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Borgerson v. Scanlon3/14/2001
This case involves an interpretation of the Firefighter's Rule, codified at NRS 41.139, in the context of a district court order granting summary judgment for respondent Patricia Scanlon, both individually and doing business as The Water Hole Bar, in a personal injury action for the injuries appellant Dennis Blake Borgerson sustained while chasing a fleeing suspect. Because we conclude that the district court did not err in granting summary judgment, we affirm the judgment of the district court.
FACTS
On June 17, 1995, Robert and Patricia Scanlon were holding a family reunion at their family-owned bar, The Water Hole Bar, in Mineral County. Their son, David, arrived at the reunion that afternoon drunk and violent. When David tried to order a drink from Robert and Robert refused, David began yelling and hit a door and a mirror. Robert asked David to leave, which he refused to do. Robert then called 911 to summon the Mineral County Sheriff's Department to the scene to arrest David for disturbing the peace.
Officers Borgerson and Karl Snarr responded to that call. After speaking with Patricia, Robert and David, Borgerson then saw David running across a field behind the bar. Borgerson chased David in order to arrest him and fell while climbing a fence, sustaining leg injuries.
Borgerson filed a complaint against the Scanlons, claiming that they negligently interfered with David's arrest. In support of this contention, Borgerson stated at his deposition that Robert interfered by yelling and insisting that David be arrested, thereby creating a disturbance that allowed David to escape. Borgerson also stated that Patricia interfered by both insisting David not be arrested and counseling David to flee when she was in an adjacent trailer with him. The basis for this allegation was Patricia's statement during her deposition that she told David in the trailer: "David, he wants you off the property, look at you, you're drunk." Snarr stated at his deposition that he did not hear Patricia say anything to David. Borgerson did not provide any other support for his allegations at his deposition.
Patricia and Robert moved for summary judgment on the basis that the Firefighter's Rule precluded Borgerson's recovery since he sustained his injury in the course and scope of his official duties. The district court granted the Scanlons' motion for summary judgment, concluding that there was no evidence that either Patricia or Robert instigated David's flight.
In addition, Patricia filed a motion for costs pursuant to NRS 18.005 and 18.050. Borgerson filed a motion to retax costs, claiming that many of Patricia's costs were unreasonable and unverified. The district court reduced some costs, denied some costs, and ultimately awarded $14,209.26 to Patricia. This appeal followed.
DISCUSSION
Borgerson's main contention is that the district court erred by granting summary judgment because there are material disputes of fact as to whether Patricia and Robert negligently interfered with a lawful detention. Because such interference would constitute an independent act outside the scope of Borgerson's official duties, he contends the Firefighter's Rule, as codified in NRS 41.139, would not preclude his recovery.
On appeal, we review orders of summary judgment de novo and consider the record in the light most favorable to the non-prevailing party. Summary judgment is appropriate when the record, viewed in the light most favorable to the non-moving party, indicates there is no genuine issue of material fact and the party is entitled to judgment as a matter of law. If a reasonable jury could find for the non-moving party, su
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