Asap Storage, Inc. v. City of Sparks
| Decision Date | 27 December 2007 |
| Docket Number | No. 45756.,45756. |
| Citation | 173 P.3d 734 |
| Parties | ASAP STORAGE, INC., d/b/a Quickspace; J & J Mechanical, Inc., A Nevada Corporation; Sierra Digital, Inc., A Nevada Corporation; Incline Glass, Inc., A Nevada Corporation; McBride Machine, Inc., A Nevada Corporation; Fundis Company, A Nevada Corporation; Nevcal Transportation Services, Inc., A Nevada Corporation; and F & M Properties, A Partnership, Appellants, v. The CITY OF SPARKS, Respondent. |
| Court | Nevada Supreme Court |
Calvin R.X. Dunlap and Associates and Monique Laxalt and Calvin R.X. Dunlap, Reno, for Appellants.
Stanley H. Brown Jr., Reno; Chester H. Adams, City Attorney, Sparks, for Respondent.
BEFORE THE COURT EN BANC.
This appeal arises from a storm-induced flood that occurred in Sparks, Nevada, on January 1, 1997. During the storm, respondent City of Sparks (the City) evacuated appellants' businesses, barricaded the street entrance to their businesses, and denied them access to their businesses. Consequently, appellants were unable to remove their property before the flood waters destroyed it. Appellants contend that they could have saved their property if the City had allowed them access to their businesses.
Three main issues are raised on appeal. First, we consider whether appellants produced sufficient evidence in support of their takings claim under Article 1, Section 8 of the Nevada Constitution. In analyzing their takings claim, we undertake two distinct sub-inquiries: (a) whether appellants' real and personal property constitutes "private property" under the Nevada Constitution, and (b) whether the City's actions that denied appellants access to their businesses constituted a "taking" under the terms of the Nevada Constitution. With respect to these sub-inquiries, we conclude that (a) appellants' real and personal property constitute private property under the Nevada Constitution, and (b) the City's erection of a barricade was only a temporary interference with appellants' property rights and did not rise to the level of a taking. Thus, the district court properly granted summary judgment to the City on appellants' Article 1, Section 8 takings claim.
Second, we consider whether appellants produced sufficient evidence to support their tort claims and to defeat summary judgment. When analyzing appellants' tort claims, we again undertake two distinct sub-inquiries: (a) whether NRS 414.110 provides the City with immunity for pre-emergency negligence, gross negligence, or willful misconduct; and (b) whether NRS 414.110 provides the City with immunity for negligence, gross negligence, or willful misconduct during emergency management activities. We conclude that NRS Chapter 414 facially immunizes the City from liability for acts that constitute either preparing for an emergency or carrying out emergency functions. In reaching this conclusion, we overrule, in part, our previous holdings in Nylund v. Carson City1 and Vermef v. City of Boulder City,2 which determined that immunity for pre-emergency negligence turned on whether this negligence exacerbated damages that resulted from negligent emergency management. Instead, pre-emergency immunity depends on whether the government acts were undertaken in preparation for an emergency. As neither the parties nor the district court had the opportunity to consider the City's pre-emergency activities under the proper statutory framework, we reverse that portion of the district court's order relating to pre-emergency activities and remand for further proceedings.
We also conclude that although NRS 414.110(1) plainly immunizes the City from tort liability for activities related to emergency preparation and its actions in handling emergencies, the statute contains a latent ambiguity, as it does not immunize city workers' acts of gross negligence, intentional misconduct, or bad faith. This discrepancy may subject the City to vicarious liability for its workers' non-immunized acts. We need not reach this issue, however, because, in its answer and summary judgment motion, the City also relied on discretionary-function immunity under NRS 41.032(2). In rendering summary judgment on the City's liability for its activities related to emergency management, the district court relied solely on NRS 414.110(1) and did not consider the application of NRS 41.032(2). Immunity under this provision should be considered, however, because it may render moot the issue of the City's potential vicarious liability. Thus, on remand, the district court is instructed to analyze immunity under NRS 41.032(2).
Third, with respect to whether appellant ASAP Storage, Inc., produced sufficient evidence to create a genuine issue of material fact in support of its breach-of-contract claim, the district court's order granting summary judgment did not "set forth the undisputed material facts and legal determinations" regarding ASAP Storage's breach-of-contract claim as required by NRCP 56(c). Accordingly, we reverse the portion of the district court's order relating to this claim. On remand, should the district court conclude that summary judgment is warranted on this claim, then it must set forth the information necessary under NRCP 56(c).
Appellants are six business owners with properties located in an industrial area in Sparks, Nevada. During a flood on January 1, 1997, appellants suffered damage to their real and personal property.
Before that flood, the City took four actions that are relevant to appellants' case. First, the City approved Sierra Chemical's special use application to store hazardous materials, "hazmat," in the City's industrial area. This industrial area lies in a known flood plain. At the time the City approved the hazmat sites, it understood that if flooding occurred, the sites could contaminate the surrounding area. Second, the City lowered the elevation of a bridge that was adjacent to a levee that protected the industrial area. Due to the bridge's lower elevation, high flood waters could more easily breach the levee and enter the industrial area. Third, the City required ASAP Storage to install a sunken drain in the middle of the industrial area. During the flood, waters entering the drain system overflowed into the industrial area, possibly aggravating the effects of the flood. Fourth, and finally, the City required ASAP Storage to accept a flood evacuation plan as a condition of receiving its business permit. Ultimately, the City precluded ASAP Storage from entering its property to implement the evacuation plan. ASAP Storage claims that it could have saved its personal property if the City had fulfilled its contractual obligations under the evacuation plan.
One day before the flood, the City Manager rejected a proposal to set up an emergency command center, even though the City expected flooding. The City Manager did so knowing of the potential danger for the release of toxic materials in the industrial area if that area flooded. On the day of the flood, but before flooding began, the City Manager declared a state of emergency and ordered that parts of the city, including the industrial area, be evacuated and barricaded. During the evacuation, the City did not permit ASAP Storage to evacuate according to the previously accepted evacuation plan. Because the City barred them from their businesses, appellants could not remove their personal property before the flood reached it. As a result, the flood waters damaged their personal property. The City allowed appellants to re-enter their properties after barricading the industrial area for approximately 48 hours.
Thereafter, appellants sued the City for (1) negligence, gross negligence, and willful misconduct (both before and during the flood) and (2) a violation of Article 1, Section 8, Clause 6 of the Nevada Constitution (the takings clause). ASAP Storage also sued the City for breach of contract arising from the City's failure to allow ASAP Storage to implement its city-mandated evacuation plan. The City moved for summary judgment, arguing that it was immune from liability under NRS Chapter 414 (Nevada's Emergency Management Act). The district court granted the City summary judgment, concluding that the City was immune from suit and that no taking had occurred. This appeal followed.
This court reviews de novo an order granting summary judgment.3 As this court has previously recognized, "[s]ummary judgment is appropriate and `shall be rendered forthwith' when 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.'"4 Statutory interpretation is a question of law and is also reviewed de novo.5
The City is not obligated to compensate appellants under Article 1, Section 8, Clause 6 of the Nevada Constitution
Appellants claim that the City's temporary evacuation and barricading of the industrial area during a time of great public peril constituted a taking of private property for public use under the takings clause of the Nevada Constitution. Therefore, they further argue that the City must pay them just compensation for their property that was damaged during the flood. Because no taking occurred, we disagree.
The Nevada Constitution states that "[p]rivate property shall not be taken for public use without just compensation having been first made, or secured, except in cases of war, riot, fire, or great public peril, in which case compensation shall be afterward made."6 Since that provision, by its terms, applies only to private property, our inquiry begins with whether appellants' property that was allegedly taken by the City constitutes private property under the Nevada Constitution.
The "private property" requirement
Real property satisfies the "private property" requirement
The term "private property" requires that an individual have a property interest in order to...
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