Allen v. Anderson

• Decision Date: 07 April 1977
• Docket Number: No. 8925,8925
• Citation: 93 Nev. 204,562 P.2d 487
• Parties: Sarah ALLEN, Appellant, v. Fredrick Carl ANDERSON et al., Respondents.
• Court: Nevada Supreme Court

Page 487

562 P.2d 487

93 Nev. 204

Sarah ALLEN, Appellant, v. Fredrick Carl ANDERSON et al., Respondents.

No. 8925.

Supreme Court of Nevada.

April 7, 1977.

Peter Chase Neumann and Lew W. Carnahan, Reno, for appellant

Vargas, Bartlett & Dixon, Reno, for respondents Neale R. Ruark and Joe Fuetsch.

Erickson, Thorpe & Swainston, Reno, for respondent Fredrick Carl Anderson.

OPINION

GUNDERSON, Justice:

Appellant sought compensatory and punitive damages for personal injuries sustained when the car in which she was a passenger, driven by Michael Ruark, collided with a car driven by respondent Fredrick Anderson. In the accident, Michael Ruark was killed and Anderson was injured. Appellant's complaint against Anderson, Joe Fuetsch (Special Administrator of Michael Ruark's estate), and Neale Ruark (Michael's father) alleged: (1) Anderson and Michael Ruark, while under the influence of alcohol, negligently and carelessly operated their vehicles in such a manner as to cause them to collide violently, and such negligence was the proximate cause of her injuries; (2) the intentionally dangerous and irresponsible conduct of Anderson and Michael Ruark constituted fraud, oppression, or malice, as contemplated by NRS 42.010, thus, punitive damages were warranted; ¹ and, (3) Neale Ruark was liable pursuant to NRS 41.440 for any judgment against his son, Michael. ²

Two of the defendants, Fuetsch and Ruark, moved, pursuant to NRCP 12, to strike the punitive damage claim. The district judge granted the motion because, he reasoned, the allegations were insufficient and the movants were, as a matter of law, not liable for such damages. An order striking that claim was entered as to all of the defendants who then stipulated to the finality of that order. Accordingly, the district judge, determining there was no just cause for delay, directed a final judgment be entered pursuant to NRCP 54(b), thereby permitting Allen to pursue this appeal. ³

Allen contends on appeal that the district court erred in striking her claim for punitive damages because its allegations were sufficient to sustain such a claim. However, here we need not, and therefore do not, decide this issue.

1. Neither the estate nor the father of the deceased tortfeasor can here be liable for punitive damages.

On its face, Nevada's broadly phrased survival statute might be read to mandate survival of punitive damage claims, not only following death of the aggrieved party but subsequent to the tortfeasor's death as well. See NRS 41.100. ⁴ However, punitive damages are awarded for 'sake of example and by way of punishing the defendant.' NRS 42.010. See Caple v. Raynel Campers, Inc., 90 Nev. 341, 526 P.2d 334 (1974).

Thus, as might be expected, it is commonly held that punitive damage claims survive the aggrieved party's death, as against a living tortfeasor. See, for example: Worrie v. Boze, 198 Va. 891, 96 S.E.2d 799 (1957); Swartz v. Rosenkrans, 78 Colo. 167, 240 P. 333 (1925); Wagner v. Gibbs, 80 Miss. 53, 31 So. 434 (1902). Such tortfeasors, of course, remain susceptible to punishment. As one court has said, in distinguishing a situation involving a deceased injured party from precedents denying punitive damages where the tortfeasors were dead: '(T)he reason for the difference is perfectly manifest. Punitory damages are inflicted for the purpose of deterring a culprit in the future, and the imposition of them for such purpose is impossible in the case of a person deceased. But where the trespasser is still alive, as in the case at bar, there is no reason whatever why he should be exonerated because of the death of the one upon whom he has committed a trespass; for the punishment is imposed not to deter him from repeating his trespass as against the particular party assailed or injured, but to secure his general good behavior.' Id. at 435.

With consistent logic, by the great weight of authority, punitive damage claims do not survive the death of the tortfeasor, and cannot be sought from the deceased tortfeasor's estate. See, for example: Barnes v. Smith,305 F.2d 226 (10th Cir. 1962); Hayes v. Gill, 216 Tenn. 39, 390 S.W.2d 213 (1965); Dalton v. Johnson, 204 Va. 102, 129 S.E.2d 647 (1963); Morriss v. Barton, 200 Okl. 4, 190 P.2d 451 (1947); Marcante v. Hein, 51 Wyo. 389, 67 P.2d 196 (1937); Evans v. Gibson, 220 Cal. 476, 31 P.2d 389 (1934); Braun v. Moreno, 11 Ariz. App. 509, 466 P.2d 60 (1970); McAdams v. Blue,3 N.C.App. 169, 164 S.E.2d 490 (1968); Sears, Roebuck and Company v. Jones, 303 S.W.2d 432 (Tex.Civ.App.1957). In Barnes v. Smith, cited above, a case arising, as this one, from a highway disaster involving the collision of two motor vehicles, the court noted that the rule just mentioned has been almost unanimously followed by courts considering the liability of a tortfeasor's estate. ⁵ One court has cogently stated the fundamental rationale for such holdings as follows: 'Punitive damages are not to compensate an injured person for the loss sustained, but to punish a defendant for his conduct. (Citation omitted). Since the deceased tortfeasor can in no way be punished by the award of punitive damages, we see no reason for allowing such damages to be assessed. When the reason for a rule ceases to exist, the rule itself is no longer of value and is extinguished by the disappearance of the reason.' Braun v. Moreno, cited above, 466 P.2d at 62, 63. Accord, Hayes v. Gill, cited above. We are persuaded by this logic.

A fortiori, family members of a deceased tortfeasor cannot be vicariously liable for punitive damages under NRS 41.440. That statute, by its express terms, only imposes vicarious liability upon other family members for 'damages proximately resulting from . . . negligence or willful misconduct, . . .' Punitive damages do not so result. Such damages are raised, not as a proximate result of the wrongdoer's conduct, but rather, by law and are intended to punish the wrongdoer. Seen NRS 42.010.

Accordingly, the judgment in favor of respondents Fuetsch and Ruark is affirmed.

2. Although served with appellant's opening brief, and granted an extension of time to file his answering brief, respondent Anderson neither filed his brief nor tendered an explanation for his failure to do so. Under these circumstances, we...