One of the respondents, a county commissioner, was present at the time
and informed Donald Bordenkircher, the head of the buildings and
grounds department.
Eighteen days before the accident, a park patron reported to
Bordenkircher that another limb had broken off. It was caught in the
still-attached tree branches, so Bordenkircher cordoned off an area with
construction fence under •the five surrounding trees to prevent anyone
from going under the hanging limb The limb eventually fell to the
ground. Bordenkircher informed the county commissioners of the
incident, that he was searching for an arborist to inspect the trees, and
that he had obtained a quote that it would cost between $40,000 and
$60,000 to trim the park trees. The commissioners suggested that he
contact a company the county had previously used, and "agreed that for
safety purposes, the trees need[ed] to be taken care of."
Two days before the incident in this case, Bordenkircher
discovered that a yet another limb had fallen. And the night before the
Frontier Days event another limb from the same tree fell. In total, four
limbs, ranging from five to ten inches in diameter and fifteen to twenty-
five feet long, fell within the month preceding the Frontier Days accident.
But no precautions were taken to secure the area under the trees in the
event another branch fell during the festival.
Hertz and Rose sued the County, the commissioners in their
official capacities, and Greater Pershing Partnership, which sponsored
Frontier Days, alleging a negligent failure to maintain the public park
trees in a reasonably safe condition. The district court granted summary
judgment in the County's, the commissioners', and Greater Pershing
Partnership's favor. Hertz and Rose now appeal the grant of summary
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judgment on their negligence claims against the County and
commissioners only (collectively referred to as the County). 1
At issue is whether the County is entitled to discretionary-
function immunity under NRS 41.032(2), a mixed question of law and fact.
Ransdell v. Clark Cnty., 124 Nev. 847, 854, 192 P.3d 756, 761 (2008). This
court strictly construes such limitations on the general waiver, of sovereign
immunity, and to qualify "a decision must (1) involve an element of
individual judgment or choice and (2) be based on considerations of social,
economic, or political policy." Martinez v. Maruszczak, 123 Nev. 433, 439,
446-47, 168 P.3d 720, 724, 729 (2007).
The decisions by the County regarding the park involved an
element of judgment and choice; there were no statutory or regulatory
guidelines governing park maintenance. See Berkovitz v. United States,
486 U.S. 531, 536 (1988) (an action does not involve an element of
judgment when a "statute, regulation, or policy specifically prescribes a
course of action for an employee to follow"). But, given the serious safety
issues at play, the County's alleged actions—keeping the park open
without trimming the trees, putting construction fence around them, or at
the least warning attendees about the potential for falling limbs—were too
far removed from a policy consideration to warrant immunity. Martinez,
123 Nev. at 446, 168 P.3d at 728 (discretionary acts do not fall within the
exception if they i nvolve "negligence unrelated to any plausible policy
objectives."); Whisnant v. United States, 400 F.3d 1177, 1179, 1183 (9th
Cir. 2005) ("[R]emoving an obvious health hazard is a matter of safety and
1 Greater Pershing Partnership was dismissed from this appeal by
stipulation and order of this court on December 6, 2012.
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not policy."); Sutton v. Earles, 26 F.3d 903, 910 (9th Cir. 1994) ("A decision
not to warn of a specific, known hazard for which the acting agency is
responsible is not the kind of broader social, economic or political policy
decision that the discretionary function exception is intended to protect);
Boyd v. United States ex rel. U.S. Army, Corps of Eng'rs, 881 F.2d 895, 898
(10th Cir. 1989) (same).
Because the policy-judgment facet is missing, these decisions
are not the kind of "political, social, and economic judgments' that are the
unique province of the Government," and thus are not those that the
discretionary-function exception was designed to shield. 2 Marlys Bear
Medicine v. U.S. ex rel. Sec'y of Dep't of Interior, 241 F.3d 1208, 1214 (9th
Cir. 2001); Martinez, 123 Nev. at 445, 168 P.3d at 727-28. Accordingly, we
ORDER the judgment of the district court REVERSED AND
REMAND this matter to the district court for proceedings consistent with
this order.
J.
lpering
I .
J.
Parraguirre
Saitta
2The County summarily notes the "public duty" doctrine and
immunity under NRS 41.033 as alternative grounds to support the district
court's entry of summary judgment, but fails to provide any support as to
why they would apply here, so we do not consider them. Evans v. State,
117 Nev. 609, 644 n.85, 28 P.3d 498, 522 n.85 (2001) ("[T]his court need
not address issues unsupported by cogent argument.").
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cc: Chief Judge, The Sixth Judicial District Court
Hon. Robert E. Estes, Senior Judge
David Wasick, Settlement Judge
Bradley Drendel & Jeanney
Thorndal Armstrong Delk Balkenbush & Eisinger/Reno
Piscevich & Fenner
Pershing County Clerk
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