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Personal Injury Damages Instructions Given to Nevada Jurors

PERSONAL INJURY DAMAGES INSTRUCTION 5PID.1:

MEASURE OF DAMAGES

In determining the amount of losses, if any, suffered by the plaintiff as a [proximate] [legal] result of the accident in question, you will take into consideration the nature, extent and duration of the [injuries] [damage] you believe from the evidence plaintiff has sustained, and you will decide upon a sum of money sufficient to reasonably and fairly compensate plaintiff for the following items:

  1. The reasonable medical expenses plaintiff has necessarily incurred as a result of the [accident] [incident] [and the medical expenses which you believe the plaintiff is reasonably certain to incur in the future as a result of the [accident] [incident], discounted to present value];

  2. Plaintiff’s loss of earnings or earning capacity from the date of the accident [incident] to the present;

  3. Plaintiff’s loss of earnings or earning capacity which you believe the plaintiff is reasonably certain to experience in the future as a result of the [accident] [incident], discounted to present value. [One’s ability to work may have a monetary value even though that person is not employed by another. In determining the extent to which plaintiff’s ability to work has diminished, you should balance on one hand the amount which the plaintiff was capable of earning before the injury against what [he] [she] is capable of earning hereafter. In other words, the damages should be properly estimated on the injured person’s ability to earn money before the injury as against [his] [her] ability to earn money thereafter. Also, include the reasonable value of services performed by another in doing things for the plaintiff, which, except for the injury, plaintiff would ordinarily have performed.];

  4. The physical and mental pain, suffering, anguish and disability endured by the plaintiff from the date of the [accident] [incident] to the present; and

  5. The physical and mental pain, suffering, anguish and disability which you believe plaintiff is reasonably certain to experience in the future as a result of the [accident] [incident], discounted to present value.

SOURCE/AUTHORITY

Arnold v. Mt. Wheeler Power Co., 101 Nev. 612, 707 P.2d 1137 (1985); Shere v. Davis, 95 Nev. 491, 596 P.2d 499 (1979); Sierra Pac. Power Co. v. Anderson, 77 Nev. 68, 358 P.2d 892 (1961); see also Hogle v. Hall by and through Evans, 112 Nev. 599, 916 P.2d 814 (1996).

PERSONAL INJURY DAMAGES INSTRUCTION 5PID.2:

PAIN AND SUFFERING: NO DEFINITE STANDARD

No definite standard [or method of calculation] is prescribed by law by which to fix reasonable compensation for pain and suffering. Nor is the opinion of any witness required as to the amount of such reasonable compensation. In making an award for pain and suffering, you shall exercise your authority with calm and reasonable judgment and the damages you fix shall be just and reasonable in light of the evidence.

SOURCE/AUTHORITY

Canterino v. The Mirage Casino-Hotel, 117 Nev. 19, 16 P.3d 415 (2001); Stackiewicz v. Nissan Motor Corp. in U.S.A., 100 Nev. 443, 686 P.2d 925 (1984).

PERSONAL INJURY DAMAGES INSTRUCTION 5PID.3:

PAIN AND SUFFERING: AGGRAVATION OF PRE-EXISTING CONDITION

A person who has a condition or disability at the time of an injury is not entitled to recover damages therefor. However, [he] [she] is entitled to recover damages for any aggravation of such preexisting condition or disability [proximately] [legally] resulting from the injury.

This is true even if the person’s condition or disability made [him] [her] more susceptible to the possibility of ill effects than a normally healthy person would have been, and even if a normally healthy person probably would not have suffered any substantial injury.

Where a preexisting condition or disability is so aggravated, the damages as to such condition or disability are limited to the additional injury caused by the aggravation.

SOURCE/AUTHORITY

22 AM. JUR. 2d Damages § 791 (2008); c.f. Grover C. Dils Medical Center v. Menditto, 121 Nev. 278, 112 P.3d 1093 (2005); c.f. Otis Elevator Co. v. Reid, 101 Nev. 515, 706 P.2d 1378 (1985).

PERSONAL INJURY DAMAGES INSTRUCTION 5PID.4:

FUTURE PAIN AND SUFFERING DAMAGES: WHEN EXPERT REQUIRED

Where plaintiff’s injury or disability is clear and readily observable, no expert testimony is required for an award of future pain, suffering, anguish and disability. [However, where an injury or disability is subjective and not demonstrable to others, expert testimony is necessary before a jury may award future damages.]

SOURCE/AUTHORITY

State, University and Community College System v. Sutton, 120 Nev. 972, 990, 103 P.3d 8, 20 (2004); Krause Inc. v. Little, 117 Nev. 929, 938, 34 P.3d 566, 572 (2001); Gutierrez v. Sutton Vending Service, Inc., 80 Nev. 562, 565-66, 397 P.2d 3, 4-5 (1964); Paul v. Imperial Palace, Inc., 111 Nev. 1544, 1548, 908 P.2d 226, 229 (1995).

PERSONAL INJURY DAMAGES INSTRUCTION 5PID.5:

WRONGFUL DEATH OF ADULT: HEIR AS PLAINTIFF

Plaintiff is the heir of the deceased. In determining the amount of losses, if any, suffered by the heir[s] as a [proximate] [legal] result of the death of _______, you will decide upon a sum of money sufficient to reasonably compensate [each] such heir for the following items:

  1. The heir’s loss of probable support, companionship, society, comfort and consortium. In determining that loss, you may consider the financial support, if any, which the heir would have received from the deceased except for [his] [her] death, and the right to receive support, if any, which the heir has lost by reason of [his] [her] death. The right to receive support from another is not destroyed by the fact that the former does not need the support, nor by the fact that the latter has not provided it. You may also consider:

    a. The age of the deceased and of the heir;

    b. The health of the deceased and the heir;

    c. The respective life expectancies of the deceased and of the heir;

    d. Whether the deceased was kindly, affectionate or otherwise;

    e. The disposition of the deceased to contribute financially to support the heir;

    f. The earning capacity of the deceased;

    g. His or her habits of industry and thrift; and

    h. Any other facts shown by the evidence indicating what benefits the heir might reasonably have been expected to receive from the deceased had [he] [she] lived.

  2. Any damages for pain, suffering or disfigurement of the decedent [without regard to the number of heirs making claim; only one award may be made for this element, to be divided by the total number of heirs making claim].

  3. Any grief or sorrow suffered by the heir [and any grief or sorrow reasonably certain to be experienced in the future.]

SOURCE/AUTHORITY

NRS 41.085; General Elec. Co. v. Bush, 88 Nev. 360, 498 P.2d 366 (1972); Sierra Pac. Power Co. v. Anderson, 77 Nev. 68, 358 P.2d 892 (1961).

USE NOTE Under item no. 2, add the multiple recovery option depending on whether or not there are multiple plaintiffs and/or separate claims. The court may determine if there is a multiple recovery.

PERSONAL INJURY DAMAGES INSTRUCTION 5PID.6:

WRONGFUL DEATH: PERSONAL REPRESENTATIVE AS

PLAINTIFF

Plaintiff is the personal representative of the estate of [name of deceased]. Damages recoverable by the personal representative of the decedent on behalf of [his] [her] estate include:

  1. Any special damages, such as medical expenses, which the decedent incurred or sustained before [his] [her] death, funeral expenses, burial expenses; and

  2. Any penalties, including, but not limited to, exemplary or punitive damages, that the decedent would have recovered if [he] [she] had lived [without regard to the number of heirs making claim; only one award may be made for this element, to be divided by the total number of heirs making claim].

SOURCE/AUTHORITY

NRS 41.085(5).

USE NOTE Under item no. 2, add the multiple recovery option depending on whether or not there are multiple plaintiffs and/or separate claims. The court may determine if there is a multiple recovery.

PERSONAL INJURY DAMAGES INSTRUCTION 5PID.7:

WRONGFUL DEATH OF CHILD: HEIR AS PLAINTIFF

Plaintiff is the heir of the deceased. In determining the amount of losses, if any, suffered by the heir[s] as the [proximate] [legal] result of the death of [name of deceased], you will decide upon a sum of money sufficient to reasonably compensate [each] such heir for the following items:

  1. The heir’s loss of probable support, companionship, society, love, affection, solace and comfort. In determining this loss, you may consider not only the benefits that the heir was reasonably certain to have received from the earnings and services of [his] [her] child during the child’s minority, but also the support and financial benefit which it is reasonably certain the heir would have received from the child after the latter’s majority and during the period of their common life expectancy. As an offset against the factors of loss mentioned, you should take into consideration what it would have cost the heir to support and educate the deceased child, had [he] [she] lived. In weighing this matter, you may consider:

    a. The age of the deceased heir;

    b. The state of health and physical condition of the deceased and of the heir as it existed immediately prior to the death and at the time of death;

    c. Their station in life;

    d. Their respective life expectancies, as shown by the evidence;

    e. The disposition of the deceased, whether it was kindly, affectionate or otherwise;

    f. Whether or not [he] [she] showed a likelihood of contributing to the support of the heir;

    g. The earning capacity of the deceased; and

    h. All other facts in evidence that throw light upon the question of what benefits the heir might reasonably have been expected to receive from the deceased child had [he] [she] lived.

SOURCE/AUTHORITY

NRS 41.085; Frances v. Plaza Pacific Equities, Inc, 109 Nev. 91, 847 P.2d 722 (1993).

PERSONAL INJURY DAMAGES INSTRUCTION 5PID.8:

LIFE EXPECTANCY

According to U.S. Department of Health and Human Services standard mortality tables, the life expectancy of a person aged [insert age of deceased] is [insert current estimated years] years. This fact should be considered by you in arriving at the amount of damages if you find that the plaintiff is entitled to a verdict. Life expectancy shown by the mortality tables is an estimate of the probable average remaining length of life of all persons in our country of a given age and it is for you to determine the probable life expectancy of plaintiff from the evidence in this case, taking into consideration all other evidence bearing on the same issue, such as [his] [her] occupation, health, habits and activities.

SOURCE/AUTHORITY

See National Center for Health Statistics: Life Expectancy, http://www.cdc.gov/nchs/fastats/lifexpec.htm.

PERSONAL INJURY DAMAGES INSTRUCTION 5PID.9:

CLOSING INSTRUCTION

Whether any of these elements of damage have been proven by the evidence is for you to determine. Neither sympathy nor speculation is a proper basis for determining damages. However, absolute certainty as to the damages is not required. It is only required that plaintiff prove each item of damage by a preponderance of the evidence.

SOURCE/AUTHORITY

Quintero v. McDonald, 116 Nev. 1181, 14 P.3d 522 (2000).

Did you Know: Between 2004 and 2018, Benson and Bingham settled over $127,000,000 for their clients.