B.Y. LINE®     Litigation Alert!!

This action arose out of a May 1995 automobile accident.  The plaintiff sustained personal injuries in the accident and damage to her vehicle, a 1988 Pontiac Firebird.  The damage was extensive to her vehicle and in her complaint she requested, among other items, $2800.00 for car repairs and sought an unspecified amount for loss of use of the vehicle.

            Following the accident, plaintiff had obtained a repair estimate from an auto body shop.  She was given a written estimate of approximately $2800.00 to repair the damage.  She decided not to repair the vehicle as she did not have the funds to pay for the repairs.  She kept driving the vehicle but the car’s condition deteriorated and she eventually sold the car for scrap value only.

            At trial plaintiff attempted to introduce the written repair estimate she had previously obtained.  There was an objection on the basis that she had to prove the cost of repair was less than the market value in order to allow such a document into evidence.  She then offered the Kelley Blue Book value of the car.  The district court declined to take judicial notice of the Blue Book value and then refused to allow testimony on the repair costs or the value of the car, including plaintiff’s testimony as to what the value was when she purchased it and what it was when she sold it.

            The plaintiff also attempted to introduce evidence of rental car costs even though she didn’t rent a replacement vehicle.  The district court did not allow her to testify, concluding that she needed an expert to testify as to the cost she would have incurred absent specific out of pocket expenses. 

            Following these evidentiary rulings, the court then granted a defense motion for directed verdict on the issues of property damage and loss of use.  The case proceeded to trial on the personal injury claim only. 

            The Nevada Supreme Court found that the lower court abused its discretion by refusing to permit the plaintiff to testify about the value of her car.  Noting prior Nevada authority on the issue, the Court stated that a party to a lawsuit may testify as to the value of his or her personal or real property when that value is an issue in the case and expert testimony is not required.

            The Supreme Court further found reversible error in the lower court’s refusal to allow the Kelley Blue Book values as evidence in the case.  Noting that NRS 51.245 allows for market quotations and lists generally used and relied upon by the public or by persons in particular occupations as exceptions to the heresay rule, the Court stated that the Kelley Blue Book is such a publication and has a reliable price guide.

            Additionally, the Supreme Court concluded that the plaintiff should have been allowed to testify about rental car costs and to recover loss of use of those damages.  Referencing cases from other jurisdictions, including Colorado, Oregon and California, the Court stated that a party need not actually rent a vehicle to recover loss of use damages if that party is financially unable to rent a substitute vehicle.  Directly quoting from Graff v. Don Rasmussen Company, 592 P2d. 250 (Oregon 1979) the Court stated as follows:

“the owner has suffered compensable inconvenience and deprivation of the right to possess and use her chattel whether or not a substitute was obtained.”

            The Court noted that it found no cases involving loss of use damages that required expert testimony to establish value.  Rather, the Court found other jurisdictions have permitted parties to testify about rental car rates as long as that person had some basis for the valuation.  The Court provided no further insight as to what testimony would form an adequate basis, noting that the district court did not allow her to attempt to establish such a basis in the first instance.

            Finally, almost as a footnote, the Court also addressed an additional issue presented in the appeal.  In jury deliberations, the jury requested it be allowed to review the parties’ enlarged, nonadmitted photographs of the accident scene.  The court’s bailiff gave the jury the defendant’s photographs only but did not provide the appellant’s.  The Court found prejudicial error to allow any unadmitted photographs into the jury room, but especially when the photographs favoring one side were only provided.  Since an issue in the case was the plaintiff’s comparative fault, the Supreme Court concluded the disparity in impression of allowing only the defendant’s photographs to be reviewed had a tendency to influence the jury’s verdict in its assessment of comparative fault.