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Canterino v. Mirage Casino-Hotel3/19/2002
Rehearing of Canterino v. The Mirage Casino-Hotel, 117 Nev. ____, 16 P.3d 415 (2001). Appeal from a district court order granting a new trial in a premises liability/negligent security action. Eighth Judicial District Court, Clark County; Stephen L. Huffaker, Judge.
Opinion modified; remanded.
SHEARING, J., dissented.
BEFORE THE COURT EN BANC.
OPINION ON REHEARING
On January 29, 2001, we issued an opinion affirming in part and reversing in part a district court order granting a new trial in this personal injury action, and remanding for a new trial on the issue of damages only. We subsequently granted respondent's petition for rehearing, and we now modify our previous opinion and remand for a new trial on the issues of both liability and damages.
The circumstances of this case are fully set forth in Canterino v. The Mirage Casino-Hotel. In brief, Joseph Canterino sued the Mirage Casino-Hotel for damages after he was beaten and robbed in the hotel, and the jury awarded him more than five and one-half million dollars. The district court found the award excessive, reduced it to one and one-half million dollars and issued a conditional order of remittitur. Canterino rejected the remittitur, and the district court ordered a new trial. Canterino appealed, seeking reinstatement of the jury award. We concluded that a new trial on the issue of damages was necessary because the district court erred by instructing the jury, ex parte, that the two jurors who voted against finding the Mirage liable could not participate in the damage award determination. We limited the scope of the new trial to the issue of damages.
We granted rehearing for the limited purpose of considering whether the new trial should encompass the issue of liability as well as the issue of damages. In our previous opinion we quoted Perkins v. Komarnyckyj, an Arizona Supreme Court decision, in support of our decision that all jurors must participate in all jury deliberations. However, we did not follow Perkins' holding that all issues must be retried on remand following an erroneous ex parte jury instruction that damages should be decided only by the jurors who agree on liability. Instead, we concluded that only the damages portion of the jury verdict was flawed by the district court's erroneous instruction in this case. Having reconsidered the matter, we conclude that Perkins' holding that all issues must be retried is the better-reasoned decision.
In Perkins, a patient sued his dentist and his periodontist for malpractice, alleging that they failed to diagnose a squamous cell carcinoma in its early stages and that the resulting delay in treatment significantly reduced his chance of survival. The patient died during the jury trial, and the complaint was amended to an action for wrongful death, with the patient's survivors substituted as plaintiffs. During deliberations, the ten-person jury sent the judge some written questions. The judge provided the jury with written answers, without informing the parties that the jury had asked questions or consulting them regarding the proper answers. One question was particularly important; the jury asked: "If any jurists should find for the defendants, should those jurists take part in the determination of the percentage of liabilities and damages?" The judge responded that " he jurors who agree on liability are the ones who should fix damages and sign the form of verdict." The jury returned a verdict in favor of plaintiffs; eight jurors found against both defendants and two jurors found in favor of both defendants. The jury decided that the plaintiffs' damages totaled $1,098,054, and that the dentist was 67% at
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