This is an appeal from a judgment of the Second Judicial District Court entered on a unanimous jury verdict for compensatory and punitive damages. Although other errors are assigned,
Tracy Rhyne was seriously injured when her vehicle collided with a large bull on Interstate 80 east of Reno. The collision resulted from Granite Construction's decision not to honor a provision of its highway construction contract with the State of Nevada, which specifically required Granite to protect users of the highway under construction by furnishing protective
Judge Whitehead correctly ruled that in the Leslie case, cited above, "the Nevada Supreme Court held that punitive damages may be awarded against a corporation when there is a conscious and deliberate disregard of known safety procedures by management personnel." In making this ruling Judge Whitehead commented:
Giving added strength to Judge Whitehead's comment is the admission by Granite's superintendent, James Markwardt, that Granite was working under time pressures and that if Granite had proceeded to install the safety fence in accordance with its contract, the job would not be completed within the time specified in the contract. Even though there may be some evidence that could lead to a contrary belief, the jury was certainly justified in concluding that Granite was taking a short cut, that it was trying to avoid burdensome financial penalties attached to late completion and that it therefore deliberately and with knowledge of the potential danger decided not to erect the safety fence. The jury could have easily and logically concluded that such actions on the part of Granite Construction Company constituted a conscious and deliberate disregard of the safety of motorists traveling along the unprotected highway.
Judge Whitehead was very precise and absolutely correct in his legal ruling in this case, namely:
It is difficult to see how Judge Whitehead could have ruled otherwise; and we agree with his determination that the jury's imposition of punitive damages in this case was fully supported by the law and the evidence. The judgment of the trial court is affirmed.
ROSE, J., concurs.
MOWBRAY, Chief Justice, concurring:
I join in the court's opinion, but write separately to express my concern over the legal hair-splitting that plagues this area of our law.
NRS 42.005 (formerly NRS 42.010) allows punitive damages to be awarded where the defendant is guilty of "malice." That, however, is both the beginning and ending of consensus in this area of the law. The subtle, often imperceptible distinctions between "express malice" and "implied malice," and "malice in fact" and "malice in law" engender spirited debate in courts across the land. Not surprisingly, this court has not been immune to the controversy, and, as a result, our past decisions offer no clear resolution.
What is clear, however, is that our preoccupation with such legal niceties must not provide a loophole for defendants whose gross and wanton misconduct cries out for punitive sanctions. The jury here found that the defendant consciously and deliberately disregarded known safety procedures — procedures designed to protect the public from serious harm — to save a few dollars.
STEFFEN, Justice, with whom YOUNG, Justice joins, dissenting:
Because the majority's affirmance of punitive damages is contrary to the decisional law of this state, I am compelled to dissent. I do, however, concur in affirming the judgment below as it relates to the award of compensatory damages.
There is no evidence in this record that would support the proposition that Granite harbored an intent to cause injury by failing to assure the erection of secure fencing to prevent livestock from gaining access to the right-of-way under repair. In fact, the record reveals that the state engineer approved, in advance, performing the relevant work on the south side of the project without erecting a temporary cattle containment fence, thus waiving the contractual obligation imposed by the State to provide such a fence. The State's waiver was based upon a number of factors, including a mistaken understanding on the part of the state engineer, Granite, and the fencing subcontractor, that no livestock remained in the area affected by the work. While the right-of-way fence along the south side of Highway 80 was in the process of being removed, a bull was seen in the vicinity by employees of the fencing subcontractor and by Granite's project superintendent. After seeing the animal, the superintendent directed another Granite employee to locate the bull and its owner in order to have it removed from the area. On several occasions the superintendent also ordered that the Nevada Highway Patrol be contacted for assistance in relocating the animal. Unfortunately, Granite's efforts were inadequate as the bull was neither found nor removed prior to the time it wandered onto the highway where it was hit by the vehicle driven by Tracy Lynn Rhyne. The facts of record simply do not constitute a basis for punitive damages under Nevada law. Unquestionably, Granite's actions may be viewed as negligent or perhaps even grossly negligent, and therefore a justifiable basis
Despite the timidity with which the majority underscores implied malice as support for the proposition that NRS 42.005 allows punitive damages for "consciously and deliberately disregard[ing] known safety procedures," it is apparent that the intent of the majority is to make an end run around all of this court's decisions to the contrary. Unfortunately, rather than forthrightly overruling our past decisions, which have consistently rejected the majority's conjuration of malice in law as a discrete basis for punitive awards in Nevada, the majority in essence pretends that we have always recognized that form of malice as support for imposing exemplary damages. It would therefore appear that despite the unwillingness of the majority to officially pronounce an obituary to virtually every ruling of this court on the subject of punitive damages based upon malice, the net effect is the same.
In an attempt to validate today's ruling, the majority cites both Leslie v. Jones Chemical Co., 92 Nev. 391, 551 P.2d 234 (1976), and Nevada Cement Co. v. Lemler, 89 Nev. 447, 514 P.2d 1180 (1973). Since the majority has not seen fit to acknowledge the actual holdings in either case, it is necessary to again address them lest my silence be viewed as acquiescence.
First, in Lemler we observed that:
Id. 89 Nev. at 452, 514 P.2d at 1183 (emphasis added). Moreover, the Lemler court reaffirmed the position this court had taken in Nevada Credit Rating Bureau, Inc. by explaining that:
Id. 89 Nev. at 451, 514 P.2d at 1182-83 (emphasis supplied, footnote omitted).
In 14 Cal.Jur.2d, Damages § 176, it states:
(Footnotes omitted, emphasis added.) I have burdened the reader with the complete text of the section of 14 Cal.Jur.2d referred to in Lemler as having been adopted by this court in order to eliminate any illusions about the accuracy of the majority's assertion. It should be evident to anyone seriously interested in the holding of this court in Lemler that at no time did the court recognize implied malice or malice in law as a discrete basis for awarding punitive damages. The most that can be said for Lemler and the majority's attempt to expand its holding, is that the decision was most probably improvident based upon the strained adaptation of the law as reaffirmed by this court, to the peculiar facts of that case. In that regard, the reader is invited to review the dissenting opinion of Justice Thompson.
The majority also cites to our opinion in Leslie v. Jones Chemical Co., 92 Nev. 391, 551 P.2d 234 (1976), as having recognized implied malice as a basis for awarding punitive damages. Again, the majority avoids the true holding of the opinion as if it didn't exist. After noting that the court was not concerned with the award of compensatory damages, the Leslie court stated that "[w]e are here dealing with a remittitur of punitive damages where the evidence regarding the presence or absence of malice in fact on the part of the defendants
This unwillingness to see, hear, and recognize what this court has been consistently declaring since the 1972 decision in Nevada Credit Rating Bureau, Inc. v. Williams, supra, is troubling. My concern is not derived from any particular view or philosophy concerning exemplary damages, but rather the willingness of the majority to so cavalierly pretend that our holdings have been something other than what they are. The plain fact of the matter is that this court has never before recognized in Nevada jurisprudence malice in law as a discrete basis for an award of exemplary damages.
Without reiterating the background laboriously set forth in the plurality opinion in Craigo,
If the majority had determined to confront the effect of the instant ruling in overruling our lengthy and consistent line of precedents, there would have been a major challenge in justifying such a result as a legitimate advancement of the common law. In the societal milieu of today, there are many discordant views on the role, propriety, and costs of punitive damages. Courts are ill-equipped to determine social costs and preferences in areas so fraught with controversy and consequences. By way of illustration, I invite the reader to consider the scholarly material contained in 56 S.Cal.L.Rev. (1982) under the general title Symposium: Punitive Damages. The referenced material constitutes but a small sampling of the many articles and organized efforts designed to analyze and resolve problems perceived to exist as a result of large and frequent punitive damage awards. Apropos to the point is the majority's simplistic analysis of
Ellis, Fairness and Efficiency in the Law of Punitive Damages, 56 S.Cal.L.Rev. 1, 49 (1982).
The economic impact of punitive damages on consumers is but one of the factors that should be objectively and thoroughly considered before expanding the bases upon which punitive damages may be imposed. The prospect of the burden of punitive damages being allocated to consumers at large rather than the entity to be punished is alone sufficient to give pause to the desirability of imposing such damages under a theory of implied malice. Moreover, current efforts to place limits on the amount of punitive awards reflects an awareness that other factors and consequences need to be assessed along with the desirability of punishing certain tortfeasors and products manufacturers. Indeed, our own legislature has proved receptive to such limitations as reflected in the most recent amendment to NRS 42.005. In any event, my concern is not grounded in the philosophy behind exemplary damages or the extent of their availability, but rather the conviction that any proliferation of bases for such damages should be left to the legislative laboratory where extensive debate, study, and research may be considered.
An additional reason why I cannot endorse the majority's decision to disregard stare decisis stems from an appreciation of the social benefits derived from the availability of punitive damages based upon desert. I am far from certain where current forces may lead us concerning the future availability of such damages, and fear the possibility of their total demise or severe attenuation unless courts exercise restraint in their imposition. I fully understand that the plaintiffs' bar prefers maximizing
This is my third written dissent to dispositions prepared by our colleague, Justice Springer, on behalf of the majority in this case. Rather than entirely revising my dissent for a third time, I will simply address here the latest changes in the majority opinion. The only substantive differences between the second majority draft and the third opinion which I am now addressing, are the references to the learned trial judge, the Honorable Jerry Carr Whitehead, and his rulings in the trial below. I do not fault the trial court judge, whose rulings antedated this court's plurality opinion in Craigo, for assuming that punitive damages may be assessed under a malice standard identified by "a conscious and deliberate disregard of known safety procedures by management personnel." I do find it curious, however, that the majority would seek to bootstrap its views, post Craigo, by referring to a pre-Craigo ruling by a trial court who was merely attempting to follow this court's earlier pronouncements. The fact that the majority knows better is underscored by its emphatic reference to implied malice in NRS 42.005 as a discrete basis for supporting a punitive award. The majority shares my understanding that "conscious and deliberate disregard of known safety procedures by management personnel" refers to a course of conduct that would support a punitive damage award based only upon implied malice, or malice in law. Indeed, our colleague, Justice Springer, observed in his concurring opinion in Craigo that the Lemler and Leslie cases sustained punitive awards based upon implied malice. Referring to Lemler, Justice Springer noted that "the defendant cement company had no `deliberate intention to injure' anyone." Craigo, 106 Nev. at 10, 786 P.2d at 28. In characterizing Leslie, our colleague stated that "[w]e approved a punitive award absent even a hint of any `intention to injure' the plaintiffs." Id. Describing "implied malice" as "malice of unintended harm," our colleague concluded that in both the Lemler and Leslie cases, this court recognized implied malice as a basis for imposing punitive damages. Id. For reasons set forth above, and at length in Craigo, our colleague is wrong.
At no time, at least until today, has this court ever recognized implied malice as a basis for a punitive award.
For the reasons specified above, and with special emphasis on the fact that the record provides no evidentiary basis for imposing punitive damages based upon actual malice, I respectfully dissent.
YOUNG, J., concurs.
With respect to the other claims of error, we conclude that the trial court was acting within the scope of its discretion when it allowed Trooper Davenport to give his opinion on driver error (see Cheyenne Construction v. Hozz, 102 Nev. 308, 311, 720 P.2d 1224, 1226 (1986)) and when it allowed the Rhynes to amend their complaint to include a claim for punitive damages.
Id. 94 Nev. at 211-12, 577 P.2d at 411-12 (emphasis added). As noted previously, our opinion in Nevada Credit Rating Bureau, Inc., written by Justice Batjer, made it emphatically clear that "[a]n award of exemplary damages, in an action for damages for injuries inflicted by the defendant's malicious act, can be made only if the plaintiff can show that malice in fact, as distinguished from malice in law, existed with respect to the defendant's act." Nevada Credit Rating Bureau, Inc., 88 Nev. at 609, 503 P.2d at 14 (quoting from 14 Cal.Jur.2d, Damages, § 176) (emphasis added).