Granite Construction Co. v. Rhyne

817 P.2d 711, 107 Nev. 651, 1991 Nev. LEXIS 153

• Court: Nevada Supreme Court
• Decided: October 2, 1991
• Docket: 20449
• Status: Published

Opinions

OPINION

By the Court,

Springer, J.:

This is an appeal from a judgment of the Second Judicial District Court entered on a unanimous jury verdict for compensatory and punitive damages. Although other errors are assigned,¹ the principal question is whether the trial judge, the Honorable Jerry Carr Whitehead, erred in allowing the verdict for punitive damages to stand against Granite Construction Company. We hold that Judge Whitehead committed no error and therefore affirm the district court judgment, including the judgment for punitive damages.

Tracy Rhyne was seriously injured when her vehicle collided with a large bull on Interstate 80 east of Reno. The collision resulted from Granite Construction’s decision not to honor a provision of its highway construction contract with the State of Nevada, which specifically required Granite to protect users of the highway under construction by furnishing protective fencing that would “prevent livestock from straying upon or across the right-of-way.” Although Granite thus expressly agreed to protect highway users from this known and expressly acknowledged risk, and was paid by the State of Nevada for doing so, there is evidence to support the conclusion that Granite deliberately elected not to construct protective fencing on the south side of the highway and that it made this decision in order to save itself time and money on the construction project. Granite was paid by the State to protect the public; and the company consciously decided, for its own benefit, to put the public at risk by pocketing as profit the money the State was paying Granite to build the protective fencing. These facts show that Granite “consciously and deliberately disregarded known safety procedures,” safety procedures which Granite expressly agreed to take care of when it signed the highway construction contract. Leslie v. Jones Chemical Co., 92 Nev. 391, 393, 551 P.2d 234, 235 (1976). Judge Whitehead properly concluded that punitive damages are allowable under such circumstances. NRS 42.005 (formerly NRS 42.010) (punitive damages awardable where defendant “guilty of . . . malice, express or implied . . . .” (emphasis added)). See Nevada Cement Co. v. Lemler, 89 Nev. 447, 514 P.2d 1180 (1973) (punitive damages approved where air polluter had “full knowledge” of dangerous pollutants being emitted, yet acted in “wanton disregard of the rights and properties of others . . . .”).

Judge Whitehead correctly ruled that in the Leslie case, cited above, “the Nevada Supreme Court held that punitive damages may be awarded against a corporation when there is a conscious and deliberate disregard of known safety procedures by management personnel.” In making this ruling Judge Whitehead commented:

In the instant case, both the general contract between the State and Granite and the subcontract between Granite and Tholl required the construction of a cattle containment fence. Testimony established that cattle containment fencing is used as a safety measure to prevent cattle and other livestock from gaining access to the highway. Testimony further established that the defendants made a conscious and deliberate decision not to enforce that provision of the contract and that for approximately two months, there was no fencing whatsoever on the southside of Interstate 80.

Thereafter, Granite learned that there was at least one bull in the fields directly adjacent to Interstate 80. There was evidence presented that Granite took no steps to enforce the cattle containment fencing provision and took no other meaningful steps to prevent the bull from gaining access to the highway.

Giving added strength to Judge Whitehead’s comment is the admission by Granite’s superintendent, James Markwardt, that Granite was working under time pressures and that if Granite had proceeded to install the safety fence in accordance with its contract, the job would not be completed within the time specified in the contract. Even though there may be some evidence that could lead to a contrary belief, the jury was certainly justified in concluding that Granite was taking a short cut, that it was trying to avoid burdensome financial penalties attached to late completion and that it therefore deliberately and with knowledge of the potential danger decided not to erect the safety fence. The jury could have easily and logically concluded that such actions on the part of Granite Construction Company constituted a conscious and deliberate disregard of the safety of motorists traveling along the unprotected highway.

Judge Whitehead was very precise and absolutely correct in his legal ruling in this case, namely:

After having carefully considered the evidence, the Court believes that substantial evidence was presented by the plaintiffs which would enable the jury to conclude that (1) the defendants consciously and deliberately disregarded known safety procedures by failing to enforce the contract provision which required a temporary cattle containment fence and (2) that Granite, after having learned of the bull’s presence, failed to take any meaningful corrective measures to prevent the bull from gaining access to the freeway.

It is difficult to see how Judge Whitehead could have ruled otherwise; and we agree with his determination that the jury’s imposition of punitive damages in this case was fully supported by the law and the evidence. The judgment of the trial court is affirmed.

Rose, J., concurs.

1 Granite assigned as error the trial court’s allowing the jury to take a dictionary into the jury room. The trial court remarked: “[T]he Court has examined the definition of the words they listed and has found nothing in them which would have had a tendency to influence the jury to reach a verdict inconsistent with the legal proofs and Court’s instructions.” There is nothing in the record that would lead us to reject the trial court’s observations and conclusions.

With respect to the other claims of error, we conclude that the trial court was acting within the scope of its discretion when it allowed Trooper Davenport to give his opinion on driver error (see Cheyenne Construction v. Hozz, 102 Nev. 308, 311, 720 P.2d 1224, 1226 (1986)) and when it allowed the Rhynes to amend their complaint to include a claim for punitive damages.