RUTH LESLIE and DORIS GOOD, Appellants and Cross-Respondents, v. JONES CHEMICAL CO., INC., A New York Corporation; JONES CHEMICALS, INC., a New York Corporation; JONES CHEMICALS, INC., Western Division, a California Corporation; and JONES CHEMICAL CO., INC., Western Division, a California Corporation, Respondents and Cross-Appellants
Leslie v. Jones Chemical Co.
Mowbray, J., concurs.
RUTH LESLIE and DORIS GOOD, Appellants and Cross-Respondents, v. JONES CHEMICAL CO., INC., A New York Corporation; JONES CHEMICALS, INC., a New York Corporation; JONES CHEMICALS, INC., Western Division, a California Corporation; and JONES CHEMICAL CO., INC., Western Division, a California Corporation, Respondents and Cross-Appellants.
RUTH LESLIE and DORIS GOOD, Appellants and Cross-Respondents, v. JONES CHEMICAL CO., INC., A New York Corporation; JONES CHEMICALS, INC., a New York Corporation; JONES CHEMICALS, INC., Western Division, a California Corporation; and JONES CHEMICAL CO., INC., Western Division, a California Corporation, Respondents and Cross-Appellants.
No. 8003
June 24, 1976
551 P.2d 234
[Rehearing denied July 22, 1976]
Galatz, Earl & Biggar, of Las Vegas, for Appellants and Cross-respondents.
Beckley, Singleton, DeLanoy & Jemison, Chartered, of Las Vegas, for Respondents and Cross-appellants.
OPINION
By the Court,
Thompson, J.:
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. at 311, 312.
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, 79 A.2d 847, 851 (N.H. 1951).
The conditional order is affirmed; the cross-appeal is dismissed.
Mowbray, J., concurs.