Granite Construction Co. v. Rhyne

Mowbray, C. J.,

concurring:

I join in the court’s opinion, but write separately to express my concern over the legal hair-splitting that plagues this area of our law.

NRS 42.005 (formerly NRS 42.010) allows punitive damages to be awarded where the defendant is guilty of “malice.” That, however, is both the beginning and ending of consensus in this area of the law.. The subtle, often imperceptible distinctions between “express malice” and “implied malice,” and “malice in fact” and “malice in law” engender spirited debate in courts across the land. Not surprisingly, this court has not been immune to the controversy, and, as a result, our past decisions offer no clear resolution.

What is clear, however, is that our preoccupation with such legal niceties must not provide a loophole for defendants whose gross and wanton misconduct cries out for punitive sanctions. The jury here found that the defendant consciously and deliber*655ately disregarded known safety procedures — procedures designed to protect the public from serious harm — to save a few dollars.1 To punish this conduct and deter others from committing similar outrages, exemplary damages are both necessary and appropriate, no matter what interpretation of “malice” we choose to employ.

As the majority makes clear, there is ample evidence to support the jury’s conclusion. Nevertheless, the dissent disregards the jury’s findings in favor of the factual scenario propounded by the defendant. Admittedly much of the evidence is conflicting, but it is for the trier of fact to weigh the evidence, not the reviewing court. See Bolden v. State, 97 Nev. 71, 624 P.2d 20 (1981).