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This action arose out of a 1994 automobile accident where the State Farm insured was killed when he swerved to avoid a ladder that had fallen in the middle of his lane and collided with a utility truck stopped in the emergency lane. The identity of the person who dropped the ladder was unknown. The deceased family filed for uninsured motorist benefits which State Farm denied. An action was brought for breach of contract, bad faith, breach of the implied covenant of good faith and fair dealing and unfair trade practice. The breach of contract action was severed out and tried before a jury. State Farm had denied the claim, based upon its investigation that the negligence of the insured driver exceeded that of the unknown driver and that no liability therefore accrued under the uninsured motorist provisions. At trial, the plaintiffs put forth evidence implying the negligence of the unknown driver and attempted to rely on the doctrine of res ipsa loquitur to support their claim of negligence against that driver. They offered a jury instruction upon res ipsa loquitur, which the lower court denied on the basis that an element of that doctrine is that there can be no contributory fault. The lower court concluded that because State Farm presented evidence of such fault, the doctrine was inapplicable. The lower court also gave an instruction on comparative negligence which instructed the jury to consider whether the drivers negligence was greater than or less than that of the defendant, in this instance State Farm, since the unknown driver was not a party to the breach of contract action. Plaintiffs failed to object to this instruction. In closing, both parties argued the comparative negligence of the unknown driver and the State Farm insured driver. The Supreme Court first considered whether an error had occurred in refusing the res ipsa loquitur instruction. Noting that this doctrine permits a party to infer negligence when certain elements are met, the court attempted to reconcile the doctrine with Nevada’s comparative fault statute, NRS 41.141. In comparing how other jurisdictions with comparative fault statutory schemes have addressed this issue, the Nevada Supreme Court concluded that NRS 41.141 operated to subsume the third element of res ipsa loquitur. The doctrine was revised, by this decision, to provide that it may apply as long as the plaintiffs negligence is not greater than that of the defendant. The Court, in its decision, set forth sample jury instructions consistent with its opinion. (Ed. Note: Copies of sample jury instructions available upon request) In so holding, the Court then concluded that the jury should have been allowed to consider the theory of res ipsa loquitur in a comparative fault analysis. In reaching its decision, and remanding the case for further proceedings consistent with its opinion, the Court did not reach the issue of whether the language used in the comparative fault instruction actually given by the lower court was proper. It is highly likely however, from a reading of the entire Court’s opinion, that that instruction given was faulty and should have substituted the term “unknown driver”, in lieu of the language used, (“the defendant”), since State Farm’s negligence was not an issue in the breach of contract action nor in the facts and circumstances surrounding the underlying accident.
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