PRODUCT DEFECT CLAIMS

A product can be defective based on design defect and/or a manufacturing defect and/or a failure to warn defect.

DESIGN DEFECT: A design defect concerns the original or modified design being designed poorly or not being properly tested. In Nevada, evidence that a product lacked adequate safety features, or that a safer alternative design was feasible at the time of manufacture will support a strict liability claim.  Fyssaki v. Knight Equipment Corp., 108 Nev. 212, 826 P.2d 570 (1992).

MANUFACTURING DEFECT: A manufacturing defect concerns where the original design was proper or generally accepted as safe, however there was some error or glitch with the making/manufacturing of the product causing the end result to be dangerous and unsafe product.

FAILURE TO WARN DEFECT: A failure to warn defect involves a case where warnings should have accompanied the product for the consumer or end-user to safely use or operate the product. In Nevada, strict liability may be imposed even though a product is faultlessly made if it was unreasonably dangerous to place the product in the hands of the user without suitable and adequate warning concerning safe and proper use.  See Lewis v. Sea Ray Boats, Inc., 119 Nev. 100, 65 P.3d 245 (2003).  A product must include a warning that adequately communicates the dangers that may result from its use or foreseeable use.  Id.; see also Yamaha Motor Company, U.S.A. v. Arnoult, 114 Nev. 233, 955 P.2d 661 (1998).

When hiring a law firm for your products case, if your injury occurred in Nevada then you should hire an experienced Nevada licensed attorney as the law is specific to each State.

It is important that your attorney fully understands Nevada law as Nevada Revised Statute 41.141 makes our liability system a modified comparative fault state. Modified comparative fault is also known as the 51% bar rule. This means that you can recover if you’re equally at fault with another party, but that you cannot recover if you shoulder the majority of the blame, even by one percent. If you’re able to recover, your compensation will then be reduced in direct proportion to your fault. Why is this important? Nevada courts have refused to apply notions of comparative fault in the context of strict products liability. Jeep Corp. v. Murray, 101 Nev. 640, 708 P.2d 297 (1985).

A product defect case is different than a negligence case. In Nevada, no showing of negligence is necessary in a strict products liability action.  Young’s Mach. Co. v. Long, 100 Nev. 692, 692 P.2d 24 (1984).

The Supreme Court of Nevada has consistently recognized that prior and subsequent accidents are discoverable and admissible in an action based on strict liability. Beattie v. Thomas, 99 Nev. 579, 668 P.2d 268 (1983). This is important as sellers and manufacturers often attempt to argue, “hey, this has never happened before” and at the same time try and hide other accidents or events. The Nevada courts have not looked favorably to such a position and instead held that during litigation the injured Plaintiff can conduct discovery and gather evidence about other cases where their products were defective.

“Under the law of strict liability in this state, responsibility for injuries caused by defective products is properly fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market.” See Allison v. Merck & Co., 110 Nev. 762, 878 P.2d 948 (1994). Nevada law extends strict liability to those involved with the distribution, labeling and sale of a product. The Supreme Court of Nevada has extended strict liability to the suppliers of products, and not just manufacturers.  See e.g. Stackiewicz v. Nissan Mot. Corp. in USA, 100 Nev. 443, 686 P.2d 925 (1984): We set forth the rationale for this rule as follows:

“[P]ublic policy demands that one who places upon the market a bottled beverage in a condition dangerous for use must be held strictly liable to the ultimate user for injuries resulting from such use, although the seller has exercised all reasonable care, and the user has not entered into a contractual relation with him. Perhaps the supporting policy reasons are best expressed by William L. Prosser in his article, “The Fall of the Citadel,” 50 Minn.L.Rev. 791, 799 *928 (1966): “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…”

We further quoted with approval Justice Traynor’s observation that “Even if there is no negligence … public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health inherent in defective products that reach the market.” Escola v. Coca-Cola Bottling Co. of Fresno, 24 Cal. 2d 453, 150 P.2d 436, 440 (1944) (concurring).

Id. to Stackiewicz

Nevada law requires that warnings adequately communicate any dangers that may flow from use or foreseeable misuse of a product; otherwise the product is defective.  See Oak Grove Investors v. Bell & Gossett Co., 99 Nev. 616, 668 P.2d 1075 (1983).

Under Nevada law: 1) a product may be found unreasonably dangerous and defective if the manufacturer failed to provide an adequate warning; and 2) 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. See Rivera v. Philip Morris, Inc., 125 Nev. 185, 191, 209 P.3d 271, 275 (2009). In Rivera the Nevada Supreme Court has quoted approvingly the following:

A product may be found unreasonably dangerous and defective if the manufacturer failed to provide an adequate warning.  See Yamaha Motor Co. v. Arnoult, 114Nev. 233, 238-39, 955 P.2d 661, 665 (1998). Further, 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.”  See Riley v. American Honda Motor Co., Inc., 259 Mont. 128, 856 P.2d 196, 198 (1993).

Id. at 276.

The Supreme Court of Nevada has limited certain product defect cases where the seller of the product was only an “occasional seller.”  See Elley v. Stephens, 104 Nev. 413, 760 P.2d 768 (1988). The Elley court examined the context of the seller of a prefabricated home. In that case the seller of the home were a couple who purchased the home as their vacation home and once complete, they did not live in it and instead sold it. Given that this was essentially a one-time event by a homeowner turned seller our Supreme Court held that:

However, even if we assumed, arguendo, that a prefab house is a product subject to the law of strict products liability, a strict liability theory is not applicable to an occasional seller of a product, who does not, in the regular course of his business, sell such a product.

Id.

The Drummond Law Firm has successfully argued that the “occasional seller” label is limited to cases involving the sale of a home by a homeowner, or a prefabricated home, and does not apply in a claim against a company whose primary function is selling products.

Specific to product defect cases, some companies have argued that they are not product sellers or distributors as they operate a website and should be considered just a “service provider.” There is some support for this position as service providers working on townhomes have been found not be liable under Nevada product defect law. See Calloway v. City of Reno, 116 Nev. 250, 993 P.2d 1259 (2000). However, the Calloway court was only considering whether townhouses were products for purposes of strict products liability, and holding that they were not. It is the position of the Drummond Law Firm that the Calloway case is limited to service providers, also known as subcontractors, who were working on homes, townhomes, or other real property.

Punitive damages are authorized to be presented to the jury in certain Nevada product defect cases. Punitive damages are authorized in certain cases under Nevada Revised Statute 42.005. “Where it is proven by clear and convincing evidence that the defendant has been guilty of oppression, fraud or malice, express or implied, the plaintiff, in addition to the compensatory damages, may recover damages for the sake of example and by way of punishing the defendant.” While Nevada law generally has some limitations on the amount of punitive damage awards, such do not apply to “a manufacturer, distributor or seller of a defective product…” See Nevada Revised Statute 42.005(2)(a).

Recently, in 2017, our local Federal District Court analyzed the current state of Nevada law in regards to punitive damages and strict products liability actions.  See Deatherage v. Schindler Elevator Corp., Case No. 3:16-cv-00206-MMD-VPC (D. Nev. July 24, 2017):

Under Nevada law, to recover punitive damages a plaintiff has to show that a defendant acted with “malice, express or implied.” NRS § 42.005(1). “Malice” means “conduct which is intended to injure a person or despicable conduct which is engaged in with a conscious disregard of the rights or safety of others.” NRS § 42.001(3). A court may infer the existence of malice where the defendant shows a conscious disregard of an accepted safety procedure. Leslie v. Jones Chemical Co., 551 P.2d 234 (1976).

Id. at 14.

Thus, the Court finds there is sufficient evidence in the record to deny summary judgment on Schindler’s request to dismiss Deatherage’s claim for punitive damages. However, the Court’s ultimate determination of whether an instruction on punitive damages will be given to the jury will depend on the evidence presented at trial and whether the jury finds Schindler liable for Deatherage’s injuries.

Id. at 15.

It is clear that the Nevada Legislature has implemented statutes supporting that punitive damages are authorized in some products liability cases. Give the Drummond Law Firm a call for a free case evaluation to review all of the potential damages that may be recoverable in your case.

There are many resources available to individuals injured because of defective products. The first step is to meet with an experience Nevada licensed attorney who can provide a free case evaluation.

If you want to learn more about defective products in general, a good resource is the United States Consumer Product Safety Commission. This is commonly known as the CPSC and their website is: www.cpsc.gov

The CPSC works to save lives and keep families safe by reducing the unreasonable risk of injuries and deaths associated with consumer products and fulfilling its vision to be the recognized global leader in consumer product safety. CPSC does this by:

Issuing and enforcing mandatory standards or banning consumer products if no feasible standard would adequately protect the public;

Obtaining the recall of products and arranging for a repair, replacement or refund for recalled products;

Researching potential product hazards;

Developing voluntary standards with standards organizations, manufacturers and businesses;

Informing and educating consumers directly and through traditional, online, and social media and by working with foreign, state and local governments and private organizations; and

Educating manufacturers worldwide about our regulations, supply chain integrity and development of safe products.

Another great resources is the National Electronic Injury Surveillance System (NEISS). For nearly half a century, the CPSC has operated a statistically valid injury surveillance and follow-back system known as the National Electronic Injury Surveillance System (NEISS). The primary purpose of NEISS is to collect data on consumer product-related injuries occurring in the United States. CPSC uses these data to produce nationwide estimates of product-related injuries.

NEISS is based on a nationally representative probability sample of hospitals in the U.S. and its territories. Each participating NEISS hospital reports patient information for every emergency department visit associated with a consumer product or a poisoning to a child younger than five years of age. The total number of product-related hospital emergency department visits nationwide can be estimated from the sample of cases reported in the NEISS.

Information gathered from NEISS, together with data from other CPSC sources, not only guides the Commission in setting priorities for further study, but it also may provide the Commission with evidence of the need for:

a product recall,

a public awareness campaign, or

a product safety standard.

NEISS data from the most recent 20 years are available online. The most recent calendar year of treatment dates generally become available in April of the following year. To access NEISS data, click here.