Wiley v. Redd

• Decision Date: 30 November 1994
• Docket Number: No. 24931,24931
• Parties: Kendall WILEY, Appellant, v. W.F. REDD and Alarmco, Inc., a Nevada Corporation, Respondents. ALARMCO, INC., Cross-Appellant, v. W.F. REDD, Marilyn S. Redd, Bally Gaming, Inc., Cross-Respondents.
• Court: Nevada Supreme Court

Page 592

885 P.2d 592

110 Nev. 1310

Kendall WILEY, Appellant, v. W.F. REDD and Alarmco, Inc., a Nevada Corporation, Respondents.

ALARMCO, INC., Cross-Appellant, v. W.F. REDD, Marilyn S. Redd, Bally Gaming, Inc., Cross-Respondents.

No. 24931.

Supreme Court of Nevada.

Nov. 30, 1994.

Easterly & Armstrong, Elko, for appellant.

Pico & Mitchell and Thomas A. Ericsson, Las Vegas, for respondent and cross-respondents Redd.

Cohen, Lee, Johnson & Day and David L. Riddle, Las Vegas, for respondent/cross-appellant Alarmco.

OPINION

PER CURIAM:

Appellant, police officer Kendall Wiley, appeals from orders of summary judgment entered against her on claims of negligence against W.F. Redd ¹ and Alarmco, Inc. Alarmco has cross-appealed an order of summary judgment in favor of Redd et al., as to Alarmco's cross-claim and third-party complaint. At issue are the common law firefighter's rule, which operates to bar tort recovery by firefighters, police officers, and other public officers (hereinafter "safety officers"), NRS 41.139, which limits the common law rule's scope, and Alarmco's duty at common law. The act of negligence Wiley alleges against Redd and Alarmco is the failure to warn of dogs present on Redd's property at a time when Wiley was dispatched to investigate an activated burglar alarm leased to Redd by Alarmco.

For reasons set forth hereafter, we affirm the order of summary judgment entered in favor of Alarmco against Wiley, reverse the order of summary judgment favoring Redd against Wiley, and remand accordingly. Alarmco's cross-appeal is rendered moot by this disposition.

FACTS

On July 5, 1989, Wiley and her partner were summoned to the Redd residence to investigate an activated burglar alarm. Neither Wiley and her partner were the first to arrive at the scene. They proceeded to investigate and noticed a dog pen and dog house in the backyard. Wiley claims that she and her partner then whistled and banged on the fence to see if dogs were on the premises. When no dogs responded, Wiley and her partner climbed the fence enclosing the back yard to commence their security check. Shortly thereafter, they were charged by two Rottweiler dogs that had apparently been concealed behind some bushes. Wiley's partner escaped over the fence, but Wiley was bitten on her wrist by one of the dogs.

Redd nor his wife were home at the time. Redd had leased the burglar alarm system from Alarmco, who, as part of its service, notified the police when the alarm sounded. Alarmco alerted the police to the sounding alarm on the day in question and also dispatched an Alarmco employee to the Redd residence to investigate.

Wiley filed a complaint against both Redd and Alarmco alleging negligent failure to warn of the dogs. Alarmco filed a cross-claim and third-party complaint against Redd seeking indemnification or contribution. ² On June 15, 1992, Redd filed a motion for summary judgment against Wiley, contending that the common law firefighter's rule and NRS 41.139 barred Wiley's complaint as a matter of law. Alarmco joined in Redd's motion for summary judgment, adopting Redd's arguments and the additional argument that Alarmco owed no duty to Wiley as a matter of law. The district court granted summary judgment in favor of both Redd and Alarmco against Wiley and in favor of Redd in Alarmco's cross-claim and third-party complaint. This appeal ensued.

DISCUSSION

Standard of Review

Summary judgment is appropriate only when a review of the record in a light most favorable to the non-moving party reveals no genuine issues of material fact and judgment is warranted as a matter of law. Butler v. Bogdanovich, 101 Nev. 449, 451, 705 P.2d 662, 663 (1985). In determining whether summary judgment is proper, the non-moving party is entitled to have the evidence and all reasonable inferences to be drawn therefrom accepted as true. Wiltsie v. Baby Grand Corp., 105 Nev. 291, 292, 774 P.2d 432, 433 (1989). Accordingly, a district court may not grant summary judgment if a reasonable jury could return a verdict in favor of the non-moving party. Oehler v. Humana, Inc., 105 Nev. 348, 350, 775 P.2d 1271, 1272 (1989). On appeal, this court is required to determine whether the trial court erred in concluding that there were no genuine issues of material fact and that summary judgment was justified as a matter of law. Bird v. Casa Royale West, 97 Nev. 67, 68, 624 P.2d 17, 18 (1981). Our review of an order granting summary judgment is de novo. Tore, Ltd. v. Church, 105 Nev. 183, 185, 772 P.2d 1281, 1282 (1989).

The Firefighter's Rule

Both Redd and Alarmco contend that the common law firefighter's rule bars Wiley's negligence claims. This court first addressed the firefighter's rule in Steelman v. Lind, 97 Nev. 425, 634 P.2d 666 (1981), and more recently, in Moody v. Manny's Auto Repair, 110 Nev. 320, 871 P.2d 935 (1994). In Steelman we concluded:

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 ....

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.

97 Nev. at 427-28, 634 P.2d at 667 (citations omitted). In Moody, we affirmed that, as modified by the 1985 enactment of NRS 41.139, the firefighter's rule still applies in Nevada, and that its scope is limited to those instances where the negligent act which injures the safety officer is the same act which required the safety officer's presence. 110 Nev. at ----, 871 P.2d at 940.

In the present case, the alleged acts of negligence were Redd and Alarmco's respective failures to warn Wiley of vicious dogs on Redd's property as Wiley responded to a call to investigate a sounding alarm. Clearly, the activated burglar alarm and Alarmco's telephone call to the police department were the events which produced Wiley's presence at the scene of her injury, rather than any failure to warn. We conclude, therefore, that the firefighter's rule would not prevent Wiley from pursuing negligence claims against Redd or Alarmco. ³

Our ruling requires reversal of the summary judgment entered in favor of Redd as there remains a genuine issue of material fact relating to whether Redd acted reasonably under the circumstances in failing to warn or otherwise assuring that Wiley was warned of the presence of vicious dogs on Redd's property. See Moody, 110 Nev. at ----, 871 P.2d at 943 ("We conclude that all persons in this society have an obligation to act reasonably and that an owner or occupier of land should be held to the general duty of reasonable care when another is injured on that land.").

Our conclusion regarding Redd is not dispositive of Alarmco's contention that it owed Wiley no duty, as a matter of law, to warn of Redd's animals.

Alarmco's Duty

To prevail on a negligence theory, a plaintiff generally must show that: (1) the defendant owed a duty of care to the plaintiff; (2) the defendant breached that duty; (3) the breach was the legal cause of the plaintiff's injury; and (4) the plaintiff suffered damages. Doud v. Las Vegas Hilton Corp. 109 Nev. 1096, ----, 864 P.2d 796, 798 (1993) (citing Perez v. Las Vegas Medical Center, 107 Nev. 1, 4, 805 P.2d 589, 590 (1991)). In order to justify summary relief, a moving defendant must show that one of the elements of the plaintiff's prima facie case is "clearly lacking as a matter of law." Id. Therefore, if Alarmco owed no duty to Wiley, summary judgment should be affirmed.

This court has recently indicated a move from status-based tort analysis to that of a general duty of reasonable care--at least in the domain of owners and occupiers of land. In Moody, where a duty may have been lacking at one time as a matter of law, this court, as noted above, concluded that "all persons in this society have an obligation to act reasonably," and remanded the issue of the reasonableness of the defendants' actions for a factual determination. Moody, 110 Nev. at ----, 871 P.2d at 943; see also Turpel v. Sayles, 101 Nev. 35, 692 P.2d 1290 (1985). It is equally apparent, however, that the law does not impose a general affirmative duty to warn others of dangers. Specifically, "in failure to warn cases, defendant's duty to warn exists only where there is a special relationship between the parties, and the danger is foreseeable." Sims v. General Telephone & Electronics, 107 Nev. 516, 521, 815 P.2d 151, 154 (1991).

Although Wiley asserts various theories of relationship...