Beales v. Hillhaven, Inc.

Young, J.,

with whom Steffen, J. joins,

concurring in part and dissenting in part:

I concur generally with the court’s conclusion that appellant’s and cross-appellant’s arguments on appeal are without merit. I dissent, however, from the majority’s affirmance of the award of future damages.

The jury awarded appellant $208,476.00 in future damages. We have previously held that “an appellant court will disallow or reduce the award if its judicial conscience is shocked; otherwise it will not.” Miller v. Schnitzer, 78 Nev. 301, 309, 371 P.2d 824, 829 (1962). I am troubled by the award of future damages in this case and particularly in view of the assertion by respondent that appellant had begun working for a nursing home shortly after trial.

After leaving her position at Hillhaven, appellant had three jobs in the span of approximately two and one-half years. The first position paid a salary comparable to what she was earning at Hillhaven. Her next position paid approximately $3,000.00 per year more than her salary at Hillhaven. Appellant’s third position paid $50,000.00 per year — an annual increase of more than $13,000.00 above her salary at Hillhaven. These facts alone suggest that appellant was indeed capable of finding employment after her termination from Hillhaven. Appellant’s own expert witness testified at trial that, if appellant had been employed at the time of trial, the measure of future damages would be zero. To award her $208,476.00 in future damages, given these facts, seems to me to make Hillhaven the indefinite insurer of appellant’s employment, even after the age of sixty-five when most employees retire.

Furthermore, after trial, Hillhaven moved to reopen discovery on the issue of future damages and alleged that appellant had begun working for a nursing home “almost immediately after trial.” In response, although appellant denied that she had begun working the week after trial, appellant did not deny that she had begun working.

Appellant was fifty-nine years old when she was terminated by Hillhaven and sixty-two years old at time of trial. She testified that nothing in her health would prevent her from working to or beyond the age of seventy. She received $32,821.42 for compensatory damages up to the time of trial. Presumably, the jury took into consideration the money earned by her during the two and one-half years after termination and before trial. Her annual salary when at Hillhaven was $36,729.00. The record does not reflect the net salary after taxes. It seems questionable to affirm a future damages award equivalent to almost six years of her gross salary at Hillhaven when appellant had obtained three comparable jobs after her Hillhaven employment ended and was employed again shortly after trial. Under the circumstances, I believe that respondent should have been able to determine when appellant was employed and whether this employment was a reasonable prospect at the time of trial. I therefore dissent.