Porchia v. City of Las Vegas

• Decision Date: 17 February 2022
• Docket Number: 78954
• Citation: 504 P.3d 515
• Parties: Larry PORCHIA, Appellant, v. CITY OF LAS VEGAS; Stephen Massa; Nicholas Pavelka; William Headlee; Marina Clark ; Jason W. Driggers; and LVFR Risk Management, Respondents.
• Court: Nevada Supreme Court

504 P.3d 515

Larry PORCHIA, Appellant,

v.CITY OF LAS VEGAS; Stephen Massa; Nicholas Pavelka; William Headlee; Marina Clark ; Jason W. Driggers; and LVFR Risk Management, Respondents.

No. 78954

Supreme Court of Nevada.

FILED FEBRUARY 17, 2022

Olson, Cannon, Gormley & Stoberski and Stephanie M. Zinna, Las Vegas, for Appellant.

Bradford R. Jerbic, City Attorney, and Jeffry M. Dorocak and Rebecca L. Wolfson, Deputy City Attorneys, Las Vegas, for Respondents.

BEFORE THE SUPREME COURT, EN BANC.

OPINION

By the Court, HERNDON, J.:

Appellant Larry Porchia alleges EMTs denied him medical treatment and transportation to the hospital after negligently misdiagnosing him and/or because he was homeless and uninsured. The district court dismissed Porchia's complaint after concluding that Porchia's claims were barred by the public duty doctrine and the Good Samaritan statute. However, accepting Porchia's allegations as true, a failure to render medical assistance or to transport a patient to the hospital based solely on their socioeconomic status may qualify as an affirmative act exempted from the public duty doctrine and as gross negligence, which would render the Good Samaritan statute inapplicable. Thus, we conclude the district court erred in dismissing Porchia's complaint in its entirety at such an early stage in the proceedings.

FACTS AND PROCEDURAL HISTORY

On August 26, 2015, at 3:45 a.m., Porchia's friend called emergency services on his behalf because he was suffering from severe stomach pain, vomiting, and hot flashes. Las Vegas Fire and Rescue (LVFR), which employs respondents Firefighter-Paramedic Stephen Massa and Firefighter-Advanced Emergency Medical Technician Nicholas Pavelka, was dispatched to Porchia's location. Massa and Pavelka placed Porchia on a stretcher, took his vitals, and asked him questions about his condition. Porchia requested they transport him to the hospital. According to Porchia's amended complaint, once he informed them that he was homeless and did not have insurance, Massa and Pavelka diagnosed Porchia with gas pain, removed him from the stretcher, and concluded he did not need to be transported to the hospital.

At 11 a.m., another of Porchia's friends called emergency services again on his behalf because he was still experiencing severe stomach pain. LVFR was again dispatched, and different EMTs immediately transported Porchia to the hospital, where he underwent emergency surgery for a bowel obstruction

. Porchia asserts that both the doctor and the nurse at the hospital informed him that if he had received medical treatment earlier, he would not have required emergency surgery.

Porchia filed, pro se, an amended complaint alleging negligence against respondents. The district court granted respondents’ motion to dismiss, concluding that, as a matter of law, respondents could not be held liable for damages based on the public duty doctrine, NRS 41.0336, and the Good Samaritan statute, NRS 41.500(5). Porchia appealed, and the Court of Appeals affirmed the district court's order. Porchia v. City of Las Vegas, No. 78954-COA, 2020 WL 7396925 (Nev. Ct. App. Dec. 16, 2020) (Order of Affirmance). Porchia filed a petition for review with this court, which we granted.

DISCUSSION

We review de novo a district court order dismissing a complaint pursuant to NRCP 12(b)(5). Dezzani v. Kern & Assocs., Ltd., 134 Nev. 61, 64, 412 P.3d 56, 59 (2018). Under our "rigorous standard of review" of such orders, we must consider all factual allegations in the complaint as true and draw all inferences in the plaintiff's favor. Buzz Stew, LLC v. City of North Las Vegas, 124 Nev. 224, 227-28, 181 P.3d 670, 672 (2008). A "complaint should be dismissed only if it appears beyond a doubt that [the plaintiff] could prove no set of facts, which, if true, would entitle [the plaintiff] to relief." Id. at 228, 181 P.3d at 672.

The public duty doctrine

This court first recognized the public duty doctrine in 1979 when it concluded that a police department could not be held liable for injuries sustained as the result of another's unlawful actions, even when the injured party claimed the police department failed to provide adequate security and medical care at a public event. Bruttomesso v. Las Vegas Metro. Police Dep't, 95 Nev. 151, 153, 591 P.2d 254, 255 (1979). In that matter, this court emphasized that "[t]he duty of the government... runs to all citizens and is to protect the safety and well-being of the public at large." Id. The rationale behind the public duty doctrine permits public entities to carry out their duty to the public without fear of financial loss or reprisal. See generally Scott v. Dep't of Commerce, 104 Nev. 580, 585-86, 763 P.2d 341, 344 (1988) ("[T]he public interest is better served by a government which can aggressively seek to identify and meet the current needs of the citizenry, uninhibited by the threat of financial loss should its good faith efforts provide less than optimal—or even desirable—results." (quoting Commonwealth, Dep't of Banking & Sec. v. Brown , 605 S.W.2d 497, 499 (Ky. 1980) ). Thus, the public duty doctrine shields public entities, like fire departments or public ambulance services, from liability on the basis that such entities should not be inhibited by their good faith efforts to serve the public, even when the outcome of their emergency treatment is less than desirable.

The public duty doctrine was codified in NRS 41.0336, which provides that public officers called to assist in an emergency are not liable for their negligent acts or omissions unless one of two exceptions is applicable: (1) the public officer made a specific promise or representation to the person and the person relied on that promise or representation to his or her detriment, resulting in the officer assuming a special duty to the individual person; or (2) the conduct of the public officer "affirmatively caused the harm." Additionally, the public duty doctrine does not "abrogate the principal of common law that the duty of governmental entities to provide services is a duty owed to the public, not to individual persons." NRS 41.0336.

The special duty exception

Porchia argued in his amended complaint that the first exception to the public duty doctrine applied because Massa and Pavelka breached a special duty they owed to him, as an individual, to transport him to the hospital. Nevada recognizes two ways in which a special duty may be established: (1) if a statute or ordinance sets forth "mandatory acts clearly for the protection" of an individual "rather than the public as a whole," Coty v. Washoe County, 108 Nev. 757, 761 n.6, 839 P.2d 97, 99 n.6 (1992) (internal quotations omitted); or (2) if a public officer, "acting within the scope of official conduct, assumes a special duty by creating specific reliance on the part of certain individuals," id. at 760, 839 P.2d at 99. See also Charlie Brown Constr. Co. v. City of Boulder City, 106 Nev. 497, 505-06, 797 P.2d 946, 951 (1990) (explaining that a special duty sufficient to pierce the public duty doctrine was established by a city ordinance that imposed a duty to act for the benefit of specific entities), abrogated on other grounds by Calloway v. City of Reno, 116 Nev. 250, 993 P.2d 1259 (2000).

Porchia failed to point to any Nevada or local law that required Massa or Pavelka to transport him to the hospital under the asserted circumstances. The Legislature has recognized that "prompt and efficient emergency medical care and transportation is necessary for the health and safety of the people of Nevada," NRS 450B.015, but that statute does not require EMTs to transport every member of the public who seeks emergency medical care. If an EMT has exercised his or her duty of care in examining a patient and determined that no further medical intervention is necessary, the EMT does not have a duty to transport the patient to the hospital. See, e.g., Watts v . City of Chicago , 325 Ill.App.3d 288, 259 Ill.Dec. 214, 758 N.E.2d 337, 340 (2001) (explaining that a paramedic has a duty to transport a person to the hospital only if there is a medical necessity); Wright v. Hamilton, 141 Ohio App.3d 296, 750 N.E.2d 1190, 1194 (2001) (providing that if a paramedic utilizes a reasonable exercise of professional judgment in determining that the patient does not require additional medical attention, the paramedic need not transport the patient to the hospital). Accordingly, an EMT's duty is owed to the public, not to the individual person, and there is no law establishing a special duty to transport all patients to the hospital.

Porchia further failed to demonstrate a special duty created by a promise from Massa or Pavelka that he relied upon to his detriment. See Hines v. District of Columbia, 580 A.2d 133, 136 (D.C. 1990) (stating that "the mere fact that an individual has emerged from the general public and become[s] an object of the special attention of public employees does not create a relationship which imposes a special legal duty"). He does not assert that Massa or Pavelka promised to transport him to the hospital. Because Porchia cannot point to a special duty Massa or Pavelka had to transport him to the hospital, his asserted claims failed to demonstrate the first exception to the public duty doctrine.

The affirmative harm exception

Porchia also argued in his amended complaint that he was refused treatment and transport by Massa and Pavelka because of his socioeconomic status and that the delay in receiving treatment was what caused his need for surgery. Consequently, he argued, the second exception to the public duty doctrine applies because, accepting the factual assertions as true, Massa and Pavelka affirmatively caused him harm. He alleged that they took affirmative steps by removing him from the stretcher when they learned he was homeless and uninsured.

In Coty v. Washoe County, 108 Nev. 757, 760-61, 839 P.2d 97, 99 (1992), we recognized that NRS 41.0336 did not define the phrase...