ROBERT CRAIGO, Appellant and Cross-Respondent, v. CIRCUS-CIRCUS ENTERPRISES, INC., Respondent and Cross-Appellant
Craigo v. Circus-Circus Enterprises, Inc.
Young, C. J., concurs.
ROBERT CRAIGO, Appellant and Cross-Respondent, v. CIRCUS-CIRCUS ENTERPRISES, INC., Respondent and Cross-Appellant.
ROBERT CRAIGO, Appellant and Cross-Respondent, v. CIRCUS-CIRCUS ENTERPRISES, INC., Respondent and Cross-Appellant.
No. 18515
January 23, 1990
786 P.2d 22
[Rehearing denied April 19, 1990]
Lawrence J. Semenza and G. David Robertson, Reno, for Appellant and Cross-Respondent.
Petersen & Petersen, Reno; Brown, Wells & Kravitz, Las Vegas, for Respondent and Cross-Appellant.
OPINION
By the Court,
Steffen, J.:
After being assaulted and robbed in the elevator of the Circus-Circus parking garage, Robert Craigo filed an action seeking both compensatory and punitive damages against Circus-Circus Enterprises, Inc. (Circus-Circus). The trial court, sitting without a jury, awarded Craigo $45,000 in compensatory damages and $1,000,000 in punitive damages. The punitive award was based upon a determination by the trial judge that Circus-Circus had acted with "malice in fact."
Circus-Circus agrees that the issue of focus on appeal is the availability of a punitive damage award based upon the circumstances of this case. The key to this issue is the meaning of the terms "malice, express or implied" set forth in Nevada's punitive damages statute (NRS 42.010).
This court has consistently declared that "the malice contemplated by [the punitive damages] section is malice in fact and that the phrase 'express or implied' has reference only to the evidence by which malice is established." Nevada Credit Rating Bur. v. Williams, 88 Nev. 601, 609, 503 P.2d 9, 14 (1972). We noted in Nevada Credit Rating Bur. that Nevada's statute on punitive damages is a verbatim copy of the California punitive damages statute "which was enacted in 1872 and has not been amended since 1905 ," Id. In interpreting the statutory expression "malice, express or implied," we have adhered to the rule of statutory interpretation that when a statute is derived from a sister state, it is presumedly adopted with the construction given it by the highest court of the sister state. See, e.g., El Ranco, Inc. v. New York Meat & Prov., 88 Nev. 111, 113, 493 P.2d 1318, 1320 (1972); Astorga v. Ishimatsu, 77 Nev. 30, 32, 359 P.2d 83, 84 (1961); Harris v. Harris, 65 Nev. 342, 346, 196 P.2d 402, 404 (1948).
The California Supreme Court, in Davis v. Hearst, 116 P. 530, 538 (1911), observed that courts have frequently used "express malice" to refer to malice in fact, and "implied malice" to mean the Active malice of the law. The Davis court then declared that:
It should be apparent that the malice, and the only malice, contemplated by section 3294 [California's equivalent of NRS 42.010] is malice in fact, and that the phrase "express or implied" has reference only to the evidence by which that malice is established; "express malice" thus meaning that the malice is established by express or direct evidence going to prove the actual existence of the hatred and ill will; "implied malice" referring to the indirect evidence from which the jury may infer the existence of this malice in fact. We say this should be evident from the reading of the section itself, under the maxim of noscitur a sociis. It is in those cases where the defendant has been guilty of oppression or fraud, or of a malice akin to oppression and fraud, that punitive damages may be awarded. But throughout the whole history of the law, whatever may be the mode of proving the existence of malice in fact, it is only upon some showing regarded by the law as adequate to establish the presence of malice in fact (that is, the motive and willingness to vex, harass, annoy, or injure) that punitive damages have ever been awarded. And this the adjudications abundantly and without controversy establish.
Id. at 539 (emphasis added).
The California courts have continued to reaffirm the Davis holding regarding the meaning of the phrase "malice, express or implied." Moreover, the courts in California from Davis to the present have discussed the shifting contours of the term "malice" and its discrete variants in the form of express malice, or malice in fact, and implied malice, or malice in law. The latter form of malice is in tort law, a legal fiction. As expressed by the California Supreme Court, malice in law is defined as "that malice which the law presumes (either conclusively or disputably) to exist upon the production of certain designated evidence, which malice may be fictional and constructive merely, and which, arising as it usually does from what is conceived to be the necessity of proof following a pleading, which in turn follows a definition, is to be always distinguished from true malice or malice in fact." Davis v. Hearst, 116 P. at 538.
As noted above, this court has consistently recognized and perpetuated the judicial gloss attributed to Davis since NRS 42.010 was enacted in this state in 1965. See, e.g., Jeep Corp. v. Murray, 101 Nev. 640, 650, 708 P.2d 297, 304 (1985) ("Malice" [referred to in NRS 42.010] means malice in fact); Warmbrodt v. Blanchard, 100 Nev. 703, 709, 692 P.2d 1282, 1286 (1984) ("The term malice as used in the statute means malice in fact and denotes ill-will, or a desire to do harm for the mere satisfaction of doing it.") (quoting Bader v. Cerri, 96 Nev. 352, 359, 609 P.2d 314, 318-319 (1980)); Wickliffe v. Fletcher Jones of Las Vegas, 99 Nev. 353, 356, 661 P.2d 1295, 1297 (1983) (malice in fact supports punitive damages instruction); Bader, 96 Nev. at 359, 609 P.2d at 318 ("The term malice as used in the statute means malice in fact and denotes ill will, or a desire to do harm -for the mere satisfaction of doing it."); Kelly Broadcasting v. Sovereign Broadcast, 96 Nev. 188, 194, 606 P.2d 1089, 1093 (1980) ("In order to award punitive damages, the trial court must find substantial evidence of malice in fact."); Sanguinetti v. Strecker, 94 Nev. 200, 211-212, 577 P.2d 404, 411-412 (1978) ("There is no reason to believe that the jury understood that the malice it was to find [an evil intention to do harm, on the part of the defendant] was in any manner different from this definition. As noted by this court, legal malice is 'a legal fiction; it is that form of malice which the law presumes. . . .' [Citing Nevada Credit Rating Bur.]. Without an instruction informing them of it, a jury would have no reason to know of its existence."); Leslie v. Jones Chemical Co., 92 Nev. 391, 394, 551 P.2d 234, 235 (1976) (recognizing need to prove malice in fact); Village Development Co. v. Filice, 90 Nev. 305, 315, 526 P.2d 83, 89 (1974) ("[T]he evidence does not to us appear quite sufficient to meet our previously established requirement that more must be shown than malice in law, and that there must be substantial evidence of malice in fact. [Citing Nevada Credit Rating Bur.]"); Caple v. Raynel Campers, Inc., 90 Nev. 341, 344, 526 P.2d 334, 336 (1974) ("The malice contemplated by NRS 42.010 is malice in fact and the phrase 'express or implied' has reference only to the evidence by which malice is established. Malice in fact must be established by the evidence if it is the ground relied upon to support and award of punitive damages."); Nevada Cement Co. v. Lemler, 89 Nev. 447, 451, 514 P.2d 1180, 1182-83 (1973) ("NRS 42.010 provides that punitive damages are recoverable where the defendant has been guilty of . . . malice expressed [sic] or implied. That statute was first enacted in the State of Nevada in 1965 and is verbatim with California Civil Code, Sec. 3294, which was first enacted in 1872 and has not been amended since 1905. The cases decided in that jurisdiction have interpreted that the malice contemplated by that section is malice in fact and that the phrase 'express or implied' has reference only to the evidence by which malice is established. [Cited cases omitted.] In [Nevada Credit Rating Bur.) we adopted the applicable principles, as set out in 14 Cal.Jur.2d, Damages, § 176.").
Unfortunately, neither the California courts nor this court have toed the mark in vigilant conformity with the dictates of Davis concerning the species of malice essential to the imposition of punitive damages. Even as the California courts continue to recognize Davis as the authoritative definitional fountain of malice, the constraints heavily embedded in Davis have expanded or evolved to include acts committed with "a conscious disregard of the plaintiffs rights." Liu v. Interinsurance Exchange, 205 Cal.App.3d 968, 982, 252 Cal.Rptr. 767, 776 (Cal.Ct.App. 1988). See also Taylor v. Superior Ct. of Los Angeles Cty., 598 P.2d 854 (Cal. 1979); Neal v. Farmers Ins. Exchange, 582 P.2d 980 (Cal. 1978); Silberg v. California Life Insurance Company, 521 P.2d 1103 (Cal. 1974). In Grimshaw v. Ford Motor Co., 119 Cal.App.3d 757, 808, 174 Cal.Rptr. 348, 381-82 (1981), the court observed that the constraints of Davis have yielded to subsequent decisional law that has advanced the common law pertaining to punitive damages to the point where the term "malice" includes "not only a malicious intention to injure the specific person harmed, but conduct evincing 'a conscious disregard of the probability that the actor's conduct will result in injury to others.' " Moreover, the Grimshaw court, in giving a "dynamic" attribute to the punitive damages statute, held that interpreting the word "malice" as used in the statute, "to encompass conduct evincing callous and conscious disregard of public safety by those who manufacture and market mass produced articles is consonant with and furthers the objective of punitive damages." Id., 119 Cal.App.3d at 810, 174 Cal.Rptr. at 382.
It would appear from our research of the California cases that although the courts continue to pledge fealty to the Davis concept of malice in fact as the only form of malice that will support an award of punitive damages, the courts have sub silentio overruled Davis on that point and now base punitive awards on both malice in fact and implied malice, or malice in law.
In Nevada, while consistently reaffirming the vitality of the Davis doctrine in our own decisional law (see cases cited above), this court has, on occasion, also affirmed punitive awards based upon malice of a nature foreign to our own rulings on the subject. Thus, in Leslie v. Jones Chemical Co., 92 Nev. 391, 551 P.2d 234 (1976), we affirmed a punitive award based upon a form of non-focused "malice" inferable from a disregard of known safety procedures; punitive damages were also declared appropriate to punish wrongful conduct that was "willful, intentional, and done in reckless disregard of its possible results." Nevada Cement Co. v. Lemler, 89 Nev. 447, 451-52, 514 P.2d 1180, 1183 (1973). Neither Leslie nor Nevada Cement Co. presented facts reflecting ill-will and hatred that Davis considered to be the very fabric from which malice in fact is woven. Indeed, Davis declared that a prerequisite for punitive damages is "the evil motive — the animus malus — shown by malice in fact, or by its allied malignant traits and characteristics evidenced by fraud or oppression." Davis, 116 P. at 540. Davis also declared three elements essential to a finding of malice in fact: (1) the commission of an unlawful act; (2) the commission of the act must be deliberate; and (3) the act must be committed with the deliberate purpose of injuring another. Id. at 541.
The above analysis supports the proposition that NRS 42.010, as a verbatim copy of the original California statute, provides a basis for punitive awards when one or more of the "birds of a feather," oppression, fraud or malice in fact, is shown to exist in a given action. In each instance, there is a deliberate motive or intent and willingness to "vex, harass, annoy or injure" the plaintiff. Id. at 539.
On the other hand, the species of malice known as implied malice or malice in law is "distinguished from [malice in fact] simply by absence of the need to look to the actor's motivation and purpose." 2 J. Ghiardi & J. Kircher, Punitive Damages Law and Practices sec. 19.19, p. 60 (1985). Thus, malice has been implied in law when "a tort resulted from a voluntary act, even if no harm was intended." Smith v. Wade, 461 U.S. 30, 39 n.8 (1983). The Active form of malice implied in law focuses on a wrongful act, consciously committed, that results in injury whether intended or not. Therefore, malicious conduct implied by law may be attributed to those who merely disregard known safety measures or disregard the rights of others knowing that harm to others may occur as a result.
It appears to us evident that a critical difference between malice in fact and malice in law is the element of purposeful intent to injure always present in the former. Indeed, the desire to successfully inflict injury on another is the sine qua non of malice in fact, whereas injury to another is usually an unintended, or in any event, an undesired incident of conduct deemed malicious by implication.
As previously observed, Grimshaw purports to advance the common law by, in effect, engrafting the fictional malice implied in law onto the California punitive damages statute. In doing so, the Grimshaw court determined that it was furthering the purposes and objectives of punitive awards. Although we do not dispute such a premise by the Grimshaw court, we are troubled at the thought of following suit by tacitly abandoning the continuing statutory integer of true malice in fact. The truth of the matter is that such an "advancement in the common law" would be tantamount to overruling our long and consistent (albeit not always consistently applied) line of cases declaring the statutory meaning to include only malice in fact. In Nevada, the effect of such a ruling would be to change both the meaning and scope of statu tory malice to include conduct inherently malicious (malice in fact) and conduct malicious only because it is so deemed by law. This we are reluctant to do.
If we were to embrace implied malice as a separate basis for punitive awards we would be forced to do so under one of two rationales, neither of which is acceptable. First, we could overrule our lengthy precedents in tacit acknowledgement of error unworthy of continued perpetuation. This we are unwilling to do because we remain unconvinced that Davis is unsound and, in any event, as noted previously, the Davis gloss became part of NRS 42.010 upon its enactment in Nevada. Moreover, the Legislature has been unmoved to change the Davis nuance over the many years that we have reaffirmed its vitality.
Second, the common law evolves by recognition of firmly entrenched social attitudes and practices. The common law does not shape or establish public policy and mores; rather, it is reflective of them. It remains consistent with public policy as expressed by NRS 42.010 to financially punish persons who deliberately injure others. In today's climate, however, it is difficult to perceive a unitary attitude or policy favoring imposition of punitive awards under circumstances requiring the invocation of a fictional malice implied in law. Indeed, the American College of Trial Lawyers, through a recent report approved by its Board of Regents, concluded that punitive damages should be reserved to those extreme cases reflecting cognitive behavior that is outrageous and indicative of bad motive or evil mind. In short, the decibel level of strident choruses arising among varied and substantial segments of our society calling for retrenchment in punitive awards scrambles efforts to distinguish the clarion sounds upon which common law pronouncements are legitimately based.
Great debate is currently prevalent concerning the social costs of punitive awards expanding in scope, amount and volume. Under such conditions, we are constrained to view the demands of judicial responsibility to be in strict accord with our prior rulings limiting punitive awards based upon malice to mean only malice in fact. More specifically, it is this court's intention to restrict awards of punitive damages attributable to malice in fact to those extreme cases that convincingly demonstrate conduct motivated by hatred and ill-will and the deliberate intent to injure. Difficulties arise when the judicial gaze is not transfixed on the indispensable element of malice in fact, i.e., the evil motive. A defendant's conduct may have an evil or injurious result, but no underlying evil motive to injure. It is the evil motive to injure that must be shown directly or by inference as a predicate for a punitive award based upon malice. If the judicial course remains tethered to that compass, punitive verdicts should be limited to those actions that truly warrant state-imposed sanctions. Persons who willfully intend to injure are deserving of the special monetary sanction that is designed to punish and deter. Others who, by their conduct, cause injury are held accountable in the form of compensatory damages.
We disapprove our prior pronouncements that would indicate that malice in fact can be shown by a willful disregard of the rights of others or a conscious disregard of safety measures unless it can be shown that in connection therewith there was a deliberate intention to injure, vex, annoy or harass. If the Legislature determines that the social benefits to be derived from imposing punitive awards based upon implied malice exceed the social costs thereof, we are confident appropriate supporting legislation will follow.
We are constrained to- observe that if this court had recognized malice in law as a basis for proving malice under NRS 42.010, we would have felt compelled to affirm the punitive award given Craigo by the trial judge. There is ample evidence in the record proving disregard by management level personnel at Circus-Circus of safety measures reasonably necessary to remedy hazardous conditions in its parking garage. The evidence would also indicate corporate knowledge of the possibility — if not probability — of additional injuries to patrons as a result of failing to implement adequate security measures. However, we do not perceive evidence of any intent by Circus-Circus to deliberately harm its patrons — the invitees upon whose patronage and good will its continued existence depends. In fairness to the trial judge, we likewise find no fault in his reasoning or his punitive award based upon the equivocal stance of certain of our own prior rulings.
For the reasons specified above, that part of the judgment awarding punitive damages is reversed; in all other respects, the judgment below is affirmed.
Young, C. J., concurs.
Craigo appears as appellant in this appeal to contest the "reduction" of the punitive damage award to $1,000,000 after the trial judge had found that an award of $4,000,000 or more was justified. Because of our ruling, this aspect of the appeal will not be discussed.
NRS 42.010, in its original, pertinent part, reads as follows:
Cases in which exemplary and punitive damages may be awarded. In an action for the breach of an obligation not arising from contract, where the defendant:
1. Has been guilty of oppression, fraud or malice, express or implied;
the plaintiff, in addition to the actual damages, may recover damages for the sake of example and by way of punishing the defendant.
(NRS 42.010 was renumbered and is now NRS 42.005.)
Cal. Civil Code § 3294 was amended by 1980 Cal. Stat. 1242, p. 4217, to delete the phrase "express or implied." Additional amendments were adopted in 1987. See 1987 Cal. Stat. 1498, § 5, 5-6.
See, e.g., Liu v. Interinsurance Exchange, 205 Cal.App.3d 968, 982, 252 Cal.Rptr. 767, 776 (1988).
American College of Trial Lawyers, Report on Punitive Damages of The Committee on Special Problems in the Administration of Justice, pp. 12-13, March 3, 1989. A majority of the Committee recognized the force of opinions advocating the elimination of punitive damages because, inter alia, under the common law such damages originated primarily as surrogates for non-economic damages (pain and suffering) which are generally allowed now as part of compensatory damage awards and that punishment should be restricted to the criminal justice system and specific legislative enactments. Id. at 8. Nevertheless, the Committee concluded that sanctions in the form of punitive damages are still needed "in carefully limited situations." Id. at 9, 10.
The California Legislature made provision for punitive awards based upon implied malice when it amended Civil Code section 3294 to include the following definition of malice: " 'Malice' means conduct which is intended by the defendant to cause injury to the plaintiff [malice in fact] or despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others [implied malice]."
We have no quarrel with our concurring colleague's exposition of the established differences between malice in fact and implied malice in jurisdictions that recognize the two forms of malice as discrete grounds for an award of punitive damages. Moreover, we acknowledge that sound reasons exist for imposing punitive awards in situations involving no specific evil motive or intention to harm but rather a conscious disregard for the safety of others. Perhaps a few years ago we could have discerned a pervasive public attitude supporting an abandonment of our case precedents as an appropriate advancement in the common law tradition. But the "Malice in Wonderland" referred to by our colleague bespeaks' the type of present controversy concerning the place and extent of punitive awards that eliminates the option of a principled resolution of the dispute under the guise of acceptable judicial lawmaking according to a common law methodology.
Moreover, our colleague's attempt to validate his position by referring to the statutory language (use of the disjunctive "or" in the phrase "malice, express or implied") seems to us both disingenuous and excessively belated given this court's long-standing and consistent pronouncements to the contrary.
We believe that this court could not, with equanimity, embrace our colleague's preference without forthrightly overruling our uniform declarations attributing only one form of malice to our statute. Even in the act of reaching results supportive of our colleague's position in the Leslie and Nevada Cement cases, this court continued to adhere to the single standard of malice in fact as the linchpin for a punitive award based upon malice. In Leslie, we said: "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. . . . Realizing the subjective nature of punitive damages . . . and the arguable conflict of evidence regarding malice in fact, we are wholly unable to find an abuse of discretion by the trial judge. . . ." 92 Nev. at 393-394, 551 P.2d at 235 (emphasis added).
In Nevada Cement, we said: "The record supports a finding of malice in fact. . . . This conduct provided the requisite malice in fact and warranted the trial judge in assessing punitive damages." 89 Nev. at 452, 514 P.2d at 1183 (emphasis ours).
It thus seems clear to us, that an adoption by this court of our colleague's plea for two discrete forms of malice would demand the overruling of all of our precedents on the subject. And, as previously observed, were we to do so, a true adherence to common law principles would still prevent us from judicially embracing our colleague's view.
We are constrained to conclude that in the midst of raging controversy concerning the place and scope of punitive awards in civil litigation, this court may not, for scholarly reasons or otherwise, so distort and pervert common law prerogatives as to "declare" malice in law as reflective of established custom and public policy in the State of Nevada. If indeed, the Legislature determines that the California statute permitting punitive awards for "despicable conduct which is carried on by the defendant with a willful and conscious disregard of the rights or safety of others" is worthy of adoption in Nevada — and it may very well be — we are confident the Legislature will act accordingly. In the interm, we prefer to confine our prerogatives to what we perceive to be within reasonable parameters of the common law, and leave the issue to the legislative laboratory where lively debate will supply an enlightenment born of opposing views, conflicting social policies, and varying predicted consequences.
We are somewhat perplexed by our brother Springer's concluding view that his singular perception of the status of Nevada law should be used as a guide by the trial courts. In our opinion, it is clear that Justice Springer's interpretation of our case holdings is irreconcilable with the unequivocal language and import of those holdings and may not logically be embraced as a guide or otherwise. Moreover, our brother's concluding comments reflect a confusion of thought concerning the characteristics of the discrete forms of malice he wishes to impose on our statute. When the good Justice expresses agreement with the proposition that punitive awards should be restricted to "cases reflecting cognitive behavior that is outrageous and indicative of bad motive or evil mind" (emphasis ours) he is describing but one form of malice, and that form is malice in fact. Indeed, in the text of his concurring opinion, our colleague notes that "[u]nlike express malice, implied malice does not require that the defendant be motivated by ill will or intent to harm anyone."
Finally, we are much less convinced than our brother concerning the effect of the "plurality opinion" as legal precedent. A quorum of three Justices has concurred in the judgment although one of the three has departed from the reasoning of the other two. We are inclined to view the reasoning and holding of the plurality view as binding unless and until overruled by three or more Justices of this court or an intervening act of the Legislature.
The Honorable Robert E. Rose, Justice, did not participate in the decision of this appeal.