One Night in November, Part 3: What if Pedestrian had No Damages?

If you think that is impossible in a wrongful death case, think again.

The common law afforded no remedy in damages for wrongful death, thus NRS 41.085 is the exclusive basis upon which the heirs’ claims may be premised.[1]  The only damages that may be recovered are those specifically delineated in the statute.[2]  The Supreme Court of Nevada has emphasized the language utilized by this statute is limiting and has narrowly construed the damages that it makes available.  Alsenz v. Clark Cty. School Dist. determined nothing in NRS 41.085(4) and (5), as then existed, permitted plaintiffs in a wrongful death suit to recover the “lost economic opportunities of the decedent or punitive damages.  Nothing in either subsection indicates otherwise.”[3]  The Court also examined the legislative history of the statute and concluded the “legislature intentionally clamped down on a wide open damages provision applicable to an estate.”[4]  The district court’s order barring the estate’s claim for punitive damages and lost economic opportunities was affirmed.[5]  The Legislature subsequently amended NRS 41.085 to specifically permit only the estate to seek punitive damages, but the statute is still narrowly construed.

NRS 41.085(5) specifically lists the damages the estate may seek.

(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.

  • Pedestrian had no NRS 41.085(5)(a) damages.

An estate may recover any “special damages,” which are defined as “quantifiable monetary losses that flow directly from the injury….”[6]  In my case, Pedestrian never disclosed or claimed any special damages.  There were numerous NRCP 16.1(a)(1) disclosures, but none ever disclosed documentation indicating Pedestrian incurred any medical or funeral expenses, nor was a claim for these expenses in a computation of damages.  Pedestrian elected not to assert an income based claim.  In short, special damages were ever disclosed for Pedestrian to recover.

“To prevail on a negligence theory, a plaintiff generally must show that:  (1) the defendant owed a duty of care to the plaintiff; (2) the defendant breached that duty; (3) the breach was the legal cause of the plaintiff’s injury; and (4) the plaintiff suffered damages.”[7]  Even construing the facts in the light most favorable to Pedestrian, if Driver owed a duty, breached that duty, and that breach was the legal cause of Pedestrian’s death, Pedestrian disclosed no evidence of damages that NRS 41.085(5)(a) allowed it to recover.

  • If there are no NRS 41.085(5)(a) damages, then NRS 41.085(5)(b) is inapplicable.

I can sense someone saying “you only eliminated one of the two types of damages.  Pedestrian can still recover punitive damages.”  The problem with that argument is punitive damages in Nevada are a remedy that must rely upon an underlying cause of action.  “Additionally, punitive damages is not a cause of action, but a remedy, and as a remedy, such damages may still be available on any remaining causes of action.”[8]  Applied here, Pedestrian had to satisfy all elements of the negligence cause of action, including damages that NRS 41.085(5)(a) would allow it to recover, before he could then qualify for punitive damages under NRS 41.085(5)(b).  As punitive damages do not stand alone, Pedestrian was SOL.

[1] Wells, Inc., v. Shoemake, 64 Nev. 57, 177 P.2d 451 (1947); Strong v. Strong, 70 Nev. 290, 267 P.2d 240 (1954) overruled on other grounds by Rupert v. Stienne, 90 Nev. 397, 528 P.2d 1013 (1974); Perry v. Tonopah Mining Co., 13 F.2d 865, 867 (D. Nev. 1915); Sonner v. Cordano, 228 F.Supp. 435, 438 (D. Nev. 1963); Pitman v. Thorndike, 762 F.Supp. 870, 871 (D. Nev. 1991).
[2] Wells, 64 Nev. at 66, 177 P.2d at 456.
[3] 109 Nev. 1062, 1065, 864 P.2d 285, 287 (1993).
[4] Id.
[5] Id.
[6] K-Mart Corp. v. Washington, 109 Nev. 1180, 1194, 866 P.2d 274, 283 (1993).
[7] Bower v. Harrah’s Laughlin, Inc., 125 Nev. 470, 491, 215 P.3d 709, 724 (2009).
[8] Massi v. Nobis, Nos. 68483, 68719, 2016 Nev. Unpub. LEXIS 249 (Apr. 15, 2016); Doe v. Colligan, 753 P.2d 144, 145 n.2 (Alaska 1988) (“Punitive damages do not constitute a cause of action.”).