138 Nev., Advance Opinion Li 

IN THE SUPREME COURT OF THE STATE OF NEVADA 

No. 78954 

FILED 

LARRY PORCHIA, 

Appellant, 

vs. 

CITY OF LAS VEGAS; STEPHEN 

MASSA; NICHOLAS PAVELKA; 

WILLIAM HEADLEE; MARINA CLARK; 

JASON W. DRIGGERS; AND LVFR 

RISK MANAGEMENT, 

Respondents. 

FEB 1 7 2022 

EUZABETH A. BROWN 

CLERK OF SUPREME COURT 

BY 

PUTY CLERK 

Appeal from a district court order granting a motion to dismiss 

a tort action. Eighth Judicial District Court, Clark County; Gloria Sturman, 

Judge. 

Affirmed in part, reversed in part, and remanded. 

Olson, Cannon, Gormley & Stoberski and Stephanie M. Zinna, Las Vegas, 

for Appellant. 

Bradford R. Jerbic, City Attorney, and Jeffry M. Dorocak and Rebecca L. 

Wolfson, Deputy City Attorneys, Las Vegas, 

for Respondents. 

BEFORE THE SUPREME COURT, EN BANC. 

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OPINION 

By the Court, HERNDON, J.: 

Appellant Larry Porchia alleges EMTs denied him medical 

treatment and transportation to the hospital after negligently 

misdiagnosing him and/or because he was homeless and uninsured. The 

district court dismissed Porchia's complaint after concluding that Porchia's 

claims were barred by the public duty doctrine and the Good Samaritan 

statute. However, accepting Porchia's allegations as true, a failure to 

render medical assistance or to transport a patient to the hospital based 

solely on their socioeconomic status may qualify as an affirmative act 

exempted from the public duty doctrine and as gross negligence, which 

would render the Good Samaritan statute inapplicable. Thus, we conclude 

the district court erred in dismissing Porchia's complaint in its entirety at 

such an early stage in the proceedings. 

FACTS AND PROCEDURAL HISTORY 

On August 26, 2015, at 3:45 a.m., Porchia's friend called 

emergency services on his behalf because he was suffering from severe 

stomach pain, vomiting, and hot flashes. Las Vegas Fire and Rescue 

(LVFR), which employs respondents Firefighter-Paramedic Stephen Massa 

and Firefighter-Advanced Emergency Medical Technician Nicholas 

Pavelka, was dispatched to Porchia's location. Massa and Pavelka placed 

Porchia on a stretcher, took his vitals, and asked him questions about his 

condition. Porchia requested they transport him to the hospital. According 

to Porchia's amended complaint, once he informed them that he was 

homeless and did not have insurance, Massa and Pavelka diagnosed 

Porchia with gas pain, removed him from the stretcher, and concluded he 

did not need to be transported to the hospital. 

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At 11 a.m., another of Porchia's friends called emergency 

services again on his behalf because he was still experiencing severe 

stomach pain. LVFR was again dispatched, and different EMTs 

immediately transported Porchia to the hospital, where he underwent 

emergency surgery for a bowel obstruction. Porchia asserts that both the 

doctor and the nurse at the hospital informed him that if he had received 

medical treatment earlier, he would not have required emergency surgery. 

Porchia filed, pro se, an amended complaint alleging negligence 

against respondents. The district court granted respondents motion to 

dismiss, concluding that, as a matter of law, respondents could not be held 

liable for damages based on the public duty doctrine, NRS 41.0336, and the 

Good Samaritan statute, NRS 41.500(5). Porchia appealed, and the Court 

of Appeals affirmed the district coures order. Porchia v. City of Las Vegas, 

No. 78954-COA, 2020 WL 7396925 (Nev. Ct. App. Dec. 16, 2020) (Order of 

Affirmance). Porchia filed a petition for review with this court, which we 

granted. 

DISCUSSION 

We review de novo a district court order dismissing a complaint 

pursuant to NRCP 12(b)(5). Dezzani v. Kern & Assocs., Ltd., 134 Nev. 61, 

64, 412 P.3d 56, 59 (2018). Under our "rigorous standard of reviee of such 

orders, we must consider all factual allegations in the complaint as true and 

draw all inferences in the plaintiff's favor. Buzz Stew, LLC v. City of North 

Las Vegas, 124 Nev. 224, 227-28, 181 P.3d 670, 672 (2008). A "complaint 

should be dismissed only if it appears beyond a doubt that [the plaintiff] 

could prove no set of facts, which, if true, would entitle [the plaintiff] to 

relief." Id, at 228, 181 P.3d at 672. 

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The public duty doctrine 

This court first recognized the public duty doctrine in 1979 

when it concluded that a police department could not be held liable for 

injuries sustained as the result of another's unlawful actions, even when 

the injured party claimed the police department failed to provide adequate 

security and medical care at a public event. Bruttomesso v. Las Vegas 

Metro. Police Dep't, 95 Nev. 151, 153, 591 P.2d 254, 255 (1979). In that 

matter, this court emphasized that ítlhe duty of the government . . . runs 

to all citizens and is to protect the safety and well-being of the public at 

large." Id. The rationale behind the public duty doctrine permits public 

entities to carry out their duty to the public without fear of fmancial loss or 

reprisal. See generally Scott v. Dep't of Commerce, 104 Nev. 580, 585-86, 

763 P.2d 341, 344 (1988) ("[T]he public interest is better served by a 

government which can aggressively seek to identify and meet the current 

needs of the citizenry, uninhibited by the threat of financial loss should its 

good faith efforts provide less than optimal—or even desirable—results." 

(quoting Commonwealth, Dep't of Banking & Sec. v. Brown, 605 S.W.2d 497, 

499 (Ky. 1980)). Thus, the public duty doctrine shields public entities, like 

fire departments or public ambulance services, from liability on the basis 

that such entities should not be inhibited by their good faith efforts to serve 

the public, even when the outcome of their emergency treatment is less than 

desirable. 

The public duty doctrine was codified in NRS 41.0336, which 

provides that public officers called to assist in an emergency are not liable 

for their negligent acts or omissions unless one of two exceptions is 

applicable: (1) the public officer made a specific promise or representation 

to the person and the person relied on that promise or representation to his 

or her detriment, resulting in the officer assuming a special duty to the 

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individual person; or (2) the conduct of the public officer "affirmatively 

caused the harm." Additionally, the public duty doctrine does not "abrogate 

the principal of common law that the duty of governmental entities to 

provide services is a duty owed to the public, not to individual persons." 

NRS 41.0336. 

The special duty exception 

Porchia argued in his amended complaint that the first 

exception to the public duty doctrine applied because Massa and Pavelka 

breached a special duty they owed to him, as an individual, to transport him 

to the hospital. Nevada recognizes two ways in which a special duty may 

be established: (1) if a statute or ordinance sets forth "mandatory acts 

clearly for the protection" of an individual "rather than the public as a 

whole," Coty v. Washoe County, 108 Nev, 757, 761 n.6, 839 P.2d 97, 99 n.6 

(1992) (internal quotations omitted); or (2) if a public officer, "acting within 

the scope of official conduct, assumes a special duty by creating specific 

reliance on the part of certain individuals," id. at 760, 839 P.2d at 99. See 

also Charlie Brown Constr. Co. v. City of Boulder City, 106 Nev. 497, 505-

06, 797 P.2d 946, 951 (1990) (explaining that a special duty sufficient to 

pierce the public duty doctrine was established by a city ordinance that 

imposed a duty to act for the benefit of specific entities), abrogated on other 

grounds by Calloway v. City of Reno, 116 Nev. 250, 993 P.2d 1259 (2000). 

Porchia failed to point to any Nevada or local law that required 

Massa or Pavelka to transport him to the hospital under the asserted 

circumstances. The Legislature has recognized that "prompt and efficient 

emergency medical care and transportation is necessary for the health and 

safety of the people of Nevada," NRS 450B.015, but that statute does not 

require EMTs to transport every member of the public who seeks emergency 

medical care. If an EMT has exercised his or her duty of care in examining 

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a patient and determined that no further medical intervention is necessary, 

the EMT does not have a duty to transport the patient to the hospital. See, 

e.g., Watts v. City of Chicago, 758 N.E.2d 337, 340 (Ill. App. Ct. 2001) 

(explaining that a paramedic has a duty to transport a person to the hospital 

only if there is a medical necessity); Wright v. Hamilton, 750 N.E.2d 1190, 

1194 (Ohio Ct. App. 2001) (providing that if a paramedic utilizes a 

reasonable exercise of professional judgment in determining that the 

patient does not require additional medical attention, the paramedic need 

not transport the patient to the hospital). Accordingly, an EMT's duty is 

owed to the public, not to the individual person, and there is no law 

establishing a special duty to transport all patients to the hospital. 

Porchia further failed to demonstrate a special duty created by 

a promise from Massa or Pavelka that he relied upon to his detriment. See 

Hines v. District of Columbia, 580 A.2d 133, 136 (D.C. 1990) (stating that 

"the mere fact that an individual has emerged from the general public and 

become[s] an object of the special attention of public employees does not 

create a relationship which imposes a special legal duty"). He does not 

assert that Massa or Pavelka promised to transport him to the hospital. 

Because Porchia cannot point to a special duty Massa or Pavelka had to 

transport him to the hospital, his asserted claims failed to demonstrate the 

first exception to the public duty doctrine. 

The affirmative harm exception 

Porchia also argued in his amended complaint that he was 

refused treatment and transport by Massa and Pavelka because of his 

socioeconomic status and that the delay in receiving treatment was what 

caused his need for surgery. Consequently, he argued, the second exception 

to the public duty doctrine applies because, accepting the factual assertions 

as true, Massa and Pavelka affirmatively caused him harm. He alleged that 

6 
they took affirmative steps by removing him from the stretcher when they 

learned he was homeless and uninsured. 

In Coty v. Washoe County, 108 Nev. 757, 760-61, 839 P.2d 97, 

99 (1992), we recognized that NRS 41.0336 did not define the phrase 

"affirmatively caused the harm," and we defined the phrase as meaning 

"that a public officer must actively create a situation which leads directly to 

the damaging result." Accordingly, to have invoked the affirmative harm 

exception to the public duty doctrine, Porchia must have alleged facts that, 

when taken as true, demonstrate that Massa and Pavelka created a 

situation that led directly to Porchia's alleged harm and that their actions 

"actively and continuously" operated to bring about his harm. See id. at 

760, 839 P.3d at 99 (explaining that in negligence actions, legal cause is 

determined when the actor's negligent conduct actively and continuously 

operates to bring about the harm to another" (internal quotations omitted)). 

The Court of Appeals of Utah has further described when 

affirmative acts by a public officer establish liability under the affirmative 

act exception to the public duty doctrine. Faucheaux v. Provo City, 343 P.3d 

288, 293 (Utah Ct. App. 2015). 

(Me public duty doctrine applies only to the 

omissions of a governmental actor. Thus, where the 

affirmative acts of a public employee actually 

causes the harm . . . the public duty doctrine does 

not apply. Affirmative acts include active 

misconduct working positive injury to others, while 

omissions are defined as passive inaction, i.e., a 

failure to take positive steps to benefit others, or to 

protect them froin harm. A negligent affirmative 

act leaves the plaintiff positively worse off as a 

result of the wrongful act, whereas in cases of 

negligent omissions, the plaintiffs situation is 

7 
unchanged; she is merely deprived of a protection 

which, had it been afforded her, would have 

benefitted her. 

Id. (internal quotation marks and citations omitted). We find this analysis 

persuasive. 

This court has considered the affirmative harm exception only 

in one case, in which a police officer pulled over an intoxicated driver, cited 

him for speeding, directed him to park his car on the side of the road, and 

arranged for the driver to be transported home, but left before the driver's 

transportation arrived. Coty, 108 Nev. at 758-59, 839 P.2d at 98. The driver 

then resumed driving and collided with another vehicle, killing himself and 

the passenger in the other vehicle. Id. at 759, 839 P.2d at 98. In the 

wrongful death action that was subsequently filed against the officer, this 

court concluded that because the driver ignored the police officer's order to 

park his car on the side of the road, the police officer was not the active and 

direct cause of the harm. Id. at 762, 839 P.2d at 100. Thus, the public duty 

doctrine precluded the wrongful death action. Id. While Coty clearly 

established the appropriate test, the facts of that case are not directly 

analogous to the present case, so we look to other jurisdictions for 

persuasive authority on this matter. 

In Woods v. District of Columbia, 63 A.3d 551, 552 (D.C. 2013), 

EMTs refused to transport the appellant after misdiagnosing her symptoms 

of slurred speech, loss of balance, and vomiting as a side effect of recently 

quitting smoking. The next day, appellant was transported to the hospital 

by different EMTs, where it was determined she had suffered a stroke. Id. 

The District of Columbia Court of Appeals held that detrimental reliance on 

"a negligent judgment call, discretionary determination, or incorrect 

statement of fact by a [public] employee providing on-the-scene emergency 

services does not constitute the kind of actual and direct worsening of the 

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plaintiffs condition that will permit imposition of negligence liability 

despite the public-duty doctrine." Id. at 557 (internal quotations omitted). 

In Johnson v. District of Columbia, 580 A.2d 140, 141 (D.C. 

1990), the decedent suffered a heart attack and, after three 911 calls and a 

30-minute delay, firefighters arrived on the scene but lacked equipment to 

examine or treat the decedent other than to administer cardiopulmonary 

resuscitation. Sometime later, EMTs arrived, began to treat the decedent, 

and immediately transported her to the hospital, where she died. Id. A 

doctor at the hospital stated that if she had arrived earlier, he could have 

saved her. Id. There was no evidence that some act by the firefighters made 

the decedent's condition worse than it would have been if the firefighters 

had failed to arrive at all or not done anything after their arrival. Id. at 

142. Because the firefighters active conduct did not actually and directly 

worsen the decedent's condition, the District of Columbia Court of Appeals 

concluded the public duty doctrine barred firefighter liability. Id. at 142-

43. 

In Faucheaux v. Provo City, a husband and wife fought earlier 

in the day, resulting in police intervention; later, the wife texted the 

husband goodbye and took prescription pills. 343 P.3d at 291. The husband 

called 911 and told police officers his wife was suicidal and abusing 

prescription drugs and asked them to call EMTs. Id. The police spoke to 

the wife, concluded she just needed to "sleep it off," tucked her into bed, and 

told the husband to leave her alone. Id. When the husband checked on her 

hours later, she was dead. Id. The Court of Appeals of Utah concluded that 

by tucking the wife into bed and admonishing the husband to leave the wife 

alone, the police officers undertook affirmative actions, rather than 

omissions, which left the wife worse off. Id. at 293-94. Because the police 

officers did not merely fail to help but instead hindered the situation, the 

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court concluded that the police officers had taken affirmative actions and 

the public duty doctrine did not protect the police officers from liability. Id. 

at 294. 

Because the present case was resolved at an initial stage of the 

proceedings, the facts have not been as fully developed as some of the cases 

discussed above. Therefore, to the extent Porchia contends that Massa and 

Pavelka misdiagnosed him, which led them to not transport him to the 

hospital for further medical attention, he fails to demonstrate facts 

supporting an affirmative action by Massa or Pavelka causing him harm. 

A diagnosis made by EMTs based on their medical expertise, which later is 

determined to be incorrect, is more akin to an omission by EMTs than to an 

affirmative action causing harm. Therefore, Porchia's allegations that 

Massa and Pavelka misdiagnosed him do not qualify for the affirmative 

action exception to the public duty doctrine. 

Nevertheless, because we must accept all of Porchia's factual 

assertions in his amended complaint as true, we must accept as true his 

allegation that Massa and Pavelka removed him from the stretcher upon 

learning that he was homeless and uninsured and refused to transport him 

based on his socioeconomic status, not a misdiagnosis. If these facts are 

supported by evidence, they would establish an affirmative action by Massa 

and Pavelka, not a mere omission/misdiagnosis. It would be more than a 

passive action that left Porchia in the same situation he was in earlier. 

Instead, this would be an affirmative action that hindered Porchia, causing 

a delay in his medical treatment, which according to the facts asserted in 

his amended complaint was the only reason he required emergency surgery. 

Therefore, the facts alleged by Porchia met the affirmative harm exception 

to the public duty doctrine. Accordingly, we conclude the district court erred 

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in dismissing the amended complaint in its entirety under the public duty 

doctrine. 

The Good Samaritan statute 

Next, Porchia claims the district court also erred in dismissing 

his action under the Good Samaritan statute, NRS 41.500(5), because the 

facts alleged in his amended complaint, taken as true, demonstrated 

Massa's and Pavelka's failure to render medical assistance based on 

Porchia's socioeconomic status and would establish gross negligence. NRS 

41.500(5) provides that any person employed by a public fire-fighting 

agency and authorized to render emergency medical care 

is not liable for any civil damages as a result of any 

act or omission, not amounting to gross negligence, 

by that person in rendering that care or as a result 

of any act or failure to act, not amounting to gross 

negligence, to provide or arrange for further 

medical treatment for the injured or ill person. 

NRS 41.500(5) does not define gross negligence, but we have previously 

defined it as "an act or omission respecting legal duty of an aggravated 

character as distinguished from a mere failure to exercise ordinary care." 

Cornella v. Justice Court, 132 Nev. 587, 594, 377 P.3d 97, 102 (2016) 

(quoting Hart v. Kline, 61 Nev. 96, 100, 116 P.2d 672, 674 (1941)). Gross 

negligence is a "very great negligence, or the absence of slight diligence, or 

the want of even scant care" that "amounts to indifference to present legal 

duty, and to utter forgetfulness of legal obligations so far as other persons 

may be affected" but "falls short of being such reckless disregard of probable 

consequences as is equivalent to a willful and intentional wrong." Hart, 61 

Nev. at 100-01, 116 P.2d at 674 (quoting Shaw v. Moore, 162 A. 373, 374 

(Vt. 1932)). 

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As discussed above, because we must accept Porchia's 

allegations as true, an EMTs decision to not render medical assistance or 

assist a patient with obtaining further medical attention based purely on 

the patient's socioeconomic status might rise to the level of gross negligence. 

Such a decision could amount to an aggravated act, absent of even slight 

diligence and also indifferent to legal obligations owed to the patient. Thus, 

we conclude Porchia's factual claims may be sufficient to assert Massa's and 

Pavelka's actions amounted to gross negligence, rendering the application 

of Good Samaritan protection under NRS 41.500(5) improper. Accordingly, 

we conclude the district court erred in dismissing Porchia's amended 

complaint in its entirety under the Good Samaritan statute. 

CONCLUSION 

The district court properly concluded that the specific duty 

exception to the public duty doctrine did not apply because paramedics do 

not have a duty to transport patients who in their medical opinion do not 

require further medical attention, and because Massa and Pavelka did not 

make a specific promise to Porchia to transport him on which he relied to 

his detriment. Additionally, to the extent Porchia's claim for negligence was 

based on Massa's and Pavelka's misdiagnosis, the district court also 

properly concluded that the affirmative action exception to the public duty 

doctrine did not apply. Nevertheless, because we have to accept Porchia's 

claims in his amended complaint as true, and because he alleged that Massa 

and Pavelka refused to transport him to the hospital on the basis that he 

was homeless and uninsured, the district court erred in concluding the 

affirmative action exception to the public duty doctrine could not apply and 

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that the Good Samaritan statute necessarily precluded Porchia's requested 

relief. Accordingly, we affirm the district coures order to the extent it 

dismissed Porchia's claims based on misdiagnosis, reverse it to the extent it 

dismissed claims based on socioeconomic discrimination, and remand for 

further proceedings on the surviving claims. 

 J. 

Herndon 

We concur: 

ajt1114J26%te"'":" 

Parraguirre 

Hardesty 

J. 

.41,4sC4-0 

Stiglich 

Cadish 

J. 

J. 

Silver 

Add, 

Pickering 

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