                                                      134 Nev., Advance Opinion 4 61
                        IN THE COURT OF APPEALS OF THE STATE OF NEVADA


                   JAPONICA GLOVER-ARMONT,                              No. 70988
                   Appellant,
                   vs.
                   JOHN CARGILE; AND CITY OF
                   NORTH LAS VEGAS, A MUNICIPAL
                                                                          RLED
                   CORPORATION EXISTING UNDER                              JUL 1 2 2018
                   THE LAWS OF THE STATE OF                               Er ZETH A. BROWN
                   NEVADA IN THE COUNTY OF CLARK,                         SiF


                   Respondents.                                           ChileF DE.




                              Japonica Glover-Armont appeals from a district court order
                   granting summary judgment in a tort action. Eighth Judicial District
                   Court, Clark County; William D Kephart, Judge.
                              Affirmed in part, reversed in part, and remanded.


                   Ganz & Hauf and Adam Ganz, Jeffrey L. Galliher, Marjorie L. Hauf, and
                   David T. Gluth II, Las Vegas,
                   for Appellant.

                   Micaela Rustia Moore, City Attorney, and Christopher D. Craft, Senior
                   Deputy City Attorney, North Las Vegas,
                   for Respondents.

                   Amanda Kellar and Caitlin Cutchin, Bethesda, Maryland; Lewis Brisbois
                   Bisgaard & Smith, LLP, and Robert W. Freeman and Cheryl A. Grames,
                   Las Vegas,
                   for Amicus Curiae International Municipal Lawyers Association.




                   BEFORE SILVER, C.J., TAO and GIBBONS, JJ.


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                                                     OPINION
                   By the Court, SILVER, C.J.:
                               In this appeal, we consider whether the discretionary-act
                   immunity doctrine applies to an action arising from a vehicular accident
                   involving a police officer responding to an emergency. NRS 41.032(2)
                   provides immunity to government officials acting within their discretionary
                   purview. However, that statute is in tension with MRS 484B.700, which
                   allows a police officer to proceed past a red traffic signal in an emergency,
                   but also requires that officer to utilize audio and visual or visual signals
                   only, as required by law, and to drive with due regard for others' safety
                   when doing so. Having considered the tension between these two statutes,
                   we conclude that discretionary-act immunity is unavailable in the
                   circumstance identified above because the language of NRS 484B.700(4)
                   mandates that the police officer drive with due regard for the safety of
                   others, and this duty is not discretionary.
                               While responding to an emergency call early one morning,
                   North Las Vegas Police Department Sergeant John Cargile made a left turn
                   against a red light, and collided with Japonica Glover-Armont's vehicle,
                   injuring her. Glover-Armont thereafter sued Sergeant Cargile and the City
                   of North Las Vegas, alleging various negligence claims and vicarious
                   liability. The district court granted summary judgment in favor of Sergeant
                   Cargile and the City of North Las Vegas, concluding the doctrine of
                   discretionary-act immunity provided them with qualified immunity to
                   Glover-Armont's claims.
                               We conclude that the district court erred by granting summary
                   judgment based upon discretionary-act immunity as MRS 484B.700(4) does
                   not confer discretion, and therefore, the discretionary-immunity doctrine
                   does not apply. We further conclude that the facts regarding the incident
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                   are highly contested, and a jury, taking the facts in the light most favorable
                   to Glover-Armont, could conclude that Sergeant Cargile breached NRS
                   484B.700(4)'s duty of care. Accordingly, summary judgment on Glover-
                   Armont's negligence, negligent entrustment, and vicarious liability claims
                   was improper.
                                     FACTS AND PROCEDURAL HISTORY
                               In the early morning hours of November 5, 2012, appellant
                   Japonica Glover-Armont drove eastbound towards an intersection
                   displaying a green traffic signal for eastbound traffic. Simultaneously,
                   respondent North Las Vegas Police Department Sergeant John Cargile,
                   responding to an emergency, drove northbound toward the same
                   intersection. A large hill located off the southwest corner of the intersection
                   obstructed both Sergeant Cargile's view of eastbound oncoming traffic and
                   Glover-Armont's view of northbound oncoming traffic. Sergeant Cargile, in
                   an effort to quickly reach the emergency, attempted to make a left turn
                   against the red traffic signal for northbound traffic, but his vehicle collided
                   with Glover-Armont's vehicle within the intersection. Glover-Armont
                   suffered injuries in the collision. The parties do not dispute that Sergeant
                   Cargile activated his emergency lights, but Glover-Armont contends that
                   Sergeant Cargile failed to use his siren.
                               Glover-Armont sued Sergeant Cargile and respondent City of
                   North Las Vegas for negligence, vicarious liability, and negligent
                   entrustment, as well as negligent hiring, training, and supervision. Glover-
                   Armont alleged that Sergeant Cargile failed to use due care and failed to
                   engage his siren in the course of responding to an emergency. The City of
                   North Las Vegas traffic investigator who investigated the accident reported
                   that Glover-Armont was not speeding and that it was impossible for

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                   Sergeant Cargile to see oncoming eastbound traffic while traveling
                   northbound until he entered the intersection.
                               Sergeant Cargile and the City of North Las Vegas (collectively,
                   North Las Vegas) moved for summary judgment, arguing that
                   discretionary-act immunity barred Glover-Armont's claims. North Las
                   Vegas acknowledged that the hill on the corner obstructed Sergeant
                   Cargile's visibility, making it nearly impossible for him to see eastbound
                   oncoming traffic before entering the intersection. Nevertheless, North Las
                   Vegas argued that Sergeant Cargile's decision to enter the intersection
                   against a red traffic signal, even if made without due care, was a
                   discretionary decision in furtherance of public policy because he did so in
                   response to an emergency call, and, therefore, discretionary-act immunity
                   barred all of Glover-Armont's claims against North Las Vegas.
                               Glover-Armont conceded that Sergeant Cargile's decision to
                   proceed against a red traffic signal in an emergency was discretionary
                   However, she argued that his decision to do so without a siren and without
                   due care as required by NRS 484B.700 was not discretionary. Additionally,
                   Glover-Armont noted in her supplemental opposition to North Las Vegas'
                   summary judgment motion that the parties still disputed whether Glover-
                   Armont saw Sergeant Cargile's lights, whether Sergeant Cargile engaged
                   his siren, whether Glover-Armont had her headlights on, whether Cargile
                   proceeded through the intersection when Glover-Armont was already in the
                   intersection, and who hit whom.
                               During argument on North Las Vegas' summary judgment
                   motion, the district court noted that the parties still disputed whether
                   Sergeant Cargile operated his siren when traveling through the red light,
                   and that both Sergeant Cargile and Glover-Armont acknowledged during

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                   deposition testimony that each did not see the other until each entered the
                   intersection due to the hill. The district court denied summary judgment
                   based on this factual dispute and evidence in the record, concluding that an
                   officer responding to an emergency still has a duty to notify the public that
                   he is responding to an emergency, and that the fact that the hill obstructed
                   Glover-Armont's view of northbound traffic and Sergeant Cargile's view of
                   eastbound traffic created a genuine issue of material fact as to whether
                   Sergeant Cargile entered the intersection in a safe manner for the public.
                               North Las Vegas moved for reconsideration, citing two
                   additional cases and arguing that discretionary-act immunity applied even
                   if Sergeant Cargile abused his discretion. Glover-Armont opposed the
                   motion for reconsideration, arguing that North Las Vegas' motion was
                   flawed because it incorrectly relied on an exception to the discretionary-act
                   immunity doctrine for intentional torts. After a hearing, the district court
                   granted North Las Vegas' motion for reconsideration.
                               The district court thereafter granted summary judgment as to
                   Glover-Armont's negligence claim against North Las Vegas, finding,
                   without addressing NRS 484B.700, that Sergeant Cargile used his
                   individual judgment in deciding whether and how to proceed against the
                   red traffic signal and that his decisions were discretionary, such that North
                   Las Vegas was entitled to discretionary-act immunity. And given that
                   finding, the district court also concluded that summary judgment was
                   warranted as to Glover-Armont's remaining claims against North Las
                   Vegas for negligent entrustment, vicarious liability, and negligent hiring,
                   training, and supervision. To support its overall decision, the district court
                   cited public policy concerns, noting that Sergeant Cargile acted to protect
                   the public, enforce the law, and apprehend criminals.

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                                                   ANALYSIS
                               The primary issue raised in this appeal is whether
                   discretionary-act immunity, a qualified immunity, provided North Las
                   Vegas with an affirmative defense to Glover-Armont's claims.'


                          'Our dissenting colleague suggests that, before addressing
                   discretionary-act immunity, we must decide whether a private analogue to
                   the conduct at issue here exists, such that Nevada can be said to have
                   waived its sovereign immunity under NRS 41.031. But the private-
                   analogue doctrine is a creature of statutory interpretation, see Feres v.
                   United States, 340 U.S. 135, 141-42 (1950) (construing the Federal Tort
                   Claims Act to require a private analogue), and Nevada's appellate courts
                   have not imposed a private-analogue requirement on NRS 41.031, Instead,
                   Nevada's jurisprudence in this area proceeds from the principle that the
                   State has waived sovereign immunity and looks directly to whether
                   discretionary-act immunity applies. See, e.g., Ortega v. Reyna, 114 Nev. 55,
                   62, 953 P.2d 18, 23 (1998), abrogated in part on other grounds by Martinez
                   v. Maruszczak, 123 Nev. 433, 168 P.3d 720 (2007). And our supreme court
                   has ruled against the State as to liability without addressing the private-
                   analogue doctrine even where a private analogue may arguably not exist.
                   See, e.g., Butler v. Bayer, 123 Nev. 450, 464-66, 168 P.3d 1055, 1065-67
                   (2007) (concluding that genuine issues of material fact remain with regard
                   to whether the state negligently released an inmate); Golconda Fire Prot.
                   Dist. v. Cty. of Humboldt, 112 Nev. 770, 774-75, 918 P.2d 710, 712-13 (1996)
                   (remanding for an accounting to determine whether a county wrongfully
                   retained interest on taxes that it collected); cf. Tobin v. Fish, 161 Wash.
                   App. 1019 (Ct. App. 2011) (unpublished) (concluding that Washington did
                   not require a private analogue because its supreme court had ruled against
                   the government as to liability for conduct having no private analogue).

                         Moreover, even if we were to adopt a private-analogue requirement
                   for NRS 41.031, despite the dissent's suggestion to the contrary, recent
                   federal jurisprudence on this topic would support a determination that
                   there is a private analogue to the conduct at issue in this case. Indeed, the
                   United States Supreme Court has explained that courts should construe the
                   conduct and claims at issue in a case broadly in searching for a private
                   analogue. See United States v. Olson, 546 U.S. 43, 46-47 (2005) (holding
                   that the private-analogue inquiry is not restricted to "the same

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                               We review a district court's order granting summary judgment
                   de novo and will uphold summary judgment only where "the pleadings and
                   other evidence on file demonstrate that no genuine issue as to any material
                   fact [remains] and that the moving party is entitled to a judgment as a
                   matter of law." Wood v. Safeway, Inc., 121 Nev. 724, 729, 121 P.3d 1026,
                   1029 (2005) (alteration in original) (internal quotation marks omitted). We
                   review the pleadings and other proof in a light most favorable to the
                   nonmoving party. Id. at 732, 121 P.3d at 1031. Genuine issues of material
                   fact remain if a reasonable jury could return a verdict in favor of the
                   nonmoving party based on the evidence presented.        Butler v. Bayer, 123
                   Nev. 450, 457-58, 168 P.3d 1055, 1061 (2007). However, Nevada's appellate
                   courts are reluctant to affirm summary judgment on negligence claims
                   because the question of whether a defendant exercised reasonable care is
                   nearly always a question of fact for the jury. Id. at 461, 168 P.3d at 1063.




                   circumstances," but extends "further afield" and providing, as an example,
                   that a negligence claim against a private person who undertakes a duty to
                   warn is a private analogue for the government's failure to maintain a
                   lighthouse). And in that vein, federal courts have found private analogues
                   in situations nearly identical to the present case. See, e.g., Lee v. United
                   States, 570 F. Supp. 2d 142, 150-52 (D.D.C. 2008) (determining that a
                   private analogue existed for negligent police chases based on general traffic
                   regulations).

                          Finally, we note that neither the parties nor the amicus curiae
                   address the private-analogue doctrine, nor did the district court. While this
                   is unsurprising given that, as detailed above, this doctrine does not impact
                   our consideration of the discretionary-act immunity issue presented here,
                   because the dissent's sua sponte discussion of the doctrine raises
                   jurisdictional questions, we have briefly addressed this matter here.

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                                On appeal, Glover-Armont argues that the district court erred
                   by granting summary judgment, asserting questions of fact remain as to
                   whether Sergeant Cargile used due care, pursuant to NRS 484B.700, in
                   proceeding through the intersection against a red traffic signal. North Las
                   Vegas counters that the district court correctly granted summary judgment
                   because, under NRS 41.032(2), discretionary-act immunity bars Glover-
                   Armont's claims . 2
                                In addressing these arguments, we first consider the
                   applicability of Nevada's discretionary-act immunity doctrine to a police
                   officer acting pursuant to NRS 484B.700's exemptions, and thereafter
                   determine the scope of NRS 484B.700(4)'s duty of care and whether
                   summary judgment was appropriate under these facts. 3




                         2The  International Municipal Lawyers Association filed an amicus
                   brief, but we do not specifically address the arguments presented therein,
                   as they are substantially similar to those raised in North Las Vegas'
                   answering brief.

                         3 We  have also reviewed Glover-Armont's argument that the district
                   court improperly considered her traffic citation as evidence when granting
                   summary judgment. The record shows the district court did not consider
                   her traffic citation, but instead considered her nob o contendere plea. We
                   conclude that the district court improperly considered Glover-Armont's nobo
                   contendere plea to her traffic citation. See NRS 48.125(2) ("Evidence of a
                   plea of nob o contendere or of an offer to plead nob contendere to the crime
                   charged or any other crime is not admissible in a civil or criminal proceeding
                   involving the person who made the plea or offer."). We caution the district
                   court against considering inadmissible evidence when deciding summary
                   judgment motions. See Henry Prods. Inc. v. Tarmu, 114 Nev. 1017, 1019,
                   967 P.2d 444, 445 (1998) ("Evidence introduced in support of or opposition
                   to a motion for summary judgment must be admissible evidence.").

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                   Discretionary-act immunity
                               Nevada generally waives sovereign immunity. NRS 41.031.
                   However, a doctrine known as discretionary-act immunity, codified as NRS
                   41.032(2), provides an exception to this general waiver through a qualified
                   immunity for state agencies and their employees who perform discretionary
                   acts. City of Boulder City v. Boulder Excavating, Inc.,    124 Nev. 749, 754,
                   756, 191 P.3d 1175, 1178, 1179-80 (2008). In Martinez v. Maruszczak,
                   Nevada adopted the federal two-part            Berkovitz-Gaubert 4 test for
                   determining whether a state actor is protected by discretionary-act
                   immunity. 123 Nev. 433, 445-47, 168 P.3d 720, 728-29 (2007). Under the
                   Berkovitz-Gaubert test, the discretionary-act immunity doctrine applies if
                   the decision "(1) involve[s] an element of individual judgment or choice and
                   (2) [is] based on considerations of social, economic, or political policy." Id.
                   at 446-47, 168 P.3d at 729. Since adopting the federal Berkovitz-Gaubert
                   test, Nevada's appellate courts have yet to apply this test to actions
                   permitted by NRS 484B.700.
                               A critical preliminary step in the discretionary-act immunity
                   analysis is identifying the specific government action challenged before
                   turning to the Berkovitz-Gaubert test. See Young v. United States, 769 F.3d
                   1047, 1053-54 (9th Cir. 2014) (providing that a district court must first
                   identify the specific agency action challenged before turning to the
                   Berkovitz-Gaubert test); cf. N. Nev. Ass'n of Injured Workers v. Nev. State
                   Indus. Ins. Sys., 107 Nev. 108, 113, 807 P.2d 728, 731 (1991).
                               As a threshold matter, we conclude that the district court
                   incorrectly applied the Berkovitz-Gaubert test because it failed to pinpoint


                         United States v. Gaubert, 499 U.S. 315, 322-25 (1991); Berkovitz v.
                         4
                   United States, 486 U.S. 531, 536-39 (1988).
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                   Glover-Armont's specific allegations within her complaint. See Young, 769
                   F.3d at 1053 ("To identify the particular agency conduct with which
                   [p]laintiffs take issue, we look to the allegations of [p]laintiffs' complaint ");
                   see also N. Nev. Ass'n of Injured Workers, 107 Nev. at 113, 807 P.2d at 731
                   ("In analyzing respondents' entitlement to immunity under [NRS 41.0321,
                   it is necessary to determine whether the acts alleged in appellants' amended
                   complaint are properly categorized as discretionary."). Below, North Las
                   Vegas framed Glover-Armont's allegation as a blanket challenge to
                   Sergeant Cargile's decision to enter the intersection against a red traffic
                   signal in an emergency, when in fact Glover-Armont alleged that the
                   conditions and manner in which Sergeant Cargile proceeded through the
                   red traffic signal did not adhere to NRS 484B.700's standard of care. The
                   district court did not address NRS 484B.700 and did not determine whether
                   the statute requires police officers to use their own judgment when acting
                   under the statute's exemptions. Accordingly, we turn to the first prong of
                   the Berkovitz-Gaubert test with Glover-Armont's precise allegations in
                   mind and determine whether NRS 484B.700 confers discretion.
                         NRS 484B.700 does not confer discretion
                                Glover-Armont contends that the duty to comply with NRS
                   484B.700's requirements is not discretionary. We agree.
                                We review questions of law de novo. Clark Cty. Sch. Dist. v.
                   Payo, 133 Nev. „ 403 P.3d 1270, 1275 (2017). In Nevada, an act is
                   discretionary if law or policy allows the public official to use his or her own
                   judgment and deliberation in acting. Ransdell v. Clark •Cty., 124 Nev. 847,
                   856-57, 858, 192 P.3d 756, 763, 764 (2008) (holding that Clark County's
                   actions were discretionary under the Berkovitz-Gaubert test because the
                   Clark County Code provided its officials with the discretion to take action).
                   NRS 484B.700 allows an officer to proceed through a red traffic signal when
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                   responding to an emergency, but requires the officer to "slow[ I down as may
                   be necessary for safe operation" and to use either "(a) Ealudible and visual
                   signals; or (b) [v]isual signals only, as required by law." Moreover, NRS
                   484B.700(4) expressly provides that it does not relieve the officer from "the
                   duty to drive with due regard for the safety of all persons" or "protect the
                   [officer] from the consequences of [the officer's] reckless disregard for the
                   safety of others."
                                Nevada's appellate courts have not addressed whether this
                   statute confers discretion or requires the state actor to abide by a
                   nondiscretionary standard of care. Other jurisdictions have addressed
                   similar issues with mixed outcomes. For example, North Las Vegas asserts
                   that this court should follow the Minnesota Supreme Court's reasoning in
                   Vassallo v. Majeski, 842 N.W.2d 456 (Minn. 2014).
                                In Vassallo, the Minnesota Supreme Court determined that, as
                   relevant here, Minnesota's emergency vehicle statute conferred discretion,
                   and thus, discretionary-act immunity barred the plaintiffs claims.      Id. at
                   463-66. The plaintiff sued for injuries sustained after a police officer
                   responding to an emergency sped through an intersection against a red
                   traffic signal and collided with the plaintiffs vehicle.         Id. at 460.
                   Minnesota's emergency vehicle statute provided that when an emergency
                   vehicle approaches a red traffic signal it must "slow down as necessary for
                   safety, but may proceed cautiously past such red or stop sign or signal after
                   sounding siren and displaying red lights." Id. at 461 n.2. The Vassallo court
                   concluded that the requirement to "slow down as necessary for safety" was
                   conditioned upon the driver's determination of a safe speed. Id. at 463. In
                   addition, the court likened the term "proceed cautiously" to a duty to use
                   due care to avoid a collision and concluded that a due care requirement calls

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                   for the use of independent judgment. Id. Thus, the court concluded that
                   these requirements conferred a discretionary duty to which immunity
                   applied. 6 Id. at 463-64.
                                 However, other courts addressing similar situations have
                   determined that an emergency vehicle statute does not confer discretion in
                   circumstances similar to the case at hand. See Legue v. City of Racine, 849
                   N.W.2d 837, 859 (Wis. 2014). For example, in Legue, the plaintiff sued a
                   police officer and the City of Racine for injuries sustained in an accident
                   where the police officer entered an intersection with a red traffic signal en
                   route to an emergency call. Id. at 842-43. The police officer had lights and
                   sirens engaged, but a building blocked her view of oncoming traffic       Id.
                   After the jury returned a verdict in favor of the plaintiff, the lower court
                   granted defendant's motion for judgment notwithstanding the verdict based
                   upon discretionary-act immunity Id. at 844.
                                 On appeal, the Wisconsin Supreme Court considered whether
                   the police officer was entitled to immunity based upon subsection 5 of
                   Wisconsin's emergency vehicle statute, Wis. Stat. Ann § 346.03 (West
                   2015), 6 and a city policy, which both required emergency responders to drive
                   with "due regard under the circumstances" for the public's safety.     Id. at
                   858. The court concluded that Wis. Stat. Ann § 346.03(5) (West 2015) and
                   the city policy imposed a nondiscretionary duty to drive with "due regard


                         6 TheVassallo court also examined a Minnesota county sheriffs office
                   policy that required officers to drive with due regard and summarily
                   concluded that the term "due regard" invited independent judgment, like
                   the term "due care." 842 N.W.2d at 461 n.3, 464.

                         6 The Wisconsin statute has been amended since the Wisconsin
                   Supreme Court entered Legue, see 2015 Wis. Laws, Act 102, at 807-08, but
                   the amendments were to other portions of the statute.
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                   under the circumstances" when responding to an emergency. Id. at 859-60,
                   862. In reaching this conclusion, the court reasoned that § 346.03(5)'s
                   language qualified the privileges contained in the earlier part of the statute
                   allowing the emergency responder to disregard speed limits and proceed
                   through red traffic signals, and that the only reasonable interpretation of
                   § 346.03(5)'s conditions was to impose liability on the governmental actor.
                   Id. at 851 (discussing § 346.03(5)'s declaration that "the exemptions granted
                   the operator of an authorized emergency vehicle by this section do not
                   relieve such operator from the duty to drive or ride with due regard under
                   the circumstances for the safety of all persons" and explaining that "[t] his
                   language leads us to conclude that an exemption or privilege begets
                   immunity and a duty begets liability"); see Wis. Stat. Ann § 346.03(1)-(2)
                   (West 2015). Further, the court reasoned that "§ 346.03(5)DI declar [ationl
                   that the exemptions or privileges 'do not relieve such operator from the duty
                   to drive with due regard' was mandatory language. Legue, 849 N.W.2d at
                   858. The court ultimately concluded that the duty to maintain a particular
                   standard of care is not discretionary, and reinstated the jury verdict. Id. at
                   858-59, 862.
                                  Wisconsin's statute, like Nevada's statute, states that "[Wm
                   exemptions granted the operator of an authorized emergency vehicle by this
                   section do not relieve such operator from the duty to drive or ride with due
                   regard under the circumstances for the safety of all persons, nor do they
                   protect such operator from the consequences of his or her reckless disregard
                   for the safety of others." Wis. Stat. Ann § 346.03(5) (West 2015) (emphasis
                   added); see also NRS 484B.700(4) ("Thefl provisions of this section do not
                   relieve the driver from the duty to drive with due regard for the safety of all
                   persons and do not protect the driver from the consequences of the driver's

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                   reckless disregard for the safety of others."). And while Minnesota's statute
                   shares some similarities with both Nevada's and Wisconsin's statutes, it is
                   distinctly distinguishable insofar as it does not require an emergency
                   vehicle operator to drive with due regard for the public's safety, but rather
                   states the emergency vehicle operator "may proceed cautiously." Minn.
                   Stat. Ann. § 169.03(2) (West 2016); NRS 484B.700(4); Wis. Stat. Ann
                   § 346.03(5) (West 2015). Of course, in Vassallo, the court likened the term
                   "proceed cautiously" to a duty to use due care, 842 N.W.2d at 463, and
                   arguably, a duty to use due care is similar to Nevada's duty to drive with
                   due regard.
                                 But critically, Minnesota's statute uses the phrase "proceed
                   cautiously" in an open-ended manner, which, as the Minnesota Supreme
                   Court noted, indicates that officers are allowed to use their personal
                   judgment in order to determine what constitutes caution under the
                   circumstances. Vassallo, 842 N.W.2d at 463. Conversely, Nevada's statute,
                   like Wisconsin's statute, uses mandatory language in providing that the
                   privileges set forth therein "do not relieve" the driver from the "duty to drive
                   with due regard," NRS 484B.700(4); see Wis. Stat. Ann. § 346.03(5), which
                   is indicative of a nondiscretionary duty to act in a certain manner and
                   liability for failing to do so. Indeed, as the Wisconsin Supreme Court
                   reasoned in Legue, where there is a duty, there is also liability.      See 849
                   N.W.2d at 851 (asking rhetorically, "[w]hy would the legislature exempt an
                   operator of an authorized emergency vehicle from complying with certain
                   rules of the road and impose a duty of due regard unless a violation of the
                   duty can result in liability?").
                                 The reasoning in Legue and the similarity between Nevada's
                   and Wisconsin's emergency vehicle statutes are persuasive here, and we

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                   therefore conclude that NRS 484B.700(4) imposes a mandatory duty, which
                   gives rise to liability if breached. 7 See id. Accordingly, we hold that a police
                   officer's duty to drive with due care when responding to an emergency is
                   mandatory, not discretionary, under the first prong of the Berkovitz-
                   Gaubert tests Cf. N. Nev. Ass'n of Injured Workers v. Nev. State Indus. Ins.
                   Sys., 107 Nev. 108, 114, 807 P.2d 728, 731 (1991) (explaining that
                   mandatory duties entail little or no discretion, and that the discretionary-
                   act immunity doctrine does not apply to such obligatory acts). This
                   conclusion is consistent with the approach taken by several other




                         7 For
                             the same reason, this court is unpersuaded by the Minnesota
                   court's conclusion that officers were afforded discretion under the
                   department policy discussed above.

                         8 To  the extent that Glover-Armont asserts that North Las Vegas
                   policy also imposes a nondiscretionary duty upon a police officer to utilize
                   both lights and sirens when responding to an emergency, we conclude that
                   Glover-Armont fails to support this argument. In particular, while
                   testimony in the record supports Glover-Armont's assertion, it is impossible
                   for this court to fully review this matter, as she failed to include North Las
                   Vegas' policy in the record. Cuzze v. Univ. & Cmty. Coll. Sys. of Nev., 123
                   Nev. 598, 603, 172 P.3d 131, 135 (2007) (noting appellant has the burden of
                   providing this court with an adequate appellate record, and when the
                   appellant "fails to include necessary documentation in the record, [this
                   court] necessarily presume [s] that the missing portion supports the district
                   court's decision"). Moreover, an officer does not breach the duty to drive
                   with due regard for the safety of all persons merely by failing to operate his
                   siren. See NRS 484D.400(5)-(6) (providing, among other things, that when
                   an officer uses warning lamps without sounding the siren, the officer "shall
                   be deemed to have adequately warned pedestrians and other drivers of [the
                   officer's] approach for purposes of determining whether the [officer] met the
                   duty to drive with due regard for the safety of all persons pursuant to MRS
                   484B.700").

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                     jurisdictions. 9 See Biscoe v. Arlington Cty., 738 F.2d 1352, 1363 (D.C. Cir.
                     1984); Legue, 849 N.W.2d at 859; Mason v. Bitton, 534 P.2d 1360, 1365
                     (Wash. 1975) (en banc). 1   °
                                 In reaching this conclusion, we reject a broad-based view of
                     discretionary-act immunity that would render any accident involving a
                     public vehicle responding to an emergency nonactionable. We are mindful
                     that the Legislature intended to give emergency vehicles privileges to allow
                     swift response to those in need; however, the Legislature and our courts
                     have long held that such privileges are to be exercised while keeping the
                     safety of all members of the public in mind. See NRS 484B.700(4); Johnson
                     v. Brown, 75 Nev. 437, 445, 345 P.2d 754, 758 (1959). Moreover, this holding
                     is in line with the purpose behind Nevada's waiver of sovereign immunity,
                     which is to equally compensate victims of negligence regardless of whether



                           9 Importantly,    cases in other jurisdictions which conclude that
                     immunity applies to protect police officers from claims arising from a traffic
                     accident involving an emergency responder are distinguishable. For
                     example, while discretionary-act immunity is available to first responders
                     in Virginia, it does not immunize them from suit, but instead, elevates the
                     standard for liability from negligence to gross negligence. Colby v. Boyden,
                     400 S.E.2d 184, 186-87 (Va. 1991). And Texas' immunity doctrine likewise
                     imposes liability for reckless conduct, but does so based on its express
                     exclusion of emergency vehicle operators from the waiver of immunity for
                     negligence. City of Amarillo v. Martin, 971 S.W.2d 426, 430 (Tex. 1998).

                           1 °Likewise, other jurisdictions also hold immunity does not apply to
                     bar a cause of action when a police officer's negligence causes harm to an
                     innocent member of the public, albeit on slightly different grounds. Patrick
                     v. Miresso, 848 N.E.2d 1083, 1086-87 (Ind. 2006); Horta v. Sullivan, 638
                     N.E.2d 33, 36-37 (Mass. 1994); Jones v. Chieffo, 700 A.2d 417, 420 (Pa.
                     1997); Haynes v. Hamilton Cty., 883 S.W.2d 606, 611 (Tenn. 1994); Willden
                     v. Duchesne Cty., 217 P.3d 1143, 1145-46 (Utah Ct. App. 2009).


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                   the negligent actor is a state official or private citizen.   See Martinez, 123
                   Nev. at 444, 168 P.3d at 727 (discussing the purpose of Nevada's waiver of
                   sovereign immunity).
                                Given the foregoing, because we hold that NRS 484B.700 does
                   not afford discretion, North Las Vegas was not entitled to discretionary-act
                   immunity as to Glover-Armont's negligence, negligent entrustment, and
                   vicarious liability claims, and we need not reach the second prong of the
                   Berkovitz-Gaubert test"- Accordingly, we conclude that the district court
                   erred by granting North Las Vegas summary judgment as to Glover-
                   Armont's negligence, negligent entrustment, and vicarious liability claims
                   based on that conclusion. 12


                          "In light of our conclusion that North Las Vegas is not entitled to
                   discretionary-act immunity, we need not address North Las Vegas'
                   arguments that discretionary-act immunity applies even when a public
                   official abuses his or her discretion, and that the bad-faith and intentional-
                   torts exceptions do not bar immunity in this case. Franchise Tax Bd. of
                   State of Cal. v. Hyatt, 133 Nev. •„ 407 P.3d 717, 733 (2017) (holding
                   that NRS 41.032 does not protect against intentional torts or bad-faith
                   misconduct), petition for cert. filed,    U.S.L.W. (U.S. Mar. 12,2018)
                   (No. 17-1299).

                           With regard to Glover-Armont's negligent hiring, training, and
                         ' 2




                   supervision claim, respondents cite Bryan v. Las Vegas Metro. Police Dep't,
                   349 F. App'x 132, 134 (9th Cir. 2009), for the argument that North Las
                   Vegas' training decisions involve policy judgments of the type the
                   discretionary-function exception is designed to shield, and Glover-Armont
                   failed to address that case in her reply brief or otherwise offer specific
                   argument as to why North Las Vegas' failure to adequately train Sergeant
                   Cargile did not involve a shielded policy judgment. Thus, Glover-Armont
                   waived any argument that North Las Vegas was not immune from Glover-
                   Armont's negligent hiring training and supervision claims. See State ex rel.
                   State Bd. of Equalization v. Bakst, 122 Nev. 1403, 1417 n.41, 148 P.3d 717,
                   726 n.41 (2006) (concluding appellant waived its argument when it did not
                   refute respondent's argument in its reply brief). Therefore, we affirm

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                                      With this in mind, we now turn to the parties' arguments
                       regarding whether genuine issues of fact remain to preclude summary
                       judgment.
                       Summary judgment was improper
                                      Glover-Armont asserts that there are several issues of material
                       fact that preclude summary judgment because the facts, when viewed in a
                       light most favorable to Glover-Armont, demonstrate that Sergeant Cargile
                       failed to proceed with due care as required by NRS 484B.700(4).
                                      NRS 484B.700(4) states that a police officer traveling through
                       a red traffic signal in an emergency is not relieved "from the duty to drive
                       with due regard" for the public's safety nor protected from the consequences
                       of the officer's reckless disregard for the public's safety. The Nevada
                       Supreme Court has previously interpreted similar language within a Reno
                       Municipal Ordinance" to impose an ordinary negligence standard of
                       liability, holding that an emergency responder has a "duty to be on the
                       lookout at all times for the safety of the public whose peril is increased by
                       their exemptions from the rules of the road." Johnson, 75 Nev. at 445, 345
                       P.2d at 758.
                                      In Johnson, a firefighter responding to an emergency sped
                       through an intersection with obstructed visibility without stopping at a stop


                       summary judgment as to Glover-Armont's negligent hiring, training, and
                       supervision claim.

                             "Reno Municipal Code (RMC) § 10-60 (1954) (allowing emergency
                       responders certain exemptions from the rules of the road and providing that
                       the ordinance's exemptions "shall not relieve the driver of an authorized
                       emergency vehicle from the duty to drive with due regard for the safety of
                       all persons using the street, nor shall it protect the driver of any such
                       vehicle from the consequence of a reckless disregard for the safety of
                       others").
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                   sign and collided with another driver whose passenger then brought suit.
                   Id. at 439, 345 P. 2d at 755. The jury found in favor of the plaintiff, and the
                   firefighter appealed arguing that the Reno Municipal Ordinance requiring
                   him to "drive with due regard for the safety of others" was met because he
                   was utilizing lights and sirens. Id. at 439-40, 345 P.2d at 755 (internal
                   quotation marks omitted). The supreme court disagreed concluding that
                   the Reno Municipal Ordinance imposed an ordinary negligence standard of
                   liability and opining that the government is better able to bear the burden
                   of tort liability than an individual to bear loss from an accident. Id. at 442-
                   45, 345 P.2d at 756-58.
                               While    Johnson     was decided before NRS 41.032, the
                   discretionary-act immunity statute, was enacted, 75 Nev. at 437, 345 P.2d
                   at 754; 1965 Nev. Stat., ch. 505, § 1-7, at 1413-15, we look to Johnson to
                   determine the standard for liability applicable here given our conclusion
                   that immunity does not apply. Because the language of the Reno ordinance
                   is nearly identical to NRS 484B.700(4), we conclude that NRS 484B.700(4)
                   imposes an ordinary negligence standard of liability. This conclusion is
                   consistent with other jurisdictions that have interpreted similar language
                   to impose an ordinary negligence standard of liability.      See Rutherford v.
                   State, 605 P.2d 16, 18-19, 18 n.5 (Alaska 1979); City of Little Rock v. Weber,
                   767 S.W.2d 529, 533 (Ark. 1989); Barnes v. Toppin, 482 A.2d 749, 755 (Del.
                   1984); City of Baltimore v. Fire Ins. Salvage Corps, 148 A.2d 444, 447 (Md.
                   1959); City of Kalamazoo v. Priest, 49 N.W.2d 52, 54 (Mich. 1951); Cainl v.
                   City of St. Paul, 268 N.W.2d 908, 912-13 (Minn. 1978); Wright v. City of
                   Knoxville, 898 S.W.2d 177, 179-80 (Tenn. 1995); Estate of Cavanaugh v.
                   Andrade, 550 N.W.2d 103, 114-15 (Wis. 1996).



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                                Below, the parties conceded that a hill blocked their respective
                    views, but they disputed everything else about the cause and circumstances
                    of the accident in light of their obstructed views, including whether Glover-
                    Armont saw Sergeant Cargile's lights, whether Sergeant Cargile engaged
                    his siren, whether Glover-Armont had her headlights on, whether Cargile
                    proceeded through the intersection when Glover-Armont was already in the
                    intersection, and who hit whom. And conflicting evidence supported the
                    parties' respective positions with regard to whether Sergeant Cargile gave
                    adequate warning of his approach and what precautions he took before
                    entering the intersection. Given this conflicting evidence, as the district
                    court originally found, genuine issues of fact remain as to whether Sergeant
                    Cargile violated his duty to drive with due regard, such that summary
                    judgment was unwarranted. See Butler v. Bayer, 123 Nev. 456, 461, 168
                    P.3d 1055, 1063 (2007) (noting Nevada's appellate courts are reluctant to
                    affirm summary judgment on negligence claims because the question of
                    whether a defendant exercised reasonable care is nearly always a question
                    of fact for the jury); Cf. Legue, 849 N.W.2d at 842-43, 862 (reinstating a jury
                    verdict that found a police officer negligent where she, utilizing lights and
                    sirens, entered an intersection against a red traffic signal en route to an
                    emergency call when a building obstructed her view of oncoming traffic).
                                                   CONCLUSION
                                We conclude that the district court erred by granting summary
                    judgment based upon discretionary-act immunity NRS 484B.700 allows an
                    officer to proceed through a red traffic signal in an emergency but imposes
                    mandatory conditions on that privilege, including the duty to drive with due
                    regard of the public's safety. Here, the parties contest whether Sergeant
                    Cargile drove with due regard for the public's safety. Because a jury could
                    conclude Sergeant Cargile did not proceed with due regard, summary
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                     judgment was improper. Accordingly, we reverse summary judgment and
                     remand this matter to the district court for further proceedings on Glover-
                     Armont's negligence, negligent entrustment, and vicarious liability
                     claims."



                                                                                     , C.J.
                                                        Silver


                     I concur:



                     Gibbons




                            'In light of our disposition of this appeal, we do not reach Glover-
                     Armont's argument that the district court improperly granted
                     reconsideration of its original oral denial of North Las Vegas' motion for
                     summary judgment. But we vacate the district court's order awarding costs
                     to North Las Vegas as the prevailing party. Doad v. Las Vegas Hilton Corp.,
                     109 Nev. 1096, 1106, 864 P.2d 796, 802 (1993) (vacating the district court's
                     costs award made to the prevailing party in light of reversal), superseded by
                     statute on other grounds, NRS 651.015, as recognized in Estate of Smith v.
                     Mahoney's Silver Nugget, Inc., 127 Nev. 855, 858-59, 265 P.3d 688, 691
                     (2011).
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                   TAO, J., concurring in part and dissenting in part:
                               I agree that the majority properly resolves the issue of
                   sovereign immunity as the parties have framed it. But I believe that the
                   parties have framed this case all wrong.
                               In the words of a fictional television police detective, "all the
                   pieces matter." (Detective Lester Freamon, The Wire, HBO 2001). This is
                   especially true when dealing with the "Byzantine complexity of sovereign-
                   immunity law," Hall v. MeRaven, 508 S.W.3d 232, 245 (Tex. 2017) (Willett,
                   J., concurring), a field which includes a general rule of immunity, subject to
                   a partial statutory waiver, subject to exceptions to the waiver, within which
                   lie yet more exceptions to those exceptions. When working through these
                   layers of statutory text, we must take care that "no part of [the] statute
                   should be rendered nugatory, nor any language turned to mere surplusage,
                   if such consequences can properly be avoided." Indep. Am. Party v. Lau, 110
                   Nev. 1151, 1154, 880 P.2d 1391, 1392 (1994) (quotation marks omitted); see
                   Antonin Scalia & Bryan A. Garner, Reading Law: The Interpretation of
                   Legal Texts 176 (2012).
                               The parties focus their briefing on whether the "discretionary
                   function" exception applies. But in doing so, they overlook critical pieces of
                   the analysis that should apply to this appeal that, when properly applied,
                   lead to a very different result than they propose. Normally, we limit
                   ourselves to the arguments that the parties make and the relief they
                   request, because the parties are generally allowed to frame and present
                   their own case the way they want. But when that approach causes us to
                   gloss over important parts of a statute that would otherwise apply—thereby
                   suggesting to other parties or courts tackling this issue that the right thing
                   to do is to skip over those statutory provisions as well—then "[t]he ability
                   of this court to consider relevant issues sua sponte in order to prevent plain
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                   error is well established. Such is the case where [clearly controlling law]
                   was not applied by the trial court." Bradley v. Romeo, 102 Nev. 103, 105,
                   716 P.2d 227, 228 (1986) (internal citation omitted); see Mardian v.
                   Greenberg Family Tr., 131 Nev. 730, 733-34, 359 P.3d 109, 111 (2015) (on
                   de novo review of denial of summary judgment, the court is not limited to
                   only what the parties expressly argue: "While the arguments made by the
                   parties focus on Nevada law, theS issue of whether the Arizona law should
                   have been applied must also be addressed."); Nev. Power Co. v. Haggerty,
                   115 Nev. 353, 365 n.9, 989 P.2d 870, 877-78 n.9 (1999) (explaining that the
                   court would resolve an issue of statutory interpretation not litigated below
                   "in the interests of judicial economy").
                               I therefore write separately to address the way I think this case
                   should have come out had the parties properly understood the statute in all
                   of its component parts. "[T]he bottom line is understanding the process. If
                   you don't understand the process, you'll never reap the rewards." Donald J.
                   Trump, How to Get Rich 74 (2004).
                               Nevada's statutory waiver of sovereign immunity is set forth in
                   NRS 41.031, which specifies that the State consents to waive immunity "in
                   accordance with the same rules of law as are applied to civil actions against
                   natural persons and corporations." NRS 41.031(1). The parties ignore this
                   statutory language—the language that initially defines the scope and reach
                   of any waiver of immunity—and focus instead on a later subsection that
                   contains a specific exception to the waiver, namely, the discretionary
                   function exception described in NRS 41.032(2). But focusing on whether an
                   exception to the waiver applies only makes sense if it's clear that immunity
                   has been waived in the first place. In this case, that's not clear at all. When
                   the statute is properly analyzed in its entirety, I would affirm the district


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                   court's grant of summary judgment in its entirety and I therefore
                   respectfully concur in part and dissent in part.
                                                         I.
                               The United States is sovereignly immune and no citizen can sue
                   it for any alleged negligence unless it consents to such suit. Prior to 1946,
                   the only avenue through which a private citizen could seek redress for an
                   injury inflicted by governmental negligence was to petition Congress for
                   compensation through a "private bill." 1 See Feres v. United States, 340 U.S.
                   135, 139-40 (1950). Then, following the crash of a B-25 into the Empire
                   State Building during foggy weather, Congress statutorily enacted the
                   Federal Tort Claims Act (FTCA), which "constitutes a limited waiver by the
                   United States of its sovereign immunity and allows for a tort suit against
                   the United States under specified circumstances." Hamm v. United States,
                   483 F.3d 135, 137 (2d Cir. 2007) (quotation marks omitted); see 28 U.S.C.
                   § 2674. This waiver is not complete; "the United States can be sued only to
                   the extent that it has waived its immunity." United States v. Orleans, 425
                   U.S. 807, 814 (1976).
                               States, too, possess sovereign immunity, unless they waive it
                   statutorily. Nevada's statutory waiver of sovereign immunity under NRS
                   41.032 "mirrors" the scope of the federal waiver under the FTCA, and the
                   Nevada Supreme Court has expressly adopted federal judicial precedent
                   applying the FTCA. See Martinez v. Maruszczak, 123 Nev. 433, 444, 168
                   P.3d 720, 727 (2007). Under both, immunity is waived only to the extent


                         'As a recent example, Congressional action was required for
                   "downwinders" to receive compensation for exposure to radiation from
                   atomic bomb testing at the Nevada Test Site during the 1950s, because the
                   United States has not waived sovereign immunity for any injuries arising
                   from the effects of military weapons testing.
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                     expressly outlined by statute and "must be 'construed strictly in favor of the
                     sovereign' and not 'enlarge [d] . . . beyond what the language requires.'
                     U.S. Dep't of Energy v. Ohio, 503 U.S. 607, 615 (1992) (internal citation
                     omitted).
                                 In analyzing the scope of a waiver, two competing
                     considerations are at stake. On the one hand is the foundational idea that
                     citizens have inherent liberty to pursue their vision of happiness free from
                     government interference or coercion, and whenever arbitrary or irrational—
                     here, allegedly negligent—governmental conduct inflicts injury on the
                     innocent and unsuspecting, courts ought to rein in the conduct and provide
                     fair redress to the victims. And what could be more arbitrary than a case
                     like this which alleges that a government vehicle exercising official
                     government power negligently plowed through a major intersection, quite
                     possibly in violation of law and policy regarding police sirens, inflicting
                     serious physical injury on an unsuspecting motorist? On the other hand,
                     though, is the idea that overly abundant lawsuits instill "legal fear" even in
                     those who are not sued, chilling initiative and inhibiting "people [from]
                     doing what they know is right because they do not feel free to do so." Philip
                     K. Howard, Is Civil Litigation a Threat to Freedom?, 28 Harv. J. Law & Pub.
                     Pol'y 97, 102 (2004). I would think that if there's anyone in our society
                     whom we don't want to feel inhibited in vigorously doing what they know is
                     right, it ought to be a police officer racing to stop a felony in progress.
                                  Here is the line that must be straddled in a case like this: we
                     want police officers to courageously take risks and perhaps even engage in
                     some level of derring-do to shield us from danger; but we also want any
                     passersby that they irresponsibly injure along the way to have access to fair
                     redress. The question becomes how to achieve one without chilling the
                     other. If we go too far in immunizing government, then government officials
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                     get to act with impunity: "[Ole doctrine of sovereign immunity, by
                     insulating imprudence, is innately unfair to those wronged."         Hall, 508
                     S.W.3d at 245 (Willett, J., concurring). But if we go too far in the other
                     direction and allow too many suits to create too much liability, then every
                     injury warrants a payout and we drive up costs for everyone, since "[e]ven
                     frivolous claims require the. . . Government to expend administrative and
                     litigation costs, which ultimately fall upon society at-large."   United States
                     v. Kwai Fun Wong, U S , 135 S. Ct. 1625, 1639 (2015) (Alito, J.,
                     dissenting). Worse, the police might not respond so quickly the next time
                     someone dials 9-1-1, and we all end up paying more taxes for less effective
                     service.


                                 To resolve this dilemma and balance these competing interests,
                     the Nevada Legislature enacted MRS 41.031, embodying a general "Waiver
                     of Sovereign Immunity." That general waiver is followed by certain
                     "Conditions and Limitations on Actions" set forth in NRS 41.032 et seq.,
                     including the "discretionary function" exception of NRS 41.032(2). Under
                     this exception, when immunity has generally been waived, tort suits
                     alleging negligence by government actors are permitted to proceed unless
                     the governmental action: (1) involves an element of individual judgment or
                     choice and (2) is based on considerations of social, economic, or political
                     policy. Martinez, 123 Nev. at 446-47, 168 P.3d at 729 (citing Berkovitz v.
                     United States, 486 U.S. 531 (1988); United States v. Gaubert, 499 U.S. 315
                     (1991)).
                                 In analyzing the effect of these statutes on the case at hand, the
                     parties jump straight to the "discretionary function" exception of NRS
                     41.032(2) and argue whether it applies throughout their briefing. But I


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NI 1947H    .(aelp
                     would take a different approach and start in an entirely different place: at
                     the very beginning.
                                 To me, the proper starting point for actions alleging negligence
                     by police officers is here: by statute, Nevada consents to waive immunity "in
                     accordance with the same rules of law as are applied to civil actions against
                     natural persons and corporations." NRS 41.031(1). The purpose of this
                     waiver is to "compensate victims of government negligence in circumstances
                     like those in which victims of private negligence would be compensated."
                     Martinez, 123 Nev. at 444, 168 P.3d at 727 This isn't just a broad statement
                     of intent. It's a specific legal doctrine that limits the scope of the waiver. It
                     means that Nevada's waiver only extends to governmental actions "like
                     those" that private citizens could also be sued for, and the government is
                     liable in the same way that a private actor would be. Under the identical
                     language of the FTCA, federal courts have held that there is no waiver of
                     immunity "for claims against the government based on governmental action
                     of the type that private persons could not engage in and hence could not be
                     liable for under local law." Liranzo v. United States, 690 F.3d 78, 86 (2d Cir.
                     2012) (quotation marks omitted).
                                  This matters here because private citizens can do a lot of things
                     that governments also do, but they don't engage in police work. Quite to
                     the contrary, much police work involves things that are not anything at all
                     "like" things that private citizens can legally do.    See Stanton R. Gallego,
                     Note, An Examination of the Federal Tort Claims Act's "Private Person"
                     Standard as It Applies to Federal Law Enforcement Activities, 76 Brook. L.
                     Rev. 775, 784 (2011) ("no private citizen is truly comparable to a law
                     enforcement officer"). Many police activities represent "quintessential
                     examples of government discretion in enforcing the criminal law." Pooler v.
                     United States, 787 F.2d 868, 871 (3d Cir. 1986), abrogated on other grounds
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                   by Millbrook v. United States, 569 U.S. 50 (2013); see Kelly v. United States,
                   924 F.2d 355, 362 (1st Cir. 1991). Thus, when the conduct targeted by suit
                   involves law enforcement activity, courts must apply a different doctrine
                   altogether, commonly referred to as the "private analogue" doctrine, and
                   unfortunately expressed in rather tortured phrasing: immunity is waived
                   only with respect to police actions that would result in liability if those
                   actions •were performed by a private actor "under like circumstances."
                   Indian Towing Co. v. United States, 350 U.S. 61, 64(1955); see Liranzo, 690
                   F.3d at 84-89. Or, described in a somewhat different but no less tortured
                   manner: if an "analogous form of liability exists" had the same negligence
                   been committed by a private actor, then sovereignty has been waived and
                   the state may be sued for the negligent conduct in the exact same way that
                   the private actor could have been.    United States v. Muniz, 374 U.S. 150,
                   159-60 (1963); see United States v. Olson, 546 U.S. 43, 45-46 (2005). But if
                   the targeted conduct was something of "the type that private persons could
                   not engage in," then immunity has not been waived and the state may not
                   be sued. Liranzo, 690 F.3d at 86. What matters is not the status of the
                   actor as either a law enforcement officer or something else, but rather "the
                   nature of the conduct" and whether a private analogue exists or not.   United
                   States v. S.A. Empresa de Viacao Aerea Rio Grandense (yang Airlines), 467
                   U.S. 797, 813 (1984).
                               The structure of the statute is thus: the private analogue test of
                   NRS 41.031(1) determines if and when sovereign immunity may have been
                   initially waived. If the government action has no private analogue under
                   NRS 41.031(1), then there is no waiver and the inquiry ends. Only if the
                   government action has a private analogue can immunity be waived, and
                   even then only potentially so. Even where such an analogue exists, the
                   inquiry doesn't stop there but rather continues next to the listed exceptions
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BB I 947B
                   to immunity, including the discretionary function exception, which restores
                   immunity if the action sprang from the exercise of government discretion as
                   defined in NRS 41.031(2).
                               The point is to start with whether a waiver of sovereign
                   immunity is even possible under NRS 41.031(1) before proceeding to
                   whether a specific exception to that waiver exists under NRS 41.031(2).
                   And this is where I think the parties get the analysis wrong.


                               Structurally, the first question at hand is whether Nevada's
                   waiver of immunity applies at all to allegations of police negligence like
                   those in this case. If it does not, then we don't need to even bother with
                   asking whether the discretionary function exception applies. If the larger
                   rule itself doesn't apply, there's no need to search for an exception within
                   the rule designed to make the rule apply even less.
                               Rather than discuss how this case fits into the overarching
                   framework of the statute, the parties instead bore in on Martinez v.
                   Maruszczak, 123 Nev. 433, 168 P.3d 720 (2007). It's no wonder that they
                   did so when Nevada cases addressing sovereign immunity are few and far
                   between, and Martinez is about the best we have. But Martinez involved
                   an action in medical malpractice against a government physician. To
                   resolve the question of sovereign immunity, the Nevada Supreme Court
                   adopted the federal discretionary function test that would have applied
                   under the FTCA had the medical malpractice action been brought against
                   the federal government. Id. at 435, 168 P.3d at 722.
                               The parties here assume that this is the test that must be
                   applied to this lawsuit. But it's not. Under the FTCA, the discretionary
                   function test is an exception to the general waiver of sovereign immunity,
                   not the entire rule, and the general rule doesn't apply to most law
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                     enforcement actions. Martinez doesn't explain this well because it doesn't
                     expressly address whether the federal private analogue exception is also
                     incorporated into Nevada's statutes. But then again, as a case arising in
                     medical malpractice, Martinez didn't involve any kind of law enforcement
                     activity, so there wasn't any reason for the court to gratuitously discuss or
                     adopt a test that had nothing to do with the case at hand. For the kind of
                     malpractice suit at stake in Martinez, the discretionary function exception
                     was all that was needed.
                                 But for the kind of lawsuit we have here, it's the wrong place to
                     start. It seems to me that the questions raised by this appeal are these:
                     whether this is an action in general negligence, or rather, an action
                     involving a "law enforcement" activity; and, if the latter, whether Nevada
                     did, or ought to, adopt the federal private analogue test to analyze whether
                     the state is immune from suit for injuries arising from those actions.
                     Martinez doesn't answer these questions one way or the other. But, notably,
                     Nevada's waiver of sovereign immunity includes statutory language
                     virtually identical to the language in the FTCA that the private analogue
                     test derives from: like the FTCA, Nevada's waiver is designed "to
                     compensate victims of government negligence in circumstances like those
                     in which victims of private negligence would be compensated." Martinez,
                     123 Nev. at 444, 168 P.3d at 727 (quotation marks omitted); see 28 U.S.C.
                     § 1364(b)(1). It seems self-evident to me that if the language of one statute
                     tracks that of the other this closely then the two statutes ought to mean
                     exactly the same thing, and consequently the private analogue test applies
                     to claims against Nevada as much as it applies to claims against the federal
                     government.



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                               Some police actions involve conduct that can easily be
                   committed by private citizens; for those actions, immunity has been waived
                   and the police can be held liable in exactly the same way that the private
                   actor would under state law. For example, a police department that refuses
                   to clean up coffee spills on its floor in a reasonable manner and thereby
                   causes a passerby to slip and fall has committed negligent conduct that any
                   private person or entity could just as easily commit. So it can be sued and,
                   if found negligent, must pay damages just as if the same thing happened in
                   a private office building or restaurant. Under Nevada tort law, the fact that
                   the negligence involved the police is entirely irrelevant to the legal analysis;
                   the legal analysis under state tort law is exactly the same whether the
                   conduct was committed by a police officer in a police station or by a private
                   innkeeper in the lobby of a hotel.
                               But a good number of law enforcement activities involve things
                   that no private person is permitted to engage in and for which there is no
                   private analogue. For example, police officers can trespass on private
                   property to chase fleeing felons without fear of trespass suits; violently kick
                   down doors and enter homes to execute no-knock search warrants without
                   being charged with the felony crime of home invasion; and violate any
                   number of traffic laws while responding to emergencies. Private citizens
                   can do none of these things, at least not without serious .legal repercussions
                   ensuing. There's an easy comparison to be made between a coffee spill on a
                   police precinct floor and a coffee spill on a private office building floor. But
                   there's no such comparison to be made when dealing with officers chasing
                   after fleeing felons, interrogating witnesses or suspects, collecting forensic
                   evidence from crime scenes, or negotiating for the release of hostages. Thus,
                   no private analogue exists for decisions that lie "at the core" of law
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                   enforcement activity, like how a police officer decides to investigate a crime.
                   Kelly, 924 F.2d at 361-62; see Doherty v. United States, 905 F. Supp. 54, 56
                   (D. Mass. 1995) (holding that government is immune from suit for decisions
                   on how and when to seek a search warrant). Those actions involves things
                   that police officers can do and private actors cannot and for which the
                   government has not waived immunity and cannot be found liable under
                   state negligence law.
                               Applying these principles to the case at hand, the question
                   becomes this: is there a private analogue for the law enforcement conduct
                   targeted by this lawsuit? If the answer is no, then sovereign immunity has
                   not been waived, we lack subject-matter jurisdiction over the allegations,
                   and this case cannot proceed. Jurisdiction exists only if the answer is yes. 2
                                                         V.
                               The crux of this lawsuit alleges that, while responding to an
                   emergency call of "shots fired," Sergeant Cargile sped through a red light
                   and entered an intersection without using his sirens to warn other drivers
                   in violation of police policy. Glover-Armont happened to be entering the
                   intersection perpendicularly on a green light and the two cars crashed.
                   From these factual allegations, Glover-Armont specifically identifies four
                   claims for relief: (1) negligence arising from Cargile's failure to use lights
                   and sirens when entering a busy intersection against a red traffic light;


                         2Adding   to the complexity is that the federal circuit courts of appeal
                   have split in various different ways in how the "private analogue" test
                   should be applied to various types of conduct. See Stanton R. Gallego, Note,
                   An Examination of the Federal Tort Claims Act's "Private Person" Standard
                   as It Applies to Federal Law Enforcement Activities, 76 Brooklyn L. Rev.
                   775, 788-801 (2011) (discussing circuit split). Fortunately, however, the
                   facts of this case fall so clearly within the area of uniquely governmental
                   law enforcement activity having no private analogue that the federal circuit
                   split doesn't matter much.
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                   (2) failure to exercise due care while driving; (3) negligent supervision and
                   hiring by the police department; and (4) negligent entrustment of a police
                   vehicle to Cargile.
                               I would analyze these claims for relief as follows. I agree with
                   my colleagues in their conclusions about the third and fourth claims,
                   although I would analyze them somewhat differently. They both seem to
                   me to have simple and straightforward private analogues, involving the
                   exercise of ordinary care in situations not unique to law enforcement. Police
                   departments must exercise as much reasonable diligence when hiring,
                   training, and supervising employees and entrusting them to drive
                   employer-owned vehicles as does any private employer. Accordingly,
                   sovereign immunity has been generally waived for these claims, and the
                   next question is whether the targeted conduct involves the exercise of
                   discretion under the "discretionary function" exception to the general
                   waiver. I agree with my colleagues here. From what I see in the record,
                   though, I harbor serious doubts whether Glover-Armont can ultimately
                   prevail on the merits of these claims. For starters, the doctrine of "negligent
                   entrustment of a motor vehicle" operates to impose liability upon one who
                   "knowingly entrusts a vehicle to an inexperienced or incompetent person,
                   such as a minor child unlicensed to drive a motor vehicle." Zugel v. Miller,
                   100 Nev. 525, 527, 688 P.2d 310, 312 (1984). I have trouble seeing how that
                   could possibly apply to letting a police officer drive his assigned police
                   cruiser on duty. But the merits of those claims are not presently before us.
                   In the end, whether Glover-Armont can ultimately prevail on those claims
                   or not, I agree that the State is not sovereignly immune from her efforts to
                   try.



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                                I diverge from my colleagues, however, with respect to the first
                    and second claims. I would conclude that there is no private analogue for
                    these claims, and therefore no need exists to even address whether the
                    discretionary function exception applies. The State is simply immune
                    whether it engaged in a discretionary function or not.
                                On appeal, Glover-Armont characterizes her claims as arising
                    from a simple car crash that could have involved anyone, police or not. But
                    her own factual allegations undermine her argument. Some car crashes
                    involving police vehicles have straightforward private analogues: suppose a
                    police car, not responding to an emergency, carelessly veers through a
                    crosswalk and injures a pedestrian. In that event, the police car should be
                    subject to the same principles of liability that apply to any private citizen
                    because the scenario involves the kind of simple negligence that anyone can
                    commit regardless of whether the vehicle in question was a police cruiser or
                    a family station wagon.
                                But as detailed by Glover-Armont's complaint, summary
                    judgment evidence, and briefing both below and on appeal, this case isn't so
                    simple. The act that Glover-Armont specifically identifies as having been
                    negligent is not simply that Sergeant Cargile drove carelessly in some way
                    that any private actor could have. It's considerably more specific than that:
                    it's that Cargile raced at high speed through an intersection against a red
                    light without activating police warning sirens to clear civilians out of the
                    way as police department policy specifically required. This is wholly unlike
                    anything that a private citizen can do. Private actors can't legally speed on
                    public roads (except to avoid some kind of imminent danger to them, not
                    present here). They can't legally enter intersections against red lights
                    (again, except to avoid some kind of imminent danger not present here).


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                   They don't have, and can't legally ever use, police lights• and sirens in any
                   shape or form. They aren't governed by police department policies, or any
                   civilian analogue thereto, regarding the use of police lights and sirens in
                   traffic. They don't have to make split-second decisions on the best way to
                   quickly get to the scene of an active shooting before the victim dies or the
                   criminal escapes. There is no private analogue of any sort for the negligence
                   alleged here. Consequently, I would conclude that no private analogue
                   exists for the negligence that Glover-Armont alleges in her first and second
                   claims for relief, and sovereign immunity has not been waived for these
                   claims to proceed.
                                                        VI.
                               Glover-Armont nonetheless argues that because a specific
                   Nevada statute (NRS 484B.700) requires police officers to act with due care,
                   then the Legislature must have intended to allow them to be sued when
                   they do not, effectively creating an implied waiver to thefl larger rule of
                   sovereign immunity. But that's too broad. There's no reason to read the
                   two doctrines as necessarily being in tension with each other; indeed, when
                   examining statutes, we're supposed to do the opposite and read them in
                   harmony whenever possible.       See Antonin Scalia & Bryan A. Garner,
                   Reading Law: The Interpretation of Legal Texts 180 (2012) (Statutes should
                   be "interpreted in a way that renders them compatible, not contradictory.").
                   Here, the two statutes work together and complement each other quite
                   nicely. A police officer can violate NRS 484B.700 in a way that lends itself
                   to a private analogue under NRS 41.031(1). But a police officer can also




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                    violate NRS 484B.700 in a way that has no private analogue under NRS
                    41.031(1). When the former happens, NRS 484B.700 permits a lawsuit
                    against the government. When the latter happens, NRS 41.031(1) prohibits
                    a lawsuit against the government. It's that simple, and there's no need to
                    labor for anything more elaborate.
                                                         VII.
                                 For these reasons, I join my colleagues in remanding the third
                    and fourth claims for relief, but would affirm the district court's grant of
                    summary judgment with respect to Glover-Armont's first and second claims
                    for relief
                                                                                       J.
                                                         Tao




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