LAUREN A. COTY, Individually and as Special Administratrix of the Estate of MARK L. COTY and CARL R. BLINCOE and PAMELA J. SIZEMORE, as Guardians Ad Litem of ALEXANDER R. BLINCOE, a Minor, and CARL R. BLINCOE, Appellants, v. WASHOE COUNTY, WASHOE COUNTY SHERIFF'S DEPARTMENT, GREGG LUBBE, DANIEL L. CAVALLO and NICK P. BUGANSKI, Respondents
Coty v. Washoe County
Steffen and Young, JJ., concur.
LAUREN A. COTY, Individually and as Special Administratrix of the Estate of MARK L. COTY and CARL R. BLINCOE and PAMELA J. SIZEMORE, as Guardians Ad Litem of ALEXANDER R. BLINCOE, a Minor, and CARL R. BLINCOE, Appellants, v. WASHOE COUNTY, WASHOE COUNTY SHERIFF’S DEPARTMENT, GREGG LUBBE, DANIEL L. CAVALLO and NICK P. BUGANSKI, Respondents.
LAUREN A. COTY, Individually and as Special Administratrix of the Estate of MARK L. COTY and CARL R. BLINCOE and PAMELA J. SIZEMORE, as Guardians Ad Litem of ALEXANDER R. BLINCOE, a Minor, and CARL R. BLINCOE, Appellants, v. WASHOE COUNTY, WASHOE COUNTY SHERIFF’S DEPARTMENT, GREGG LUBBE, DANIEL L. CAVALLO and NICK P. BUGANSKI, Respondents.
No. 22108
September 3, 1992
839 P.2d 97
Petersen & Petersen, Reno, Bradley & Drendel, Reno, for Appellants.
Dorothy Nash Holmes, District Attorney, Edward Dannan, Chief Deputy District Attorney, and Chester H. Adams, Deputy District Attorney; Margo Piscevich, Reno; Nick P. Buganski, In Proper Person, Sparks, for Respondents.
OPINION
By the Court,
Mowbray, C. J.:
The sole issue on appeal is whether the appellants have set forth facts sufficient to sustain a wrongful death action by asserting that a deputy sheriff "affirmatively caused" their harm, pursuant to NRS 41.0336(2), in detaining, but not arresting, an intoxicated driver. We conclude they have not.
THE FACTS
On April 14, 1990, during the Easter holiday weekend, Jamie Ray Anderson ("Anderson"), age 19, was driving his 1972 Firebird automobile in a southerly direction on Pyramid Lake Highway. At approximately 8:00 p.m., Deputy Gregg Lubbe ("Deputy Lubbe"), a deputy sheriff for Washoe County, observed Anderson driving at an excessive rate of speed and pulled him over. Thereafter, Deputy Lubbe determined that Anderson had been drinking and administered a field sobriety test, which Anderson failed. Deputy Lubbe did not arrest Anderson for drunk driving. Instead, Anderson was cited for speeding and Deputy Lubbe ordered him to park his car along the side of the road. Meanwhile, Deputy Lubbe made a radio request that Anderson's mother be contacted to arrange for Anderson's transportation from the area. The Washoe County Sheriff's Department reached Anderson's mother by telephone and requested that she come to the scene and drive him home. Deputy Lubbe left the scene once arrangements for Anderson's ride home had been confirmed. Subsequently, Anderson resumed driving in violation of Deputy Lubbe's order.
At approximately 8:30 p.m., Alexander R. Blincoe ("Blin-coe") and Mark L. Coty ("Coty"), both age 16, were traveling in a northerly direction on Pyramid Lake Highway, about 24 miles north of Sparks. Blincoe was driving a 1959 MGA automobile and Coty was a passenger. Anderson's car streamed into the oncoming lane of traffic and collided with Blincoe's vehicle. As a consequence, Anderson and Coty died.
Representatives of the Coty and Blincoe families (collectively referred to as "appellants") brought separate actions against Washoe County, the Washoe County Sheriff's Department and Deputy Lubbe (collectively referred to as "Washoe County"), which were subsequently consolidated. Washoe County moved to dismiss the action, pursuant to NRCP 12(b)(5), on the ground that no special legal duty was owed to the appellants. The appellants sought to convert the NRCP 12(b)(5) motion to a NRCP 56 motion for summary judgment, pursuant to NRCP 12(c). The district court did not specifically rule on the appellants' motion. However, in entering judgment in favor of Washoe County, the district court clearly considered matters outside the appellants' complaints.
DISCUSSION
We will treat the district court order as a summary judgment because the district judge considered matters outside the pleadings in granting the NRCP 12(b)(5) motion to dismiss. See Pasco Builders, Inc. v. Hebard, 83 Nev. 165, 169-70, 426 P.2d 731, 734 (1967) (citations omitted). Summary judgment is appropriate where there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. See American Federal Savings v. Washoe County, 106 Nev. 869, 871, 802 P.2d 1270, 1272 (1990) (citing NRCP 56(c); Levin v. Wheatherstone Condominium Corp., 106 Nev. 307, 309, 791 P.2d 450, 451 (1990)).
In Frye v. Clark County, 97 Nev. 632, 637 P.2d 1215 (1981), we held that a fire department is not generally liable to individuals because "the duty to fight fires 'runs to all citizens and is to protect the safety and well-being of the public at large.' " Id. at 633, 637 P.2d at 1216 (quoting Bruttomesso v. Las Vegas Met. Police, 95 Nev. 151, 153, 591 P.2d 254, 255 (1979)). Therefore, the duty of fire and police departments "is one owed to the public, but not to individuals." Frye, 97 Nev. at 633, 637 P.2d at 1216 (citations omitted). This rule is often referred to as the public duty doctrine.
Our decision in Frye recognized the following exceptions to the public duty doctrine: (1) where a public agent, acting within the scope of official conduct, assumes a special duty by creating specific reliance on the part of certain individuals; or (2) where a public officer's conduct 'affirmatively causes" harm to an individual. Frye, 97 Nev. at 634, 637 P.2d at 1216 (emphasis added). These exceptions were codified in 1987 in NRS 41.0336.
The phrase "affirmatively caused the harm" is not defined in NRS 41.0336. However, "affirmatively caused" has been defined as an act creating a dangerous situation which leads directly to the injurious result. Hennes v. Patterson, 443 N.W.2d 198, 203 (Minn.Ct.App. 1989) (defining affirmative causation pursuant to Minn. Stat. Ann. § 3.736, subd. 3(d) (West 1982)). In negligence situations, "legal cause" is determined when "the actor's negligent conduct actively and continuously operate[s] to bring about harm to another." Restatement (Second) of Torts § 439 (1964). We conclude that "affirmatively caused the harm," as used in NRS 41.0336(2), means that a public officer must actively create a situation which leads directly to the damaging result. Thus, the issue is whether the facts demonstrate that Deputy Lubbe was the active and direct cause of the harm to the appellants.
Once Deputy Lubbe determined that Anderson was legally intoxicated, he ordered Anderson to park his car off the road. Deputy Lubbe then made arrangements for Anderson to be escorted home through dispatch. Anderson's ensuing departure was a violation of Washoe County law. Deputy Lubbe did not instruct Anderson to continue driving. Instead, Deputy Lubbe actively and directly ordered Anderson off the road. While Deputy Lubbe's actions may have been in violation of Washoe County Sheriff Departmental procedures, he was under no statutory duty to arrest Anderson.
The appellants argue that the circumstances involving Anderson and Deputy Lubbe are closely related to those in State v. Eaton, 101 Nev. 705, 710 P.2d 1370 (1985). In Eaton, the State was held liable for a Nevada highway patrolman's failure to take reasonable precautionary measures to warn oncoming motorists of the existence of a large patch of black ice on Interstate 80, between Winnemucca and Battle Mountain, which resulted in a fatal accident. The State was held liable for its failure "to exercise due care to keep its highways reasonably safe for the traveling public." Eaton, 101 Nev. at 709, 710 P.2d at 1373 (quoting State v. Kallio, 92 Nev. 665, 667, 557 P.2d 705, 706 (1976)). We further held that the State has a duty to " 'remedy a known hazardous condition on its highways or give appropriate warnings of its presence. [Citations omitted.]' " Id. However, the case at bar may be readily distinguished.
In Eaton, the trooper failed to take any precautionary measures after being at the scene of a known hazardous condition for over an hour. Thus, the trooper may well have "affirmatively caused the harm" as contemplated by NRS 41.0336(2). In the case before us, Deputy Lubbe did take precautionary measures by ordering Anderson off the road and making arrangements for his return home. It was Anderson who set the act in motion by disobeying Deputy Lubbe's order. Therefore, we cannot conclude that Deputy Lubbe was the active and direct cause of the harm to the appellants.
Accordingly, we hold that NRS 41.0336(2) precludes this action and affirm the district court order dismissing this case pursuant to NRCP 12(b)(5).
Steffen and Young, JJ., concur.
At the hearing on the motion to dismiss, counsel for the defendants stated that Deputy Lubbe left the scene to respond to another call.
NRCP 12(c) provides in pertinent part:
If, on a motion for judgment on the pleadings, matters outside the pleadings are presented to and not excluded by the court, the motion shall be treated as one for summary judgment and disposed of as provided in Rule 56, and all parties shall be given reasonable opportunity to present all material made pertinent to such a motion by Rule 56.
Prior to setting forth its finding of facts, the district court wrote:
The Court, having taken into consideration the oral arguments presented by counsel, and after reviewing and considering as true the well-pled facts in the Complaints, the pleadings, motions and all documentary evidence submitted in these proceedings to date, now finds and concludes as follows:
41.0336 Conditions and limitations on actions: Acts or omissions of firemen or law enforcement officers.
1. The fireman, officer or other person made a specific promise or representation to a natural person who relied upon the promise or representation to his detriment; or
2. The conduct of the fireman, officer or other person affirmatively caused the harm.
The provisions of this section are not intended to abrogate the principle of common law that the duty of governmental entities to provide services is a duty owed to the public, not to individual persons.
Obedience to police officers. It is unlawful for any person willfully to fail or refuse to comply with any lawful order or direction of any police officer when he is performing his duties in the enforcement of this chapter. Washoe County, Nv., Code § 70.205 (October 12, 1982).
The appellants imply that internal procedures of the Washoe County Sheriffs Department created a special duty on Deputy Lubbe to arrest Anderson once Anderson failed the field sobriety test. Although we have previously held that statutes and ordinances can create a special duty exception to the public duty doctrine, we have never held that a special duty may be created by internal procedures. See Charlie Brown Constr. Co., Inc. v. Boulder City, 106 Nev. 497, 797 P.2d 946 (1990). A review of Nevada and Washoe County laws did not reveal a statute mandating the arrest of an intoxicated driver. The dissent suggests that we adopt the clear minority view that a special duty was created by the internal departmental procedures of the Washoe County Sheriffs Office. However, internal procedures do not approach the level of statutes or ordinances, which must set forth '"mandatory acts clearly for the protection of a particular class of persons rather than the public as a whole' " in order to create a special duty. Morgan v. District of Columbia, 468 A.2d 1306, 1314 (D.C. 1983) (citations omitted). Laws creating a special duty are a matter of public record, while internal procedures are not. Moreover, we note that the parties stipulated that no liability existed pursuant to NRS 41.0336(1) because no special duty between Deputy Lubbe and the appellants could be found.
While the district court founded its decision on NRS 41.0336(2), it should be noted that the decision of whether to make an arrest is largely discretionary and NRS 41.032(2), providing immunity for discretionary acts, may well have decided this issue in the absence of NRS 41.0336(2).