The Proper Measure of Damages in a Tort Case . . . (Apparently Can Be Whatever The Trial Judge Thinks It Ought To Be)

By Kirby J. Smith

© 2012 This article was originally published in the printed magazine COMMUNIQUÉ, the official publication of the Clark County Bar Association. (December 2012, Vol. 33, No. 12). All rights reserved. For permission to reprint this article, contact the publisher Clark County Bar Association, Attn: COMMUNIQUÉ Editor-in-Chief, 725 S. 8th St., Las Vegas, NV 89101. Phone: (702) 387-6011.

Mrs. Davis comes into your office after a serious accident which caused her personal injuries and killed her husband. You decide to bring a claim in negligence (and possibly negligence per se), and wrongful death. There do not appear to be any claims for negligent entrustment, negligent or intentional infliction of emotional distress (see State ex rel. Dept. of Transp. v. Hill, 114 Nev. 810, 963 P.2d 480 (1998)), or any other potential theories of liability. Of course double recovery is not allowed, so additional theories may not result in additional damages anyway. J.A. Jones Constr. v. Lehrer McGovern Bovis, 120 Nev. 277, 289, 89 P.3d 1009 (2004).

As for damages, Mrs. Davis recites an extensive list of: physical injuries; mental injuries; a whole person permanent/partial disability; medical expenses; pain and suffering; reduction in activities of daily living; loss of past and future income and earning capacity; loss of past and future household services capacity; future medical care; prejudgment interest; damages for grief, and loss of guidance, care and companionship. There does not appear to be any support for punitive damages. As a practical matter, the specific wording of the allegations of damages in the complaint is probably not going to limit the instructions given by the court to the jury. Those instructions will instead reflect the testimony as to damages and the district judge’s determination of what damages are appropriate to provide just and fair compensation to Mrs. Davis.

1. Types of Damages Available to Mrs. Davis In Her Negligence Claim

In general, a plaintiff who has suffered personal injuries is entitled to recover medical expenses, loss of earnings, pain and suffering, and related damages.

A. Special Damages

 At a minimum, Mrs. Davis is entitled to recover the reasonable value of all medical services and expenses she incurred as a result of her injuries, Shere v. Davis, 95 Nev. 491, 492, 596 P.2d 499 (1979); damages for future medical expenses and services which will be necessary to treat the injuries caused by the defendant’s negligence, Id.; and damages for her lost earnings and any impairment on her earning capacity, Southern Pacific Transportation Co. v. Fitzgerald, 94 Nev. 241, 243, 577 P.2d 1234 (1978), Sierra Pacific Power Co. v. Anderson, 77 Nev. 68, 75, 358 P.2d 892 (1961); Smith v. Garside, 76 Nev. 377, 385 – 386, 355 P.2d 849 (1960). “When items of special damage are claimed, they shall be specifically stated” in the pleading.” NRCP 9(g).

Generally speaking, special damages are a species of compensatory damages. Countrywide Home Loans, Inc. v. Thitchener, 124 Nev. 725, 737, 192 P.3d 243, 251 (2008). A jury has wide latitude in awarding special damages so long as there is an evidentiary basis for determining an amount that is reasonably accurate. Id.; Wyeth v. Rowatt, 126 Nev. Adv. Op. 44, 244 P.3d 765, 782 (2010). For example, in Armstrong v. Onufrock, 75 Nev. 342, 347, 341 P.2d 105, 107 (1959), a mother quit her job to care for her minor child who had been injured. The reasonable value of the nursing services was a proper element of special damages (not the loss of wages resulting from the change of occupation). Id. The amount of special damages, moreover, need not be mathematically exact. Thitchener, 124 Nev. at 737, 192 P.3d at 251. Damages are awarded in order to “make the aggrieved party whole.” Hanneman v. Downer, 110 Nev. 167, 172, 871 P.2d 279, 283 (1994).

 Typically, a plaintiff can establish that the nature, extent, and amount of her past medical treatment was “reasonable” and “necessary” through the testimony of the plaintiff’s treating physicians. Yamaha Motor Co., U.S.A. v. Arnoult, 114 Nev. 233, 249, 955 P.2d 661, 671 (1998) (relying on testimony of treating physicians that her injuries would require continuing medical treatment). An award of future medical expenses must be supported by “sufficient and competent evidence.” Id. “In order to establish that the future medical expenses are a natural and probable consequence of defendant’s tortious conduct, the plaintiff must establish that such future medical expenses are reasonably necessary.” Hall v. SSF, Inc., 112 Nev. 1384, 1389, 930 P.2d 94, 97 (1996). The Court has also stated the plaintiff must prove she intends to seek/obtain the future medical treatment. York v. Smith, 2010 WL 3270228 (Nev. 2010) (unpublished opinion).

A claim for loss of past earnings is subject to sufficient documentary evidence that the time off was ordered and approved by her treating provider, actually incurred, and there is an actual loss of income which resulted.

Regarding lost future earnings, the court in Sierra Pacific, stated:

it then became the right of the jury to determine whether or not respondent’s earning capacity had been impaired, to what extent, and to accord to such evidence the significance and weight they saw fit. Destroyed or impaired earning capacity within life expectancy is a proper item of damage. The jury might take into consideration, in passing upon this item of damage, the fact the person has no education or preparation for a pursuit different from that in which he was engaged and no longer able to follow.

77 Nev. at 74, 358 P.2d at 895.

There is surprisingly little additional guidance. In Freeman v. Davidson, 105 Nev. 13, 16, 768 P.2d 885 (1989), the Court specifically approved the use of an economist to assist in the determination of such damages. See also Wells, Inc. v. Shoemake, 64 Nev. 57, 177 P.2d 451 (1947). Claims for future economic damages are, therefore, routinely transformed into a battle of experts.

Typically, there will be a medical expert and an economist who will testify for both parties.  More guidance may possibly be found in discussions of “loss of probable support” because it has been equated with decedent’s “lost economic opportunity” and both would seem conceptually similar. Alsenz v. Clark Co. School Dist., 109 Nev. 1062, 864 P.2d 285 (1993) (dicta). Household services expenses, both past and future, have also been expressly approved as a type of recoverable damage. Yamaha Motor Co.,114 Nev. at 250, 955 P.2d at 672.

In most circumstances, attorneys’ fees can be recovered upon a statute, rule, or contractual provision expressly providing for an award of attorneys’ fees as a cost of the action. Horgan v. Felton, 123 Nev. 577, 579, 170 P.3d 982 (2007). This is known as the American rule. Under certain circumstances, however, attorneys’ fees can be pled and recovered as special damages. Sandy Valley Assocs. v. Sky Ranch Estates, 117 Nev. 948, 956, 35 P.3d 964 (2001) (footnotes omitted); see also Shuette v. Beazer Homes Holdings Corp., 121 Nev. 837, 862, 124 P.3d 530 (2005).

B. General Damages

At a minimum, Mrs. Davis will be entitled to recover damages for the physical and mental pain and suffering caused by the defendant’s negligence, Quigley v. Central Pacific R.R., 11 Nev. 350, 370 – 371 (1876), Babcock and Wilson Co. v. Nolton, 58 Nev. 133, 147, 71 P.2d 1051 (1937); and damages for pain and suffering which she will suffer and endure in the future. Gutierrez v. Sutton Vending Service, 80 Nev. 562, 566, 397 P.2d 3 (1964); Curti v. Franceschi, 60 Nev. 422, 426, 111 P.2d 53 (1941).

No definite standard or method of calculation is prescribed by law by which to fix reasonable compensation for pain and suffering. Nor is the opinion of any witness required as to the amount of such reasonable compensation. Juries are simply instructed to “exercise your authority with calm and reasonable judgment” and fix damages which are “just and reasonable in light of the evidence.” Nevada Pattern Jury Instruction (NPJI) 5PID.2. In Stackiewicz v. Nissan Motor Corporation, 100 Nev. 443, 454, 686 P.2d 925, 932 (1984), the court stated that a jury’s damage award will stand unless it is “flagrantly improper,” noting, “[t]he elements of pain and suffering are wholly subjective.”  Damages for pain and suffering are peculiarly within the jury’s province. Id.; see also Canterino v. the Mirage Casino-Hotel, 117 Nev. 19, 24, 16 P.2d 415 (2001); Powell v. Nevada, C. & O. Ry., 28 Nev. 40, 78 P. 978 (1904) (mental anguish).

In addition to the option of simply relying on the jury, Nevada also permits an expert to testify as to hedonic damages. Hedonic damages are monetary remedies awarded to compensate injured persons for their noneconomic loss of life’s pleasures or the loss of enjoyment of life. As such, they are an “element” or “component” of pain and suffering damages. Banks ex rel. Banks v. Sunrise Hosp., 120 Nev. 822, 836, 102 P.3d 52, 61 (2004) (distinguishing between the different types of “pain and suffering”).

A person who has a pre-existing condition or disability at the time of an injury is not entitled to recover damages therefore; nonetheless, a plaintiff is entitled to recover damages for any aggravation of such pre-existing condition or disability. See e.g. Otis Elevator Co. v. Reid, 101 Nev. 515, 518, 706 P.2d 1378 (1985).

The Nevada Supreme Court has stated that where a plaintiff’s injury or disability is clear and readily observable, no expert testimony is required for an award of future pain, suffering, anguish and disability; but where an injury or disability is subjective and not demonstrable to others, expert testimony is necessary. See Krouse Inc. v. Little, 117 Nev. 929, 938, 34 P.2d 566, 572 (2001) (“the extent to which a broken bone causes pain and suffering is common knowledge”). Future pain and suffering must be shown to be “a probable, as contrasted to a possible, result.” Id.; see also Gutierrez v. Sutton Vending Serv., 80 Nev. 562, 566, 397 P.2d 3, 4 (1964).

Nevada common law does not recognize a cause of action for medical monitoring, although a remedy of medical monitoring may be available for an underlying cause of action. Badillo v. American Brands, Inc., 117 Nev. 34, 16 P.3d 435 (2001).

C. Property Damages

Property damages and loss of use damages generally will have been paid by the defendant’s insurance and will no longer be an issue. In Dugan v. Gotsopoulos, 117 Nev. 285, 22 P.3d 205 (2001), for example, the court addressed “loss of use” damages, such as the cost incurred to rent a comparable vehicle.

2. Types of Damages Available to The Estate of Mr. Davis

 The wrongful death statute creates two classes of plaintiffs, the heirs and the estate, and provides that each class may sue for different types of damages. NRS 41.085. The claims may be brought separately.

An estate can only recover special damages (i.e. medical expenses and funeral expenses) and any penalties that decedent would have recovered had he lived (i.e. punitive damages). NRS 41.085(5) provides:

5.  The damages recoverable by the personal representatives of a decedent on behalf of the decedent’s estate include:

(a) Any special damages, such as medical expenses, which the decedent incurred or sustained before the decedent’s death, and funeral expenses; and

(b) Any penalties, including, but not limited to, exemplary or punitive damages, that the decedent would have recovered if the decedent had lived,

– but do not include damages for pain, suffering or disfigurement of the decedent.

The damages described in subsection five are the only damages recoverable by the estate. Alsenz 109 Nev. at 1065, 864 P.2d 285. For example, the estate is not entitled to recover the decedent’s lost economic opportunity. Id.; see also Rupert v. Stienne, 90 Nev. 397, 528 P.2d 1013 (1974); Weaks v. Mounter, 88 Nev. 118, 493 P.2d 1307 (1972).

3. Types of Damages Available to Heirs

 The Nevada wrongful death statute created a class of plaintiffs known as heirs. As used in NRS 41.085(2), “heir” means a person who, under Nevada law, “would be entitled to succeed to the separate property of the decedent if [he] had died intestate.” NRS 41.085(1). The laws of intestate succession are set forth in NRS 134.030 through 210. Remember, illegitimate children also qualify. See Weaks, 88 Nev. 118, 493 P.2d 1307.

Heirs are authorized to pursue claims for “pecuniary damages” for “grief or sorrow, and loss of probable support, companionship, society, comfort, and consortium, and damages for pain, suffering, or disfigurement of the decedent.” NRS 41.085(4). Notably, “pecuniary damages” are not limited to tangible financial loss. Porter v. Funkhouser, 79 Nev. 273, 276, 382 P.2d 216 (1963).

Loss of probable “support” “translates into, and is often measured by, the decedent’s lost economic opportunity.” Alsenz, 109 Nev. 1062, 1065, 864 P.2d 285 (dicta). Also, as previously noted in the context of evaluating the future earnings of an injured party, remember that the “fact the person has no education or preparation for a pursuit different from that in which he was engaged and no longer able to follow” can be taken into account. Sierra Pacific, 77 Nev. at 74, 358 P.2d at 895. The Nevada Pattern Jury Instructions provides several additional factors to be taken into account. NPJI 5PID.5 states:

 In determining that loss, you may consider the financial support, if any, which the heir would have received from the deceased except for his death, and the right to receive support, if any, which the heir has lost by reason of his death.

 The right to receive support from another is not destroyed by the fact that the former does not need the support, nor by the fact that the latter has not provided it. You may also consider:

            a) The age of the deceased and of the heir;

            b) The health of the deceased and the heir;

            c) The respective life expectancies of the deceased and of the heir;

            d) Whether the deceased was kindly, affectionate or otherwise;

            e) The disposition of the deceased to contribute financially to support the heir;

            f) The earning capacity of the deceased;

            g) His or her habits of industry and thrift; and

            h) Any other facts shown by the evidence indicating what benefits the heir might reasonably have been expected to receive from the deceased had he lived.

In practice, loss of probable “support” is often considered separately from loss of probable “companionship, society, comfort, and consortium.” “To eliminate the danger that there would be a double recovery, a jury is charged that the wife’s compensation for loss of her husband’s society and companionship should not include additional damages for her right to support.” General Electric Co. v. Bush, 88 Nev. 360, 368, 498 P.2d 366 (1972).

Heirs’ damages, based on the decedent’s lost earning capacity, may include present as well as future loss of support. Freeman v. Davidson, 105 Nev. 13, 16, 768 P.2d 885 (1989), citing Wells, Inc. v. Shoemake, 64 Nev. 57, 177 P.2d 451 (1947). In Freeman, the court specifically approved the use of an economist to assist in the determination of such damages.

As for loss of “companionship, society, comfort, and consortium,” there is, first, no requirement that such damages must bear a reasonable relation to pecuniary loss. Porter, 79 Nev. at 277, 382 P.2d at 218. In Porter, the court also discussed whether the jury could be instructed on the present cash value of damages to be suffered in the future.  In General Electric Co., the court relied on cases from other jurisdictions which recognized that consortium covers a variety of other intangible interests which the wife has in the welfare of her husband. 88 Nev. 360, 368, 498 P.2d 366. These are described as “love, companionship, affection, society, sexual relations, solace and more.” The court emphasized that the basis of the plaintiff’s wife’s recovery was the anguish which she suffered when the injury to her husband destroyed or impaired those components that make for the traditional marriage. Id.

According to the NPJI 5PID.5, any damages for pain, suffering, or disfigurement of the decedent must be divided by the total number of heirs making a claim. There is, no legal support stated for this proposition, however; but, it seems reasonable. By implication, and logically, damages for the heir’s loss of probable support, companionship, society, comfort and consortium, and grief and sorrow, are individual to each heir rather than being a fraction of some generally amorphous number.

Finally, a Nevada federal district court case—which has apparently not been critiqued by the Nevada Supreme Court—held that to be compensable in a wrongful death action in Nevada, pain and suffering must be consciously experienced. Pitman v. Thorndike, 762 F. Supp. 870 (D. Nev. 1991). Therefore, plaintiffs could only recover for that part of decedent’s loss of enjoyment of life that was consciously experienced before death. Id. In short, the court effectively found that comatose patients experience no legally recognizable pain and suffering. Id. 

4. Other Types of Damages Which May Be Recovered in a Tort Claim

 A. Prejudgment Interest

 B. Mitigation of Damages

As a general rule, a party cannot recover damages for loss that he could have avoided by reasonable efforts. Sheehan & Sheehan v. Nelson Malley and Co., 121 Nev. 481, 492, 117 P.3d 219, 226 (2005). In explaining this rule, the court noted that, “the burden is upon the party whose wrongful act caused the damages complained of to prove ... that the damages might have been lessened by reasonable diligence on the part of the aggrieved party.” Id.; see also Automatic Merchandisers, Inc. v. Ward, 98 Nev. 282, 646 P.2d 553 (1982) (failure of plaintiff to undergo surgery).

CONCLUSION

In Nevada, there is a long line of cases containing broad statements of rights to damages. For example, in the process of expanding the scope of damages from physical to also mental injuries, the Quigley court stated plaintiff, “is entitled to compensation for all the injuries naturally and necessarily resulting from the wrongful act of the party who caused the injury. In such cases the jury are [sic] authorized to give such damages as will make the injured party whole for all the injuries resulting directly from the wrongful and unlawful act … he that caused the injury must bear its consequences.” 11 Nev. 350, 370 – 371.

Kirby J. Smith is a partner in Lionel Sawyer & Collins’ Litigation Department and labor and employment practice group. His practice emphasis is on employer representation in a variety of employment cases as well as personal injury defense cases, including product liability and mass torts.