Jitnan v. Oliver

Citation254 P.3d 623,127 Nev. Adv. Op. 35
Decision Date07 July 2011
Docket Number53340.,Nos. 53225,s. 53225
PartiesBOONSONG JITNAN and Chanly Than, Appellants,v.Ryan Jay OLIVER, Individually; Canica Jaques Crusher, a Business Entity Unknown, a Wholly Owned Subsidiary of Terex Corporation, a Business Entity Unknown; Terex Canica, a Business Entity Unknown, a Wholly Owned Subsidiary of Terex Corporation, a Business Entity Unknown; Terex Simplicity, a Business Entity Unknown, a Wholly Owned Subsidiary of Terex Corporation, a Business Entity Unknown; and Terex Corporation, a Business Entity Unknown, Respondents.Boonsong Jitnan and Chanly Than, Appellants,v.Ryan Jay Oliver, Individually; Canica Jaques Crusher, a Business Entity Unknown, a Wholly Owned Subsidiary of Terex Corporation, a Business Entity Unknown; Terex Canica, a Business Entity Unknown, a Wholly Owned Subsidiary of Terex Corporation, a Business Entity Unknown; Terex Simplicity, a Business Entity Unknown, a Wholly Owned Subsidiary of Terex Corporation, a Business Entity Unknown; and Terex Corporation, a Business Entity Unknown, Respondents.
CourtSupreme Court of Nevada

254 P.3d 623
127 Nev.
Adv. Op. 35

BOONSONG JITNAN and Chanly Than, Appellants,
v.
Ryan Jay OLIVER, Individually; Canica Jaques Crusher, a Business Entity Unknown, a Wholly Owned Subsidiary of Terex Corporation, a Business Entity Unknown; Terex Canica, a Business Entity Unknown, a Wholly Owned Subsidiary of Terex Corporation, a Business Entity Unknown; Terex Simplicity, a Business Entity Unknown, a Wholly Owned Subsidiary of Terex Corporation, a Business Entity Unknown; and Terex Corporation, a Business Entity Unknown, Respondents.Boonsong Jitnan and Chanly Than, Appellants,
v.
Ryan Jay Oliver, Individually; Canica Jaques Crusher, a Business Entity Unknown, a Wholly Owned Subsidiary of Terex Corporation, a Business Entity Unknown; Terex Canica, a Business Entity Unknown, a Wholly Owned Subsidiary of Terex Corporation, a Business Entity Unknown; Terex Simplicity, a Business Entity Unknown, a Wholly Owned Subsidiary of Terex Corporation, a Business Entity Unknown; and Terex Corporation, a Business Entity Unknown, Respondents.

Nos. 53225

53340.

Supreme Court of Nevada.

July 7, 2011.


[254 P.3d 625]

Mainor Eglet Cottle and Robert T. Eglet and Lesley B. Miller, Las Vegas, for Appellants.Lewis & Roca LLP and Daniel F. Polsenberg, Joel D. Henriod, and Jacqueline A. Gilbert, Las Vegas; Hall Jaffe & Clayton, LLP, and Steven T. Jaffe and Ashlie Surur, Las Vegas, for Respondents.BEFORE SAITTA, HARDESTY and PARRAGUIRRE, JJ.

OPINION
By the Court, SAITTA, J.:

In these consolidated appeals, we address whether the district court abused its discretion in denying a challenge for cause to a prospective juror. We conclude that it did. We hold that when a prospective juror expresses a potentially disqualifying opinion or bias and is inconsistent in his or her responses regarding that preconception upon further inquiry, the district court must set forth, on the record, the reasons for its grant or denial of the challenge for cause. We conclude that the district court erred in failing to do so. We nonetheless affirm the judgment of the district court because the case was ultimately tried by a fair and impartial jury.

FACTS AND PROCEDURAL HISTORY

Appellant Boonsong Jitnan was operating a cab when it was struck from behind by a vehicle operated by respondent Ryan Jay Oliver. At the time, Oliver was employed by respondents Canica Jaques Crusher, Terex Canica, Terex Simplicity, and Terex Corporation (collectively, Oliver). Boonsong and his wife, appellant Chanly Than (collectively, Jitnan), instituted a personal injury action against Oliver for injuries arising out of the accident. Subsequently, the district court granted partial summary judgment on the issue of liability, determining that Oliver was

[254 P.3d 626]

the sole cause of the accident, that Oliver was negligent, and that there was no comparative negligence on the part of Jitnan. The case then proceeded to trial on the issue of damages.

At the beginning of trial, the district court asked the panel of prospective jurors whether any of them had been a party to a lawsuit. Prospective juror no. 40 responded that he was sued as a result of a car accident that he caused. The voir dire of prospective juror no. 40 proceeded as follows:

THE COURT: You understand that every case has its own particular facts?

PROSPECTIVE JUROR NO. 40: Yes.

THE COURT: Will you be able to set aside your own personal situation and listen to the evidence in this case to make your decision here if you're selected to serve?

PROSPECTIVE JUROR NO. 40: No.

THE COURT: Okay. I'm going to come back to you in a little bit on that, okay?

....

... I told you I was going to come back to you to explore one of the issues that had come up about your own personal suit and the motor vehicle accident that you were involved in in 2005.

PROSPECTIVE JUROR NO. 40: Yes.

THE COURT: Okay. And when I asked you if you would be able to set that case aside and determine this case based on the evidence, you said no. That was what I wanted to explore with you.

PROSPECTIVE JUROR NO. 40: Okay.

THE COURT: Can you tell me why that [is]?

PROSPECTIVE JUROR NO. 40: Just between me personally being sued or actually really the insurance company, and the fact that I've also been rear-ended, and obviously not sued—or sued anybody. I just kind of have an opinion that there are a lot of frivolous lawsuits in the State of Nevada and just the advertisements on TV, et cetera, et cetera. And the fact the one that I was in when I got sued, the guy waited two years to even have the lawsuit. Plus he refused medical care on site. It's just my opinion that a lot of lawsuits are frivolous, so I feel pretty strongly about it. And that would play a part in ... me being on the jury and my decision, so.

THE COURT: So you've kind of been in both situations—

PROSPECTIVE JUROR NO. 40: Correct. Yes.

THE COURT:—one where you were at fault in an accident and one where somebody else was at fault and involving you in an accident?

PROSPECTIVE JUROR NO. 40: Correct.

THE COURT: Do you think that all suits are frivolous?

PROSPECTIVE JUROR NO. 40: No.

THE COURT: So whether a suit is frivolous or not would depend on the evidence and the facts?

PROSPECTIVE JUROR NO. 40: Yes.

THE COURT: So would you be able to keep an open mind to listen to the facts of this case to make your decision?

PROSPECTIVE JUROR NO. 40: I want to say yes but—

THE COURT: But what?

PROSPECTIVE JUROR NO. 40: I would say no. No.

THE COURT: Okay. Let me ask you this then. Do you think maybe half of the cases are righteous and half are frivolous, or two percent are righteous and 98 percent are frivolous, or where would you put yourself?

PROSPECTIVE JUROR NO. 40: I think the insurance company pay[s] for medical bills, pay[s] to fix the car, they lost a couple days of work, took care of that, and that's all you're entitled to, period. So nothing more above and beyond that.

THE COURT: Okay. So just the—just the concrete bills or the—that can—the invoices that people have, that's what you would limit them to, is that what you're saying?

PROSPECTIVE JUROR NO. 40: Yes.

THE COURT: Okay. Does plaintiff[s'] counsel wish to ask him any questions on that?

[254 P.3d 627]

[JITNAN'S COUNSEL]: No, Your Honor.

THE COURT: And does defendants' counsel?

[OLIVER'S COUNSEL]: If I may, Your Honor.

....

If—you said you accept the concept that there are lawsuits that may be legitimate, correct?

PROSPECTIVE JUROR NO. 40: Correct. Yes.

[OLIVER'S COUNSEL]: And do you—do you accept the concept that people can be legitimately hurt in an accident?

PROSPECTIVE JUROR NO. 40: Yes.

[OLIVER'S COUNSEL]: Even in no circumstances would you have a problem with pain and suffering awards?

PROSPECTIVE JUROR NO. 40: In no circumstances?

[OLIVER'S COUNSEL]: In no circumstances if somebody was legitimately hurt.

PROSPECTIVE JUROR NO. 40: If somebody was legitimately hurt, obviously it wasn't their fault, and for some reason they couldn't work anymore, then I would say yes. I mean as far cash settlement of some kind, I would say they're entitled to that.

[OLIVER'S COUNSEL]: Let me—there is a dispute on these. I don't want to, you know, lead you down the wrong path.

PROSPECTIVE JUROR NO. 40: Okay.

[OLIVER'S COUNSEL]: We do have a dispute about the injuries that this accident did cause, if any—

PROSPECTIVE JUROR NO. 40: Mm-hmm.

[OLIVER'S COUNSEL]:—and I mean that's one of the reasons why we're here.

PROSPECTIVE JUROR NO. 40: Yes.

[OLIVER'S COUNSEL]: But given the fact that you do accept that there could be some lawsuits that are legitimately based, and people could legitimately be entitled to pain and suffering, would you be able to at least listen to the facts of this case to see if it fell within that arena before you made your decision, and give both sides the benefit of the doubt?

PROSPECTIVE JUROR NO. 40: Yes, I would listen to the facts, but I do have a biased opinion of it, I guess, already.

[JITNAN'S COUNSEL]: Your Honor, I have an officer outside, as far as I know, and I would ask that he be excused for cause.

[OLIVER'S COUNSEL]: Your Honor, I think the Court's just giving me an opportunity to ask some questions.

....

[OLIVER'S COUNSEL]: You said you've already got certain thoughts built into your mind about this case, correct?

PROSPECTIVE JUROR NO. 40: Correct.

[OLIVER'S COUNSEL]: You haven't heard any evidence in the case, right?

PROSPECTIVE JUROR NO. 40: Correct. Yes.

[OLIVER'S COUNSEL]: If the evidence that came into the case was different from what you've built up in your mind, would you listen and fairly weigh the facts of the case and give both sides the benefit of that doubt?

PROSPECTIVE JUROR NO. 40: Yes.

....

[JITNAN'S COUNSEL]: May I inquire that [sic]?

THE COURT: You may.

....

[JITNAN'S COUNSEL]: And what I was hearing is, you don't believe in—much in people coming to court to recover anything more than medical bills or the time they've missed from work. Am I pretty accurate in that?

PROSPECTIVE JUROR NO. 40: Yes.

[JITNAN'S COUNSEL]: All right. And in a case where as they say they've missed time from work or the car's got damage or they have medical bills, but they want something more, you have a problem with that something more, wouldn't you?

PROSPECTIVE JUROR NO. 40: Yes.

[254 P.3d 628]

[JITNAN'S COUNSEL]: And the reason for that is, we're all different. My dad used to say that's why they make strawberry, chocolate and vanilla ice cream, a flavor for everybody. You believe that people shouldn't get something for pain and suffering, isn't that right?

PROSPECTIVE JUROR NO. 40: Yes.

[JITNAN'S COUNSEL]:...

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