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Banks v. Sunrise Hospital12/17/2004
Instruction No. 22 read:
There may be more than one proximate cause of an injury . When negligent conduct of two or more persons contributes concurrently as proximate causes of an injury, the conduct of each of said persons is a proximate cause of the injury regardless of the extent to which each contributes to the injury. A cause is concurrent if it was operative at the moment of injury and acted with another cause to produce the injury. It is no defense that the negligent conduct of a person not joined as a party was also a proximate cause of the injury.
This instruction is substantively identical to Nevada Pattern Civil Jury Instruction (Nev. Civ. J.I.) No. 405, which is an adaptation of California Civil Jury Instruction (BAJI) No. 3.77. The comment to BAJI 3.77 states that a trial court should give this instruction whenever the issue of negligence of two or more defendants or contributory negligence is submitted to the jury. In the instant case, the parties presented conflicting testimony over the cause of James's injury : Banks argued that the malfunctioning equipment caused James's injury, and Sunrise attempted to direct the blame at Dr. Kinsman. The district court explained that this instruction was a standard instruction included in every negligence case. The instruction cautioned jurors that, even if Sunrise was not the sole cause of the injury, but a contributing cause, the jury could still find Sunrise liable. The instruction is also consistent with our previous holding that " here two or more causes proximately contribute to the injuries complained of, recovery may be had against either one or both of the joint tort-feasors."
Jury Instruction No. 32 instructed the jury that there is no definite method of calculating compensation for pain and suffering. Sunrise argues that instructing the jury that damages for pain and suffering were recoverable is an error of law because such an award requires that the injured person be conscious of the pain. We have held that, in order to award damages for pain and suffering, a jury must find substantial evidence that the damages are probable. In the instant case, jurors had the ability to view a video of James throughout the course of his day. Additionally, at trial, Charles Braden, James's nurse, testified that James was able to respond to his environment. Braden, through his five years of assisting James, stated that James would occasionally smile during a comedy show on television or when his family visited and had tears at times based on news and various exchanges with family members. Although Sunrise's physician expert testified that persons with hypoxic brain injury are unable to react to their environment, the expert based his testimony on his observations of the video. The expert never personally met with James. Accordingly, the jury was free to weigh the credibility of the witnesses on whether James was conscious of his pain and suffering. The above jury instruction simply instructed the jury that it would be responsible for calculating the damages. Accordingly, Sunrise's argument that a new trial is warranted is without merit.
Reduction of the Jury Award
Unclean Hands
Banks contends that, because the right of offset is an equitable remedy and because Sunrise has unclean hands, Sunrise is not entitled to a reduction of the jury award. Banks relies on this court's decision in Evans v. Dean Witter Reynolds, Inc., for the proposition that the district court should not reduce a judgment against an intentional tortfeasor by a settlement from a joint tortfeasor. In Evans, the tortfeasors, a stockbroker and stock brokerage firm, intentionally converted a client's securities. We concluded that t
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