Governmental Immunity – What Happens When you are Hurt by a Government Employee or Agent

Imagine you are driving home from work. You stop at a light, wait for it to turn green, and proceed cautiously into the intersection. Suddenly, a police cruiser enters the intersection from a perpendicular street, running a red light and barreling into your car. You suffer multiple injuries, including damage to your knee which results in surgery. What are your rights? Can you pursue a claim against the negligent officer? Will you be compensated for all of your injuries and damages?

Nevada, like all other states, has sovereign or governmental immunity, shielding the state from tort-based claims. Local governments are granted that same immunity. Pursuant to NRS 41.031, Nevada has waived that immunity to a certain extent, thus enabling injured parties to recover some monetary figure when they are the victim of negligence on the part of the state or an individual acting on behalf of the state. Other common examples of claims that may involve governmental immunity include:

• Car or motor vehicle accidents involving state employees or agents (police officers, county employees, etc.).
• Injuries related to negligent maintenance or design of permanent or temporary traffic control devices.
• Injuries related to negligent property management on the part of the state.
• Negligent maintenance of machinery resulting in injuries.

Nevada potentially places a cap in the amount of $100,0000 in these circumstances. NRS 41.035. Thus, if you are involved in a car accident (or other incident) with a government employee during the commission of his/her job duties, you will be limited in the damages you can recover. Additionally, that same statute prevents an injured party from claiming Punitive Damages against the state or its agencies. Id.

The Supreme Court of Nevada has consistently held that NRS 41.035 allows recovery of damages “on a per person per claim basis.” Cty. of Clark, ex rel. Univ. Med. Ctr. v. Upchurch, 961 P.2d 754, 761 (Nev. 1998). NRS 41.035 allows one statutory limitation for each cause of action, regardless of the number of actors.” Id at 761. Therefore, simply naming multiple defendants will not translate into multiple cap amounts.

The “per person or per claimant” standard permits an award of damages up to the statutory cap for each person having a valid claim against a governmental tortfeasor. In the case of a wrongful death where there are multiple heirs, each heir with his/her own claim of emotional pain and suffering, is entitled to his/her own cap, meaning the recovery from a single incident could be far more than $100,000.

In State v. Webster, 88 Nev. 690, 695 (1972), the Court held that the State was negligent for failing to install a cattle guard at the entrance to a controlled-access freeway. As a result of that failure, the plaintiff’s automobile, with his spouse/wife as a passenger, crashed into a horse which was wandering on the highway at night. The wife brought an action both for her own injuries arising from the incident as well as for the wrongful death of her husband in the same incident.

The Webster Court ruled that the wife was entitled to recover the full amount of the cap for the wrongful death of her husband, as well as monetary damages for her own personal injury damages she personally suffered as a result of the accident. In addition, three relatives of the decedent were allowed to recover the full amount of the cap each on their wrongful death claims. Thus, the Court allowed plaintiffs to recover damages against the State on a per person per claim basis. The Nevada Supreme Court’s decision in Webster states, “[a]lthough joined in one complaint, an action for wrongful death and an action for personal injuries suffered by the plaintiff in the same accident are separate, distinct and independent.” Wells Inc. v. Shoemake, 64 Nev. 57, 177 P.2d 451 (1947). “They rest on different facts, and may be separately maintained.” Burns v. Brickle, 106 Ga. App. 150, 126 S.E.2d 633 (1962); Chamberlain v. Mo.-Ark. Coach Lines, 354 Mo. 461, 189 S.W.2d 538 (1945).

A plaintiff characterizing separate acts or instances of wrongdoing will not result in multiple caps. See Clark County Sch. Dist. v. Richardson Constr., Inc., 123 Nev, 382, 168 P.3d 87 (2007). Separate “claims” emanating from or dependent upon an underlying negligence claim will not result in multiple caps. See State v. Webster, 88 Nev. 690, 695 (1972). A cause of action or claim is entitled to its own cap only if it is separate, distinct and could be maintained on its own. State v. Webster, 88 Nev. 690, 695 (1972). Therefore, a personal injury claim which includes a claim for negligent hiring or training will not allow for a total recovery in excess of $100,000.

A plaintiff’s recovery is controlled by the cap, but there are amounts that may be pursued outside of the cap. For example, the cap applies to prejudgment interest, but does not apply to post-judgment interest or liability for attorney fees and costs. Arnesano v. State ex rel Dept. of Transp., 113 Nev. 815, 821-822, 942 P.2d 139, 143-144 (1997).

There is also case law addressing Offers of Judgment, statutory settlement offers which encourage parties to resolve claims. NRS 17.115(4)(d)(3) states that if a party rejects an Offer of Judgment and fails to obtain a more favorable judgment, the District Court may order that that party pay “reasonable attorney’s fees” incurred from the date of service of the offer to the date of entry of the judgment. See also NRCP 68(f)(2) (stating that “[i]f the offeree rejects an offer [of judgment] and fails to obtain a more favorable judgment, … the offeree shall pay the offeror’s post-offer costs… and reasonable attorney’s fees”). In LVMPD v. Yeghiazarian, 312 P.3d 503 (2013), that is precisely what happened with plaintiffs each receiving the statutory cap, and further receiving attorneys fees and costs beyond the cap.

There are times it will not be clear whether the government can be held liable for an employee’s actions. NRS 41.745 clarifies when an employer, i.e. the State, would not be liable for harm or injury caused by the conduct of their employee. For example, if the harm was not committed in the course of the very task assigned to the employee or was not reasonably foreseeable under the facts and circumstances of the case considering the nature and scope of his or her employment, the state will not be held responsible. Further, if the accident occurred while the employee was not on-the-clock, performing his/her duties, or acting within the law, the government agency may be able to shield itself from liability.

Nevada Revised Statutes 41.032 through 41.0337 set forth instances where the government may invoke its immunity, thus eliminating the means of recovery in particular actions. These exceptions include everything from accidents involving school crossing guards to injuries caused by a failure to inspect or discover hazards.

This article illustrates the fact that each and every accident claim must be carefully reviewed by an experienced Personal Injury Attorney to consider potential recoveries available to injured parties. Though governmental immunity exists, there are exceptions that may allow injured parties to recover a great deal more than the $100,000 cap. If you or someone you care about has been injured due to the acts or omissions of a government employee or agent, contact Shook & Stone. We will investigate the matter free-of-charge.