Harrigan v. City of Reno

• Decision Date: 08 October 1970
• Docket Number: No. 6121,6121
• Citation: 86 Nev. 678,475 P.2d 94
• Parties: Nellie J. HARRIGAN, Appellant, v. CITY OF RENO, Respondent.
• Court: Nevada Supreme Court

Page 94

475 P.2d 94

86 Nev. 678

Nellie J. HARRIGAN, Appellant, v. CITY OF RENO, Respondent.

No. 6121.

Supreme Court of Nevada.

Oct. 8, 1970.

Rehearing Denied Nov. 9, 1970.

Erickson & Thorpe, Reno, for appellant.

Clinton E. Wooster, Reno City Atty., Leslie A. Leggett, Reno, for respondent.

OPINION

ZENOFF, Justice.

Nellie J. Harrigan appeals from an order granting summary judgment which had the effect of releasing the City of Reno from any responsibility for her injuries which occurred on the municipal parking lot adjacent to the city hall in Reno.

She purchased a parking ticket but it blew out of her car as she placed it on the dashboard. It landed near the edge of the lot close to a drop-off of several feet. No guardrail existed to protect people, nor were there any signs to warn them about the edge, although bumper strips and a six-inch concrete retaining wall had been placed along the edge of the drop-off. When Mrs. Harrigan, who was 74 years old at the time, bent over to pick up her ticket near the front wheel of a car parked by the dropoff a gust of wind blew her over the edge, resulting in injuries.

The city moved for summary judgment, claiming immunity on the ground that failure to put up a guardrail or warn of the dropoff was an act of discretion for which the city was exempted from liability. While NRS 41.031 constitutes waiver of sovereign immunity by the state, its agencies and political subdivisions, the succeeding section recites an exception if the act complained of is part of the discretionary functions of government for which the government does not waive the immunity. NRS 41.032 reads 'No action may be brought under NRS 41.031 or against the employee which is: * * * (2) Based upon the exercise or performance or the failure to exercise or perform a discretionary function or duty on the part of the state or any of its agencies or political subdivisions or of any employee of any of these, whether or not the discretion involved is abused.' The issue then is whether the city can be sued at all.

1. The question concerns the legal significance of the waiver of sovereign immunity as it applies to a municipality that voluntarily provides a parking lot, although under no obligation to do so.

We eliminate first the concept that the government is amenable to lawsuits when it is engaged in a proprietary capacity. That doctrine was applied in Town of Douglas v. York, 445 P.2d 760 (Wyo. 1968); Stringfield v. City of Hackensack, 68 N.J.Super. 38, 171 A.2d 361 (1961); Zaras v. City of Findlay, 112 Ohio App. 367, 176 N.E.2d 451 (1960), and Rhodes v. City of Palo Alto, 100 Cal.App.2d 336, 223 P.2d 639 (1950), but the tort liability act was not a consideration in those cases. The result we reach, however, is based upon the involvement of tort liability and waiver of immunity by a sovereign. The governmental-proprietary test no longer applies.

The principle that municipalities are subject to liability is a departure from the historical doctrine of sovereign immunity. The purpose of the waiver of immunity statute was to compensate victims of government negligence in circumstances like those in which victims of private negligence would be compensated. Indian Towing Co., Inc. v. United States, 350 U.S. 61, 65--69, 76 S.Ct. 122, 100 L.Ed. 48 (1955).

In determining whether this is a proper case for departure from governmental immunity we must first ask what the act of the city was. The answer is, that it built a parking lot. The city need not have constructed the parking lot because that was an exercise of discretion based upon policy, that is, whether or not the municipality would provide a public parking facility adjacent to its city hall for the convenience of the people. Its decision to do so was a policy, or discretionary, decision. Once having decided to construct a parking lot the city was obligated to use due care to make certain that the parking lot met the standard of reasonable safety for those who would use it. Such was the operational stage for which the statute does not exempt the city from liability if due care has not been used and an injury is caused.

Counsel for respondent refers to Pardini v. City of Reno, 50 Nev. 392, 263 P. 768 (1928), as authority for his position that the failure to install a guardrail was a planning decision which was, in turn, a matter of discretion. A part of Chief Justice Sanders' opinion, at page 400, 263 P. 768, implies this, but the matter is clarified at page 401, 263 P. at page 771: '(W)here a railing or barrier is reasonably necessary for the security of travelers on the street, which from its nature would otherwise be unsafe, and the erection of which would have prevented the injury, it is actionable negligence not to construct and maintain such railing or barrier.' Nor was possible liability in Pardini v. City of Reno, supra, predicated on the city's failure to construct a guardrail in accordance with the plan, as was implied, but on its failure to construct one at all. Like the decision of the City of Reno in the instant case, the failure of the City of Reno to construct the guardrail in Pardini v. City of Reno, supra, came at the operational state, after the discretionary decision to construct the roadway at that location had been made.

Nevada's discretionary exception provision is identical to that of the Federal Tort Claims Act, 28 U.S.C., Section 2680(a) (1965). Federal courts distinguish the policy stage, where the discretionary exception applies, from the actual construction and...