ANDOLINO v. STATE

Citation Codes

Equivalent Citations

citation codes

Docket Number

No. 12086

Attorney(S)

Paul H. Schofield, Las Vegas, for Appellants. Richard H. Bryan, Attorney General, Joe E. Colvin, Deputy Attorney General, Carson City; Michael Kaplan, Deputy Attorney General, Las Vegas; Charles H. Wagner, Las Vegas, for Respondents.

See more information ...

Smart Summary

Factual and Procedural Background

Appellants Sam and Marie Andolino filed a negligence lawsuit against the State of Nevada, the Department of Highways, the Nevada Highway Patrol, the Metropolitan Police Department, the City of Las Vegas, and Clark County. The lawsuit arose from injuries sustained during a 1974 snowstorm when the appellants' car lost control on a snow- and ice-covered offramp leading to downtown Las Vegas. The district court granted summary judgment for all defendants, holding they were immune from suit due to their discretionary acts under NRS 41.032(2). The appellants appealed this decision.

Legal Issues Presented

Whether the State of Nevada and the Department of Highways are immune from suit under the doctrine of sovereign immunity for alleged negligence in maintaining hazardous highway conditions.
Whether the Nevada Highway Patrol, Metropolitan Police Department, City of Las Vegas, and Clark County owed a duty to maintain the highway and are thus liable for negligence.
Whether the acts of deciding which areas of the freeway to plow constitute discretionary (immune) or operational (non-immune) functions under NRS 41.032(2).

Arguments of the Parties

The opinion does not contain a detailed account of the parties' legal arguments.

Table of Precedents Cited

Precedent	Rule or Principle Cited For	Application by the Court
State v. Kallio, 92 Nev. 665, 557 P.2d 705 (1976)	State's affirmative duty to keep highways reasonably safe for travelers.	Established the state's duty to maintain safe highways, supporting plaintiff's claim against the State and Department of Highways for negligence.
State v. Webster, 88 Nev. 690, 504 P.2d 1316 (1972)	Distinction between policy decisions (immune) and operational acts (non-immune) regarding highway construction and maintenance.	Supported the court's view that decisions about plowing specific freeway areas are operational acts, thus not immune from suit.
Harrigan v. City of Reno, 86 Nev. 678, 475 P.2d 94 (1970)	Negligence as a question of fact precluding summary judgment.	Indicated that whether defendants acted negligently is a factual question unsuitable for summary judgment, supporting reversal for State and Department of Highways.
LaFever v. City of Sparks, 88 Nev. 282, 496 P.2d 750 (1972)	Voluntary assumption of maintenance duty by a governmental agency is discretionary and immune from liability.	Supported affirmance of summary judgment for Nevada Highway Patrol, Metropolitan Police Department, City of Las Vegas, and Clark County due to lack of duty and discretionary nature of their actions.

Court's Reasoning and Analysis

The court analyzed the application of sovereign immunity under Nevada Revised Statutes (NRS) 41.031 and 41.032(2). It recognized that the State and the Department of Highways have an affirmative duty to maintain highways safely, a duty grounded in statute and precedent (State v. Kallio). The court distinguished between policy decisions, which are immune, and operational acts, which are not. Applying State v. Webster, it found that decisions about which freeway areas to plow are operational acts subject to potential negligence liability. Thus, sovereign immunity does not shield the State and the Department of Highways from suit for alleged negligent maintenance.

Conversely, the Nevada Highway Patrol, Metropolitan Police Department, City of Las Vegas, and Clark County had no statutory duty to maintain the highway. Their voluntary assumption of maintenance duties constituted discretionary acts, which remain immune from liability under NRS 41.032(2) and LaFever v. City of Sparks. Accordingly, summary judgment was proper as to these defendants.

The court emphasized that whether negligence occurred is a question of fact, making summary judgment inappropriate for the State and Department of Highways.

Holding and Implications

The court REVERSED the summary judgment in favor of the State of Nevada and the Department of Highways, holding that sovereign immunity does not bar claims based on operational acts of highway maintenance. It AFFIRMED the summary judgment for the Nevada Highway Patrol, Metropolitan Police Department, City of Las Vegas, and Clark County because they owed no duty to maintain the highway and their actions were discretionary and thus immune.

The case was remanded for further proceedings against the State and the Department of Highways. This decision clarifies the boundary between discretionary and operational acts in the context of sovereign immunity but does not establish new precedent beyond the application of existing statutes and case law. The direct effect is to allow the appellants to proceed with their negligence claims against the State and the Department of Highways while maintaining immunity for the other governmental defendants.

Show full summary ...

SAM AND MARIE ANDOLINO, APPELLANTS, v. THE STATE OF NEVADA; NEVADA HIGHWAY PATROL; DEPARTMENT OF HIGHWAYS; THE METROPOLITAN POLICE DEPARTMENT; THE CITY OF LAS VEGAS; THE COUNTY OF CLARK, ET AL., RESPONDENTS.

OPINION

Per Curiam:

Appellants Sam and Marie Andolino sued the State of Nevada, the Department of Highways, the Nevada Highway Patrol, the Metropolitan Police Department, the City of Las Vegas, and Clark County for negligence. The district court granted motions for summary judgment in favor of all defendants on the ground that they were immune from suit for their discretionary acts. NRS 41.032(2). We reverse with respect to the state and the highway department, and affirm with respect to the other defendants.

In January, 1974, a record snow storm swept the Las Vegas metropolitan area creating hazardous road conditions. Road crews were dispatched to plow the highway and aid local authorities in handling traffic congestion. The majority of Interstate 15, the main north-south freeway through Las Vegas, was open to travelers. However, the offramp leading to downtown Las Vegas was covered with snow and ice. Plaintiffs were injured when their car entered the offramp, spun out of control, and collided with a guardrail.

The state owes an affirmative duty to keep the highways reasonably safe for the traveling public. State v. Kallio, 92 Nev. 665, 557 P.2d 705 (1976). At the time of the alleged accident, the duty to maintain the highways fell upon the Department of Highways pursuant to NRS 481.027. The doctrine of sovereign immunity does not bar plaintiff's claim that the state and the highway department acted negligently in maintaining the highway. The State of Nevada has waived its sovereign immunity by the enactment of NRS 41.031. It may be sued for operational acts, but maintains immunity for policy or discretionary ones, NRS 41.032(2). We have held that the initial decision to construct a highway is a policy determination, but subsequent decisions or actions to maintain that highway safely are operational ones. State v. Webster, 88 Nev. 690, 504 P.2d 1316 (1972). The decision regarding which areas of the freeway to plow was an operational one. Id. The state cannot claim immunity for the negligent performance of operational acts, NRS 41.032(2). Whether or not these defendants acted negligently is a question of fact. See Harrigan v. City of Reno, 86 Nev. 678, 475 P.2d 94 (1970). Summary judgment in favor of the State of Nevada and the Department of Highways was improper.

NRS 481.027 prior to its amendment provided: "It is intended by this section that the Department of Highways shall retain its control over the physical aspects of the public highways."

NRS 41.031 provides: "The State of Nevada hereby waives its immunity from liability and action and hereby consents to have its liability determined in accordance with the same rules of law as are applied to civil actions against natural persons . . ."

NRS 41.032(2) provides: "No action may be brought . . . which is based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty . . ."

We express no opinion as to whether or not the alleged acts constitute negligence.

By contrast, the Nevada Highway Patrol, Metro Police Department, City of Las Vegas, and County of Clark owed no duty to maintain the highway. NRS 481.027. When the duty to maintain is placed upon one governmental agency, any action by another agency to assume voluntarily the burden of maintenance is discretionary and therefore precludes liability. NRS 41.032(2); LaFever v. City of Sparks, 88 Nev. 282, 496 P.2d 750 (1972). Thus with respect to these defendants, summary judgment was proper.

We affirm summary judgment with respect to the Nevada Highway Patrol, Metropolitan Police Department, City of Las Vegas, and County of Clark. Because the decision regarding which areas of the freeway to plow was an operational one, the doctrine of sovereign immunity does not bar suit with respect to the State of Nevada and the Department of Highways. The order granting summary judgment in favor of these parties is therefore reversed, and the case is remanded for further proceedings.

GUNDERSON, C.J., and MANOUKIAN, BATJER, and MOWBRAY, JJ., and FONDI, D.J., concur.

The Governor designated The Honorable Michael E. Fondi, District Judge, to sit in the place of THE HONORABLE GORDON THOMPSON, Justice. Nev. Const. art. 6, § 4.