IN THE SUPREME COURT OF THE STATE OF NEVADA
FIRST TRANSIT, INC.; AND JAY No. 70164
FARRALES,
Appellants,
vs. FILE
JACK CHERNIKOFF; AND ELAINE
CHERNIKOFF, NOV 2 3 2020
Res • ondents. ELIZABETH A. BROWN
CLER. OF 7:-.:UPREME COURT
BY
DEPUIY CLERK
AMENDED ORDER AFFIRMING AND DIRECTING IMMEDIATE
ISSUANCE OF REMITTITUR 1
This is an appeal from an amended district court judgment on
a jury verdict and orders resolving postjudgment motions in a tort action.
Eighth Judicial District Court, Clark County; Stefany Miley, Judge.
On August 1, 2019, this court issued an opinion reversing the
jury verdict in favor of respondents and remanding the case back to the
district court. Thereafter, respondents filed a petition for rehearing
pursuant to NRAP 40. We granted rehearing and vacated the August 1,
2019, opinion on March 6, 2020, and held oral argument on July 6, 2020.
Having considered those arguments, we now issue this order.
FACTS AND PROCEDURAL HISTORY
Harvey Chernikoff, a 51-year-old intellectually disabled man,
choked to death on a sandwich while riding on a paratransit bus operated
1We vacate our September 11, 2020, order and issue this one in its
place.
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by appellant First Transit, Inc. Harvey's parents and heirs, respondents
Jack and Elaine Chernikoff, sued First Transit and First Transit's bus
driver for negligence, alleging that First Transit owed the highest degree of
care to monitor and assist Harvey while he was a passenger on the bus. The
Chernikoffs also claimed that the bus driver was negligent in failing to
check on Harvey, prevent him from eating, or render proper aid once he
noticed Harvey's distress. The jury ultimately awarded the Chernikoffs
$15 million.
DISCUSSION
First Transit first argues that a new trial is warranted in part
because the jury was erroneously instructed. The instructions told the jury
that First Transit had a heightened duty of care as a common carrier
(instruction 32) and that a common carrier must provide additional care to
disabled passengers when aware of their disability (instruction 34).2 The
Chernikoffs claim that the instructions accurately state the law and that,
regardless, First Transit waived any challenges to the jury instructions.
We agree with the Chernikoffs that First Transit waived any
challenges to the jury instructions. We have held on numerous occasions
that "fail[ing] to object or to request special instruction to the jury precludes
appellate consideration." Etcheverry v. State, 107 Nev. 782, 784,
821 P.2d
350, 351 (1991) (quoting McCall v. State,
91 Nev. 556, 557,
540 P.2d 95, 95
(1975)); see also Evans v. Dean Witter Reynolds, Inc., 116 Nev. 598, 613,
5 P.3d 1043, 1052 (2000) (relying on Etcheverry to conclude that a party that
did not object or offer an alternative instruction on vicarious liability waived
any challenge to the jury instruction on appeal). While First Transit
2Instruction 33 stated that Harvey was disabled.
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initially objected to any common carrier instruction, it later proposed a
common carrier instruction which the district court accepted. Having
proposed instruction 32, First Transit waived any challenge to that
instruction on appeal. See Pearson v. Pearson, 110 Nev. 293, 297,
871 P.2d
343, 345-46 (1994) (recognizing that this court should not review errors that
the complaining party induced or invited). Moreover, our careful review of
the record reveals that the basis for First Transit's objection in the district
court was whether the common carrier instruction applied, not, as it argues
on appeal, about the duty owed by a common carrier. See Schuck v.
Signature Flight Support of Nev., Inc., 126 Nev. 434, 436,
245 P.3d 542, 544
(2010) (declining to consider arguments that were not made in the district
court).
As to First Transit's objection to instruction 34 in the district
court, it only argued that distinctions existed between two of the cases
supporting the instruction. First Transit did not show that the instruction
was unwarranted based on the facts or that it misstated the law such that
the district court would have had reason to reject the instruction. See
Etcheverry, 107 Nev. at 785,
821 P.2d at 351 (noting that an instruction
accurately stated the law and was supported by the facts when rejecting a
challenge to a jury instruction). First Transit also did not propose an
alternative instruction. See id. at 784,
821 P.2d at 351. Under these facts,
we conclude that First Transifs objection to instruction 34 was inadequate
to preserve an appellate challenge to the same.
We also decline to consider whether the district court should
have included Harvey on the verdict form so the jury could consider whether
Harvey was negligent when apportioning fault. The parties stipulated to
the dismissal of Harvey's estate with prejudice before trial such that his
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estate was no longer a party to the case. NRS 41.085(4) provides that heirs
may seek "damages for pain, suffering or disfigurement of the decedent."
But here, First Transit did not submit a proposed special verdict form
asking the jury to determine whether Harvey's negligence, if any, should
reduce the Chernikoffs damages award solely for the damages Harvey
would have been entitled to had he not passed away. See Allstate Ins. Co.
v. Miller, 125 Nev. 300, 321,
212 P.3d 318, 332 (2009) e[T]he district court
is not required to submit special verdicts or interrogatories to the jury if the
party does not timely and properly submit proper proposed special verdicts
or interrogatories to the court."). And, on the motion for new trial, the
district court held that the issue had not been preserved. On this record,
we find no abuse of discretion or reversible error.
We also affirm the jury's award and reject First Transit's
request for a new trial. First Transit alleges attorney misconduct in the
Chernikoffs' closing argument warrants a new trial, but First Transit did
not object below, and First Transit has not shown plain error arising from
that argument such that the verdict would have been different.3 See
Grosjean v. Imperial Palace, Inc., 125 Nev. 349, 364,
212 P.3d 1068, 1079
(2009) (providing that this court's review of unobjected-to attorney
misconduct is essentially plain error review and reversal is not warranted
unless "the misconduct amounted to 'irreparable and fundamental
3We decline to consider First Transit's arguments regarding the lack
of fault awarded to the bus driver. First Transit did not object on this basis
before the jury was discharged. See Eberhard Mfg. Co. v. Baldwin, 97 Nev.
271, 272-73,
628 P.2d 681, 682 (1981); Cramer v. Peavy,
116 Nev. 575, 582,
3 P.3d 665, 670 (2000) ("The efficient administration of justice requires that
any doubts concerning a verdict's consistency with Nevada law be addressed
before the court dismisses the jury.").
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error.. . . that results in a substantial impairment of justice or denial of
fundamental rights such that, but for the misconduct, the verdict would
have been different (alteration in original) (quoting Lioce v. Cohen, 124
Nev. 1, 19,
174 P.3d 970, 982 (2008))). And First Transit's arguments
regarding the amount of the award are unavailing. The award was
supported by substantial evidence, was not the result of a jury under the
influence of passion or prejudice, and does not shock the conscience. See
Wells, Inc. v. Shoeinake,
64 Nev. 57, 74,
177 P.2d 451, 460 (1947) (holding
that "the mere fact that the verdict is a large one is not conclusive that it is
the result of caprice, passion, prejudice, sympathy or other consideration");
see also Quintero v. McDonald,
116 Nev. 1181, 1183,
14 P.3d 522, 523 (2000)
(A jury is permitted wide latitude in awarding tort damages, and the jury's
findings will be upheld if supported by substantial evidence."); Stackiewicz
v. Nissan Motor Corp.,
100 Nev. 443, 454-55,
686 P.2d 925, 932 (1984)
(recognizing that damages for pain and suffering are peculiarly within the
jury's province); Hernandez v. City of Salt Lake,
100 Nev. 504, 508,
686 P.2d
251, 253 (1984) (stating that reversal or reduction of a jury award is
appropriate when the award was given under the influence of passion or
prejudice and when it shocks the conscience).
Accordingly, we affirm the district court's judgment. We also
direct the clerk of the court to immediately issue remittitur upon the filing
of this order. See NRAP 41(a)(1) (permitting the court to shorten the time
for reinittitur to issue).
5
It is so ORDERED.'
A C.J.
Pickering
J.
Hardesty
Alo.ufba,--(2 , J.
Parraguirre Stiglich
a
J.
Cadish Silver
cc: Hon. Stefany Miley, District Judge
Ara H. Shirinian, Settlement Judge
Lewis Roca Rothgerber Christie LLP/Las Vegas
Richard Harris Law Firm
Charles Allen Law Firm
Claggett & Sykes Law Firm
Eighth District Court Clerk
4To the extent First Transit challenges the district court's denial of its
motion for a new trial based on these same arguments, we affirm that
decision. See Grosjean, 125 Nev. at 362,
212 P.3d at 1077 (reviewing a
decision on a motion for a new trial for an abuse of discretion).
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