THE STATE OF NEVADA, ex rel., DEPARTMENT OF TRANSPORTATION, Appellant, v. LEWIS HILL, Individually; ORA LEE HILL, Individually; and EMANUEL HILL, Individually, Respondents
State ex rel. Department of Transportation v. Hill
Shearing, L, concurs.
THE STATE OF NEVADA, ex rel., DEPARTMENT OF TRANSPORTATION, Appellant, v. LEWIS HILL, Individually; ORA LEE HILL, Individually; and EMANUEL HILL, Individually, Respondents.
THE STATE OF NEVADA, ex rel., DEPARTMENT OF TRANSPORTATION, Appellant, v. LEWIS HILL, Individually; ORA LEE HILL, Individually; and EMANUEL HILL, Individually, Respondents.
No. 27762
September 1, 1998
963 P.2d 480
Frankie Sue Del Papa, Attorney General, and Roger D. Comstock, Senior Deputy Attorney General, Carson City, for Appellant.
Bradley, Drendel & Jeanney, Reno, for Respondents.
OPINION
By the Court, Rose, J.:
The winter storms of 1992-93 extensively damaged Interstate 80 (1-80) west of Reno. The State Department of Transportation (the State or NDOT) applied a pothole filler to a stretch of the highway near the Gold Ranch Casino in Verdi. On March 13, 1993, that stretch of road had become slick and hazardous when rain mixed with the road filler. That evening, respondents Lewis Hill (Lewis) and Ora Lee Hill (Ora Lee) were driving from San Francisco to Reno with their spouses. Ora Lee is married to Lewis' older brother, Emanuel Hill (Emanuel), and Lewis was married to Earnestine Hill (Earnestine).
As a result of NDOT's admitted negligence, the Hills' vehicle hit a slick spot of road, spun out of control, and flipped over sev eral times. Lewis, Ora Lee, and Emanuel received relatively minor injuries; however, Earnestine, the only occupant who had not been wearing a seat belt, was ejected from the vehicle and sustained fatal injuries. The wrongful death claims of Lewis and of Lewis and Earnestine's son were settled prior to trial. At trial Lewis, Ora Lee, and Emanuel brought claims for personal injuries. Additionally, Lewis and Ora Lee brought claims for negligent infliction of emotional distress (NIED). Emanuel did not claim emotional distress because he had no recollection of the accident.
The jury awarded Lewis a total of $50,244.05 on his claims ($15,244.05 for personal injuries and $35,000.00 for emotional distress). Ora Lee received $11,795.50 for her personal injuries along with $10,000.00 for emotional distress. Emanuel received $33,024.41 for his personal injuries. The State appeals the verdicts pertaining to Lewis and Ora Lee. It asserts that pursuant to statute, Lewis could not collect more than a total of $50,000.00 from the State, and asks this court to reduce his award accordingly. The State further asserts that Ora Lee did not satisfy the prima facie requirements of a claim for NIED, and asks this court to vacate her $10,000.00 award.
FACTS
This case arose out of a March 13, 1993 single-car rollover, which occurred in the eastbound lanes of 1-80 near the Gold Ranch Casino in Verdi. On March 13, 1993, Lewis was driving his 1989 Blazer from San Francisco to Reno for a weekend of recreation with his wife, Earnestine, his brother, Emanuel, and his brother's wife, Ora Lee. All of the occupants, except for Earnestine, were wearing seat belts.
The two couples had each been married approximately thirty-five years. They had all known each other as school children in Alabama; the couples had moved to California and had lived within twenty miles of each other for the thirty years preceding the accident. Emanuel and Ora Lee testified that Lewis and Earnestine were their closest friends, and that the couples had travelled together numerous times throughout the years, often sharing hotel rooms. Ora Lee had known Earnestine for over thirty-five years. The three survivors testified that Earnestine and Ora Lee were exceedingly close, seeing each other at least twice a week and talking on the telephone several times each week. Ora Lee stated that she and Earnestine were more like sisters than sisters-in-law, and that she was closer to Earnestine than to her two blood sisters.
Sometime around noon on March 13, 1993, the two couples left San Francisco on their way to the Sands Hotel/Casino in Reno. Several minutes before 6:00 p.m. they passed the Gold Ranch Casino outside of Verdi, traveling east. Near the Gold Ranch overpass, Lewis' vehicle hit a slick spot on 1-80 where NDOT had recently repaired a patch of road. The vehicle went into a spin and rolled over, ultimately coming to rest on its passenger side in the median.
Once the vehicle stopped, Ora Lee unfastened her seat belt and crawled out of the back window. Lewis used a bystander's knife, cut himself out of his seat belt and also crawled out of the vehicle. Emanuel's right hand and forearm were trapped under the vehicle's passenger-side door. Earnestine was not in the vehicle, and Lewis and Ora Lee called out to her. They saw Earnestine lying to the south of the vehicle and attempted to go to her aid; however, they were restrained by several on-lookers who told Lewis and Ora Lee that they "didn't want to see" what had happened to Earnestine.
Ora Lee then noticed that her sixty-nine year old husband, Emanuel, was still in the car; she called out to him several times, and when he finally nodded his head, Ora Lee exclaimed, "Oh, thank God, he's alive." Shortly thereafter (at approximately 6:25 p.m.), Lewis and Ora Lee were taken by ambulance to Washoe Medical Center. Earnestine was pronounced dead at the scene at 6:42 p.m. Ora Lee and Lewis testified that they knew that Earnestine was seriously injured when they left the accident scene; however, they did not find out about her death until approximately two hours after they had arrived at Washoe Medical Center.
At the time Ora Lee learned of Earnestine's death, she was also informed that Emanuel had survived, but had sustained injuries to his right arm and hand — a dislocated, broken wrist and several broken fingers. Ora Lee, Lewis, and Emanuel were released late that night. The next day, a witness to the accident drove Lewis, Ora Lee, and Emanuel to their homes in the San Francisco area. Emanuel testified that he did not remember being driven home and could not recollect what had transpired between the time of the accident and his trip back to the bay area.
Emanuel's injuries required subsequent surgical treatment, and Ora Lee testified at trial that he still did not have full use of his right arm. Notwithstanding, Emanuel was able to return to his job as a school crossing guard the following school year. By the time of trial, Lewis and Ora Lee had made nearly complete physical recoveries; however, testimony indicated that Ora Lee and Lewis were still quite upset by the accident and Earnestine's death. Emanuel testified that Ora Lee cried frequently, had little appetite, and had lost a lot of weight since the accident.
At trial, NDOT conceded liability and the amount of damages to be paid was the only issue. The jury awarded Lewis a total of $50,244.05 on his claims ($15,244.05 for personal injuries and $35,000.00 for emotional distress), Ora Lee received $11,795.50 for her personal injuries along with $10,000.00 for emotional distress, and Emanuel received $33,024.41 for his personal injuries.
At trial, it appeared that Ora Lee sought emotional distress damages for witnessing injury to both Earnestine and Emanuel. The verdict did not apportion Ora Lee's emotional distress damages between the effects of seeing Earnestine and Emanuel injured. The State claims that, as a matter of law, Ora Lee could not recover for emotional distress because she was not "closely related' ' to Earnestine. It further contends that no damages should have been awarded to Ora Lee based upon emotional distress incurred in seeing Emanuel trapped beneath the vehicle because he was not seriously injured. The State also appeals the jury's award to Lewis to the extent it exceeded $50,000.00 (i.e., $244.05), claiming that the verdict contravened the language and policy of NRS 41.035, which limits recovery from the State to $50,000.00 for each cause of action.
DISCUSSION
The State preserved the issues pertaining to the viability of Ora Lee's NIED claim
Ora Lee argues that the State "failed to preserve for review its assertion that Ora Lee was not a sufficiently 'close relative' " to Earnestine, and "its contention that Emanuel's injuries were insufficiently severe to give rise to" a NIED claim. We conclude that Ora Lee's contentions are without merit. The record shows that the State argued at trial that Ora Lee was not "closely related" to Earnestine, and that Emanuel did not incur the "serious injuries" which are required as a condition precedent to a plaintiff being able to recover damages for NIED. Accordingly, we will review the merits of the subsequent issues on appeal.
Ora Lee was entitled to the NIED award for witnessing the death of Earnestine
At trial, the district court instructed the jury that Earnestine and Ora Lee were closely related as a matter of law. In State v. Eaton, 101 Nev. 705, 718, 710 P.2d 1370, 1379 (1985), where a mother sought damages for emotional distress after witnessing the death of her child, this court first "recognize[d] a cause of action for serious emotional distress which results in physical symptoms caused by apprehending the death or serious injury of a loved one due to the negligence of the defendant." (Emphasis added.) In Eaton, this court expressly adopted the test for foreseeability of emotional harm as expressed in Dillon v. Legg, 441 P.2d 912 (Cal. 1968).
This court quoted Dillon's articulation of factors for trial courts to consider in determining the foreseeability of emotional injury to a particular plaintiff:
"(1) Whether plaintiff was located near the scene of the accident as contrasted with one who was a distance away from it. (2) Whether the shock resulted from a direct emotional impact upon plaintiff from the sensory and contemporaneous observance of the accident, as contrasted with learning of the accident from others after its occurrence. (3) Whether plaintiff and the victim were closely related, as contrasted with an absence of any relationship or the presence of only a distant relationship."
Eaton, 101 Nev. at 716, 710 P.2d at 1377-78 (quoting Dillon, 441 P.2d at 916) (emphasis added).
In Dillon, the court explained its rationale for abolishing the old "zone of danger" rule and expanding bystander liability to include those who witness severe injury to a victim with whom they share a close relationship:
The case thus illustrates the fallacy of the rule that would deny recovery in the one situation and grant it in the other . . . . [W]e can hardly justify relief to the sister for trauma which she suffered upon apprehension of the child's death and yet deny it to the mother merely because of a happenstance that the sister was some few yards closer to the accident. The instant case exposes the hopeless artificiality of the zone-of-danger rule.
State v. Eaton, 101 Nev. 705, 713, 710 P.2d 1370, 1375 (1985) (quoting Dillon, 441 P.2d at 915) (emphasis added).
Ora Lee and Earnestine were more than in-laws, they were best and dearest of friends for almost forty years; Ora Lee was closer to Earnestine than to her own sisters. We believe that to preclude Ora Lee from recovery for the shock of witnessing the death of such a loved one for want of a legal or blood relationship would be the height of "hopeless artificiality." For example, a rule that would deny recovery to a plaintiff who "merely because of happenstance" witnesses the death or injury to his fiancée in an accident which occurs on the way to the wedding ceremony, yet permits recovery if an accident occurs on the couple's way to the wedding reception, is fallacious.
Although there is some extrajurisdictional case law rigidly mandating the presence of a legal or blood relationship as a prerequisite for recovery on a NIED claim, substantial dissenting jurisprudence co-exists. Other jurisdictions have specifically held that the absence of a legal or blood relationship between a bystander and a victim should not foreclose recovery under a Dillon analysis. See Leong v. Takasaki, 520 P.2d 758 (Haw. 1974). As aptly stated by the Hawaii Supreme Court, the "factors formulated in Dillon . . . should be utilized to determine the genuineness and degree of mental distress, rather than to bar recovery." Campbell v. Animal Quarantine Station, 632 P.2d 1066, 1069 (Haw. 1981).
Therefore, we conclude that whether a plaintiff can recover for NIED after witnessing injury to another based on the plaintiff's relationship to the victim is generally a question of fact. The fact-finder should have the opportunity to assess the nature and quality of the relationship between the plaintiff and the victim whose injury or death was witnessed by the plaintiff. See Paugh v. Hanks, 451 N.E.2d 759, 767 (Ohio 1983) (" 'We decline to draw an absolute boundary around the class of persons whose peril may stimulate the mental distress. This usually will be a jury question bearing on the reasonable reaction to the event .'") (quoting Hunsley v. Giard, 553 P.2d 1096 (Wash. 1976)). However, as noted by Justice Maupin in his concurrence, there will be cases where the district court can determine that, as a matter of law, the relationship is not sufficiently close to merit presentation to a jury. We encourage the district courts to scrutinize the closeness of the relationship when questioned in these cases prior to trial.
Although we have just announced that whether a witness is closely related to the victim is generally a question of fact, where undisputed evidence exists concerning the nature of the relationship, the issue may be resolved as a matter of law. Cf. Rockwell v. Sun Harbor Budget Suites, 112 Nev. 1217, 1225, 925 P.2d 1175, 1180 (1996). The evidence showed that Ora Lee and Earnestine had been best friends for nearly four decades. They spoke almost on a daily basis and saw each other several times a week. These two women travelled together and were closer than blood sisters.
In this case, the facts clearly supported the judge's determination that Ora Lee and Earnestine were closely related such that Ora Lee's emotional distress was great in witnessing Earnestine's violent death. We affirm the award of Ora Lee's emotional distress damages on this ground.
That portion of Lewis' judgment exceeding $50,000.00 should be sustained because a claim for NIED is a separate cause of action
NRS 41.035 provides, in pertinent part:
1. An award for damages in an action sounding in tort brought under NRS 41.031 [waiving the State's sovereign immunity] or against a present or former officer or employee of the state or any political subdivision, immune contractor or state legislator arising out of an act or omission within the scope of his public duties or employment may not exceed the sum of $50,000, exclusive of interest computed from the date of judgment, to or for the benefit of any claimant. An award may not include any amount as exemplary or punitive damages.
(Emphasis added.)
This court has recognized that where a wife joins her action for personal injuries with her action for the wrongful death of her husband, she has two separate actions for the purposes of NRS 41.035, and is entitled to separate recovery up to the statutory cap on each action. State v. Webster, 88 Nev. 690, 695, 504 P.2d 1316, 1320 (1972). "Although joined in one complaint, an action for wrongful death and an action for personal injuries suffered by the plaintiff in the same accident are separate, distinct and independent. They rest on different facts, and may be separately maintained." Id. (citations omitted). The Webster court reasoned that "the term 'action' [as used in NRS 41.035] is the wrong done, not the measure of compensation or the character of the relief sought[.]" Id. at 696, 504 P.2d at 1320.
A claim for NIED rests on facts separate, distinct and independent from those germane to a claim for personal injuries. To have a cause of action for NIED, Lewis had to show that he apprehended the serious injury to his loved one. However, to prove his cause of action for personal injuries, Lewis had to demonstrate to the fact-finder the extent of his bodily harm (medical expenses, missed work, etc.). Thus, each claim could be separately maintained, and each claim was subject to its own $50,000.00 statutory cap. To the extent that any language in State v. Eaton, 101 Nev. 705, 710 P.2d 1370 (1985), is inconsistent with this holding, Eaton is overruled.
CONCLUSION
Ora Lee's $10,000.00 emotional distress verdict was supported by her witnessing the death of Earnestine. We, therefore, affirm the award of emotional distress damages to Ora Lee. We further conclude that for purposes of NRS 41.035, NIED is a separate and distinct cause of action; therefore, we affirm Lewis' judgment below.
Shearing, L, concurs.
During closing arguments, Ora Lee's counsel stated:
There's a much more serious component in Ora Lee's damages, and that goes to this component of emotional distress for having witnessed, the death of Earnestine Hill, having witnessed Emanuel Hill trapped underneath the car. . . .
I would ask that on Ora Lee's behalf, for having witnessed her friend of 40 years, her passing, an event like that for $75,000.
(Emphasis added.)
Although the facts in this case supported a finding of "close relationship" as a matter of law, we note that where, based on the facts, it is equally clear that the plaintiff and the victim were not closely related ("i.e., recent acquaintances, etc."), such a finding would also be appropriate as a matter of law.
The submission to the jury of the emotional distress claim for witnessing the injury to Emanuel along with the death of Ernestine was error because the injuries to Emanuel were not major or life threatening. However, unlike the appellants in Stickler v. Quilici, 98 Nev. 595, 596, 655 P.2d 527, 527-28 (1982), the State did not request an instruction or verdict form requiring the jury to distinguish between damages awarded for witnessing the death of Ernestine, and those awarded for witnessing injury to Emanuel. Although the State made several objections to the verdict form, none addressed this lack of apportionment; therefore, any such objection is waived on appeal. See Building Trades v. Thompson, 68 Nev. 384, 409, 234 P.2d 581, 593 (1951).
In contrast to Stickler, in the instant case it is not "impossible to determine" the basis for the jury's award. Stickler, 98 Nev. at 597, 655 P.2d at 528. The jury was instructed that damages could not be awarded unless Ora Lee was "aware that [the accident] caused death or serious injury" to a loved one (emphasis added), and we presume that the jury followed its directive. Furthermore, Ora Lee sustained her burden of proof in a manner supporting the award of emotional distress damages. Compare Stickler, 98 Nev. at 597, 655 P.2d at 528. Her emotional distress argument at trial focused primar-ily on her witnessing Ernestine's death, and the amount awarded was reasonable on that basis alone. Under these singular circumstances we do not feel obligated to reverse Ora Lee's emotional distress damages simply because there was some evidence presented with regard to her witnessing Emanuel's injuries.
Therefore, contrary to Justice Young's assertion, this rule would not "allow[] a plaintiff to maintain separate actions for a broken arm and a twisted knee received in one accident." Because the elements of a personal injury action and those for NIED are distinctly different, a plaintiff need not have a personal injury claim to bring a claim for NIED; likewise, he need not have suffered emotional distress to bring a claim for personal injuries.
There were two separate and distinct wrongs done to Lewis. The emotional distress for which he seeks compensation did not arise out of his personal injuries but from witnessing the death of his wife. To adopt Justice Young's reasoning would be to ignore the holding of State v. Webster, 88 Nev. 690, 504 P.2d 1316 (1972). This we decline to do.