*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. 551 P.2d 234 June July [Rehearing 1976] denied

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, 514 P.2d 1180 Nev. Company but reduced court allowed Consequently, bemay that the record awards thereof. also believe We and, there- amount in some read support punitive *3 the fore, propriety turn to consider the We deny cross-appeal. of the remittitur. the order power trial court to enter the possessed

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), 526 P.2d 334 the absence of workable standards to evaluate the of the amount of such an with which propriety award, Schnitzer, 301, 310, Miller v. 78 Nev. 371 P.2d 824 (1962), arguable regarding and the conflict of evidence fact, unable to wholly malice in we are find abuse dis- in the conditional order in judge entering cretion the trial one which issue. His order not be characterized as no Roy Levy, make. 79 A.2d judge reasonable would (N.H. 1951). affirmed; order is is dis- cross-appeal

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 540 P.2d 1070 *4 exists, the amount of the basis for punitive factual facts, of trier of which in the sound discretion award rests Cf. judge jury. Caple case was not the trial but in this 341, (1974). Inc., 526 P.2d 334 90 Nev. Raynel Campers, course, view some may that some persons It is possible, as than wanton conduct less consciously culpable kinds of Still, finding justifies jury’s the record others. where believe a reduc- willingness injure, intention or we requisite not be the trial damages may justified, by. tion of punitive thoughts acceptability about the relative social judge’s personal wrongful conduct. Our brethren willfully of different kinds that a trial authority judge cite no the idea has supporting discretion to reduce whenever superadded there no inflicted was particular injury is evidence “delib- erate,” but evidence that in order to their “merely” operate at a “the and higher consciously business defendants profit deliberately disregarded safety regarding known procedures handling of chlorine in reckless results....” course,

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. 371 P.2d 824 Likewise, the court intervene when there is some sound basis for saying award “shocks the judicial conscience.” Caple Raynel above; Campers, cited General Electric Bush, 366 (1972). Here, 88 Nev. however, 498 P.2d our brothers Thompson Mowbray seemingly do not these, suggest that either or other any recognized basis for interference, judicial Rather, appears record. they seem to be saying thaba trial has judge unbridled discretion to reassess punitive damages, not because some defined legal standard it, or allows but impels simply because he has a pervasive sum, in power premises. they apparently would view verdict jury’s concerning punitive damages as advisory only. With that aspect Justice Thompson Justice Mow- views, bray’s concur, we cannot him, as we understand Justice Batjer Instead, does not concur with them either. as him, we understand Justice Batjer merely concurs in reduction of the punitive damages out of belief that the record does not support any award

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 253 N.E.2d 636 aff’d, (Ill. 1970), admitting, 263 N.E.2d where the Illinois court difficult, impossible, lay gov “It is erning not simple down a short and subject [punitive damages],” rule in relying upon this Toole Richardson-Merrell, Inc., supra, regard Roginsky without *9 401 There is no evidence to establish any the chemical company’s agents or employees intended to injure either plaintiff. They were not sued as None principals. of them acted with such a conscious disregard of plaintiffs’ safety they would have been subject to an assessment of dam- ages had been they joined parties. as See American Fidelity Farmer, Co. v. 1948). 48 S.E.2d 122 (Ga.App.

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. 153 N.E.2d 90 Moore, (Ill.App. 1958). In no distinction was made between deliberate gross and nondeliberate torts. Evidence of to failure exercise care for safety apparently of others was deemed to be willful and wanton conduct. Caple Raynel Campers, 3 In Inc., supra; addition to v. Nevada Cement Lemler, supra, Rating Bureau, Co. and Nevada Credit Inc. Wil liams, supra, Supply, we have Waters, decided Midwest Inc. v. 89 Nev. 210, (1973); Alper Motels, Inc., 510 P.2d 876 v. Western 84 Nev. (1968). Although 443 P.2d 557 neither was decided with reference 42.010, NRS there was evidence in both records of deliberate acts supplying the evil motive factor of Fidelity malice. Cf. United States Guaranty Peterson, Company (1975), 91 Nev. 540 P.2d 1070 42.010, approved where without reference NRS we the trial court’s refusal request to entertain Peterson’s that the be on instructed punitive damages, necessary requisites support punitive because “the present.” “Necessary requisites” are not were neither delineated nor defined. In those damage of our statute. heart

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 116 P. 530 that court damages, exemplary head of California case law on law as by the showing regarded some only upon said: “[I]t is, (that in of malice fact establish presence adequate harass, vex, or annoy injure) willingness the motive and 116 P. at 539. have ever been awarded.” case every to exist in animus malus must be shown “[T]he damages may against be made before award controlling essential defendant, evil motive is the since the . P. 540. award. . .” 116 at factor which such an justifies Credit, Consistent adherence to our formulations Nevada Capíes and Nevada Cement is not difficult when substan- However, tial evidence shows deliberate tort. when faced awith nondeliberate tort there must be evidence of a con- disregard of the on the of those safety part scious others Court, D. Cty. See G. Searle & Co. v. responsible. Superior Sacramento, Here the conduct of the supra. employees Jones Chemical is from there imperceptible negligence and managerial disregard safety is no evidence of for the conscious of others. submitting

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