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Glover-Armont v. Cargile

Court of Appeals of Nevada

July 19, 2018


          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.

          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.



          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 NRS 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 NRS 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 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.


         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 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 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.


         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.[1]

         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.

         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]

         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 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 41.032], 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 responding to an emergency, but requires the officer to "slow[ l down as may be necessary for safe operation" and to use either "(a) [a]udible 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 ...

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