Daily Development for Wednesday, February 20, 2002

By: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin
Kansas City, Missouri
prandolph@cctr.umkc.edu

NUISANCE; SOVEREIGN IMMUNITY; EMERGENCY SERVICES: The immunity to municipalities granted by Nevada's emergency flood management statute protects a municipality against claims of negligence in planning for emergency management and it applies even though the emergency is not determined by the governor to require the assistance of state agencies as prescribed by the statute, but only by the municipality.

Nylnund v. Carson City, 34 P.3d 578 (Nev. 2001).

After their condominium unit was damaged by flood waters in the third wettest winter in Nevada's history, the homeowners sued, among others, Carson City. The city defended on the basis of a statute immunizing municipalities for negligent emergency management activities.

The homeowners responded that the negligence had occurred in planning for the emergency and not the activities arising in response to the emergency. Calling their holding the "natural extension of the policy of the statute," the court ruled that immunity statute covered not only emergency management, but also previous negligence that contributed to damage caused by the emergency management activity.

As to the homeowners' contention that the statute was not applicable by its terms because the governor had not made a determination that the assistance of state agencies was needed as required by the statute, the court concluded that the governor's determination was not the exclusive determination, but that the legislature intended to grant municipalities themselves the right to declare emergencies. The dissenting opinion did not believe that responsibility for alleged negligent action resulting in damage 15 years after it was taken should be excused simply because an emergency existed at the time the damage occurred. Moreover, the dissent felt that the statute was plain and unambiguous in its requirement of the determination by the governor.

Reporter's Comment: Although the City would have had immunity if it had negligently handled the emergency and thus intuitively seems entitled to protection from its negligence in planning for the emergency (as the court held), one must wonder along with the dissent whether the statutory purpose was to give immunity for actions taken in the "heat of the moment" and not in the calmer, more level-headed moments of planning for the emergencies. One also wonders whether the majority too glibly skirted the requirement of the governor's determination by finding legislative intent to empower municipalities despite the clear wording of the statute.

The reporter for this item was the law firm of Senn, Lewis, Visciano at al in Denver, Colo.

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