Tortious Constructive Discharge

Elements

Example Cases

Proof

Damages

Defenses

Misc

 

Tortious Discharge

 

Elements

The essence of a tortious discharge is the wrongful, usually retaliatory, interruption of employment by means which are deemed to be contrary to the public policy of this state. D'Angelo v. Gardner, 107 Nev. 704, 718, 819 P.2d 206, 212 (Nev. 1991).

Example Cases

Proof

Damages

Defenses

[A] public policy tort should not be recognized in this case based on the fact that a comprehensive statutory remedy exists. Shoen v. Amerco, Inc., 111 Nev. 735, 896 P.2d 469 (Nev. 1995).

"In Sands Regent v. Valgardson, 105 Nev. 436, 439-40, 777 P.2d 898, 900 (1989), we refused to recognize an action for tortious discharge even though the defendant had violated Nevada's public policy against age discrimination because the plaintiffs had already recovered tort damages under the Age Discrimination in Employment Act (ADEA), 29 U.S.C. § 621 and under NRS 613.310. In contrast, in D'Angelo, 107 Nev. at 721-22, 819 P.2d at 218, we held that appellant Jones was entitled to pursue an action for tortious discharge against his employer because we concluded the statutory remedy provided in NRS Chapter 618, dealing with occupational safety and health, was far less comprehensive than the one in Valgardson. The statutory remedy did not allow victims to bring suit to recover tort-type damages for injuries, but simply provided for an action by the administrator of the division of occupational safety and health for reinstatement and past wages, not general damages. Id." Shoen v. Amerco, Inc., 111 Nev. 735, 896 P.2d 469 (Nev. 1995).

Misc

A public policy tort cannot ordinarily be committed absent the employer-employee relationship, the tort, the wrong itself, is not dependent upon or directly related to a contract of continued employment.... D'Angelo v. Gardner, 107 Nev. 704, 718, 819 P.2d 206, 212 (1991).

 

 

Bad Faith Discharge

 

Elements

Accordingly, this court held that a claim for bad faith discharge would lie in the fact-specific instance where a tenured employee who enjoyed a right to continued employment was discharged by a large, nationwide employer in bad faith for the improper motive of defeating contractual retirement benefits...

For this cause of action to apply, specific elements must exist.

First, there must be an enforceable contract.

Second, there must be a special relationship between the tortfeasor and the tort victim, such as the relationship that exists between an insured and an insurer, that is, a relationship of trust and special reliance.

Third, the employer's conduct must go "well beyond the bounds of ordinary liability for breach of contract."

Martin v. Sears, Roebuck and Co., 111 Nev. 923, 899 P.2d 551 (Nev.,1995) (citing K Mart Corp. v. Ponsock, 103 Nev. 39, 48, 732 P.2d 1364, 1369 (1987)).

Example Cases

Proof

Damages

However, the mere breach of an employment contract by a large and powerful employer, or any employer, does not in and of itself give rise to tort damages. Id. The reason tort damages are appropriate for bad faith discharge is that ordinary contract damages do not adequately compensate, nor do they make the victim whole.

Martin v. Sears, Roebuck and Co., 111 Nev. 923, 899 P.2d 551 (Nev.,1995) (citing K Mart Corp. v. Ponsock, 103 Nev. 39, 48, 732 P.2d 1364, 1369 (1987)).

Defenses

[B]reach of contract and bad faith discharge are not applicable to at-will employment.

Bally's Employees' Credit Union v. Wallen, 105 Nev. 553, 555, 779 P.2d 956, 957 (1989).

Misc

Breach of Continued Employment Contract

Elements

Example Cases

Proof

Damages

Defenses

Misc

Waste

Elements

NRS 40.150 Action for waste; judgment may be for treble damages. If a guardian, tenant for life or years, joint tenant or tenant in common of real property commit waste thereon, any person aggrieved by the waste may bring an action against him therefor, in which action there may be judgment for treble damages.

Example Cases

Proof

Waste, as understood in law, is permanent or lasting injury done or permitted to be done by the holder of a particular estate to the inheritance, to the prejudice of any one who has an interest in the inheritance. Duvall v. Waters, 18 Am. Dec. 350; Dooly v. Stringham, 4 Utah, 107, 7 Pac. 405;Davenport v. Magoon, 13 Or. 3, 4 Pac. 299; Cooley, Torts, p. 302; 28 Am. Eng. Enc. Law (1st Ed.) 862. Waste and trespass are easily distinguished. Briefly stated, waste is the permanent or lasting injury to the estate by one who has not an absolute or unqualified title thereto. Trespass is an injury to the estate, or the use thereof, by one who is a stranger to the title. Duvall v. Waters, supra; Lander v. Hall, 69. Wis. 326, 34 N. W. 80; High, Inj. (3d Ed.) § 650. . . . Generally such action can be maintained by those who have an interest in the mortgaged premises, and would be losers by foreclosure. Price v. Ward, 25 Nev. 203, 849–50, 58 P. 849 (1899).

Damages

• treble damages.

NRS 40.150

• Not forfeiture

It is clear to us that the decided weight of authority refuses to allow forfeiture as a remedy for waste in the absence of a permissible statute. Nevada has no such statute. We conclude that the trial court erred in determining that this state adopted the Statute of Gloucester as a part of the common law.
Worthington Motors v. Crouse, 80 Nev. 147, 390 P.2d 229 (1964).

Defenses

Misc

 

Unjust Enrichment

Elements

• Standard 1

Under Nevada law, the elements of an unjust enrichment claim or, "quasi contract" claim, are:
(1) a benefit conferred on the defendant by the plaintiff;
(2) appreciation of the benefit by the defendant; and
(3) acceptance and retention of the benefit by the defendant
(4) in circumstances where it would be inequitable to retain the benefit without payment.

Kennedy v. Carriage Cemetery Services, Inc., 727 F.Supp.2d 925, 932 (D.Nev. 2010) (citing Leasepartners Corp., Inc. v. Robert L. Brooks Trust, 113 Nev. 747, 942 P.2d 182, 187 (Nev.1997)). 

 

 

• Standard 2

Unjust enrichment is " ‘the unjust retention ... of money or property of another against the fundamental principles of justice or equity and good conscience.’ " Topaz Mutual Co. v. Marsh, 108 Nev. 845, 856, 839 P.2d 606, 613 (1992) (quoting Nevada Industrial Dev. v. Benedetti, 103 Nev. 360, 363 n. 2, 741 P.2d 802, 804 n. 2 (1987)).

• Standard 3

Additionally, unjust enrichment occurs "when ever [sic] a person has and retains a benefit which in equity and good conscience belongs to another."
Unionamerica Mtg., 97 Nev. at 212, 626 P.2d at 1273.

Example Cases

Proof

Damages

In a case with a quantum meruit or unjust enrichment theory of recovery, the proper measure of damages is the " ‘reasonable value of [the] services.’ " Flamingo Realty, 110 Nev. at 987, 879 P.2d at 71 (quoting Morrow v. Barger, 103 Nev. 247, 252, 737 P.2d 1153, 1156 (1987)). In determining the proper measure of damages, we have acknowledged "applicability of ‘established customs' when determining the ‘reasonable value’ of ... services." Flamingo Realty, 110 Nev. at 988, 879 P.2d at 71.

Asphalt Products Corp. v. All Star Ready Mix, Inc., 111 Nev. 799, 802, 898 P.2d 699, 701 (Nev. 1995).

Where "the district court fail[s] to explain its rationale for formulating [the damages for unjust enrichment,]" this court will remand to the district court for an explanation so that this court may determine whether the district court's method was reasonable.

Krause v. Becker, Case No. 48051, 2008 WL 6102036, *2 (Nev. 2008) (citing Asphalt Prods. v. All Star Ready Mix, 111 Nev. 799, 803, 898 P.2d 699, 701 (1995)).

Defenses

No Unjust Enrichment In Presence Of A Valid Contract

An action based on a theory of unjust enrichment is not available when there is an express, written contract, because no agreement can be implied when there is an express agreement. 66 Am.Jur.2d Restitution § 6 (1973). "The doctrine of unjust enrichment or recovery in quasi contract applies to situations where there is no legal contract but where the person sought to be charged is in possession of money or property which in good conscience and justice he should not retain but should deliver to another [or should pay for]." 66 Am.Jur.2d Restitution § 11 (1973); see Lipshie v. Tracy Investment Co., 93 Nev. 370, 379, 566 P.2d 819, 824 (1977) ("To permit recovery by quasi-contract where a written agreement exists would constitute a subversion of contractual principles.").
Leasepartners Corp. v. Robert L. Brooks Trust Dated November 12, 1975, 113 Nev. 747, 755-56, 942 P.2d 182, 187 (Nev. 1997).

Misc

"The phrase ‘unjust enrichment’ is used in law to characterize the result or effect of a failure to make restitution of, or for, property or benefits received under such circumstances as to give rise to a legal or equitable obligation to account therefor."
''Leasepartners Corp. v. Robert L. Brooks Trust Dated November 12, 1975, 113 Nev. 747, 755, 942 P.2d 182, 187 (Nev. 1997) (quoting 66 Am.Jur.2d Restitution § 3 (1973)).

Trade Name Infringement

Elements

Example Cases

Proof

Damages

Defenses

Misc

 

Trespass to Chattels

Comment by TruCounsel editor:
When comparing the selections from Bader v. Cerri, 96 Nev. 352, 356, 609 P.2d 314, 317 (Nev., 1980) to the REST 2d TORTS § 222A, comment c. listed below, it seems possible that Nevada's tort of conversion completely encompasses the traditional trespass to chattels tort because Nevada's conversion tort envisions the possible return of the chattel. If you disagree, please state your reasons for disagreeing on the Discussion page.]

• Returned and unreturned property

Nevada case law does not suggest that the measure of damages is a part of the definition of conversion. Neither does Nevada case law declare the full value of the property converted to be the sole measure of damages. Of course, the full value of the property at the time of conversion may be one measure of the damage sustained. Dixon v. Southern Pacific Co., 42 Nev. 73, 172 P. 368, 177 P. 14, 179 P. 382 (1918). This measure is appropriate when the defendant keeps possession of the property he has converted. This measure of damage, however, is not appropriate when the property is returned by the converter to the injured party. That is what happened in the case at hand.

Bader v. Cerri, 96 Nev. 352, 356, 609 P.2d 314, 317 (Nev., 1980).

• Recovery of full value of chattel.

The importance of the distinction between trespass to chattels and conversion, which has justified its survival long after the forms of action of trespass and trover have become obsolete, lies in the measure of damages. In trespass the plaintiff may recover for the diminished value of his chattel because of any damage to it, or for the damage to his interest in its possession or use. Usually, although not necessarily, such damages are less than the full value of the chattel itself. In conversion the measure of damages is the full value of the chattel, at the time and place of the tort. When the defendant satisfies the judgment in the action for conversion, title to the chattel passes to him, so that he is in effect required to buy it at a forced judicial sale. Conversion is therefore properly limited, and has been limited by the courts, to those serious, major, and important interferences with the right to control the chattel which justify requiring the defendant to pay its full value.
REST 2d TORTS § 222A, comment c.

 

Trespass to Land

 

Products Liability

Elements

Example Cases

Proof

Damages

Defenses

Misc