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Banks v. Sunrise Hospital12/17/2004
he intent behind "the Nevada 'contribution' statutes prohibits one intentional tortfeasor from taking advantage of restitution made by another."
The instant case is unlike Evans. While Sunrise acted improperly in its failure to preserve the anesthesia equipment, Sunrise was not an intentional tortfeasor because its acts were not intended or designed to cause harm to James. Accordingly, this argument is without merit.
Reference to Dr. Robert Kinsman's Negligence
Banks contends that Sunrise was not entitled to an offset for the sum paid in settlement of his claim against Dr. Kinsman because the jury heard evidence of Dr. Kinsman's negligence and, therefore, properly accounted for it in its judgment.
NRS 17.245(1)(a) allows a plaintiff to settle with one tortfeasor without losing the right to proceed against additional tortfeasors. However, to prevent double recovery to the plaintiff, the statute also provides that claims against non-settling tortfeasors must be reduced by the amount of any settlement with settling tortfeasors. Moreover, while a plaintiff may proceed against an additional tortfeasor, in order to prevent improper speculation by the jury, the parties may not inform the jury as to either the existence of a settlement or the sum paid.
Here, Sunrise did not elicit testimony or expose the jury to the fact that Dr. Kinsman had entered into settlements with Banks, nor did it mention the sum paid. NRS 17.245 does not prevent a defendant from pointing the blame at another defendant or from arguing that it was not responsible for the plaintiff's injury . Therefore, Sunrise was free to argue that Dr. Kinsman's negligence proximately caused James's injury, rather than the equipment malfunction. This line of argument did not compromise Sunrise's rights to an equitable setoff under NRS 17.245.
We likewise reject Banks's contentions that the jury reduced the verdict based upon alleged violations of NRS 41.141(3), which states that if a co-defendant settles with the plaintiff in a case in which the remaining defendant asserts a comparative negligence defense, the jury may not consider the co-defendant's comparative negligence or the settlement amount. We conclude that NRS 41.141(3) has no bearing on the issues of whether Sunrise could argue a nonparty's fault in this instance and whether such an argument per force leads to the conclusion that the jury reduced the award based upon the nonparty's relative culpability. First, NRS 41.141 only prevents admission of evidence in support of a "comparative fault" or apportionment analysis of the case as to nonparties, and a jury may only "compare" the negligence as between parties and nonparties. Nothing in NRS 41.141 prohibits a party defendant from attempting to establish that either no negligence occurred or that the entire responsibility for a plaintiff's injuries rests with nonparties, including those who have separately settled their liabilities with the plaintiff. Second, the fact that Sunrise pleaded comparative negligence as an affirmative defense is not pertinent to whether Sunrise could argue its defense theory of third-party culpability. Third, the defense was abandoned. Fourth, neither party submitted a comparative negligence instruction nor requested special verdict forms delineating the comparative negligence of Sunrise and Dr. Kinsman. In light of the above, there is no indication that the jury accounted for Dr. Kinsman's negligence in its award of damages. Accordingly, we conclude that this argument is without merit.
No Finding of Liability
Banks also contends that the district court improperly reduced the jury award by the sum paid in settlement on his claim
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