Phipps v. City of McGill

Full title: ILENE PHIPPS AND KYLE PHIPPS, APPELLANTS, v. CITY OF McGILL, NEVADA…

Court: Supreme Court of Nevada

Date published: Apr 30, 1981

627 P.2d 401 (Nev. 1981)

627 P.2d 401

Opinion

No. 11350

April 30, 1981

Appeal from Seventh Judicial District Court, White Pine County; Merlyn H. Hoyt, Judge.

Manzonie Massi, Las Vegas, for Appellants.

Richard H. Bryan, Attorney General, and Norman C. Robison, Deputy Attorney General, Carson City; Thorndal, Gentner, Backus, Lyle Maupin, Ltd., Las Vegas; and Allison, Brunetti, MacKenzie Taylor, Ltd., Carson City, for Respondents.

OPINION

Per Curiam:[fn1] [fn1] This opinion was originally issued on March 30, 1981, as an unpublished order dismissing appeal. At the request of respondent Department of Transportation we are publishing this order.

The district court granted summary judgment as to respondents City of McGill and the Department of Transportation² of the State of Nevada on appellants' negligence claim and certified the judgment under NRCP 54(b). Appellants contend that questions of fact exist which preclude summary judgment.

2 Formerly the Department of Highways. 1979 Nev. Stats. ch. 683.

The injuries of appellant Ilene Phipps occurred as the result of tripping on an alleged hazard in the road surface of Highway 93 in McGill, Nevada. All parties to this action admit that Highway 93 is a state highway, exclusively within the jurisdiction of the State of Nevada Department of Transportation. NRS 408.285. Summary judgment was therefore proper as to the City of McGill, as it had no duty with respect to the allegedly defective condition. LaFever v. City of Sparks, 88 Nev. 282, 496 P.2d 750 (1972).

Summary judgment was also proper as to the Department of Transportation. The state is immune from suit for negligence with respect to dangerous conditions of which it does not have notice. See NRS 41.033; Crucil v. Carson City, 95 Nev. 583, 600 P.2d 216 (1979). Nothing in the record before the district court on the motion for summary judgment indicated that the Department of Transportation had any knowledge of the alleged hazardous condition at the time of the accident. See State v. Kallio, 92 Nev. 665, 557 P.2d 705 (1976). Furthermore, appellants did not support their opposition to the motion for summary judgment with any affidavits or other material establishing that a hazardous condition existed at all. See NRCP 56(e). Accordingly, summary judgment in favor of the Department of Transportation was appropriate.

Respondent City of McGill has requested this court to award it attorney fees and costs on appeal against the appellants. NRAP 38. We do not feel such an award is appropriate in this case.

As this appeal is without merit, however, we order it dismissed.