First Transit, Inc. v. Chernikoff, 135 Nev., Advance Opinion 32

• Decision Date: 01 August 2019
• Docket Number: 135 Nev., Advance Opinion 32,No. 70164,70164
• Parties: FIRST TRANSIT, INC.; AND JAY FARRALES, Appellants, v. JACK CHERNIKOFF; AND ELAINE CHERNIKOFF, Respondents.
• Court: Nevada Supreme Court

FIRST TRANSIT, INC.; AND JAY FARRALES, Appellants, v. JACK CHERNIKOFF; AND ELAINE CHERNIKOFF, Respondents.

135 Nev., Advance Opinion 32

No. 70164

SUPREME COURT OF THE STATE OF NEVADA

August 1, 2019

Appeal from an amended district court judgment on a jury verdict and orders resolving postjudgment motions in a tort action. Eighth Judicial District Court, Clark County; Stefany Miley, Judge.

Reversed and remanded.

Lewis Roca Rothgerber Christie LLP and Daniel F. Polsenberg, Joel D. Henriod, and Abraham G. Smith, Las Vegas; Alverson, Taylor, Mortensen & Sanders and LeAnn Sanders, Las Vegas, for Appellants.

Richard Harris Law Firm and Benjamin P. Cloward, Las Vegas; Marquis Aurbach Coffing and Micah S. Echols, Las Vegas; Charles Allen Law Firm and Charles H. Allen, Atlanta, Georgia, for Respondents.

BEFORE THE COURT EN BANC.

OPINION

By the Court, HARDESTY, J.:

Nevada case law imposes a heightened duty of care on a common carrier toward its passengers. In this opinion, we clarify that this heightened duty only applies to transportation-related risks and that, for non-transportation risks, the common carrier owes a duty of reasonable care. When the carrier is aware of a passenger's disability, this duty of reasonable care includes providing safe transport that the circumstances reasonably require in light of the known disability. The district court erred by instructing the jury that a bus company owed a duty to "use the highest degree of care." Additionally, the "highest degree of care" instruction led the jury to misapply the "additional care" instruction applicable to a mentally disabled passenger who suffered a non-transportation-related injury on the bus. Therefore, we reverse and remand for a new trial.

I.

Harvey Chernikoff, a 51-year-old intellectually disabled man, choked to death on a sandwich while riding on a paratransit bus operated by First Transit, Inc. Harvey's parents and heirs, Jack and Elaine Chernikoff, sued First Transit and First Transit's bus driver for negligence. The Chernikoffs alleged that First Transit, as a common carrier, owed the highest degree of care to monitor and assist Harvey, its passenger, while riding the bus. The Chernikoffs claimed that the bus driver was negligent in not adequately checking on Harvey and preventing him from eating, as well as for how the bus driver rendered aid once he noticed Harvey's distress and pulled to the side of the road to assist Harvey and summon medical assistance.

In closing argument, the Chernikoffs' counsel frequently conflated the two standards of care. For example, after explaining the highest degree of care, counsel stated, "when you're dealing with . . . people with impairments, . . . the standard even goes up more." Then, counsel stated that the "additional care" instruction is "even higher, it's evenhigher" than the "highest duty of care" instruction. Finally, when referring to the "additional care" instruction, counsel stated, "so highest degree of care, additional care for disabled folks."

After deliberation, a divided jury (6-2) found First Transit liable for Harvey's death and awarded the Chernikoffs $15 million—$7.5 million for Harvey's pain and suffering and $7.5 million for the Chernikoffs' grief, sorrow, and loss of companionship. First Transit appeals, arguing for a new trial because, among other reasons, the jury was erroneously instructed that First Transit owed Harvey more than an ordinary duty of reasonable care under the circumstances. First Transit further argues that the Chernikoffs' counsel caused prejudice by the use of the erroneously given instruction in closing argument.

II.

The district court instructed the jury (instruction 32) that First Transit had a heightened duty of care as a common carrier:

At the time of the occurrence in question, the Defendant FIRST TRANSIT was a common carrier. A common carrier has a duty to its passengers to use the highest degree of care consistent with the mode of conveyance used and the practical operation of its business as a common carrier by paratransit bus. Its failure to fulfill this duty is negligence.

The district court also instructed the jury that Harvey was disabled (instruction 33), and that a common carrier must provide additional care to disabled passengers when aware of their disability (instruction 34):

When a carrier is aware that a passenger is mentally disabled so that hazards of travel are increased as to him, it is the duty of the carrier to provide that additional care which thecircumstances reasonably require. The failure of the defendant to fulfill this duty is negligence.

First Transit argues that these instructions, along with the Chernikoffs' closing argument, allowed the jury to find First Transit liable under a heightened standard of care that does not apply to perils unrelated to the hazards of transport. The Chernikoffs respond that First Transit waived any objection to the instructions by proposing them and that the instructions correctly state the law. We "review[ ] a district court's decision to give a jury instruction for an abuse of discretion or judicial error." FGA, Inc. v. Giglio, 128 Nev. 271, 280, 278 P.3d 490, 496 (2012). But even if a jury instruction is incorrect, "reversal of the district court's judgment is not warranted unless the error was prejudicial." Cook v. Sunrise Hosp. & Med. Ctr., LLC, 124 Nev. 997, 1005, 194 P.3d 1214, 1219 (2008).

A.

We reject the Chernikoffs' argument that First Transit waived any objection to jury instruction 32 on appeal by proposing the instruction at trial. First Transit's initial position at trial was that no common carrier instruction should be given because the heightened standard only applies to transportation risks, not non-transportation risks such as the failure to recognize or prevent a medical event. But the district court rejected First Transit's argument and determined that it would instruct the jury that a common carrier is subject to a heightened duty of care. So, in the alternative, First Transit objected to the wording of the Chernikoffs' proposed instruction, which stated that a common carrier is negligent if it fails to "exercise the highest practicable degree of care that the human judgment and foresight are capable of, to make its passenger's journey safe." First Transit then proposed an alternative—the Nevada pattern jury instruction on the duty of a common carrier to its passenger—which thedistrict court accepted and gave as jury instruction 32. See Nevada Jury Instructions—Civil, 2011 Edition at 4.47.

Under these circumstances, First Transit preserved its objection to instructing the jury that a common carrier owes a heightened duty of care for perils unrelated to the hazards of transport. See Weaver Bros., Ltd. v. Misskelley, 98 Nev. 232, 234, 645 P.2d 438, 439 (1982) (holding that submission of an alternative juror affidavit while objecting to consideration of the affidavits did not waive the party's objection); see also United States v. Squires, 440 F.2d 859, 862 (2d Cir. 1971) (holding that an objection was preserved when the party "clearly objected to any instruction on the issue" but then "submitted a less stringent instruction on the issue" that the court accepted); Huebotter v. Follet, 167 P.2d 193, 196 (Cal. 1946) (holding that a party is not estopped from objecting to a jury instruction that the party proposed be given "if, and only if, other instructions proposed" were not given); State v. Vander Houwen, 177 P.3d 93, 99 (Wash. 2008) ("[A]n appellate court may review instructions that a petitioner proposed if the petitioner originally requested correct instructions that were rejected by the court."). A party does not waive an objection to a jury instruction by seeking the best alternative outcome after the district court overrules its primary threshold objection. See Mary M. v. City of L.A., 814 P.2d 1341, 1346 (Cal. 1991) ("An attorney who submits to the authority of an erroneous, adverse ruling after making appropriate objections or motions, does not waive the error in the ruling by proceeding in accordance therewith and endeavoring to make the best of a bad situation for which he was not responsible.") (quoting People v. Calio, 724 P.2d 1162, 1164 (Cal. 1986)). We also reject the Chernikoffs' argument that First Transit waived its objection to jury instruction 34 by proposing the instruction, both because FirstTransit did not propose the instruction and because it properly objected when the Chernikoffs proposed it. See NRCP 51(c) (stating the requirements for objecting to jury instructions). Accordingly, we will consider whether the district court abused its discretion by instructing the jury that First Transit had heightened duties of care in this case.

B.

First Transit does not dispute that it is a common carrier or that Harvey was its passenger when he died. First Transit also does not contest that instructions 32 and 34 correctly state the duties Nevada case law imposes on a common carrier for transportation-related risks to its passengers. But First Transit contends that those duties are irrelevant and instructing on them misled the jury because Harvey died from choking, which is not a risk inherent to transportation that First Transit had a duty to exercise extraordinary care to prevent. We agree in part.

1.

Long-standing Nevada case law holds that a common carrier owes a heightened duty of care to its passengers, at least for transportation-related risks. See Sherman v. S. Pac. Co., 33 Nev. 385, 405, 111 P. 416, 424 (1910) ("The rule . . . requires that a common carrier of passengers shall exercise more than ordinary care. It requires the exercise of extraordinary care, the exercise of the utmost skill, diligence, and human foresight.") (quoting Spellman v. Lincoln Rapid Transit Co., 55 N.W. 270, 271 (Neb. 1893)); Murphy v. S. Pac. Co., 31 Nev. 120, 125, 101 P. 322, 325 (1909) ("[A] railroad acting in the capacity of a common carrier of passengers is bound to use the utmost care...