FRED J. PARKER, JAMES O. PARKER, ELIZABETH RICHMOND, and SHIRLEY ANN DRAKE, Appellants, v. MINERAL COUNTY, a political subdivision of the STATE OF NEVADA, Respondent
Parker v. Mineral County
Mowbray, C. J., and Gunderson and Steffen, JJ., concur.
FRED J. PARKER, JAMES O. PARKER, ELIZABETH RICHMOND, and SHIRLEY ANN DRAKE, Appellants, v. MINERAL COUNTY, a political subdivision of the STATE OF NEVADA, Respondent.
FRED J. PARKER, JAMES O. PARKER, ELIZABETH RICHMOND, and SHIRLEY ANN DRAKE, Appellants, v. MINERAL COUNTY, a political subdivision of the STATE OF NEVADA, Respondent.
No. 14793
December 18, 1986
729 P.2d 491
Robison, Lyle, Belaustegui & Robb, Reno, for Appellants.
Allison, Brunetti, MacKenzie, Hartman, Soumbeniotis & Russell, Carson City, for Respondent.
OPINION
By the Court,
Young, J.:
This is an appeal from a summary judgment in a wrongful death action. The district court granted summary judgment to respondent Mineral County on the grounds that the county was immune from suit pursuant to NRS 41.032(2) and that the county owed no special duty to the decedent. Appellants assign these findings as error.
Between 6:30 a.m. and 8:30 a.m. on March 6, 1981, Charles Miller departed from Hawthorne to obtain a load of firewood. Approximately 15 miles south of Hawthorne, in Mineral County, Miller left the paved road and drove a short distance on the I.M.N. Mine road. There Miller observed a person, later identified as Fred F. Parker, lying beside the road. Miller asked Parker if he needed assistance and received what he believed was a negative answer. Miller continued on to his destination. On his return trip, Miller again observed Parker on the roadside. Miller asked Parker whether he needed a ride to Hawthorne and received an answer in the affirmative. Miller returned to his automobile and waited for Parker. When Parker continued to lie on the ground, however, Miller left without him.
While driving back to Hawthorne, Miller decided to report the incident to the Mineral County Sheriff's Department. Upon arriving in Hawthorne, Miller drove to the sheriff's office and informed the dispatcher on duty of the incident. Miller also informed a deputy sheriff of the incident and allegedly received the assurance that it would be taken care of.
No one from the sheriff's office responded to Miller's report, and Parker died of exposure by the roadside. Parker's heirs initiated this action alleging that the failure of the Mineral County officials to respond to Miller's report led to Parker's death.
Appellants contend that the district court erred in finding Mineral County immune from suit because the decision not to respond to Miller's report was made at the operational, rather than the discretionary, level. See NRS 41.032(2) (public officials are immune from suit based on the performance or failure to perform a discretionary function or duty); Crucil v. Carson City, 95 Nev. 583, 600 P.2d 216 (1979) (statute immunizing public officials from liability for discretionary acts did not bar a suit based upon the city's operational duty to maintain a stop sign).
Personal deliberation, decision and judgment are requirements of a discretionary act. See Board of Co. Comm'rs v. Cirac, 98 Nev. 57, 59, 639 P.2d 538, 539 (1982). In deciding not to respond to Miller's report, the county officials exercised their personal judgment as to how their limited resources should be utilized to best promote the public good. Such a decision should not be second guessed by a court with the benefit of hindsight. See Bruttomesso v. Las Vegas Met. Police, 95 Nev. 151, 591 P.2d 254 (1979). Therefore, the district court did not err in concluding that the county officials performed a discretionary function in deciding not to respond to Miller's report.
Appellants also contend that the county assumed a special duty toward Parker when its officials represented to Miller that they would take care of it. See De Long v. County of Erie, 457 N.E.2d 717 (N.Y. 1983) (county had special duty to assist woman who had requested emergency aid and had relied on representation that police officers would be dispatched). We disagree.
Parker never communicated with any county official, nor did he rely on the representation allegedly made by the sheriff's deputy. Further, there is no indication that the county's failure to act precluded others from assisting Parker or affirmatively increased the potential for harm to Parker. See Frye v. Clark County, 97 Nev. 632, 637 P.2d 1215 (1981) (fire department which responded to fire alarm by going to the wrong address owed no special duty to the individuals whose property was lost in the fire). Therefore, the county owed no special duty to Parker.
Having concluded that the district court properly granted summary judgment in favor of Mineral County, we affirm the decision of the district court.
Mowbray, C. J., and Gunderson and Steffen, JJ., concur.
In their complaint, appellants allege that Miller received assurances from the deputy sheriff that someone would respond to his report and take care of the situation. Because this matter was decided on summary judgment, we must accept this allegation as true for purposes of this review. See Pacific Pools Constr. v. McClain's Concrete, 101 Nev. 557, 559, 706 P.2d 849, 851 (1985) (appellant's factual allegations must be presumed correct on summary judgment review). We note, however, that Miller testified in a deposition that no such assurances were given by either the dispatcher or the deputy sheriff. Indeed, Miller testified that when he left the sheriff's office, he had the impression that nothing would be done. Miller also testified that the deputy sheriff informed him that he was alone on the job and could not leave town.