Your client comes in with a devastating injury but the primary defendant has limited insurance coverage. What do you do? If a product was involved, you may have a powerful weapon in your legal arsenal: the Nevada tort of “Strict Product Liability.”
The Case for Strict Product Liability
To understand the modern application of strict product liability to the myriad combinations of products, product makers, distributors, sellers and consumers, it is helpful to explore the reasons for its creation. Historically, product makers only duty was toward those with whom they had a contractual relationship. During the 19th century, when most items were made in small batches for individual customers, this requirement of contractual privity provided a nascent manufacturing industry the flexibility it needed to grow. But with increased industrialization came mass produced goods and a belief that manufacturers, distributors and sellers (as opposed to consumers) were better equipped to prevent dangerous products from entering the marketplace. From this belief arose strict product liability laws.
Nevada’s version of strict product liability
In 1966, the Nevada Supreme Court adopted the cause of action known as “strict tort liability” in the case of Shoshone Coca-Cola Bottling Co. v. Dolinski, 82 Nev. 439, 420 P.2d 855 (1966). In Shoshone, Dolinsky was injured after drinking a “Squirt” laced with mouse. In adopting strict liability for food products, the Court reasoned, “the public interest in human safety requires the maximum possible protection for the user of the product and those best able to afford it are the suppliers of the chattel. By placing their goods upon the market, the suppliers represent to the public that they are suitable and safe for use; and by packaging, advertising and otherwise, they do everything they can to induce that belief….” Id. at 441-442, 420 P.2d at 857. As a practice pointer, this tenet that marketed goods are ‘certified’ as suitable and safe for the market underpins the basis for both what constitutes a design or manufacturing defect, i.e., failure to perform as the ordinary consumer would reasonably expect, and failure to warn cases, i.e. lack of ordinary consumer knowledge of dangers from foreseeable use.
Thus began the shift in focus away from the actions of the product makers, distributors and sellers and toward the product safety itself.
Expansion of Strict Liability
The Nevada Supreme Court extended the Shoshone rule of strict liability for food makers to the designers and manufacturers of all types of products in Ginnis v. Mapes Hotel Corporation, 86 Nev. 408, 470 P.2d 135 (1970). In Ginnis, Ginnis was caught in an automatic door which closed upon her while she was leaving the hotel, injuring her. Ginnis sued for defective design alleging the automatic door had the inherent capability to do just what it did because a safety relay failed and it lacked two safety features which could have prevented closing as it did. The Ginnis Court established that a product is defective if “it failed to perform in the manner reasonably to be expected in light of its nature and intended function and was more dangerous than would be contemplated by the ordinary user having the ordinary knowledge available in the community.” Id. at 413, 470 P.2d at 138. Such a condition is, in the words of the Restatement (Second) of Torts, Section 402A(1) (1965), “unreasonably dangerous.”
Proof of Alternative Design is not required
In Ford Motor Co. v. Trejo, 133 Nev. 520, 525-26, 402 P.3d 649, 653-54 (2017), the Nevada Supreme Court reaffirmed its commitment to the consumer-expectation test, rejecting the third restatement of torts and its requirement that a plaintiff must show a feasible alternative design. “While an alternative design is not required, it may be used as a factor for the jury to consider when evaluating whether a product is unreasonably dangerous. . . a plaintiff may choose to support their case with evidence “that a safer alternative design was feasible at the time of manufacture.” The Court went on to add: “In addition to evidence of alternative designs, evidence of other accidents involving analogous products, post-manufacture design changes, and post-manufacture industry standards will support a strict product liability claim.” Id. at 140-43, 808 P.2d at 525-27.
Presence of defect may be inferred
While it is necessary to show that the product was defective and the defect caused the injury, it is not required to either show a specific defect caused the injury or always present expert testimony of a design or manufacturing defect. In Stackiewicz v. Nissan Motor Corp., 100 Nev. 443, 445-46, 686 P.2d 925, 926-27 (1984), Stackiewicz was injured when the steering wheel of her two month old Datsun locked up. The only indication that something might have been wrong with the steering column prior to the crash was a clicking in the steering wheel. Following the crash, no expert could locate a problem with the vehicle’s steering. In affirming the jury’s award in favor of Stackiewicz, the Nevada Supreme Court held that “proof of an unexpected, dangerous malfunction might properly be accepted by the trier of fact as sufficient circumstantial proof of a defect, or an unreasonably dangerous condition, without direct proof of the mechanical cause of the malfunction” Id. This holding that no direct proof of defect is required was further extended to breach of warranty claims in Nevada Contract Services, Inc. v. Squirrel Companies, Inc., 119 Nev. 157, 162, 68 P.3d 896, 899 (2003)
Practice Pointer: In all product defect claims efforts should be made to secure the product itself early to allow for proper testing and examination by all parties. However, in cases where the product is not able to be secured, a claim for strict tort liability is not foreclosed. Pursuant to Stackiewicz and Nevada’s pattern jury instruction 7.3 (2018), a defect may be inferred from an unexpected malfunction itself. Instruction 7.3 reads: “Manufacturing Defect: Definition A product is defective in its manufacture if the product malfunctions unexpectedly and, as a result of the unexpected malfunction, the product is unreasonably dangerous. Evidence of an unexpected dangerous malfunction gives rise to an inference of a defect. In such a situation, direct proof of the malfunction’s cause is unnecessary, and the circumstantial evidence of the malfunction can prove a defect.”
Failure to Warn as Product Defect
In addition to a claim of strict liability based upon a defective design or manufacture, a product can be defective for purposes of strict liability as a result of a failure to warn, even if the product is properly designed and manufactured.
This third type of strict product liability was established in Nevada in the case of Gen. Elec. Co. v. Bush, 88 Nev. 360, 362-64, 498 P.2d 366, 367-69 (1972), abrogated on other grounds by Motenko v. MGM Dist., Inc., 112 Nev. 1038, 921 P.2d 933 (1996). In that case, Bush was horribly injured assembling a mining vehicle. During the assembly, a bolt failed causing a cabinet to fall. The manufacturer did not warn that any special rigging was required. The bolt manufacturer argued that the bolt failed, not because it was defective in material or design, but because the workmen’s rigging was not in accordance with the custom and practice to keep the angle at 45 degrees or above. In dismissing that defense, the Nevada Supreme Court held “strict tort liability [applies] even though faultlessly made if it was unreasonably dangerous for the manufacturer or supplier to place that product in the hands of a user without giving suitable and adequate warnings concerning the safe and proper manner in which to use it.” Id.
This holding was extended to all foreseeable uses in Outboard Motor Corp. v. Schupbach, 93 Nev. 158, 161-62, 561 P.2d 450, 452-53 (1977). In Schupbach, two workers were injured when their electric cart ignited benzene fumes at a chemical plant. The manufacturer knew that the electric cart was not safe for use in hazardous areas and, on occasion, had so advised potential customers. The cart did not have a warning label to inform the user that it was not spark-proof and should not be used in a hazardous atmosphere. The Court noted with approval Comment h of section 402A of the Restatement (Second) of Torts (1965) stating: “where a defendant has ‘reason to anticipate that danger may result from a particular use’ of his product and he fails to give adequate warning of such a danger ‘a product sold without such warning is in a defective condition.’ Id.
This requirement that a manufacturer must warn of foreseeable misuse was crystalized in Fyssakis v. Knight Equip. Corp., 108 Nev. 212, 214, 826 P.2d 570, 571-72 (1992). In Fyssakis, Fyssakis was blinded by soap and sued the makers of corrosive dish washing soap and soap dispenser. In holding that summary judgment against the consumer was improper, the Court noted that neither the soap nor the dispenser carried a warning that protective eyewear should be worn or that the soap could cause blindness. Instead, the soap carried the universal symbol for corrosiveness.The Court held “Under Nevada law, a product must include a warning that adequately communicates the dangers that may result from its use or foreseeable misuse; otherwise, the product is defective.” Id. at 214, 571-72.
What is required to warn adequeately was defined in Lewis v. Sea Ray Boats, Inc., 119 Nev. 100, 65 P.3d 245 (2003). In Lewis, two people were killed by carbon monoxide poisoning from a small engine on their boat, which powered the boat’s accessories, including the air conditioner. The manufacturer warned about the dangers of carbon monoxide poisoning from exhaust fumes, fumes characterized by a distinctive odor. But were not warned about odorless and tasteless carbon monoxide fumes from the generator that powered the boat’s air conditioner. In reversing the defense verdict, the Nevada Supreme Court held: “A warning must (1) be designed so it can reasonably be expected to catch the attention of the consumer; (2) be comprehensible and give a fair indication of the specific risks involved with the product; and (3) be of an intensity justified by the magnitude of the risk.” Id. at 108, 250.
The Nevada Supreme Court further defined product warning requirements in Yamaha Motor Co., U.S.A. v. Arnoult, 955 P.2d 661 (Nev. 1998). In Arnoult, Arnoult sued Yamaha alleging strict product liability and negligence for an improperly designed suspension and inadequate warnings after she was paralyzed from the waist down following an ATV accident.. Yamaha’s primary defense was that Arnoult was jumping in contravention of the warnings manual. Arnoult countered with Yahama’s owner’s manual which showed a rider climbing a thirty-degree slope in the exact manner as attempted by Arnoult. The court held that whether there was adequate warning was properly a question left for the jury.
Yamaha also argued that it was not required to warn against dangers that are generally known. The Court held that while Yamaha was not required to warn of generally known dangers and that it was foreseeable that use of the vehicle as shown in the manual was dangerous, it was not generally known that a novice rider could sustain serious injury while operating the vehicle as shown. Practice pointer: While this seems imprecise, it is clearer when considered in conjunction with Nevada Assumption of Risk instruction which requires specific knowledge of the particular risk or danger while voluntarily experiencing the danger. Nev. J.I. 7.08
Proximate Cause and Warnings
The Arnoult decision is also important for confirming the importance of establishing a connection between the defective warning and the actions of the consumer. The Court noted that to establish a prima facie case of both negligence and strict tort liability, a consumer must satisfy the element of proximate causation. “To establish proximate causation “it must appear that the injury was the natural and probable consequence of the negligence or wrongful act, and that it ought to have been foreseen in the light of the attending circumstances.” Yamaha Motor Co., U.S.A. v. Arnoult, 114 Nev. 233, 238, 955 P.2d 661, 664 (1998). Thus, because the plaintiff bears the burden of proving that an appropriate warning would have changed the result, it must be shown that the plaintiff would have heeded the warning if it had been present. These two intertwined issues of proximate cause and common knowledge of the risk were further explored in Rivera v. Philip Morris, Inc., 125 Nev. 185, 187-88, 209 P.3d 271, 272-73 (2009).
Don’t assume a warning would have made a difference
In Rivera, Pamela Rivera’s family brought a wrongful death action against Philip Morris alleging its cigarettes were defective, causing her fatal cancer. Pamela began smoking in 1969, before the federal government required cigarette labels to include warnings that specifically addressed the health risks of smoking, including its causing lung cancer. Rather, from 1966 until 1985, cigarette labels warned only of general health risks. Beginning in 1985, the warnings were required to be more explicit, expressly warning of smoking’s connection to lung cancer, heart disease, and emphysema, as well as the risks of smoking during pregnancy. Pamela smoked until she died in 1999 — well after the more explicit warnings started.
Philip Morris alleged there was no evidence that Pamela would have stopped smoking if Philip Morris had disclosed material information regarding the health effects of smoking. In opposition, Rivera argued that the federal district court should apply a “heeding presumption.” A “heeding presumption” is a presumption that Rivera would have heeded additional information and warnings had Philip Morris provided them. The Nevada Supreme Court found that there is no heeding presumption as this would shift part of the burden of proof, i.e. the initial burden of production, away from the plaintiff and onto the defendant in violation of well-settled Nevada law. “The burden of proving causation can be satisfied in failure-to-warn cases by demonstrating that a different warning would have altered the way the plaintiff used the product or would have “prompted plaintiff to take precautions to avoid the injury.” Id. As is demonstrated by the Rivera case, careful practitioners should pay close attention to the causation prong of strict liability, particularly in wrongful death actions where the actions of the decedent may be in doubt.
A good warning can’t fix a bad product
Under Nevada law, manufacturers are generally not liable for injuries caused by a product that was substantially modified or misused by the consumer or by an intermediary. However, a product manufacturer remains liable if the alteration was insubstantial, foreseeable, or did not actually cause the injury. This was the case in Robinson v. G.G.C., Inc., 107 Nev. 135, 140, 808 P.2d 522, 525 (1991). In Robinson, Robinson injured himself when he put his hand inside a cardboard baler. The baler had been designed with a screen to prevent such accidents, but the Robinson had disabled the screen via a toggle switch. Robinson claimed that the machine was defective because (1) it should not have been functional without the safety screen in place, and (2) the safety screen jutted out making it susceptible to damage or detachment. The manufacturer argued that because it had placed warning decals on the machine advising users to keep hands clear it could not be held liable. The Court held that manufacturers can still be liable for a foreseeable misuse of the product in spite of an adequate warning:
“a warning is not an adequate replacement when a safety device will eliminate the need for the warning. If manufacturers have the choice between providing an effective safety screen or simply placing a decal on the product, cost will encourage the latter. . . warnings should shield manufacturers from liability unless the defect could have been avoided by a commercially feasible change in design that was available at the time the manufacturer placed the product in the stream of commerce.”
Robinson v. G.G.C., Inc., 107 Nev. 135, 139, 808 P.2d 522, 525 (1991)