Moody v. Manny's Auto Repair

• Decision Date: 30 March 1994
• Docket Number: No. 22938,22938
• Citation: 110 Nev. 320,871 P.2d 935
• Parties: David MOODY, Appellant, v. MANNY'S AUTO REPAIR and Shimon Peress, Individually and Shimon Peress d/b/a Meadows Mfg. Jewelers, Inc., A Nevada Corporation, Respondents.
• Court: Nevada Supreme Court

Page 935

871 P.2d 935

110 Nev. 320

David MOODY, Appellant, v. MANNY'S AUTO REPAIR and Shimon Peress, Individually and Shimon Peress d/b/a Meadows Mfg. Jewelers, Inc., A Nevada Corporation, Respondents.

No. 22938.

Supreme Court of Nevada.

March 30, 1994.

Albert D. Massi and Patricia L. Bowling, Las Vegas, for appellant.

Thorndal, Backus, Maupin & Armstrong and Robert Groesbeck, Las Vegas, for respondent Manny's Auto Repair.

Rawlings, Olson & Cannon and Peter Angul, Las Vegas, for respondent Peress.

OPINION

ROSE, Chief Justice.

On the night of April 2, 1988, while riding his motorcycle, appellant David Moody (Moody), an on-duty police officer, turned into the entrance of a parking lot leased by respondent Manny's Auto Repair (Manny's) and owned by respondent Shimon Peress (Peress) and collided with a steel cable strung across the entrance to the parking lot. Moody filed a complaint against Manny's and Peress for injuries sustained in the collision. Peress moved for summary judgment, and after Manny's joined in the motion, the district court granted summary judgment in favor of Manny's and Peress and against Moody. We conclude that the district court erred in granting summary judgment as: (1) neither the firefighter's rule nor NRS 41.139 preclude Moody's suit for personal injuries because the event which caused Moody to be on Manny's and Peress's premises was not the event which injured Moody, and (2) there remains a genuine issue of material fact as to whether Manny's and Peress acted reasonably under the circumstances in erecting the steel cable or permitting it to be erected.

FACTS

On April 2, 1988, at approximately 10:40 p.m., Moody, an on-duty Las Vegas Metropolitan Police Officer, observed a vehicle proceed through a red traffic signal. To avoid traffic in front of him and promptly give chase, Moody turned his motorcycle into the entrance of a parking lot leased by Manny's and owned by Peress. Moody collided with a steel cable strung across the entrance to the parking lot. Moody alleges that the cable was unlit and unmarked.

On January 25, 1990, Moody filed a complaint seeking recovery for personal injuries sustained in the collision, and on April 26, 1990, Moody filed a first amended complaint substituting Peress for a Doe defendant. On July 20, 1990, Peress filed a motion to dismiss, arguing that his substitution as a Doe defendant was barred by the applicable statute of limitations. On December 21, 1990, the district court granted Peress's motion to dismiss.

On January 28, 1991, Manny's filed a third-party complaint against Peress. On August 21, 1991, Peress filed a motion for summary judgment, which Manny's later joined. Manny's and Peress argued that NRS 41.139(1) precluded any recovery by Moody for his injuries, and that, since Moody was a trespasser, no duty of care was owed to him; therefore, as a matter of law, they could not be liable. On October 8, 1991, the district court granted the summary judgment motion in favor of Manny's and Peress. Moody appeals the order granting summary judgment entered October 8, 1991.

DISCUSSION

Standard of Review

Summary judgment is appropriate only when no genuine issue of material fact remains for trial and the moving party is entitled to judgment as a matter of law. Butler v. Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 663 (1985). Accordingly, a district court may not grant summary judgment if a reasonable jury could return a verdict for the nonmoving party. Oehler v. Humana, Inc., 105 Nev. 348, 350, 775 P.2d 1271, 1272 (1989). On appeal, the reviewing court must view the evidence in the light most favorable to the party against whom summary judgment is sought. Oak Grove Inc. v. Bell & Gossett Co., 99 Nev. 616, 623, 668 P.2d 1075, 1079 (1983). While the factual allegations of the nonmoving party must be accepted as true, the nonmoving party must also allege specific facts demonstrating there is a genuine material issue for trial. Grayson v. Jones, 101 Nev. 749, 751, 710 P.2d 76, 77 (1985).

The Firefighter's Rule

In Steelman v. Lind, 97 Nev. 425, 428, 634 P.2d 666, 667-68 (1981), we first adopted the "fireman's rule," which states that a firefighter or peace officer cannot complain of negligence where the negligently created risk which results in the public servant's injury is the reason for his or her being at the scene where the injury occurs. We stated in Steelman:

A public safety officer ... cannot base a tort claim upon damage caused by the very risk that he is paid to encounter and with which he is trained to cope.

Such officers, in accepting the salary and fringe benefits offered for the job, assume all normal risks inherent in the employment as a matter of law and thus may not recover from one who negligently creates such a risk.

Id. at 427-28, 634 P.2d at 667 (citations omitted). We further stated:

Whether the negligently created risk which results in a fireman's or policeman's injury is the reason for his being at the scene in his professional capacity determines the applicability of the rule.

Id. at 428, 634 P.2d at 668; accord Pottebaum v. Hinds, 347 N.W.2d 642, 646 (Iowa 1984); Sutton v. Shufelberger, 31 Wash.App. 579, 643 P.2d 920, 926 (1982); see also 3 J.D. Lee & Barry A. Lindahl, Modern Tort Law § 39:12 (rev. ed. 1988) (the fireman's rule "applies to deny recovery to a firefighter or police officer 'whenever their injuries are caused by the very wrong that initially required the presence of an officer in his official capacity and subjected him to harm....' The rule ... does not apply to a third party whose intervening negligence or intentional conduct causes injury to the official while the officer is performing official duty. Thus, where a police officer stops a vehicle and is in the process of dismounting a motorcycle when struck by a third person, the rule does not apply").

Manny's and Peress assert that the firefighter's rule was codified by NRS 41.139, that NRS 41.139 was meant to set forth the firefighter's rule in its entirety, replacing that rule as set forth in case law, and that NRS 41.139 precludes Moody's recovery in the instant case. Moody contends that summary judgment should not have been granted because NRS 41.139 does not preclude his cause of action. NRS 41.139(1) states, in pertinent part:

[A] peace officer, fireman or emergency medical attendant may bring and maintain an action for damages for personal injury caused by the willful act of another, or by another's lack of ordinary care or skill in the management of his property, if the conduct causing the injury:

(a) Occurred after the person who caused the injury knew or should have known of the presence of the peace officer, fireman or emergency medical attendant;

(b) Was intended to injure the peace officer, fireman or emergency medical attendant;

(c) Violated a statute, ordinance or regulation:

(1) Intended to protect the peace officer, fireman or emergency medical attendant; or

(2) Prohibiting resistance to or requiring compliance with an order of a peace officer or fire fighter; or

(d) Was arson.

We conclude that NRS 41.139 was intended only to limit the firefighter's rule as set forth in Steelman, and was not intended as a statement of the rule in its entirety.

The construction of a statute is a question of law. Nyberg v. Nev. Indus. Comm'n, 100 Nev. 322, 324, 683 P.2d 3, 4 (1984). In Welfare Div. v. Washoe Co. Welfare Dep't, 88 Nev. 635, 503 P.2d 457 (1972), we stated:

The leading rule for the construction of statutes is to ascertain the intention of the legislature in enacting the statute, and the intent, when ascertained will prevail over the literal sense. The meaning of words used in a statute may be sought by examining the context and by considering the reason or spirit of the law or the causes which induced the legislature to enact it. The entire subject matter and the policy of the law may also be involved to aid in its interpretation, and it should always be construed so as to avoid absurd results.

Id. at 637-38, 503 P.2d at 458-59 (citations omitted). An examination of the legislative history of NRS 41.139 leads us to the inescapable conclusion that the statute was intended as a limitation on the firefighter's rule and not as a codification of the rule.

The legislative hearings on Assembly Bill 80 (A.B. 80), enacted as NRS 41.139, indicate that the Legislature specifically contemplated that the rule would continue as set forth in Steelman. See Hearings on A.B. 80 Before the Nevada Senate Judiciary Committee, 63rd Session (March 26, 1985); Hearings on A.B. 80 Before the Nevada Assembly Judiciary Committee, 63rd Session (February 12, 1985). The legislative history of NRS 41.139(1) suggests that the statute was not meant to preclude recovery for the type of injury which occurred in the instant case. Rather than expanding the firefighter's rule to preclude recovery from those occasions where the injury was not related to the public servant's purpose for being present, NRS 41.139(1) was intended to narrow the firefighter's rule to permit recovery in instances where recovery was previously precluded. Id. Although not explicitly stated in NRS 41.139(1), the legislative history of the statute clearly indicates the Legislature only intended the statute to apply where the injury was caused by the event giving rise to the public servant's presence. See Hearings on A.B. 80 Before the Nevada Assembly Judiciary Committee, 63rd Session (February 12, 1985).

A.B. 80 is based on California Civil Code section 1714.9, ¹ adopted in 1982, which created exceptions to the bar of the firefighter's rule. Id. California Civil Code section 1714.9, like NRS 41.139, was not intended to broaden the firefighter's rule, but was intended to narrow it by providing additional exceptions to the rule. 6 B.E. Witkin, Summary of California Law, Torts § 746 (9th ed. 1988); see Terhell v. American Commonwealth Associates, 172 Cal.App.3d 434, 218 Cal.Rptr. 256, 260 ...