 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Borgerson v. Scanlon3/14/2001
mmary judgment is inappropriate. Furthermore, a district court cannot make findings concerning the credibility of witnesses or weight of evidence in order to resolve a motion for summary judgment.
At common law, the Firefighter's Rule bars a public safety officer from recovering damages in a negligence action for injuries received as a result of a risk occurring within the scope of his official duties. "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."
Its legislative history reveals that NRS 41.139 limits the common law rule's bar against recovery to instances where the negligent act complained of is the same act which requires that peace officer's presence at the scene. The statute itself was meant "to narrow the firefighter's rule to allow recovery by public servants where recovery was not previously allowed." Moreover, we determined in Moody v. Manny's Auto Repair that this rule does not preclude an officer from seeking recovery when the negligent act which caused his injury is unforeseeable or is an independent and intervening act. We have also determined that actions which constitute an independent act include: (1) a third party independently erecting a barrier in a driveway, causing an accident during a traffic stop; and (2) a third party's failure to warn the police that vicious dogs were on his property when the police responded to an alarm.
Upon our review of the record, we conclude that the district court correctly determined that there was no evidence supporting Borgerson's contention that Patricia and Robert in any way negligently interfered with David's arrest. Moreover, pursuing a suspect is a reasonable extension of an officer's official duties when responding to a 911 call. A police officer may reasonably expect that a suspect may attempt to flee, particularly when that person is intoxicated, violent and left unattended. We agree, therefore, with the district court that on the basis of the undisputed evidence, the Firefighter's Rule bars Borgerson's tort claim.
Borgerson also argues that Patricia is vicariously liable for David's acts because of her duty under the parent-child relationship. This court has only recognized the vicarious liability of a parent for a child's acts in cases of motor vehicle ownership or negligent entrustment of motor vehicles when the child is a minor. Furthermore, there is no evidence that Patricia had any modicum of control over her twenty-nine-year-old son.
Borgerson next argues that the district court abused its discretion by awarding unreasonable costs to Patricia. We disagree. This court strictly construes statutes awarding costs, and we review a district court's award of costs for abuse of discretion. Moreover, " hen evidence on which a district court's judgment rests is not properly included in the record on appeal, it is assumed that the record supports the lower court's findings." Because neither party submitted documentation for costs in the record on appeal, we affirm the district court's award of costs.
CONCLUSION
Because we conclude that there is no evidence that Patricia or Robert negligently interfered with David's arrest and that a suspect's flight is a reasonable and foreseeable component of a peace officer's official duties, we affirm the district court's order granting summary judgment. Noting no abuse of discretion, we also affirm the district court's order denying Borgerson's motion to retax costs.
Page 1 2 Nevada Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|