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.
& 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
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., TAO and GIBBONS, JJ.
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
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
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.
AND PROCEDURAL HISTORY
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.
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
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
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.
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.
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
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
primary issue raised in this appeal is whether
discretionary-act immunity, a qualified immunity, provided
North Las Vegas with an affirmative defense to
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.
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
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.
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 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.
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).
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.
484B. 700 does not confer discretion.
contends that the duty to comply with NRS 484B.700's
requirements is not discretionary. We agree.
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
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).
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