To win punitive damages in a Nevada personal injury trial, you must show that the defendant acted with fraud, malice or oppression.
Also called “exemplary damages,” punitive damages are awarded in the most egregious cases: They are meant to punish the wrongdoer and to set an example that deters dangerous conduct.
When granted, punitive damages are in addition to whatever compensatory damages (such as medical expenses and lost wages) you receive in a civil lawsuit.
To help you better understand exemplary damages, our Nevada personal injury lawyers discuss the following:
- 1. Can I get punitive damages?
- 2. Is there a cap?
- 3. What is the process for collecting the money?
- 4. Punitive Damages in Labor Claims
- 5. What are compensatory damages?
- Additional Resources
Also listen to our informative podcast on punitive damages in Nevada:
1. Can I get punitive damages?
It depends on the facts of your case. In Nevada, punitive damages are most common in cases involving:
- medical malpractice, where the physician intentionally hurt the plaintiff or concealed their mistakes;
- products liability, where a manufacturer knowingly designed or created a defective product; and
- drunk driving, where a voluntarily intoxicated driver causes an accident.
An example where a Nevada court awarded punitive damages is Smith Food and Drug Centers Inc. v. Bellegarde:
A Smith’s employee handcuffed and pepper-sprayed a suspected shoplifter. The suspected shoplifter sued Smiths for excessive force. Ultimately, Smiths was ordered to pay the suspected shoplifter $65,000 in punitive damages. The reason for the punitive damages was to punish Smiths for inadequate policies and employee oversight.
Ultimately, punitive damages are appropriate if the defendant acted with either fraud, malice, or oppression:
- Fraud is intentionally deceiving you regarding a material fact with the intent to harm you.
- Malice is conduct which is intended to injure you, or despicable conduct done with conscious disregard of the rights or safety of others.
- Oppression is despicable conduct that subjects you to cruel and unjust hardship with conscious disregard of your rights.1
In short, whether punitive damages are granted turns on the extent of the defendant’s bad behavior, not the seriousness of your injuries.
Note that punitive damages are not awarded in breach-of-contract cases.
Exemplary awards have caps in most personal injury cases, including for wrongful death.
2. Is there a cap?
Under NRS 42.005, punitive damage awards in Nevada have a cap of:
- $300,000 if the amount of compensatory damages awarded to you is less than $100,000, or
- Three times the amount of compensatory damages awarded to you if the amount of compensatory damages is $100,000 or more.
However, there is no limit on the amount of punitive damages you can recover if your case involves any of the following:
- A manufacturer, distributor or seller of a defective product;
- An insurer who acts in bad faith regarding its obligations to provide insurance coverage;
- A person who violates a state or federal law prohibiting discriminatory housing practices;
- Damages caused by the emission, disposal or spilling of a toxic, radioactive or hazardous material or waste;
- Defamation; or
- A motor vehicle accident caused by a driver who willfully consumed alcohol and/or drugs (DUI).2
According to the United States Supreme Court, punitive damages are constitutional. They should amount to no more than nine times the compensatory damages (“a single digit ratio”), except in the most extreme cases.3
3. What is the process for collecting the money?
Getting an exemplary award in a Nevada personal injury case is a three-step process:
- Win your trial.
- Ask for exemplary damages.
- The jury (or judge in a bench trial) renders a decision.4
These steps are discussed below. Although punitive damages are decided at the very end of a case, you should file your initial complaint (“pleading”) with punitive damages in mind. The complaint should allege behavior justifying punitive damages should you win.
Note that the vast majority of personal injury cases settle out of court: We can often negotiate a settlement big enough that not only covers your losses but also punishes the defendant as well.
1) Win Your Trial
Every cause of action has different elements that you need to prove in order to win your trial. For instance, winning a negligence case requires you proving four elements by a preponderance of the evidence:
- The defendant had a duty of reasonable care;
- The defendant breached this standard of care;
- This breach was the proximate cause of your injuries; and
- These injuries resulted in a financial loss.
“By a preponderance of the evidence” means it is more likely than not that the defendant is liable.
2) Ask for Exemplary Damages
To get an exemplary award, you must request it from the court. To ensure the defendant gets due process, the court will hold a hearing on the matter.
At the punitive damages hearing, you have to prove by clear and convincing evidence that the defendant acted with fraud, oppression or malice. “Clear and convincing evidence” is:
- a higher standard than “by a preponderance of the evidence”, which is the burden of proof in negligence cases, and
- a lower standard than “beyond a reasonable doubt,” which is the burden of proof in criminal cases.
The best way to prove punitive damages are appropriate is to show that the defendant acted intentionally or at least with a conscious disregard for the well-being of others. This can be done with documents (such as memos or emails) showing the defendant’s intent. It can also be established with testimony.
3) The Jury (or Judge in a Bench Trial) Renders a Decision
When a jury is deciding whether the defendant should pay you punitive damages, the jurors are not informed about:
- Nevada’s cap on exemplary awards or
- the defendant’s finances.
Though if the jury decides that punitive damages are warranted, jurors can factor in the defendant’s ability to pay when they calculate the amount of punitive damages to award you.
The judge will then reduce the exemplary award, if necessary, to keep it within the legal limits and the defendant’s ability to pay. The judge can also reduce exemplary awards to make them “proportional” to the compensatory awards.5
If you are awarded punitive damages, the defendant will surely file a “motion to strike” to reduce or eliminate the punitive damages. The judge will likely deny it unless the punitive damages are:
- unreasonably high and excessive, especially compared to the punitive damages awarded in comparable cases,
- arbitrary and disproportional to the compensatory damages, or
- too much for the defendant to afford.
A punitive damage award can be appealed by you or the defendant, though it is unlikely to be changed as long as there is sufficient justification for it.
A court may grant an exemplary award if the defendant behaved in a particularly egregious way.
4. Punitive Damages in Labor Claims
If you are suing an employer for the wrongful acts of an employee, there is an additional hurdle to clear to get punitive damages.
If the employer is an individual, you must show that:
- The employer knew the employee was a risk to the rights or safety of others;
- The employer authorized or approved the employee’s wrongful act; or
- The employer was personally guilty of oppression, fraud or malice.6
If the employer is a corporation, the employer is not liable for exemplary damages unless:
- An officer, director or managing agent of the corporation committed one of the above acts, and
- That person had authorization to direct or ratify the employee’s conduct on behalf of the corporation.
This limitation on corporate employers does not apply in bad-faith insurance cases.7
5. What are compensatory damages?
While punitive damages punish defendants for their behavior, compensatory damages reimburse you for your losses. There are two types of compensatory damages: Economic and non-economic.
Economic damages are damages that are easy to calculate. Examples are:
- medical expenses (based on medical bills),
- lost wages (based on past paychecks),
- lost earning potential (based on past paychecks and the testimony of a vocational expert witness), and
- property repairs (based on invoices).
In contrast, non-economic damages are intangible losses that are impossible to calculate. Examples include:
- pain and suffering,
- mental anguish, and
- scarring and disfigurement.
In many cases, non-economic damages far exceed economic damages since no price tag can be put on emotional turmoil.
Punitive damages are not available in contract cases.
Additional Resources
For more in-depth information, refer to these scholarly articles:
- Punitive Damages Jury Instructions – Model jury instructions in the Ninth Circuit.
- A Punitive Damages Overview: Functions, Problems and Reform – Villanova Law Review.
- Punitive Damages for Deterrence: When and How Much – Alabama Law Review.
- Punitive Damages as Societal Damages – Yale Law Journal.
- Punitive Damages: From Myth to Theory – Iowa Law Review.
Legal references:
- NRS 42.005. Smith Food and Drug Centers Inc. v. Bellegarde (1998) 114 Nev. 602.
- NRS 42.005. Nev. State Educ. Ass’n v. Clark Cty. Educ. Ass’n (2021) 482 P.3d 665; Cain v. Price (2018) 134 Nev. 193, 415 P.3d 25. NRS 42.010.
- State Farm Mut. Auto. Ins. Co. vs. Campbell (2003) 538 U.S. 408.
- NRS 42.005 (3).
- NRS 42.005 (4). State Farm Mut. Automobile Ins. Co. v. Campbell (2003) 538 U.S. 408 (“Our jurisprudence and the principles it has now established demonstrate, however, that, in practice, few awards exceeding a single-digit ratio between punitive and compensatory damages, to a significant degree, will satisfy due process.”).
- NRS 42.007 (1).
- NRS 42.007 (2).