts exceptions do not bar immunity in this case. Franchise Tax Bd. of
State of Cal. v. Hyatt, 133 Nev. •„ 407 P.3d 717, 733 (2017) (holding
that NRS 41.032 does not protect against intentional torts or bad-faith
misconduct), petition for cert. filed, U.S.L.W. (U.S. Mar. 12,2018)
(No. 17-1299).
With regard to Glover-Armont's negligent hiring, training, and
' 2
supervision claim, respondents cite Bryan v. Las Vegas Metro. Police Dep't,
349 F. App'x 132, 134 (9th Cir. 2009), for the argument that North Las
Vegas' training decisions involve policy judgments of the type the
discretionary-function exception is designed to shield, and Glover-Armont
failed to address that case in her reply brief or otherwise offer specific
argument as to why North Las Vegas' failure to adequately train Sergeant
Cargile did not involve a shielded policy judgment. Thus, Glover-Armont
waived any argument that North Las Vegas was not immune from Glover-
Armont's negligent hiring training and supervision claims. See State ex rel.
State Bd. of Equalization v. Bakst, 122 Nev. 1403, 1417 n.41, 148 P.3d 717,
726 n.41 (2006) (concluding appellant waived its argument when it did not
refute respondent's argument in its reply brief). Therefore, we affirm
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With this in mind, we now turn to the parties' arguments
regarding whether genuine issues of fact remain to preclude summary
judgment.
Summary judgment was improper
Glover-Armont asserts that there are several issues of material
fact that preclude summary judgment because the facts, when viewed in a
light most favorable to Glover-Armont, demonstrate that Sergeant Cargile
failed to proceed with due care as required by NRS 484B.700(4).
NRS 484B.700(4) states that a police officer traveling through
a red traffic signal in an emergency is not relieved "from the duty to drive
with due regard" for the public's safety nor protected from the consequences
of the officer's reckless disregard for the public's safety. The Nevada
Supreme Court has previously interpreted similar language within a Reno
Municipal Ordinance" to impose an ordinary negligence standard of
liability, holding that an emergency responder has a "duty to be on the
lookout at all times for the safety of the public whose peril is increased by
their exemptions from the rules of the road." Johnson, 75 Nev. at 445, 345
P.2d at 758.
In Johnson, a firefighter responding to an emergency sped
through an intersection with obstructed visibility without stopping at a stop
summary judgment as to Glover-Armont's negligent hiring, training, and
supervision claim.
"Reno Municipal Code (RMC) § 10-60 (1954) (allowing emergency
responders certain exemptions from the rules of the road and providing that
the ordinance's exemptions "shall not relieve the driver of an authorized
emergency vehicle from the duty to drive with due regard for the safety of
all persons using the street, nor shall it protect the driver of any such
vehicle from the consequence of a reckless disregard for the safety of
others").
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sign and collided with another driver whose passenger then brought suit.
Id. at 439, 345 P. 2d at 755. The jury found in favor of the plaintiff, and the
firefighter appealed arguing that the Reno Municipal Ordinance requiring
him to "drive with due regard for the safety of others" was met because he
was utilizing lights and sirens. Id. at 439-40, 345 P.2d at 755 (internal
quotation marks omitted). The supreme court disagreed concluding that
the Reno Municipal Ordinance imposed an ordinary negligence standard of
liability and opining that the government is better able to bear the burden
of tort liability than an individual to bear loss from an accident. Id. at 442-
45, 345 P.2d at 756-58.
While Johnson was decided before NRS 41.032, the
discretionary-act immunity statute, was enacted, 75 Nev. at 437, 345 P.2d
at 754; 1965 Nev. Stat., ch. 505, § 1-7, at 1413-15, we look to Johnson to
determine the standard for liability applicable here given our conclusion
that immunity does not apply. Because the language of the Reno ordinance
is nearly identical to NRS 484B.700(4), we conclude that NRS 484B.700(4)
imposes an ordinary negligence standard of liability. This conclusion is
consistent with other jurisdictions that have interpreted similar language
to impose an ordinary negligence standard of liability. See Rutherford v.
State, 605 P.2d 16, 18-19, 18 n.5 (Alaska 1979); City of Little Rock v. Weber,
767 S.W.2d 529, 533 (Ark. 1989); Barnes v. Toppin, 482 A.2d 749, 755 (Del.
1984); City of Baltimore v. Fire Ins. Salvage Corps, 148 A.2d 444, 447 (Md.
1959); City of Kalamazoo v. Priest, 49 N.W.2d 52, 54 (Mich. 1951); Cainl v.
City of St. Paul, 268 N.W.2d 908, 912-13 (Minn. 1978); Wright v. City of
Knoxville, 898 S.W.2d 177, 179-80 (Tenn. 1995); Estate of Cavanaugh v.
Andrade, 550 N.W.2d 103, 114-15 (Wis. 1996).
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Below, the parties conceded that a hill blocked their respective
views, but they disputed everything else about the cause and circumstances
of the accident in light of their obstructed views, including whether Glover-
Armont saw Sergeant Cargile's lights, whether Sergeant Cargile engaged
his siren, whether Glover-Armont had her headlights on, whether Cargile
proceeded through the intersection when Glover-Armont was already in the
intersection, and who hit whom. And conflicting evidence supported the
parties' respective positions with regard to whether Sergeant Cargile gave
adequate warning of his approach and what precautions he took before
entering the intersection. Given this conflicting evidence, as the district
court originally found, genuine issues of fact remain as to whether Sergeant
Cargile violated his duty to drive with due regard, such that summary
judgment was unwarranted. See Butler v. Bayer, 123 Nev. 456, 461, 168
P.3d 1055, 1063 (2007) (noting Nevada's appellate courts are reluctant to
affirm summary judgment on negligence claims because the question of
whether a defendant exercised reasonable care is nearly always a question
of fact for the jury); Cf. Legue, 849 N.W.2d at 842-43, 862 (reinstating a jury
verdict that found a police officer negligent where she, utilizing lights and
sirens, entered an intersection against a red traffic signal en route to an
emergency call when a building obstructed her view of oncoming traffic).
CONCLUSION
We conclude that the district court erred by granting summary
judgment based upon discretionary-act immunity NRS 484B.700 allows an
officer to proceed through a red traffic signal in an emergency but imposes
mandatory conditions on that privilege, including the duty to drive with due
regard of the public's safety. Here, the parties contest whether Sergeant
Cargile drove with due regard for the public's safety. Because a jury could
conclude Sergeant Cargile did not proceed with due regard, summary
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judgment was improper. Accordingly, we reverse summary judgment and
remand this matter to the district court for further proceedings on Glover-
Armont's negligence, negligent entrustment, and vicarious liability
claims."
, C.J.
Silver
I concur:
Gibbons
'In light of our disposition of this appeal, we do not reach Glover-
Armont's argument that the district court improperly granted
reconsideration of its original oral denial of North Las Vegas' motion for
summary judgment. But we vacate the district court's order awarding costs
to North Las Vegas as the prevailing party. Doad v. Las Vegas Hilton Corp.,
109 Nev. 1096, 1106, 864 P.2d 796, 802 (1993) (vacating the district court's
costs award made to the prevailing party in light of reversal), superseded by
statute on other grounds, NRS 651.015, as recognized in Estate of Smith v.
Mahoney's Silver Nugget, Inc., 127 Nev. 855, 858-59, 265 P.3d 688, 691
(2011).
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TAO, J., concurring in part and dissenting in part:
I agree that the majority properly resolves the issue of
sovereign immunity as the parties have framed it. But I believe that the
parties have framed this case all wrong.
In the words of a fictional television police detective, "all the
pieces matter." (Detective Lester Freamon, The Wire, HBO 2001). This is
especially true when dealing with the "Byzantine complexity of sovereign-
immunity law," Hall v. MeRaven, 508 S.W.3d 232, 245 (Tex. 2017) (Willett,
J., concurring), a field which includes a general rule of immunity, subject to
a partial statutory waiver, subject to exceptions to the waiver, within which
lie yet more exceptions to those exceptions. When working through these
layers of statutory text, we must take care that "no part of [the] statute
should be rendered nugatory, nor any language turned to mere surplusage,
if such consequences can properly be avoided." Indep. Am. Party v. Lau, 110
Nev. 1151, 1154, 880 P.2d 1391, 1392 (1994) (quotation marks omitted); see
Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of
Legal Texts 176 (2012).
The parties focus their briefing on whether the "discretionary
function" exception applies. But in doing so, they overlook critical pieces of
the analysis that should apply to this appeal that, when properly applied,
lead to a very different result than they propose. Normally, we limit
ourselves to the arguments that the parties make and the relief they
request, because the parties are generally allowed to frame and present
their own case the way they want. But when that approach causes us to
gloss over important parts of a statute that would otherwise apply—thereby
suggesting to other parties or courts tackling this issue that the right thing
to do is to skip over those statutory provisions as well—then "[t]he ability
of this court to consider relevant issues sua sponte in order to prevent plain
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error is well established. Such is the case where [clearly controlling law]
was not applied by the trial court." Bradley v. Romeo, 102 Nev. 103, 105,
716 P.2d 227, 228 (1986) (internal citation omitted); see Mardian v.
Greenberg Family Tr., 131 Nev. 730, 733-34, 359 P.3d 109, 111 (2015) (on
de novo review of denial of summary judgment, the court is not limited to
only what the parties expressly argue: "While the arguments made by the
parties focus on Nevada law, theS issue of whether the Arizona law should
have been applied must also be addressed."); Nev. Power Co. v. Haggerty,
115 Nev. 353, 365 n.9, 989 P.2d 870, 877-78 n.9 (1999) (explaining that the
court would resolve an issue of statutory interpretation not litigated below
"in the interests of judicial economy").
I therefore write separately to address the way I think this case
should have come out had the parties properly understood the statute in all
of its component parts. "[T]he bottom line is understanding the process. If
you don't understand the process, you'll never reap the rewards." Donald J.
Trump, How to Get Rich 74 (2004).
Nevada's statutory waiver of sovereign immunity is set forth in
NRS 41.031, which specifies that the State consents to waive immunity "in
accordance with the same rules of law as are applied to civil actions against
natural persons and corporations." NRS 41.031(1). The parties ignore this
statutory language—the language that initially defines the scope and reach
of any waiver of immunity—and focus instead on a later subsection that
contains a specific exception to the waiver, namely, the discretionary
function exception described in NRS 41.032(2). But focusing on whether an
exception to the waiver applies only makes sense if it's clear that immunity
has been waived in the first place. In this case, that's not clear at all. When
the statute is properly analyzed in its entirety, I would affirm the district
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court's grant of summary judgment in its entirety and I therefore
respectfully concur in part and dissent in part.
I.
The United States is sovereignly immune and no citizen can sue
it for any alleged negligence unless it consents to such suit. Prior to 1946,
the only avenue through which a private citizen could seek redress for an
injury inflicted by governmental negligence was to petition Congress for
compensation through a "private bill." 1 See Feres v. United States, 340 U.S.
135, 139-40 (1950). Then, following the crash of a B-25 into the Empire
State Building during foggy weather, Congress statutorily enacted the
Federal Tort Claims Act (FTCA), which "constitutes a limited waiver by the
United States of its sovereign immunity and allows for a tort suit against
the United States under specified circumstances." Hamm v. United States,
483 F.3d 135, 137 (2d Cir. 2007) (quotation marks omitted); see 28 U.S.C.
§ 2674. This waiver is not complete; "the United States can be sued only to
the extent that it has waived its immunity." United States v. Orleans, 425
U.S. 807, 814 (1976).
States, too, possess sovereign immunity, unless they waive it
statutorily. Nevada's statutory waiver of sovereign immunity under NRS
41.032 "mirrors" the scope of the federal waiver under the FTCA, and the
Nevada Supreme Court has expressly adopted federal judicial precedent
applying the FTCA. See Martinez v. Maruszczak, 123 Nev. 433, 444, 168
P.3d 720, 727 (2007). Under both, immunity is waived only to the extent
'As a recent example, Congressional action was required for
"downwinders" to receive compensation for exposure to radiation from
atomic bomb testing at the Nevada Test Site during the 1950s, because the
United States has not waived sovereign immunity for any injuries arising
from the effects of military weapons testing.
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expressly outlined by statute and "must be 'construed strictly in favor of the
sovereign' and not 'enlarge [d] . . . beyond what the language requires.'
U.S. Dep't of Energy v. Ohio, 503 U.S. 607, 615 (1992) (internal citation
omitted).
In analyzing the scope of a waiver, two competing
considerations are at stake. On the one hand is the foundational idea that
citizens have inherent liberty to pursue their vision of happiness free from
government interference or coercion, and whenever arbitrary or irrational—
here, allegedly negligent—governmental conduct inflicts injury on the
innocent and unsuspecting, courts ought to rein in the conduct and provide
fair redress to the victims. And what could be more arbitrary than a case
like this which alleges that a government vehicle exercising official
government power negligently plowed through a major intersection, quite
possibly in violation of law and policy regarding police sirens, inflicting
serious physical injury on an unsuspecting motorist? On the other hand,
though, is the idea that overly abundant lawsuits instill "legal fear" even in
those who are not sued, chilling initiative and inhibiting "people [from]
doing what they know is right because they do not feel free to do so." Philip
K. Howard, Is Civil Litigation a Threat to Freedom?, 28 Harv. J. Law & Pub.
Pol'y 97, 102 (2004). I would think that if there's anyone in our society
whom we don't want to feel inhibited in vigorously doing what they know is
right, it ought to be a police officer racing to stop a felony in progress.
Here is the line that must be straddled in a case like this: we
want police officers to courageously take risks and perhaps even engage in
some level of derring-do to shield us from danger; but we also want any
passersby that they irresponsibly injure along the way to have access to fair
redress. The question becomes how to achieve one without chilling the
other. If we go too far in immunizing government, then government officials
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get to act with impunity: "[Ole doctrine of sovereign immunity, by
insulating imprudence, is innately unfair to those wronged." Hall, 508
S.W.3d at 245 (Willett, J., concurring). But if we go too far in the other
direction and allow too many suits to create too much liability, then every
injury warrants a payout and we drive up costs for everyone, since "[e]ven
frivolous claims require the. . . Government to expend administrative and
litigation costs, which ultimately fall upon society at-large." United States
v. Kwai Fun Wong, U S , 135 S. Ct. 1625, 1639 (2015) (Alito, J.,
dissenting). Worse, the police might not respond so quickly the next time
someone dials 9-1-1, and we all end up paying more taxes for less effective
service.
To resolve this dilemma and balance these competing interests,
the Nevada Legislature enacted MRS 41.031, embodying a general "Waiver
of Sovereign Immunity." That general waiver is followed by certain
"Conditions and Limitations on Actions" set forth in NRS 41.032 et seq.,
including the "discretionary function" exception of NRS 41.032(2). Under
this exception, when immunity has generally been waived, tort suits
alleging negligence by government actors are permitted to proceed unless
the governmental action: (1) involves an element of individual judgment or
choice and (2) is based on considerations of social, economic, or political
policy. Martinez, 123 Nev. at 446-47, 168 P.3d at 729 (citing Berkovitz v.
United States, 486 U.S. 531 (1988); United States v. Gaubert, 499 U.S. 315
(1991)).
In analyzing the effect of these statutes on the case at hand, the
parties jump straight to the "discretionary function" exception of NRS
41.032(2) and argue whether it applies throughout their briefing. But I
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NI 1947H .(aelp
would take a different approach and start in an entirely different place: at
the very beginning.
To me, the proper starting point for actions alleging negligence
by police officers is here: by statute, Nevada consents to waive immunity "in
accordance with the same rules of law as are applied to civil actions against
natural persons and corporations." NRS 41.031(1). The purpose of this
waiver is to "compensate victims of government negligence in circumstances
like those in which victims of private negligence would be compensated."
Martinez, 123 Nev. at 444, 168 P.3d at 727 This isn't just a broad statement
of intent. It's a specific legal doctrine that limits the scope of the waiver. It
means that Nevada's waiver only extends to governmental actions "like
those" that private citizens could also be sued for, and the government is
liable in the same way that a private actor would be. Under the identical
language of the FTCA, federal courts have held that there is no waiver of
immunity "for claims against the government based on governmental action
of the type that private persons could not engage in and hence could not be
liable for under local law." Liranzo v. United States, 690 F.3d 78, 86 (2d Cir.
2012) (quotation marks omitted).
This matters here because private citizens can do a lot of things
that governments also do, but they don't engage in police work. Quite to
the contrary, much police work involves things that are not anything at all
"like" things that private citizens can legally do. See Stanton R. Gallego,
Note, An Examination of the Federal Tort Claims Act's "Private Person"
Standard as It Applies to Federal Law Enforcement Activities, 76 Brook. L.
Rev. 775, 784 (2011) ("no private citizen is truly comparable to a law
enforcement officer"). Many police activities represent "quintessential
examples of government discretion in enforcing the criminal law." Pooler v.
United States, 787 F.2d 868, 871 (3d Cir. 1986), abrogated on other grounds
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by Millbrook v. United States, 569 U.S. 50 (2013); see Kelly v. United States,
924 F.2d 355, 362 (1st Cir. 1991). Thus, when the conduct targeted by suit
involves law enforcement activity, courts must apply a different doctrine
altogether, commonly referred to as the "private analogue" doctrine, and
unfortunately expressed in rather tortured phrasing: immunity is waived
only with respect to police actions that would result in liability if those
actions •were performed by a private actor "under like circumstances."
Indian Towing Co. v. United States, 350 U.S. 61, 64(1955); see Liranzo, 690
F.3d at 84-89. Or, described in a somewhat different but no less tortured
manner: if an "analogous form of liability exists" had the same negligence
been committed by a private actor, then sovereignty has been waived and
the state may be sued for the negligent conduct in the exact same way that
the private actor could have been. United States v. Muniz, 374 U.S. 150,
159-60 (1963); see United States v. Olson, 546 U.S. 43, 45-46 (2005). But if
the targeted conduct was something of "the type that private persons could
not engage in," then immunity has not been waived and the state may not
be sued. Liranzo, 690 F.3d at 86. What matters is not the status of the
actor as either a law enforcement officer or something else, but rather "the
nature of the conduct" and whether a private analogue exists or not. United
States v. S.A. Empresa de Viacao Aerea Rio Grandense (yang Airlines), 467
U.S. 797, 813 (1984).
The structure of the statute is thus: the private analogue test of
NRS 41.031(1) determines if and when sovereign immunity may have been
initially waived. If the government action has no private analogue under
NRS 41.031(1), then there is no waiver and the inquiry ends. Only if the
government action has a private analogue can immunity be waived, and
even then only potentially so. Even where such an analogue exists, the
inquiry doesn't stop there but rather continues next to the listed exceptions
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to immunity, including the discretionary function exception, which restores
immunity if the action sprang from the exercise of government discretion as
defined in NRS 41.031(2).
The point is to start with whether a waiver of sovereign
immunity is even possible under NRS 41.031(1) before proceeding to
whether a specific exception to that waiver exists under NRS 41.031(2).
And this is where I think the parties get the analysis wrong.
Structurally, the first question at hand is whether Nevada's
waiver of immunity applies at all to allegations of police negligence like
those in this case. If it does not, then we don't need to even bother with
asking whether the discretionary function exception applies. If the larger
rule itself doesn't apply, there's no need to search for an exception within
the rule designed to make the rule apply even less.
Rather than discuss how this case fits into the overarching
framework of the statute, the parties instead bore in on Martinez v.
Maruszczak, 123 Nev. 433, 168 P.3d 720 (2007). It's no wonder that they
did so when Nevada cases addressing sovereign immunity are few and far
between, and Martinez is about the best we have. But Martinez involved
an action in medical malpractice against a government physician. To
resolve the question of sovereign immunity, the Nevada Supreme Court
adopted the federal discretionary function test that would have applied
under the FTCA had the medical malpractice action been brought against
the federal government. Id. at 435, 168 P.3d at 722.
The parties here assume that this is the test that must be
applied to this lawsuit. But it's not. Under the FTCA, the discretionary
function test is an exception to the general waiver of sovereign immunity,
not the entire rule, and the general rule doesn't apply to most law
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enforcement actions. Martinez doesn't explain this well because it doesn't
expressly address whether the federal private analogue exception is also
incorporated into Nevada's statutes. But then again, as a case arising in
medical malpractice, Martinez didn't involve any kind of law enforcement
activity, so there wasn't any reason for the court to gratuitously discuss or
adopt a test that had nothing to do with the case at hand. For the kind of
malpractice suit at stake in Martinez, the discretionary function exception
was all that was needed.
But for the kind of lawsuit we have here, it's the wrong place to
start. It seems to me that the questions raised by this appeal are these:
whether this is an action in general negligence, or rather, an action
involving a "law enforcement" activity; and, if the latter, whether Nevada
did, or ought to, adopt the federal private analogue test to analyze whether
the state is immune from suit for injuries arising from those actions.
Martinez doesn't answer these questions one way or the other. But, notably,
Nevada's waiver of sovereign immunity includes statutory language
virtually identical to the language in the FTCA that the private analogue
test derives from: like the FTCA, Nevada's waiver is designed "to
compensate victims of government negligence in circumstances like those
in which victims of private negligence would be compensated." Martinez,
123 Nev. at 444, 168 P.3d at 727 (quotation marks omitted); see 28 U.S.C.
§ 1364(b)(1). It seems self-evident to me that if the language of one statute
tracks that of the other this closely then the two statutes ought to mean
exactly the same thing, and consequently the private analogue test applies
to claims against Nevada as much as it applies to claims against the federal
government.
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Some police actions involve conduct that can easily be
committed by private citizens; for those actions, immunity has been waived
and the police can be held liable in exactly the same way that the private
actor would under state law. For example, a police department that refuses
to clean up coffee spills on its floor in a reasonable manner and thereby
causes a passerby to slip and fall has committed negligent conduct that any
private person or entity could just as easily commit. So it can be sued and,
if found negligent, must pay damages just as if the same thing happened in
a private office building or restaurant. Under Nevada tort law, the fact that
the negligence involved the police is entirely irrelevant to the legal analysis;
the legal analysis under state tort law is exactly the same whether the
conduct was committed by a police officer in a police station or by a private
innkeeper in the lobby of a hotel.
But a good number of law enforcement activities involve things
that no private person is permitted to engage in and for which there is no
private analogue. For example, police officers can trespass on private
property to chase fleeing felons without fear of trespass suits; violently kick
down doors and enter homes to execute no-knock search warrants without
being charged with the felony crime of home invasion; and violate any
number of traffic laws while responding to emergencies. Private citizens
can do none of these things, at least not without serious .legal repercussions
ensuing. There's an easy comparison to be made between a coffee spill on a
police precinct floor and a coffee spill on a private office building floor. But
there's no such comparison to be made when dealing with officers chasing
after fleeing felons, interrogating witnesses or suspects, collecting forensic
evidence from crime scenes, or negotiating for the release of hostages. Thus,
no private analogue exists for decisions that lie "at the core" of law
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enforcement activity, like how a police officer decides to investigate a crime.
Kelly, 924 F.2d at 361-62; see Doherty v. United States, 905 F. Supp. 54, 56
(D. Mass. 1995) (holding that government is immune from suit for decisions
on how and when to seek a search warrant). Those actions involves things
that police officers can do and private actors cannot and for which the
government has not waived immunity and cannot be found liable under
state negligence law.
Applying these principles to the case at hand, the question
becomes this: is there a private analogue for the law enforcement conduct
targeted by this lawsuit? If the answer is no, then sovereign immunity has
not been waived, we lack subject-matter jurisdiction over the allegations,
and this case cannot proceed. Jurisdiction exists only if the answer is yes. 2
V.
The crux of this lawsuit alleges that, while responding to an
emergency call of "shots fired," Sergeant Cargile sped through a red light
and entered an intersection without using his sirens to warn other drivers
in violation of police policy. Glover-Armont happened to be entering the
intersection perpendicularly on a green light and the two cars crashed.
From these factual allegations, Glover-Armont specifically identifies four
claims for relief: (1) negligence arising from Cargile's failure to use lights
and sirens when entering a busy intersection against a red traffic light;
2Adding to the complexity is that the federal circuit courts of appeal
have split in various different ways in how the "private analogue" test
should be applied to various types of conduct. See Stanton R. Gallego, Note,
An Examination of the Federal Tort Claims Act's "Private Person" Standard
as It Applies to Federal Law Enforcement Activities, 76 Brooklyn L. Rev.
775, 788-801 (2011) (discussing circuit split). Fortunately, however, the
facts of this case fall so clearly within the area of uniquely governmental
law enforcement activity having no private analogue that the federal circuit
split doesn't matter much.
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(2) failure to exercise due care while driving; (3) negligent supervision and
hiring by the police department; and (4) negligent entrustment of a police
vehicle to Cargile.
I would analyze these claims for relief as follows. I agree with
my colleagues in their conclusions about the third and fourth claims,
although I would analyze them somewhat differently. They both seem to
me to have simple and straightforward private analogues, involving the
exercise of ordinary care in situations not unique to law enforcement. Police
departments must exercise as much reasonable diligence when hiring,
training, and supervising employees and entrusting them to drive
employer-owned vehicles as does any private employer. Accordingly,
sovereign immunity has been generally waived for these claims, and the
next question is whether the targeted conduct involves the exercise of
discretion under the "discretionary function" exception to the general
waiver. I agree with my colleagues here. From what I see in the record,
though, I harbor serious doubts whether Glover-Armont can ultimately
prevail on the merits of these claims. For starters, the doctrine of "negligent
entrustment of a motor vehicle" operates to impose liability upon one who
"knowingly entrusts a vehicle to an inexperienced or incompetent person,
such as a minor child unlicensed to drive a motor vehicle." Zugel v. Miller,
100 Nev. 525, 527, 688 P.2d 310, 312 (1984). I have trouble seeing how that
could possibly apply to letting a police officer drive his assigned police
cruiser on duty. But the merits of those claims are not presently before us.
In the end, whether Glover-Armont can ultimately prevail on those claims
or not, I agree that the State is not sovereignly immune from her efforts to
try.
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I diverge from my colleagues, however, with respect to the first
and second claims. I would conclude that there is no private analogue for
these claims, and therefore no need exists to even address whether the
discretionary function exception applies. The State is simply immune
whether it engaged in a discretionary function or not.
On appeal, Glover-Armont characterizes her claims as arising
from a simple car crash that could have involved anyone, police or not. But
her own factual allegations undermine her argument. Some car crashes
involving police vehicles have straightforward private analogues: suppose a
police car, not responding to an emergency, carelessly veers through a
crosswalk and injures a pedestrian. In that event, the police car should be
subject to the same principles of liability that apply to any private citizen
because the scenario involves the kind of simple negligence that anyone can
commit regardless of whether the vehicle in question was a police cruiser or
a family station wagon.
But as detailed by Glover-Armont's complaint, summary
judgment evidence, and briefing both below and on appeal, this case isn't so
simple. The act that Glover-Armont specifically identifies as having been
negligent is not simply that Sergeant Cargile drove carelessly in some way
that any private actor could have. It's considerably more specific than that:
it's that Cargile raced at high speed through an intersection against a red
light without activating police warning sirens to clear civilians out of the
way as police department policy specifically required. This is wholly unlike
anything that a private citizen can do. Private actors can't legally speed on
public roads (except to avoid some kind of imminent danger to them, not
present here). They can't legally enter intersections against red lights
(again, except to avoid some kind of imminent danger not present here).
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They don't have, and can't legally ever use, police lights• and sirens in any
shape or form. They aren't governed by police department policies, or any
civilian analogue thereto, regarding the use of police lights and sirens in
traffic. They don't have to make split-second decisions on the best way to
quickly get to the scene of an active shooting before the victim dies or the
criminal escapes. There is no private analogue of any sort for the negligence
alleged here. Consequently, I would conclude that no private analogue
exists for the negligence that Glover-Armont alleges in her first and second
claims for relief, and sovereign immunity has not been waived for these
claims to proceed.
VI.
Glover-Armont nonetheless argues that because a specific
Nevada statute (NRS 484B.700) requires police officers to act with due care,
then the Legislature must have intended to allow them to be sued when
they do not, effectively creating an implied waiver to thefl larger rule of
sovereign immunity. But that's too broad. There's no reason to read the
two doctrines as necessarily being in tension with each other; indeed, when
examining statutes, we're supposed to do the opposite and read them in
harmony whenever possible. See Antonin Scalia & Bryan A. Garner,
Reading Law: The Interpretation of Legal Texts 180 (2012) (Statutes should
be "interpreted in a way that renders them compatible, not contradictory.").
Here, the two statutes work together and complement each other quite
nicely. A police officer can violate NRS 484B.700 in a way that lends itself
to a private analogue under NRS 41.031(1). But a police officer can also
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violate NRS 484B.700 in a way that has no private analogue under NRS
41.031(1). When the former happens, NRS 484B.700 permits a lawsuit
against the government. When the latter happens, NRS 41.031(1) prohibits
a lawsuit against the government. It's that simple, and there's no need to
labor for anything more elaborate.
VII.
For these reasons, I join my colleagues in remanding the third
and fourth claims for relief, but would affirm the district court's grant of
summary judgment with respect to Glover-Armont's first and second claims
for relief
J.
Tao
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