Court: Governments immune from suits when taking emergency actions

Friday, Nov. 23, 2001 | 9:31 a.m.

CARSON CITY -- State and local governments are immune from lawsuits over actions taken in an emergency, even if those actions damaged private property, the Nevada Supreme Court has ruled.

In a 2-1 decision the court said Wednesday that governments are further protected from lawsuits over any pre-emergency defects that may have contributed to damage.

The court, in a decision written by Justice Deborah Agosti, upheld a pretrial summary judgment against Terry and Mary Ann Nylund, whose condominium was damaged during a 1997 winter flood in Carson City.

The city manager declared an emergency during heavy flooding. The water was channeled down Fifth Street, but some overflowed from the city's storm drainage system and flooded the Nylunds' property.

The Nylunds sued, claiming the city was negligent and that the storm drains had design and maintenance defects. The suit cited a 1983 report by a city employee that noted problems with the drain system that might contribute to future flooding.

Nevada law says neither the state nor any of its political subdivisions can be held liable for damage to property while managing an emergency.

Agosti said the immunity in the law is to permit the state and local governments to prepare and act swiftly during emergencies that imperil life and property.

She said the Legislature gave the governments "substantial decision-making latitude, allowing it to make quick decisions to avert disaster, decisions that critics -- with the benefit of hindsight -- might later call negligent."

The court also disagreed that the city should be held liable for pre-flood defects. "We read the immunity statute to cover not only negligent emergency management, but also any previous negligence that contributed to the damage caused by the emergency management activities," the court said.

"Because emergencies are sudden and unexpected," Agosti wrote, "the response authority does not have time to assess whether unknown or unforeseen obstacles created by past negligence will hinder its course of action."

Justice Bob Rose, who wrote the dissenting opinion, said Carson City was notified of the problem 15 years before the flood. He said the case should have been allowed to go to trial to allow a jury to decide if the city was negligent.

"I do not think responsibility for this alleged negligent act that resulted in damage 15 years later should be excused simply because an emergency situation was created when the damage occurred."

Rose said the purpose of the immunity law is to protect those who take immediate action in a crisis.

"Nothing indicates that the statute is meant to forgive all prior negligent acts contributing to the crisis at hand," he wrote.