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Alsenz v. Clark Co. School Dist.11/24/1993
Per Curiam:
FACTS
The facts pertinent to this appeal are not in dispute. Misty Alexander (“Alexander”) died on June 10, 1990, when her car was swept away by waters rushing down a Las Vegas flood control channel. The automobile became caught against a bridge and Alexander drowned.
Alexander's mother, siblings, and half-sibling filed a wrongful death cause of action against various private entities and respondents Clark County, Clark County Flood Control District, Clark County School District, and the Clark County Aviation Authority (all respondents hereinafter referred to as “Clark County”). Appellant Elizabeth Alsenz (“Alsenz”), as administratrix of Alexander's estate, joined in as a plaintiff in the wrongful death action.
The district court dismissed the private entity defendants based upon Nevada's statute of repose. The list of plaintiffs was trimmed when the district court dismissed Alexander's surviving siblings and half-sibling because they were not heirs as defined by Nevada's wrongful death act. In addition, Alexander's mother died and her estate was not substituted as a plaintiff.
After these events, the only remaining claim against Clark County was Alsenz's wrongful death cause of action pursued on behalf of the estate. This claim was predicated on two statutory grounds. First, Alsenz sought recovery under Nevada's wrongful death act, NRS 41.085. Second, Alsenz asserted that the wrongful death claim was really the decedent's personal injury action, preserved for the estate by Nevada's survival of actions statute, NRS 41.100.
During the course of pretrial activity, Clark County filed a motion in limine to limit the estate's damages evidence at trial. At this same time, Clark County orally moved for a dismissal because the estate had not incurred any recoverable damages under NRS 41.085. NRS 41.085(5) lists an estate's recoverable damages as medical expenses, funeral expenses, and penalties that the decedent could have recovered had she survived. Clark County pointed out that penalties were unavailable against the government, the decedent died at the accident scene, thereby eliminating medical expenses, and the estate had stipulated that it
[109 Nev. 1062, Page 1064]
incurred no funeral expenses. Therefore, Alsenz's wrongful death action was a statutory nullity under NRS 41.085. Simply, the estate had no recoverable damages.
Clark County also claimed that Alsenz's action was improperly grounded in Nevada's survival of actions statute, NRS 41.100. It informed the court that the statute, by its express terms, did not apply to wrongful death causes of action maintained by the decedent's representative.
The district court agreed and issued findings of fact and conclusions of law dismissing Alsenz's wrongful death claim on both statutory grounds. Alsenz appeals.
DISCUSSION
Nevada's Wrongful Death Act, NRS 41.085.
Wrongful death is a cause of action created by statute, having no roots in the common law. Wells, Inc. v. Shoemake, 64 Nev. 57, 66, 177 P.2d 451, 456 (1947). In Nevada, such causes of action are governed by NRS 41.085. Under this statute, both the decedent's heirs and representatives can maintain a cause of action for wrongful death. In this respect, NRS 41.085 is bifurcated. The act also separately describes the types of damages available to the heirs and the estate respectively. In pertinent part, NRS 41.085 lists damages as follows: 4. The heirs may prove their respective damages in the action brought pursuant to subsection 2 and the court or jury may award each person pecuniary damages for his grief or sorrow, loss of p
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