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NEVADA REVISED STATUTES
TITLE 3 REMEDIES; SPECIAL ACTIONS AND PROCEEDINGS
CHAPTER 41 ACTIONS AND PROCEEDINGS IN PARTICULAR CASES CONCERNING PERSONS
ACTIONS FOR DEATH BY WRONGFUL ACT OR NEGLECT

COPR. © 2005 The text of the Nevada Revised Statutes appearing in this

database was produced from data provided by The Nevada Legislative Council

Bureau and is subject to a claim of copyright by the State of Nevada.

Current through the 2005 Regular Session and 22nd Special Session
of the 73rd Legislature

NRS 41.085 Heirs and personal representatives may maintain action.

1. As used in this section, "heir" means a person who, under the laws of this State, would be entitled to succeed to the separate property of the decedent if he had died intestate. The term does not include a person who is deemed to be a killer of the decedent pursuant to chapter 41B of NRS, and such a person shall be deemed to have predeceased the decedent as set forth in NRS 41B.330.

2. When the death of any person, whether or not a minor, is caused by the wrongful act or neglect of another, the heirs of the decedent and the personal representatives of the decedent may each maintain an action for damages against the person who caused the death, or if the wrongdoer is dead, against his personal representatives, whether the wrongdoer died before or after the death of the person he injured. If any other person is responsible for the wrongful act or neglect, or if the wrongdoer is employed by another person who is responsible for his conduct, the action may be maintained against that other person, or if he is dead against his personal representatives.

3. An action brought by the heirs of a decedent pursuant to subsection 2 and the cause of action of that decedent brought or maintained by his personal representatives which arose out of the same wrongful act or neglect may be joined.

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 probable support, companionship, society, comfort and consortium, and damages for pain, suffering or disfigurement of the decedent. The proceeds of any judgment for damages awarded under this subsection are not liable for any debt of the decedent.

5. The damages recoverable by the personal representatives of a decedent on behalf of his estate include:

(a) Any special damages, such as medical expenses, which the decedent incurred or sustained before his death, and funeral expenses; and

(b) Any penalties, including, but not limited to, exemplary or punitive damages, that the decedent would have recovered if he had lived,

_ but do not include damages for pain, suffering or disfigurement of the decedent. The proceeds of any judgment for damages awarded under this subsection are liable for the debts of the decedent unless exempted by law.

NEVADA CASES.

GENERAL

Action for wrongful death which occurred in California is transitory and its enforcement recognized by this State. In an action brought in Nevada for a wrongful death which occurred in California, the trial court did not err in its assumption of jurisdiction, because the cause of action is by statute of California transitory, and enforcement of such cause of action is recognized by the statutes of this State, sec. 1, ch. 48, Stats. 1905 (cf. NRS 41.085). Christensen v. Floriston Pulp & Paper Co., 29 Nev. 552, 92 Pac. 210 (1907), cited, Forrester v. Southern Pac. Co., 36 Nev. 247, at 271, 134 Pac. 753, 136 Pac. 705 (1913), Leach v. Mason Valley Mines Co., 40 Nev. 143, at 150, 161 Pac. 513 (1916)

Proceeds from wrongful death action brought by wife on behalf of a minor child were not within meaning of "acquired" as used in statute defining community property; husband's negligence not imputed to wife. Proceeds from exercise of the right by wife, under the provisions of NCL § 8553 (cf. NRS 12.080 and 41.085), to maintain an action for the wrongful death or injury of her minor child do not come within meaning of the word "acquired" as used in NCL § 3356 (cf. NRS 123.220), defining community property, and husband's negligence is not imputed to wife to bar her recovery for death or injury of her minor child. Los Angeles & S.L.R.R. v. Umbaugh, 61 Nev. 214, 123 P.2d 224 (1942), cited, Morrissett v. Morrissett, 80 Nev. 566, at 571, 397 P.2d 184 (1964) (dissenting opinion)

Basis for action for wrongful death must be found in statutes; remedies in statutes are exclusive. In an action to recover damages for wrongful death, because no such right of action existed at common law, basis must be found in NCL § 9194, providing that a cause of action in favor of decedent shall survive, 1931 NCL § 9195, providing who may bring this action and how proceeds shall be distributed, and 1931 NCL § 8554, establishing a right of action for wrongful death of an adult by his heirs or by his personal representative or guardian for his heirs (cf. NRS 41.085), and remedies there given are exclusive. Wells, Inc. v. Shoemake, 64 Nev. 57, 177 P.2d 451 (1947), cited, Strong v. Strong, 70 Nev. 290, at 292, 267 P.2d 240 (1954), Weaks v. Mounter, 88 Nev. 118, at 120, 493 P.2d 1307 (1972), Moyer v. United States, 593 F. Supp. 145, at 146 (D. Nev. 1984), Pitman v. Thorndike, 762 F. Supp. 870, at 871 (D. Nev. 1991), Alsenz v. Clark County School Dist., 109 Nev. 1062, at 1064, 864 P.2d 285 (1993)

Common-law rule of parental immunity from suit by child not expressly repealed by former statute. Although 1931 NCL § 8554 (cf. NRS 41.085) gives heirs of deceased person the right to bring an action against a person causing wrongful death and does not expressly preclude a minor from bringing an action by his guardian against one parent for wrongful death of the other, neither does it expressly repeal the common-law rule of parental immunity from suit by child, and in the absence of such express repeal the rule remains in effect. Strong v. Strong, 70 Nev. 290, 267 P.2d 240 (1954), cited, Kennedy v. Kennedy, 76 Nev. 302, at 305, 352 P.2d 833 (1960), distinguished, Rupert v. Stienne, 90 Nev. 397, at 404, 528 P.2d 1013 (1974)

Court was justified in using only appellant's theory of express repeal of parental immunity from suit in considering effect of statute. Where appellant contended that wrongful death statute, 1931 NCL § 8554 (cf. NRS 41.085), did not by implication repeal the common-law rule of parental immunity from an action in tort by a child, but expressly did so by providing that heirs could sue the person causing the wrongful death, without making any limitation upon child suing a parent, the court was justified in using only appellant's theory of express repeal in considering effect of the statute. Strong v. Strong, 70 Nev. 290, 267 P.2d 240 (1954), cited, Kennedy v. Kennedy, 76 Nev. 302, at 305, 352 P.2d 833 (1960), distinguished, Rupert v. Stienne, 90 Nev. 397, at 404, 528 P.2d 1013 (1974)

Unborn child a "person" within meaning of statute. An unborn child was a "person" within meaning of the Nevada wrongful death statute, the former NRS 41.080 (cf. NRS 41.085). White v. Yup, 85 Nev. 527, 458 P.2d 617 (1969)

Right of action for wrongful death is a personal right, not a community right. In an action under the Nevada wrongful death statute, former NRS 41.080 (cf. NRS 41.085), the family purpose statute, NRS 41.440, did not operate to impute contributory negligence of husband to wife, so as to bar an action by the wife for financial compensation for the wrongful death of her unborn child. Such right of action is a personal, not a community, right. White v. Yup, 85 Nev. 527, 458 P.2d 617 (1969)

Statute of limitations. In an action for wrongful death pursuant to NRS 41.085 brought in 1981, where decedent received improper medical treatment beginning in 1976 and, as a result thereof, died in 1979, the 2-year statute of limitations provided in NRS 41A.097 did not run before plaintiff filed his complaint because, as used in that statute, "injury" means legal injury and since death is an essential element of a cause of action for wrongful death, there can be no legal injury until death has occurred, and the period of limitation, therefore, does not begin to run until the time of decedent's death or discovery thereof. Gilloon v. Humana, Inc., 100 Nev. 518, 687 P.2d 80 (1984), cited, Pope v. Gray, 104 Nev. 358, at 362, 706 P.2d 763 (1988), Fernandez v. Kozar, 107 Nev. 447, at 449, 814 P.2d 68 (1991), State Indus. Ins. Sys. v. Lodge, 107 Nev. 867, at 869, 822 P.2d 664 (1991)

Wrongful death: Choice of law; place where injury is suffered. In a wrongful death action (see NRS 41.085), the "injury" is to the survivors. Thus, for the purposes of the factors set forth in Motenko v. MGM Dist., Inc., 112 Nev. 1038 (1996), used to determine whether a state other than the forum state has an overwhelming interest, the "place where the injury is suffered" is the state in which all or most of the survivors are residents. (See also NRS 1.030.) Northwest Pipe Co. v. Eighth Judicial Dist. Court, 118 Nev. 133, 42 P.3d 244 (2002), cited, Fisher v. Professional Compounding Ctrs. of Am., Inc., 311 F.Supp.2d 1008, at 1016 (D. Nev. 2004)

HEIRS

Widow and minor child of decedent entitled to bring action. In an action to recover damages for wrongful death, where plaintiffs were the widow and minor child of decedent, they were entitled to bring an action under 1931 NCL § 8554 (cf. NRS 41.085), affording a right of action to heirs. Wells, Inc. v. Shoemake, 64 Nev. 57, 177 P.2d 451 (1947), cited, Nevada Paving, Inc. v. Callahan, 83 Nev. 208, at 213, 427 P.2d 383 (1967) (dissenting opinion)

"Heirs" includes any person entitled to inherit estate of decedent. Word "heirs" as used in the wrongful death statute, the former NRS 12.090 (cf. NRS 41.085), to specify persons who may maintain an action includes any person entitled to inherit the estate of decedent. Bower v. Landa, 78 Nev. 246, 371 P.2d 657 (1962), cited, Weaks v. Mounter, 88 Nev. 118, at 126, 493 P.2d 1307 (1972) (dissenting opinion), Parker v. Chrysler Motors Corp., 88 Nev. 560, at 562, 502 P.2d 111 (1972)

Right of adopted child was paramount to the rights of surviving brothers and sisters of decedent. Adopted child had the right to maintain an action for wrongful death of his adoptive parent under the provisions of former NRS 12.090 (cf. NRS 41.085), and such right was paramount to the rights of the surviving brothers and sisters of decedent. Bower v. Landa, 78 Nev. 246, 371 P.2d 657 (1962)

Illegitimate child was a "child" and "heir" within meaning of statute. Minor posthumous illegitimate child had a cause of action for wrongful death of her putative father where paternity was clearly established despite lack of written acknowledgment pursuant to the provisions of former NRS 134.170 (cf. NRS 126.051), because for purposes of a wrongful death action, she was a "child" of decedent within meaning of the term as used in the provisions of former NRS 41.090 (cf. NRS 41.085), and an "heir" within the meaning of former provisions of NRS 12.080, since the equal protection clause prohibits discrimination between legitimate and illegitimate children in wrongful death actions. Weaks v. Mounter, 88 Nev. 118, 493 P.2d 1307 (1972)

Separate verdicts proper for parents and child of deceased. In a wrongful death action a separate verdict in favor of the parents of deceased was proper because separate causes of action existed for the parents under former provisions of NRS 12.080 and for the child under former NRS 41.080 and 41.090 (cf. NRS 41.085). Allowance of attorney fees under NRS 18.010 on the verdict of $10,000 in favor of parents was proper. Weaks v. Mounter, 88 Nev. 118, 493 P.2d 1307 (1972)

Action by widow on behalf of minor heirs not barred by statute of limitations applicable to widow. Where a wrongful death action by widow of decedent, acting solely as guardian ad litem of the minor heirs, was not commenced until after running of the two-year limitation period prescribed by NRS 11.190, action was not barred by the statute of limitations applicable to the widow because the provisions of former NRS 12.090 (cf. NRS 41.085) created separate causes of action in minor heirs and under NRS 11.250, running of the statute of limitations as to their claims was suspended during their minority. Parker v. Chrysler Motors Corp., 88 Nev. 560, 502 P.2d 111 (1972), cited, Turner v. Staggs, 89 Nev. 230, at 240, 510 P.2d 879 (1973) (dissenting opinion), Gibbs v. Giles, 96 Nev. 243, at 247, 607 P.2d 118 (1980)

PERSONAL REPRESENTATIVES

"Personal representative" includes temporary, special or ancillary administrators or executors. The term "personal representative" as used in wrongful death statute, former NRS 12.090 (cf. NRS 41.085), is generally considered broad enough to include temporary, special or ancillary administrators or executors. Nevada Paving, Inc. v. Callahan, 83 Nev. 208, 427 P.2d 383 (1967), distinguished, Klosterman v. Cummings, 86 Nev. 684, at 690, 476 P.2d 14 (1970)

Right of action was sufficient to justify appointment of special administrator to act as personal representative for purpose of filing suit. Where there were no assets in estate of deceased but there existed a cause of action for wrongful death, the court did not exceed its jurisdiction in appointment of a special administrator because the right of action, although not an asset of the estate, was sufficient to justify appointment of an administrator who could then act as personal representative for purpose of filing suit, as authorized by former NRS 12.090 (cf. NRS 41.085), and hold proceeds for benefit of heirs who suffered loss by reason of death. Nevada Paving, Inc. v. Callahan, 83 Nev. 208, 427 P.2d 383 (1967), distinguished, Klosterman v. Cummings, 86 Nev. 684, at 690, 476 P.2d 14 (1970)

DAMAGES

Trial court did not err in refusing to instruct jury on present cash value of damages to be suffered in future. In a wrongful death action, under the provisions of former NRS 41.090 (cf. NRS 41.085), which provided that damages may include compensation for loss of probable future companionship, society and comfort, the trial court did not err in refusing to instruct jury on present cash value of damages to be suffered in the future from defendant's wrongful act, because damages for loss of probable future companionship, society and comfort are subject to the rule relating to future pain and suffering, and the weight of authority is against reduction of damages for such intangible elements. Porter v. Funkhouser, 79 Nev. 273, 382 P.2d 216 (1963)

Word "pecuniary" not limited to tangible financial loss. The provisions of former NRS 41.090 (cf. NRS 41.085), which empowered the court or jury in a wrongful death action to award such pecuniary damages as are fair and just, including damages for loss of probable future companionship, society and comfort, are clear, and do not warrant a jury instruction that word "pecuniary" is limited in meaning to tangible financial loss. Porter v. Funkhouser, 79 Nev. 273, 382 P.2d 216 (1963)

Court may exclude evidence on collateral issue of a change in defendant's habits between time of accident and time of trial. In a wrongful death action, where punitive damages were sought under the provisions of former NRS 41.090 (cf. NRS 41.085), the evidence of a change in defendant's habits between time of the accident which had caused death and time of the trial concerned a collateral issue, and it was within province of the court to exclude such evidence on the ground that it might be harmful or prejudicial to one party and of little benefit to the other. Porter v. Funkhouser, 79 Nev. 273, 382 P.2d 216 (1963)

Inclusion of damages for loss of probable future companionship, society and comfort in an award of compensatory damages was not grossly excessive. In a wrongful death action by four adult children for death of their 68-year-old mother, although the only evidence of loss of services of objective monetary value was insufficient to sustain an award of $35,000 compensatory damages, under the provisions of former NRS 41.090 (cf. NRS 41.085), which empowered jury to include damages for loss of probable future companionship, society and comfort, such award was not so grossly excessive as a matter of law that it shocked judicial conscience, and thus was not disturbed upon appeal. Porter v. Funkhouser, 79 Nev. 273, 382 P.2d 216 (1963)

Damages for loss of probable future companionship, society and comfort are not required to bear reasonable relation to pecuniary loss. Under the provisions of former NRS 41.090 (cf. NRS 41.085), which empowered the jury in a wrongful death action to include damages for loss of probable future companionship, society and comfort, there was no requirement that such damages bear reasonable relation to pecuniary loss. Porter v. Funkhouser, 79 Nev. 273, 382 P.2d 216 (1963)

Court not required to instruct jury that it may consider reduced purchasing power of dollar in determining amount of damages. In a wrongful death action, under the provisions of former NRS 41.090 (cf. NRS 41.085), which empowered the court or jury to award such damages as are fair and just, an instruction to the jury that they could consider reduced purchasing power of the dollar in determining amount of damages was proper because the court left it in the discretion of the jury whether or not to consider such factor. Refusal to give such instruction would not have been error because the jury need hardly be reminded of what they perceive in daily life. Porter v. Funkhouser, 79 Nev. 273, 382 P.2d 216 (1963)

Testimony of economist may be used to prove loss of probable support. Pursuant to NRS 41.085, in a medical malpractice case, (1) heirs of decedent may prove damages for loss of probable support, (2) such damages, based on decedent's lost earning capacity, may include present as well as future loss of support, and (3) testimony of economist is accepted means of proving loss of probable support. Freeman v. Davidson, 105 Nev. 13, 768 P.2d 885 (1989), cited, Gonzales v. Stewart Title, 111 Nev. 1350, at 1354, 905 P.2d 176 (1995)

Damages recoverable by decedent's estate. In an action brought pursuant to NRS 41.085, decedent's estate cannot recover for lost economic opportunities of decedent or punitive damages. Alsenz v. Clark County School Dist., 109 Nev. 1062, 864 P.2d 285 (1993)

FEDERAL AND OTHER CASES.

New cause of action created in personal representative. Under B §§ 115 and 116 (cf. NRS 41.085), a new cause of action is created in personal representative of deceased and it is, therefore, immaterial whether deceased died instantly or time intervened between injury and death, as no question of survival of deceased's cause of action is involved. Roach v. Imperial Mining Co., 7 Fed. 698 (C.C.D. Nev. 1881)

Not necessary to allege existence of kindred. Under B §§ 115 and 116 (cf. NRS 41.085), which provide for recovery of damages for wrongful death, it is not necessary to allege the existence of kindred unless there is an action for injury to kindred as well as for death of deceased. Roach v. Imperial Mining Co., 7 Fed. 698 (C.C.D. Nev. 1881)

Exemplary damages may be awarded where negligence was willful, wanton or malicious. Under Nevada wrongful death statute, C §§ 3983 and 3984 (cf. NRS 41.085), exemplary damages can be awarded only where negligence causing death was willful, wanton or malicious. Benner v. Truckee River Gen. Elec. Co., 193 Fed. 740 (C.C.D. Nev. 1911)

Only persons named in statute may maintain action. Since the wrongful death action is created by statute, only those persons specifically named in the statute may maintain such action. Perry v. Tonopah Mining Co., 13 F.2d 865 (D. Nev. 1915)

Nonresident heirs have cause of action under Nevada law which can be sued upon in other jurisdiction. Nonresident heirs of decedent killed in a train wreck in Nevada have a cause of action for wrongful death under NCL § 8554 (cf. NRS 41.085) which can be sued upon in other jurisdiction. Stone v. Southern Pac. Co., 32 F. Supp. 819 (S.D.N.Y. 1940)

Foreign personal representative need not obtain ancillary appointment in Nevada to recover for the benefit of decedent's heirs; proceeds not subject to claims of decedent's creditors. Under the provisions of former NRS 12.090, 41.080 and 41.090 (cf. NRS 41.085), a foreign personal representative may maintain a wrongful death action in Nevada against a Nevada resident without obtaining an ancillary appointment in Nevada where he is not suing for the benefit of decedent's general estate, but to recover for the benefit of decedent's heirs, and the proceeds will not be subject to claims of decedent's creditors. Sonner v. Cordano, 228 F. Supp. 435 (D. Nev. 1963)

In collision between military aircraft and commercial airliner, duty of the United States to passengers was to exercise ordinary care and duty of the air carrier was to exercise highest degree of care. In a wrongful death action under the provisions of former NRS 12.090 and 41.080 (cf. NRS 41.085), arising out of the collision between a military trainer aircraft and a commercial airliner operating under regulations of the Civil Aeronautics Administration, the duty of the United States toward passengers was to exercise ordinary care for their safety, and the duty of the air carrier was to exercise highest degree of care. United Air Lines, Inc. v. Wiener, 335 F.2d 379 (9th Cir. 1964)

Nevada limitation on applicability of res ipsa loquitur was not inherent in cause of action. In a wrongful death action arising out of an aircraft collision, the limitation imposed by Nevada law on applicability of res ipsa loquitur as a rule of evidence was not inherent in the cause of action created by former NRS 12.090 and 41.080 (cf. NRS 41.085), and the law of forum was properly applied in instructing the jury on res ipsa loquitur. United Air Lines, Inc. v. Wiener, 335 F.2d 379 (9th Cir. 1964)

Award under former statute to heirs based on estimated future earnings of decedent less necessary personal expenditures and taxes was not only adequate but generous. Under the provisions of former NRS 41.090 (cf. NRS 41.085), which at time of accident did not include a provision for damages for loss of companionship, the wrongful death award to heirs based on estimated earnings of decedent during future working years, less necessary personal expenditures and income tax withholding, was not only adequate but generous. United States v. Sommers, 351 F.2d 354 (C.C.A. 10th 1965)

Damages for pain and suffering of decedent may not be recovered. In a wrongful death action under the provisions of former NRS 41.080 the measure of damages is based upon and limited to the pecuniary loss suffered by heirs of decedent, and the damages for pain and suffering endured by deceased may not be recovered. An action under the provisions of former NRS 41.080 (cf. NRS 41.085) is not based on the survival of decedent's cause of action against tortfeasor, but is a new and independent cause of action in heirs, in view of NRS 41.100, which provides for survival of a cause of action for personal injuries only. Borrego v. Stauffer Chem. Co., 315 F. Supp. 980 (1970)

Parents were entitled to recover for loss of probable support although they were not dependent upon decedent. In an action for wrongful death brought by decedent's parents, the parents were entitled to recover for loss of probable support under NRS 41.085 because, although the parents were not dependent on decedent for support, there was a reasonable expectancy that, except for his death, decedent would have contributed gifts and aid having an established pecuniary value to his parents. Moyer v. United States, 593 F. Supp. 145 (D. Nev. 1984)

Trial court could make separate award for damages to each parent of decedent. In an action for wrongful death brought by decedent's parents, the trial court could make a separate award for damages to each parent rather than awarding a lump sum to both parents because NRS 41.085 allows the trier of fact to award each heir pecuniary damages for injuries specified in that statute. Moyer v. United States, 593 F. Supp. 145 (D. Nev. 1984)

"Penalties" does not include lost economic benefits. Damages recoverable by personal representatives of decedent on behalf of his estate do not include lost economic benefits because "penalties" as used in NRS 41.085(5) means civil penalties or perhaps punitive damages. Hanshew v. United States Fidelity & Guar. Co., 746 F. Supp. 55 (D. Kan. 1990)

To be compensable in wrongful death action, pain and suffering of decedent, including loss of enjoyment of life, must be consciously experienced. In an action for wrongful death pursuant to NRS 41.085, defendant's motion to strike plaintiff's claim for damages for loss of enjoyment of life was granted because (1) the only kinds of pecuniary damages available for wrongful death under Nevada law are those specified in NRS 41.085, (2) the only possible element in NRS 41.085 that could include decedents' loss of enjoyment of life is the provision allowing recovery for pain and suffering of decedent, (3) to be compensable in a wrongful death action in Nevada, pain and suffering must be consciously experienced, and (4) therefore, plaintiffs could only recover for that part of decedents' loss of enjoyment of life that was consciously experienced before death, and such recovery was included in plaintiff's claim for damages for the pain and suffering of decedent. Pitman v. Thorndike, 762 F. Supp. 870 (D. Nev. 1991)

Appellants were precluded from asserting a cause of action for wrongful death under the circumstances. On appeal from an order of the district court granting summary judgment in favor of the defendants arising out of the alleged killing of a person as a result of excessive force used by police officers during a fight that occurred in the parking lot of a local bar, the appellants were precluded from asserting a cause of action for wrongful death pursuant to the provisions of NRS 41.085 where: (1) the district court, in granting the defendants' motion for summary judgment, had ruled that the shooting of the decedent was not wrongful; and (2) instead of addressing that ruling on appeal, the appellants argued that they had standing to bring the cause of action. The failure by the appellants to challenge the ruling of the district court waived any argument that the evidence was sufficient to proceed to trial on their cause of action for wrongful death. Moreland v. Las Vegas Metro. Police Dep't, 159 F.3d 365 (9th Cir. 1998)