Craigo v. Circus-Circus Enterprises, Inc.

• Decision Date: 23 January 1990
• Docket Number: CIRCUS-CIRCUS,No. 18515,18515
• Citation: 106 Nev. 1,786 P.2d 22
• Parties: Robert CRAIGO, Appellant and Cross-Respondent, v.ENTERPRISES, INC., Respondent and Cross-Appellant.
• Court: Nevada Supreme Court

Page 22

786 P.2d 22

106 Nev. 1

Robert CRAIGO, Appellant and Cross-Respondent, v. CIRCUS-CIRCUS ENTERPRISES, INC., Respondent and Cross-Appellant.

No. 18515.

Supreme Court of Nevada.

Jan. 23, 1990.

Rehearing Denied April 17, 1990.

[106 Nev. 2] Lawrence J. Semenza and G. David Robertson, Reno, for appellant and cross-respondent.

Petersen & Petersen, Reno and Brown, Wells & Kravitz, Las Vegas, for respondent and cross-appellant.

OPINION

STEFFEN, Justice:

After being assaulted and robbed in the elevator of the Circus-Circus parking garage, Robert Craigo filed an action seeking both compensatory and punitive damages against Circus-Circus Enterprises, Inc. (Circus-Circus). The trial court, sitting without a jury, awarded Craigo $45,000 in compensatory damages and $1,000,000 in punitive damages. The punitive award was based upon a determination by the trial judge that Circus-Circus had acted with "malice in fact." ¹ Circus-Circus agrees that the issue of focus on appeal is the availability of a punitive damage award based upon the circumstances of this case. The key to this issue is the meaning of the terms "malice, express or implied" set forth in Nevada's punitive damages statute (NRS 42.010). ²

This court has consistently declared that "the malice contemplated by [the punitive damages] section is malice in fact and that the phrase 'express or implied' has reference only to the evidence by which malice is established." Nevada Credit Rating Bur. v. Williams, 88 Nev. 601, 609, 503 P.2d 9, 14 (1972). We noted in Nevada Credit Rating Bur. that Nevada's statute on punitive damages is a verbatim copy of the California punitive damages statute "which was enacted in 1872 and has not been amended since 1905." ³ Id. In interpreting the statutory expression "malice, express or implied," we have adhered to the rule of statutory interpretation that when a statute is derived from a sister state, it is presumedly adopted with the construction given it by the highest court of the sister state. See, e.g., El Ranco, Inc. v. New York Meat & Prov., 88 Nev. 111, 113, 493 P.2d 1318, 1320 (1972); Astorga v. Ishimatsu, 77 Nev. 30, 32, 359 P.2d 83, 84 (1961); Harris v. Harris, 65 Nev. 342, 346, 196 P.2d 402, 404 (1948).

The California Supreme Court, in Davis v. Hearst, 160 Cal. 143, 116 P. 530, 538 (1911), observed that courts have frequently used "express malice" to refer to malice in fact, and "implied malice" to mean the fictive malice of the law. The Davis court then declared that:

It should be apparent that the malice, and the only malice, contemplated by section 3294 [California's equivalent of NRS 42.010] is malice in fact, and that the phrase "express or implied" has reference only to the evidence by which that malice is established; "express malice" thus meaning that the malice is established by express or direct evidence going to prove the actual existence of the hatred and ill will; "implied malice" referring to the indirect evidence from which the jury may infer the existence of this malice in fact. We say this should be evident from the reading of the section itself, under the maxim of noscitur a sociis. It is in those cases where the defendant has been guilty of oppression or fraud, or of a malice akin to oppression and fraud, that punitive damages may be awarded. But throughout the whole history of the law, whatever may be the mode of proving the existence of malice in fact, it is only upon some showing regarded by the law as adequate to establish the presence of malice in fact (that is, the motive and willingness to vex, harass, annoy, or injure) that punitive damages have ever been awarded. And this the adjudications abundantly and without controversy establish.

Id. 116 P. at 539 (emphasis added).

The California courts have continued to reaffirm the Davis holding regarding the meaning of the phrase "malice, express or implied." ⁴ Moreover, the courts in California from Davis to the present have discussed the shifting contours of the term "malice" and its discrete variants in the form of express malice, or malice in fact, and implied malice, or malice in law. The latter form of malice is in tort law, a legal fiction. As expressed by the California Supreme Court, malice in law is defined as "that malice which the law presumes (either conclusively or disputably) to exist upon the production of certain designated evidence, which malice may be fictional and constructive merely, and which, arising as it usually does from what is conceived to be the necessity of proof following a pleading, which in turn follows a definition, is to be always distinguished from true malice or malice in fact." Davis v. Hearst, 116 P. at 538.

As noted above, this court has consistently recognized and perpetuated the judicial gloss attributed to Davis since NRS 42.010 was enacted in this state in 1965. See, e.g., Jeep Corp. v. Murray, 101 Nev. 640, 650, 708 P.2d 297, 304 (1985) ("Malice" [referred to in NRS 42.010] means malice in fact); Warmbrodt v. Blanchard, 100 Nev. 703, 709, 692 P.2d 1282, 1286 (1984) ("The term malice as used in the statute means malice in fact and denotes ill-will, or a desire to do harm for the mere satisfaction of doing it.") (quoting Bader v. Cerri, 96 Nev. 352, 359, 609 P.2d 314, 318-319 (1980)); Wickliffe v. Fletcher Jones of Las Vegas, 99 Nev. 353, 356, 661 P.2d 1295, 1297 (1983) (malice in fact supports punitive damages instruction); Bader, 96 Nev. at 359, 609 P.2d at 318 ("The term malice as used in the statute means malice in fact and denotes ill will, or a desire to do harm for the mere satisfaction of doing it."); Kelly Broadcasting v. Sovereign Broadcast, 96 Nev. 188, 194, 606 P.2d 1089, 1093 (1980) ("In order to award punitive damages, the trial court must find substantial evidence of malice in fact."); Sanguinetti v. Strecker, 94 Nev. 200, 211-212, 577 P.2d 404, 411-412 (1978) ("There is no reason to believe that the jury understood that the malice it was to find [an evil intention to do harm, on the part of the defendant] was in any manner different from this definition. As noted by this court, legal malice is 'a legal fiction; it is that form of malice which the law presumes....' [Citing Nevada Credit Rating Bur.]. Without an instruction informing them of it, a jury would have no reason to know of its existence."); Leslie v. Jones Chemical Co., 92 Nev. 391, 394, 551 P.2d 234, 235 (1976) (recognizing need to prove malice in fact); Village Development Co. v. Filice, 90 Nev. 305, 315, 526 P.2d 83, 89 (1974) ("[T]he evidence does not to us appear quite sufficient to meet our previously established requirement that more must be shown than malice in law, and that there must be substantial evidence of malice in fact. [Citing Nevada Credit Rating Bur.]"); Caple v. Raynel Campers, Inc., 90 Nev. 341, 344, 526 P.2d 334, 336 (1974) ("The malice contemplated by NRS 42.010 is malice in fact and the phrase 'express or implied' has reference only to the evidence by which malice is established. Malice in fact must be established by the evidence if it is the ground relied upon to support an award of punitive damages."); Nevada Cement Co. v. Lemler, 89 Nev. 447, 451, 514 P.2d 1180, 1182-83 (1973) ("NRS 42.010 provides that punitive damages are recoverable where the defendant has been guilty of ... malice expressed [sic] or implied. That statute was first enacted in the State of Nevada in 1965 and is verbatim with California Civil Code, Sec. 3294, which was first enacted in 1872 and has not been amended since 1905. The cases decided in that jurisdiction have interpreted that the malice contemplated by that section is malice in fact and that the phrase 'express or implied' has reference only to the evidence by which malice is established. [Cited cases omitted.] In [Nevada Credit Rating Bur.] we adopted the applicable principles, as set out in 14 Cal.Jur.2d, Damages, § 176.").

Unfortunately, neither the California courts nor this court have toed the mark in vigilant conformity with the dictates of Davis concerning the species of malice essential to the imposition of punitive damages. Even as the California courts continue to recognize Davis as the authoritative definitional fountain of malice, the constraints heavily embedded in Davis have expanded or evolved to include acts committed with "a conscious disregard of the plaintiff's rights." Liu v. Interinsurance Exchange, 205 Cal.App.3d 968, 982, 252 Cal.Rptr. 767, 776 (1988). See also Taylor v. Superior Ct. of Los Angeles Cty., 24 Cal.3d 890, 157 Cal.Rptr. 693, 598 P.2d 854 (1979); Neal v. Farmers Ins. Exchange, 21 Cal.3d 910, 148 Cal.Rptr. 389, 582 P.2d 980 (1978); Silberg v. California Life Insurance Company, 11 Cal.3d 452, 113 Cal.Rptr. 711, 521 P.2d 1103 (1974). In Grimshaw v. Ford Motor Co., 119 Cal.App.3d 757, 808, 174 Cal.Rptr. 348, 381-82 (1981), the court observed that the constraints of Davis have yielded to subsequent decisional law that has advanced the common law pertaining to punitive damages to the point where the term "malice" includes "not only a malicious intention to injure the specific person harmed, but conduct evincing 'a conscious disregard of the probability that the actor's conduct will result in injury to others.' " Moreover, the Grimshaw court, in giving a "dynamic" attribute to the punitive damages statute, held that interpreting the word "malice" as used in the statute, "to encompass conduct envincing callous and conscious disregard of public safety by those who manufacture and market mass produced articles is consonant with and furthers the objectives of punitive damages." Id., 119 Cal.App.3d at 810, 174 Cal.Rptr. at 382.

It would appear from our research of the California cases that although the courts continue to pledge fealty to the Davis concept of malice in fact as the only form of malice that will support an award of punitive damages, the courts have sub silentio overruled Davis on that point and now base punitive awards...