*1 and case, had due notice it is that Patricia this doubtful of the concerning to be the effect reciprocal heard opportunity court. hearing lower imposed now support However, since court is reversed. order the lower under NRS discretionary not powers that court did consider its and 125.140, consideration this case is remanded permit of this arrearages, light opinion. for resolution motion J., Thompson, and Batjer, Zenoff, C. and Gunderson, JJ., concur. Appellants GOOD, LESLIE
RUTH DORIS CO., JONES CHEMICAL Cross-Respondents, INC., JONES CHEMI- Corporation; A New York CALS, INC., JONES Corporation; York New INC., Division, CHEMICALS, a Cali- Western CO., CHEMICAL JONES Corporation; fornia INC., Corporation, Division, a California Western Cross-Appellants. Respondents
No.
Galatz, Biggar, & Earl Vegas, Las Appellants Cross-respondents. Chartered, Jemison, DeLanoy
Beckley, Singleton, & *2 and Vegas, Las for Respondents Cross-appellants.
OPINION
Court, Thompson,
the
J.:
By
action the
injury
In this
defendants admitted lia-
personal
trial,
awarded
bility. Following
and
compensatory
damages to each
The verdict
plaintiff.
favoring
punitive
plain-
$150,000
$125,000
Leslie was for
compensatory
tiff
$35,-
damages. The verdict for
punitive
plaintiff Good was
$125,000
compensatory
punitive damages. Believing
$250,000
damage
that
awards
punitive
totalling
were the
result of
the district
passion
prejudice,
granted
court
defendants’ motion for a new trial unless each
would
plaintiff
$85,-
a remittitur of
accept
damages in the amount of
$170,000.
000 for a total of
The
damage awards
compensatory
not
were
touched. The
have
plaintiffs
from this- dis-
appealed
asserting an
cretionary ruling,
abuse of discretion. The defend-
ants have
that
cross-appealed contending
evidence does
not
support punitive damages,
but
it
be read to
so,
do
the remittitur fell within the court’s discretion.
from the
each
resulted
plaintiff
injury
1. The personal
which,
turn,
caused permanent
of chlorine gas
inhalation
chlorine
used
gas
was
systems.
to their
damage
respiratory
the swimming
agent
operation
purification
as a water
gas
A
of that
Vegas.
cylinder
Hotel in Las
of the Sahara
pool
150 pounds
compressed
approximately
exploded spewing
areas. The plain-
swimming pool
patio
chlorine over the
occurred.
explosion
there
when
present
tiffs and others were
could con-
reasonably
that the jury
The district court found
dis-
deliberately
consciously
that the defendants
clude
handling
regarding
regarded
safety procedures
known
results,
in reckless
chlorine
malice in fact
established
sufficiently
and that such evidence
Cement
42.010; Nevada
to allow
NRS
Lemler,
447,
2. The 59(a) 309, (6); Zee, Harris Nev. challenged. v. 87 here NRCP. Riviera, Short, (1971); Hotel Inc. v. 80 Nev. 490 486 P.2d 505, (1964). a remittitur damnum is P.2d 855 When review, the test whether the and we are asked is ordered Zee, v. discretionary power. supra. abused its Harris court the is somewhat elusive. As noted in Admittedly, standard Zee: must accord deference to the point Harris v. “We he had the to weigh of the trial since judge opportunity view credibility and evaluate the witnesses—an oppor- evidence extent, this the foreclosed to this court. To is tunity appeal entered, favor of the order and where there is a in weighted to the extent of damage, conflict of evidence as material of discretion is challenge substantially court’s exercise 311, Id. at 312. repelled.” jury award compensatory we reinstated that case regarding personal injury the evidence since
damages was not in con- suffering claimant’s pain and the incurred not concerned with the before us we are In the matter flict. here with a dealing awards. are damage We compensatory regarding where the evidence of punitive remittitur in fact on the or absence malice the presence conflicting. defendants is In line with the in Harris expression Zee, v. we must accord deference to the view of the supra, trial judge. there was no evidence to indi- by judge
As noted
the trial
anyone.
to hurt
deliberately
cate that the defendants acted
all,
fact,
from a
malice in
existed at
had to be inferred
any
management
of known
safety procedures by
per-
Realizing
sonnel of defendants.
nature
subjective
puni-
341,
Nev.
damages, Caple Raynel Campers,
tive
344,
(1974),
The conditional missed. J., concurs.
Mowbray, J., J., concurring C. dis- Zenoff, Gunderson, senting: Mowbray, we
Together
Thompson
with our brothers
to consider
believe the trial court
instructed
properly
However,
think the trial
an award of
we
concerning
its own views
substituting
court later erred
eight
of the views of the
damages,
amount of
place
jury.
citizens who
composed
course,
evidence
whether the record contains sufficient
Of
law,
an award of
justify
question
Peterson,
Nev.
Fidelity
and for the court to decide. U.S.
However,
where the requisite
Of
where a punitive damage award is so large, as
assets,
to a
compared
wrongdoer’s total
that it will not merely
punish
destroy,
but will
then it
the court
proper
to inter
Schnitzer,
vene. Miller v.
78 Nev.
We think evidence to support punitive damages is ample, and the jury’s award offends no standard heretofore recognized should, therefore, for punitive damages. It be affirmed. J., in dissenting part and in concurring part:
Batjer, I dissent from the respectfully holding majority that, “. . . record may be read to [T]he support punitive However, damages in some amount.” as a result of that deter- mination I concur in affirmance of the district court’s conditional J., order for a new trial and join Thompson, J., Mowbray, holding wholly “we are unable to find an abuse of discretion by the trial judge entering the con- ditional order.”
Shortly after trial began some of the defendants offered to admit liability. Appellants hereinafter cross-respondents, *5 Good, objected. or Leslie and to as plaintiffs
referred seeking they were plaintiffs counsel for asked judge trial Sub- were not. they advised and he was damages, punitive agreeing a stipulation entered into written all parties sequently Fire against American the action with prejudice to dismiss Corporation, Sahara-Nevada and Safety, and d/b/a Hotel Sahara. had commenced the witness first
After examination to as referred hereinafter and cross-appellants, respondents without Chemical, liability admitted or Jones defendants trial, Leslie in the juncture At that from plaintiffs. objection to include their complaints to amend Good moved and granted. and the motion was claim for punitive trial, puni- compensatory awarded jury Following Believing punitive to each plaintiff. tive $250,000 the result of passion were totalling awards damage motion the defendants’ granted court the district prejudice, a remittitur accept would each plaintiff trial unless for a new $85,000 a total of for the amount of damages in of punitive altered. were not damage awards $170,000. The compensatory trial, the district a new conditionally granting In its order had con- that the defendants its conclusion reaffirmed court safety procedures known disregarded deliberately sciously reckless dis- of chlorine handling regarding sufficiently that the evidence results regard to assess fact to allow the malice in established damages. asserting ruling, from this and Good have appealed
Leslie con- cross-appealed Chemical Jones an abuse discretion. damages, does not support that the evidence tending fell so, within to do the remittitur if it be read but that does not support The record court’s discretion. the district reverse that I damages; consequently, would awarding punitive the judgment the accident Jones Chemical was engaged At the time of chlorine compressed gas manufacture and sale in the was used as a swimming gas Such pools. in commercial use agent swimming in the operation water purification Vegas, in Las Nevada. A cylinder at the Sahara Hotel pool defendants exploded, spewing furnished gas chlorine the hotel swimming pool patio chlorine over compressed vicinity and others were in the when the The plaintiffs areas. damage claimed plaintiff permanent occurred. Each explosion the inhalation of chlorine systems from respiratory to their gas. gas has tare chlorine transport used
Every cylinder Each time a cylinder on it. weight) weight (empty stamped condition and in an weighed empty to be supposed filled it is *6 tare with the cylinder the weight empty compared the of cylinder if the is to determine The of this test weight. purpose of corrosion. as a result original weight of its has lost some weight, it original a certain of its the loses cylinder If the (at the time of the accident to be condemned supposed of trial at the time original weight; the was standard 10% weight). original the standard was the 5% from internal corrosion had suffered cylinder the Apparently The corroded original weight. of its lost some and had 21% filled being have resulted in it cylinder may of the condition gas the chlorine sun the sitting its While beyond capacity. weakened condition ruptured. and the in its cylinder expanded the gas depends upon of the chlorine handling in the Safety cylinder. corrosion in a and detection of internal prevention are to be followed in the proper preven- Several procedures are to be taken to the prevent Precautions tion and detection. are to be into a and tests cylinder, introduction water The has taken two place. determine corrosion conducted to conducted dropping are a visual inspection tests principal the to weighing empty cylinder the tank and a into light original weight. a of its if there has been loss determine were not safeguards properly can be inferred that these It failure and this cylinder to the respect ruptured taken with the subjected the This conduct accident. contributed but not necessarily defendants to compensatory of punitive damages. an assessment a Sinyard, truck driver only
At trial Wendell O’Dell Chemical, handling of the defective testified about Jones cylinder He who delivered person was cylinder. in an open testified that he had it placed
Sahara Hotel. He of an of the hotel. employee area at the request uncovered that did not manager request testified he Although the pool any area and did not other in the know open its placement deliv- Sinyard the fact making request, such employee one or two of them to the hotel and placed three cylinders ered testimony. lends to his covered area some credence in the Chemical for approximately had worked for Jones Sinyard empty some very generally and he testified years, four left in an uncovered without valves have been cylinders any specific testimony He to give of the was unable area plant. or the cylinder handling of the defective handling about the other at any the Jones Henderson, Chemical plant Nevada. Kendell,
James E. a laborer Jones employed by Chemical for two months during summer of testified that he had helped weigh and fill some cylinders with chlorine gas and had never anyone observed remove valves from the cyl- inders or inspect them. There was no from testimony this witness indicating whether he fill helped weigh subject cylinder or even if he was employed by the defendants at the time of the accident.
Edward manager Kubiak was of the Jones Chemical plant at at Henderson the time faulty cylinder was filled and He was the dispatched. only managerial who employee was familiar with the actual operation He never plant. was death deposed, his to trial prior his precluded testifying. who employee actually weighed and filled the defective cylinder was never called as witness. The general manager of the Henderson testified that he plant knew nothing *7 plant operation because his responsibilities were in the selling of the product contacting customers and prospective customers. He testified to the delivering engineering depart- ment of the Sahara bulletin, Hotel an instruction referred to the testimony a “sign,” designed as to advise on the han- of chlorine dling gas. Included in the bulletin was an admoni- against tion leaving cylinder in the sun.
The pool manager for the Sahara Hotel testified that “. . . were the given instructions after They [W]e the explosion. brought sign in the tous There no clarification post.” is who were. It “they” cannot be discerned from the record whether he was referring to employees of Jones Chemical or from Sahara persons the Hotel engineering office.
The practice awarding damages to have seems “originated in the English courts in the eighteenth century as a means of justifying awards of damages in excess of the Note, plaintiff’s tangible harm.” in the Exemplary Damages Torts, Law of (1957). 70 Harv.L.Rev. 518 Punitive damages are awarded primarily to the offender and to punish deter others. are the These same which objectives motivate however, law; the criminal in a criminal case the conduct which rise gives to the imposition must be punishment clearly defined. That is not so when the is whether question the wanton, conduct of the defendant can be characterized as intentional, willful or and done in reckless its results because such conduct shades imperceptibility into simple negligence.
399 state, but goes fine imposed a criminal case the becomes damages a civil case the extraction minimum maximum and for the The plaintiff. a windfall and deter way fine by punishment amounts of the imposed case, In the civil are fixed statute. by rence in a criminal case however, generally is damages jury in awarding punitive and deliver the plaintiff left to take from the defendant fit. See v. West Towns Mattyasovszky amount as it sees such 1975). (Ill. 330 N.E.2d Company, Bus of punitive for the justifications imposition diminished liability in those cases in which are sharply Towns Bus Com- Mattyasovszky v. West imposed vicariously. Torts, (Tent. (Second) of See Restatement pany, supra. § Prosser, (4th of Torts 12 ed. 1973); Draft Law No. Richardson-Merrell, Inc., 1971). Roginsky v. Compare Richardson-Merrell, 1967), (2nd Cir. with Toole v. F.2d 832 1967). Cal.Rptr. (Cal.App. against be a master “Punitive can awarded properly if, only but agent or other because of an act principal the manner of if; (a) doing authorized the principal act, (b) reck- or was unfit and the was agent principal him, (c) in a or was agent employed less in employing in the managerial acting scope employ- and was capacity ment, (d) managerial agent or or a principal (Second) the act.” Restatement ratified or principal approved concerning the 217C Serious Agency questions § arise damages inevitably reasonable effectiveness of punitive whose conduct employees in a case like the where present, never injury joined for the were as was primarily responsible parties. its
Although the district court in decision and order con- a new trial concluded that “the could ditionally granting *8 consciously find that the defendants and delib- reasonably han- erately disregarded safety procedures regarding known disregard of chlorine in reckless of dling Chemical, results,” through there is evidence that Jones its no staff, authorized the or manner of the acts managerial doing fact, led to the As a matter of is injury. contrary which true because there certain written instructions available to were the handling that cautioned them in of chlorine employees Likewise, there no evidence that the were gas. employees Chemical was reck- jobs unfit for their or Jones particular less in them. that handled employees None employing acting managerial were in a cylinder capacity, ruptured conclude in their “statement of fact” although plaintiffs
set forth in their brief that the opening management of Jones Chemical ratified and the negligent conduct of the approved who handled the employees cylinder on the it day ruptured, there is no evidence in the record to support conclusion.
In Nevada an award damages of for punishment is con- trolled NRS 42.0101 which authorizes such an award against tortfeasor who has been of guilty fraud pppression, malice, or expressed implied. Filice,
In Village 305, 315, Co. v. Development 90 Nev. (1974), P.2d we said: “The record contains evidence to show negligence Still, unconscionable irresponsibility. after debate, careful consideration and extensive we find insufficient evidence a finding to of support fraud ‘oppression, malice, or or NRS 42.010.” express implied.’ Much the same situation exists in the case before us. Jones Chemical has negligence admitted and the record reveals irresponsibility on however, of some of its employees; there is really no evidence to support finding malice, of “oppression, fraud or or express implied.” malice, evil motive factor of which would have justified case,
an award of punitive damages in this
called upon the
district court
assess the
state of
of
mind
the defendant’s
at the
management
Henderson plant before granting the plain-
motion to amend
tiffs’
to ask for punitive damages. Such an
is not satisfied by merely
assessment
characterizing its con-
consciously
as
deliberate.
hand,
On the other
duct
substantial
of a conscious
disregard
evidence
safety is an appropriate
animus malus
description
which may
justify
award
when a
of punitive
nondeliberate injury occurs.2
obligation
1 NRS 42.010: “In an action for a breach of an
not
arising
contract,
guilty
from
oppres
where the defendant has been
sion,
malice, express
implied,
or
plaintiff,
fraud
or
in addition to the
damages, may
example
actual
recover
for the sake of
by way
punishing
the defendant.”
Paper
James,
2 See
(Ga. 1975),
Gilman
Co. v.
219 S.E.2d
Georgia Supreme
where the
imposition
Court said: “To authorize the
punitive damages
misconduct,
there must be evidence of wilful
malice, fraud, wantonness,
oppression,
or
or that entire want of care
.
presumption
which would raise the
aof
conscious indifference to con
sequences.
expression
The latter
relates to an intentional
rights
another, knowingly
wilfully disregarding
rights.”
or
such
Company,
But cf. Moore
Jewell
(Ill.App. 1969),
Tea
Malice in fact sufficient to an justify award of punitive dam- ages must be supported by substantial evidence that the wrong was willfully committed or with a design to injure, or that the tortfeasor acted in conscious of the injured plain- Inc., tiffs’ safety. Caple 341, v. Raynel Campers, Nev. 90 526 (1974); P.2d 334 Felice, Village Co. v. Development supra; Bureau, Williams, Nevada Rating 601, Credit Inc. v. 88 Nev. 9, (1972). P.2d A.L.R.3d 483 See D. Searle G. & Court, Co. v. Superior Sacramento, Cty. 122 Cal.Rptr. 1975). A (Cal.App. is never plaintiff entitled to punitive
damages as matter of right.
v.
Caple
Raynel Campers,
Lemler,
Nevada
supra;
447,
Cement Co. v.
89 Nev.
514 P.2d
every
case decided by this court since the enactment of
42.010,3
Village
NRS
Development,
with the
exception
deliberate,
records revealed substantial evidence of
willful and
intentional overt acts which meet the demand for evil motive
Richardson-Merrell, Inc., supra, upheld
award of
dam-
ages
$10,000 against
Company
the amount of
Drackett Products
Company
exploded
the Drackett
after one of their cans Drano
plaintiff.
statutory
blinded the
Illinois has no
limitations such as NRS
punitive damages,
42.010 on the award of
it
is well established in
Illinois that where there is evidence of willful and wanton conduct
punitive damages may
Wigal,
be allowed. Madison v.
which
*10
violated if
that statute would have been
cases the intent of
only upon
had
found
an award for
been
punitive
Rabkin,
706
Ebaugh
Cal.Rptr.
reckless
See
disregard.
1958).
Ashe,
(Cal.
322 P.2d
1972);
(Cal.App.
Gombos
(Cal. 1911),
Hearst,
the fountain-
Davis
I believe the district court erred in to the question That judgment awarding punitive damages should be reversed. MOORE,
SIMMIE ad as an Individual and as Guardian MOORE, MOORE, SAMMIE JOE JANICE Litem of MOORE, MOORE, MOORE, VANESSA KENNY Appel- MOORE, MOORE and JAMES DARROW Respondent. VEGAS, v. CITY OF LAS lants, No.
June P.2d 244