Why are there Strict Product Liability laws in Nevada? 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) 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. Manufacturers must design warnings considering all foreseeable uses 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. Proximate cause and Warnings 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). 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) Comparative Negligence is not a defense Because of society’s overarching desire to prevent dangerous products from reaching consumers, defenses such as comparative negligence are not allowed. “Indeed, the only defenses generally available to a manufacturer in a strict products liability action are assumption of the risk and misuse of the product; ordinary contributory negligence was not to be considered.” Young's Mach. Co. v. Long, 100 Nev. 692, 694, 692 P.2d 24, 25 (1984) Punitive Damages are not capped In instances where the amount of compensatory damages awarded a plaintiff is
$100,000.00 or more, an award of exemplary or punitive damages may not exceed three times the amount of compensatory damages. However, this limit does not apply to a manufacturer, distributor or seller of a defective product; N.R.S. 42.005(1)(b). Failure to Wear a Seat Belt can be relevant despite statute Normally, a violation for failure to wear a seatbelt may not be considered as negligence to causation in any civil action or as negligent or reckless driving. N.R.S. 484D.495(4) However in secondary-collision product-liability actions, i.e., where plaintiff alleges that a vehicle defect and not the accident itself caused plaintiff’s injuries, seatbelt nonuse may necessarily “be admissible to show, or, as in this action, rebut, the essential element of causation. Bayerische Motoren Werke Aktiengesellschaft v. Roth, 252 P.3d 649, 660 (Nev. 2011). Evidence of Alcohol or Drug Intoxication Evidence of intoxication is relevant as to the cause of an accident except in a strict product liability action. This is because evidence or intoxication is not relevant as to whether a design defect caused injuries. Andrews v. Harley Davidson, Inc. ,796 P.2d 1092, 1095 (Nev. 1990).