Parker v. Mineral County , 102 Nev. 593 ( 1986 )

Springer, J.,

dissenting:

The facts which we must deal with in this appeal are stated in the complaint.¹

Mr. Miller reported to the Mineral County Sheriff’s Department Mr. Parker’s location and the fact that he was in distress and needed assistance. Mr. Miller was informed that the matter would be taken care of. In reliance on said representation, Mr. Miller made no effort to further assist Mr. Parker. Said representations, in fact, were false and the Mineral County Sheriff’s Department made no effort to assist Mr. Parker and further made no record of Mr. Parker’s location or apparent distress in the log of the Mineral County Sheriff’s Department.

What we have before us, then, is a case in which a passerby, Mr. Miller, came across an ailing Mr. Parker in the desert, down and in obvious need of assistance. Mr. Miller notified a sheriff’s deputy of Mr. Parker’s perilous condition. The deputy promised that “the matter would be taken care of,” that is, that someone would go to Mr. Parker’s aid. This promise effectively prevented Mr. Miller or anyone else from going to Mr. Parker’s rescue. Mr. Parker died as a result of the officers’ failure to carry out the responsibility that was undertaken when the promise to rescue Mr. Parker was made.

Mr. Parker was an old man, and the cause of his death is uncertain, except that it was caused by exposure which could have been prevented by a proper response to Miller’s reports.

The majority opinion is based on its holding that, as a matter of law, the official decision not to rescue Parker was discretionary, which is to say volitional and deliberate, with the deputies’ consciously “deciding not to respond to Miller’s report.” The majority view is that the officers made an election to leave Mr. Parker lying in the desert and exercised “their personal judgment as to how their limited resources should be utilized.” Mr. Parker’s life vs. scarce resources: conservation of scarce resources wins. There were not enough resources to go after Mr. Parker even after the officer said that “it would be taken care of;” so they left him on the desert.

In deciding not to rescue Mr. Parker, the majority believes that “the county officials performed a discretionary function in deciding not to respond to Miller’s report.” I wonder what the Mineral County Sheriff will think when he reads in the majority opinion that his office made a deliberate, discretionary, judgment call not to rescue an old man, down in the desert and in need of help, because of the “limited resources” available to his office. My guess is that the sheriff will be shocked. It would seem to me more than probable that a deliberate, discretionary, penurious judgment was not made by the sheriff’s deputy “in deciding not to respond,” but rather, that the failure was an unfortunate operational oversight for which his office may or may not be liable, depending on how the facts might be presented at trial.

One’s sense of justice would dictate that when a public safety officer promises to give specific aid and fails to do so, the office must answer in law for that failure. Case law so holds. See, e.g., Chambers-Castenes v. King County, 669 P.2d 451 (Wash. 1983) (decision of whether to dispatch an officer to the scene of a crime is operational, because it involves the type of decision made at an everyday operational level).

I also read in the majority opinion that the county in this case assumed no special duty toward Parker when its officers represented to Miller that they would take care of it because “Parker never communicated with any county official, nor did he rely on the representation” made by the deputy. To fortify this point the majority opinion goes on to note also that the sheriff’s office did nothing which “precluded others from assisting Parker.”

As I understand the majority opinion, then, there can be no legal liability in this case, as a matter of law, for these stated reasons:

1. The official acts were “discretionary” and therefore not actionable because: “Limited resources” justified the public officers in making a conscious, deliberate, discretionary decision not to go to the rescue of Parker after they had committed themselves to do so.

2. The officers owed no duty of rescue to Parker because:

a. They did not prevent any one else from helping him.

b. Parker himself never asked for help.

c. Parker was not aware of Miller’s attempts to get help for him or of the officer’s commitment to come to his aid.

From this kind of reasoning I dissent. I think there ought at least to be a trial in this case.

1 The majority “note[s] however” a contradictory version of the facts which it takes from a deposition that I do not find in this record. I am correct in assuming for the purpose of this appeal that Mr. Parker died in the desert of exposure during Mr. Miller’s expectation that the “matter would be taken care of.”