Leslie v. Jones Chemical Co., Inc., 8003

• Decision Date: 24 June 1976
• Docket Number: No. 8003,8003
• Citation: 92 Nev. 391,551 P.2d 234
• Parties: Ruth LESLIE and Doris Good, Appellants and Cross-Respondents, v. JONES CHEMICAL CO., INC., a New York Corporation, et al., Respondents and Cross-Appellants.
• Court: Nevada Supreme Court

Page 234

551 P.2d 234

92 Nev. 391

Ruth LESLIE and Doris Good, Appellants and Cross-Respondents, v. JONES CHEMICAL CO., INC., a New York Corporation, et al Respondents and Cross-Appellants.

No. 8003.

Supreme Court of Nevada.

June 24, 1976.

Rehearing Denied July 22, 1976.

[92 Nev. 392] Galatz, Earl & Biggar, Las Vegas, for appellants and cross-respondents.

Beckley, Singleton, DeLanoy & Jemison, Las Vegas, for respondents and cross-appellants.

OPINION

THOMPSON, Justice.

In this personal injury action the defendants admitted liability. Following trial, the jury awarded compensatory and punitive damages to each plaintiff. The verdict favoring plaintiff Leslie was for $150,000 compensatory and $125,000 punitive damages. The verdict for plaintiff Good was for $35,000 compensatory and $125,000 punitive damages. Believing that the punitive damage awards totalling $250,000 were the result of passion and prejudice, the district court granted the defendants' motion for a new trial unless each plaintiff would accept a remittitur of punitive damages in the amount of $85,000 for a total of $170,000. The compensatory damage awards were not touched. The plaintiffs have appealed from this discretionary ruling, asserting an abuse of discretion. The defendants have cross-appealed contending that the evidence does not support punitive damages, but that if it may be read to do so, the remittitur fell within the court's discretion.

1. The personal injury to each plaintiff resulted from the inhalation of chlorine gas which, in turn, caused permanent damage to their respiratory systems. The chlorine gas was used as a water purification agent in the operation of the swimming pool of the Sahara Hotel in Las Vegas. A cylinder of that gas exploded spewing approximately 150 pounds of compressed chlorine over the swimming pool and patio areas. The plaintiffs and others were there present when the explosion occurred.

The district court found that the jury reasonably could conclude that the defendants consciously and deliberately disregarded known safety procedures regarding the handling of chlorine cylinders in reckless disregard of possible results, and that such evidence sufficiently established malice in fact to allow punitive damages. NRS 42.010; Nevada Cement Company v. Lemler, 89 Nev. 447, 514 P.2d 1180 (1973). Consequently, that court allowed punitive damages but reduced the awards thereof. We also believe that the record may be read to support punitive damages in some amount and, therefore, deny the cross-appeal. We turn to consider the propriety of the remittitur.

2. The trial court possessed the power to enter the order here challenged. NRCP 59(a)(6); Harris v. Zee, 87 Nev. 309, 486 P.2d 490 (1971); Hotel Riviera, Inc. v. Short, 80 Nev. 505, 396 P.2d 855 (1964). When a remittitur damnum is ordered and we are asked to review, the test is whether the court abused its discretionary power. Harris v. Zee, supra. Admittedly, the standard is somewhat elusive. As noted in Harris v. Zee: 'We must accord deference to the point of view of the trial judge since he had the opportunity to weigh evidence and evaluate the credibility of witnesses--an opportunity foreclosed to this court. To this extent the appeal is weighted in favor of the order entered, and where there is a material conflict of evidence as to the extent of damage, a challenge to the court's exercise of discretion is substantially repelled.' Id., 87 Nev. at 311, 312, 486 P.2d at 491.

In that case we reinstated the jury award of compensatory damages since the evidence regarding the personal injury incurred and the claimant's pain and suffering was not in conflict. In the matter before us we are not concerned with the compensatory damage awards. We here are dealing with a remittitur of punitive damages where the evidence regarding the presence or absence of malice in fact on the part of the defendants is conflicting. In line with the expression in Harris v. Zee, supra, we must accord deference to the view of the trial judge.

As noted by the trial judge there was no evidence to indicate that the defendants acted deliberately to hurt anyone. The malice in fact, if any existed at all, had to be inferred from a disregard of known safety procedures by management personnel of defendants. Realizing the subjective nature of punitive damages, Caple v. Raynel Campers, Inc., 90 Nev. 341,344, 526 P.2d 334 (1974), the absence of workable standards with which to evaluate the propriety of the amount of such an award, Miller v. Schnitzer, 78 Nev. 301, 310, 371 P.2d 824 (1962), and the arguable conflict of evidence regarding malice in fact, we are wholly unable to find an abuse of discretion by the trial judge in entering the conditional order in issue. His order may not be characterized as one which no reasonable judge would make. Roy v. Levy, 97 N.H. 36, 79 A.2d 847, 851 (1951).

The conditional order is affirmed; the cross-appeal is dismissed.

MOWBRAY, J., concurs.

GUNDERSON, Chief Justice and ZENOFF, Justice (concurring and dissenting):

Together with our brothers Thompson and Mowbray, we believe the trial court properly instructed the jury to consider an award of punitive damages. However, we think the trial court later erred in substituting its own views concerning the amount of punitive damages, in place of the views of the eight citizens who composed the jury.

Of course, whether the record contains sufficient evidence to justify an award of punitive damages is a question of law, and for the court to decide. U.S. Fidelity v. Peterson, 91 Nev. 617, 540 P.2d 1070 (1975). However, where the requisite factual basis for punitive damages exists, the amount of the award rests in the sound discretion of the trier of facts, which in this case was not the trial judge but the jury. Cf. Caple v. Raynel Campers, Inc., 90 Nev. 341, 526 p.2d 334 (1974). It is possible, of course, that some persons may view some kinds of consciously wanted conduct as less culpable than others. Still, where the record justifies the jury's finding of requisite intention or willingness to injure, we believe a reduction of punitive damages may not be justified by the trial judge's personal thoughts about the relative social acceptability of different kinds of willfully wrongful conduct. Our brethren cite no authority supporting the idea that a trial judge has superadded discretion to reduce punitive damages whenever there is no evidence the particular injury inflicted was 'deliberate,' but 'merely' evidence that in order to operate their business at a higher profit 'the defendants consciously and deliberately disregarded known safety procedures regarding the handling of chlorine cylinders in reckless disregard of possible results . . .'

Of course, where a punitive damage award is so large, as compared to a wrongdoer's total asserts, that it will not merely punish but will destroy, then it is proper for the court to intervene. Miller v. Schnitzer, 78 Nev. 301, 371 P.2d 824 (1962). Likewise, the court may intervene when there is some sound basis for saying the award 'shocks the judicial conscience.' Caple v. Raynel Campers, Inc., cited above; General Electric v. Bush, 88 Nev. 360, 498 P.2d 366 (1972). Here, however, our brothers Thompson and Mowbray seemingly do not suggest that either these, or any other recognized basis for judicial interference, appears of record. Rather, they seem to be saying that a trial judge has unbridled discretion to reassess punitive damages, not because some defined legal standard impels or allows it, but simply because he has a pervasive power in the premises. In sum, they apparently would view a jury's verdict concerning punitive damages as advisory only.

With that aspect of Justice Thompson and Justice Mowbray's views, we cannot concur, and as we understand him, Justice Batjer does not concur with them either. Instead, as we understand him Justice Batjer merely concurs in reduction of the punitive damages out of belief that the record does not support any award of punitive damages.

We think evidence to support punitive damages is ample, and the jury's award offends no standard heretofore recognized for punitive damages. It should, therefore, be affirmed.

BATJER, Justice, dissenting in part and concurring in part.

I respectfully dissent from the holding of the majority that, '. . . (T)he record may be read to support punitive damages in some amount.' However, as a result of that determination I concur in the affirmance of the district court's conditional order for a new trial and join Thompson, J., and Mowbray, J., in holding that 'we are wholly unable to find an abuse of discretion by the trial judge in entering the conditional order.'

Shortly after trial began some of the defendants offered to admit liability. Appellants and cross-respondents, hereinafter refferd to as plaintiffs or Leslie and Good, objected. The trial judge asked counsel for plaintiffs if they were seeking punitive damages, and he was advised that they were not. Subsequently all parties entered into a written stipulation agreeing to dismiss with prejudice the action against American Fire and Safety, Inc., and Sahara-Nevada Corporation, d/b/a Hotel Sahara.

After examination of the first witness had commenced the respondents and cross-appellants, hereinafter referred to as defendants or Jones Chemical, admitted liability without objection from plaintiffs. At that juncture in the trial, Leslie and Good moved to amend their complaints to include a claim for punitive damages and the motion was granted.

Following trial, the jury awarded compensatory and punitive damages to each plaintiff. Believing that the punitive damage awards totalling $250,000 were the result of passion and prejudice, the district court granted the defendants' motion for a new trial unless each plaintiff would accept a remittitur of punitive damages in the amount of $85,000 for a total of $170,000. The compensatory damage...