Nevada Defective Product Claims - Las Vegas Lawyer

Duty Of Care

Liability for negligence has long been predicated on a failure to exercise the appropriate level of due care to ensure that a product or service does not subject the user to unreasonable risk. In order to recover damages, the injured victim has the burden of proving the existence and breach of a duty of care, proximate cause, and damages. Duty of care is commensurate with the risk of danger involved, and requires a balancing of the likelihood of harm and gravity of possible harm against the burden of effective precautions. This balancing of interests reflects a policy decision which renders the manufacturer liable for failure to prevent a foreseeable accident, but does not transform the manufacturer into the absolute insurer of the users of its products or services. In the case of automobiles, courts generally do not require manufacturers to design cars that are incapable of crashing or otherwise inflicting harm.

Manufacturers must exercise due care in designing a product, in selecting materials, in the production process, in performing reasonable tests and inspections,and in warning of any dangers. Moreover, a manufacturer that utilizes component parts supplied by third parties has an obligation to conduct reasonable inspections and tests of those parts and, where appropriate, warn of possible dangers.

Res Ipsa Loquitur

Throughout the USA, many jurisdictions permit plaintiffs to prove negligence by showing that the particular character or nature of the product-related accident is such that it could only have been caused by the defendant’s negligence. This method of proving liability -- called res ipsa loquitur -- applies where the defendant had exclusive control of the product at the time the negligent act occurred {rather than at the time of the accident), and there was no alteration of or tampering with the product. Automobile manufacturers have been held liable if the plaintiff negates possible causes of the accident other than a product defect, and shows that the automobile was defective. Evidence that the product was repeatedly in need of repair can support an inference that the product was defective at the time it was purchased.

Strict Liability

Strict liability is an invention of modern law, created to redress the harm consumers suffer which could not be redressed under breach of warranty theories due to a lack of privity. First developed to remedy injuries caused by unwholesome foods, it was expanded steadily to include other hazardous products. The purpose of the doctrine of strict liability is to insure that the cost of injuries resulting from defective products are borne by themanufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves. The public policy rationale underlying the theory is the belief that manufacturers and sellers can best absorb the cost of defectively dangerous products because they can spread the cost of accidents among the many purchasers of their products. That rationale is still accepted today.

Rather than focusing on the conduct of the defendant, strict liability focuses on the defectiveness of products. Strict liability is imposed where a product is sold in a defective condition, making it unreasonably dangerous, and, without having been substantially altered, the product causes bodily injury to the user or consumer or damages to the user or consumer’s property. Strict liability is applicable not only to purchasers of defective equipment, but also to non-purchasers who use the product.

Furthermore, all those in the chain of distribution are potentially strictly liable: the designers, manufacturers, assemblers, distributors, wholesalers and retailers. It is not difficult to understand why the designer, manufacturer or assembler should be held strictly liable if its product is defective; it is less apparent why wholesalers and retailers should also be held responsible. Certain public policies justify imposing liability upon the seller: (1) by marketing his product for use and consumption, [the seller] has undertaken and assumed a special responsibility toward any member of the consuming product who may be injured by it;’ (2) the public expects reputable sellers to stand behind their goods; (3) the burden of accidental injuries caused by products should be borne by retailers rather than by the injured consumer: (4) the seller can obtain insurance to bear the cost of such accidents: and (5) the seller can exert pressure on the manufacturer to sell safe products.

Unreasonably Dangerous Product

Assuming that a product is at issue, to establish strict liability the plaintiff must prove that the product was defective. In the majority of states which have adopted the Restatement approach, the plaintiff also must show that this defect created an unreasonably dangerous condition which proximately caused plaintiff’s injury.

Some states do not consider a product unreasonably dangerous if the defect or risk is patent or openly obvious. However, many states consider the obviousness of the danger to be merely one of the factors to be considered by the jury rather than an absolute defense. Only where the obviousness of the danger to the particular victim is so great that he can be said to have assumed the risk do these courts absolve the manufacturer of liability. Moreover, since the obviousness of the danger is a question of fact, which can turn on the knowledge, age, experience, intelligence and training of the injured person, manufacturers may not obtain resolution of the issue short of a full-blown trial. Even states which consider open dangers to be a complete defense do not necessarily follow that rule in cases in which the plaintiff may claim the product could have been designed to prevent certain 'enhanced’ injuries.

Industry-wide standards, industry custom, or government standards are admissible in some states to show that a product is not unreasonably dangerous, but generally do not automatically absolve the manufacturer of liability. Some states have enacted statutes establishing the effect of compliance with governmental standards.

Manufacturing And Design Defects

Product liability laws impose liability on manufacturers and sellers if the plaintiff was injured or his properly damaged as the result of defects in design or manufacture. When liability is imposed on the basis of negligence there must be proof that the manufacturer or seller negligently designed or manufactured the product: when strict liability is imposed, proof that the product is unreasonably dangerous typically substitutes for proof of negligence. However, since the difference between the two theories can be more semantic than substantive, they will be discussed together.

Manufacturing defects arise from a failure in the manufacturing process. Depending on the product, manufacturing defects can be minimized by careful quality control methods at factories. Most of the litigation will center on whether a product is defectively designed.

Design defects are problems with the design of the product itself, such as the failure to include adequate safety features. Design defects include concealed hazards, failure to provide a reasonably required safety device or mechanism, failure to utilize a safer design which was both feasible and available, and failure to use material which is suitable for its intended use. A design may be considered defective and the manufacturer negligent even where the danger is open and obvious. However, a manufacturer is not required to design the best possible product, nor to design one which is incapable of injury if the very nature of the product is such that the reasonable purchaser does not expect the product to incorporate a particular aspect of design. For instance, since motorcycles intentionally provide unencumbered maneuverability, motorcycle manufacturers are not required to design a motorcycle which encloses the legs of the passengers or drivers.

Various tests have been formulated to determine whether a product is defectively designed. Under the consumer expectation test a product is defectively designed if at the time it left the seller’s hands it exposes the user or consumer to a risk of harm to an extent beyond that contemplated by the objectively ordinary consumer who purchases the product with the ordinary knowledge about the product’s characteristics. To determine the reasonable expectations of the ordinary consumer, the court may examine the potential for harm, the knowledge of the consumer, the cost of the product, and the cost and feasibility of correcting the defect. While many products are deemed defective under this test, sometimes no reasonable consumer could have expected a product to have the safety feature at issue. For instance, a 1974 Pinto automobile without airbags was not defectively designed because at that time no reasonable consumer could have expected an airbag to pop out of the dashboard. Cigarettes and gasoline are examples of other products which courts have found to meet consumer expectations.

The risk/utility test balances the utility of the product’s design with the risk of harm. The risk/utility test permits recovery where the consumer expectation test would not, such as when the ordinary consumer would not know how safe the product could be made. Under the risk/utility test, the trier of fact may consider the gravity of the danger posed by the product’s design, the likelihood of injury, the feasibility of a safer design, the financial cost of a safer design, and the adverse consequences to the product and consumer resulting from an alternative design. In some states, the burden of proof shifts to the manufacturer to prove that the product is not defective once the plaintiff makes a prima facie showing that the injury was proximately caused by the product.

Failure To Warn

In addition to imposing strict liability for manufacturing or design defects, courts impose liability if the manufacturer or seller failed to warn adequately of a particular danger in using the product. Failure to warn can sound in either negligence or strict liability. A warning is considered adequate if it is calculated to inform a reasonably prudent user of the product’s danger and the extent of that danger. Much litigation has been spawned over the factual question of whether a particular warning was adequate.

Providing warnings in installation manuals or other booklets may be risky for the manufacturer, as the user may fail to read them, and the courts may absolve the victim of responsibility for the accident. In some jurisdictions, there is no duty to warn a user about a particular danger when the user is already aware, or is so sophisticated as reasonably to be aware, of the danger. This defense most often arises in the context of industrial accidents. The manufacturer contends that the employer knew of the potential hazard, and given its level of sophistication, the employer should bear total responsibility for failing to warn its employees of the danger. This defense presumably leaves the injured victim without a civil remedy, as most employers are shielded from liability to employees by workers’ compensation statutes.

Evidentiary Issues

Depending on the jurisdiction, various types of evidence may be admissible to prove a product defect or failure to warn, including expert testimony, the past occurrence of other accidents, defects in similar products, and subsequent measures to remedy the problem, such as product recalls, repairs, alterations, or withdrawals of the product. Complaints by users of the same product, while generally inadmissible to prove that the incidents complained of actually occurred, may be admissible to show the manufacturer’s notice of the alleged defect.

One issue upon which the various states do not agree is the admissibility in strict liability cases of evidence of the state of the art at the time the product in question was designed or manufactured. Jurisdictions which permit state of the art evidence to be introduced allow the defendant to offer expert testimony of the feasibility of using other materials, incorporating certain safety devices or alternative designs, or testing at the time of manufacture. Other courts have reasoned that an examination of what the defendant should have been able to know injects a negligence standard into strict liability actions, and thus have precluded the introduction of such evidence.

Whether or not state of the art evidence is admissible, product liability cases typically involve a war of experts, and a failure of the plaintiff to put forward credible expert testimony explaining the alleged defect can be fatal. On the other hand, where juries hear from opposing experts, liberal rules permitting expert testimony may result in substantial verdicts.

Defenses To Strict Liability And Negligence Claims

The following are defenses to a products liability accident claim:

Contributory And Comparative Negligence

Several decades ago any amount of contributory negligence on the part of the plaintiff could defeat the claim. Today, comparative negligence is the operative standard in most states, whereby plaintiffs recovery is merely reduced by the proportion to which his negligence contributed to the accident.

Much confusion has arisen as to whether contributory or comparative negligence should apply to strict liability actions. The Restatement of torts and some states have held that contributory or comparative negligence is not a defense in strict liability actions, since the fundamental principle underlying strict liability is that the fault of either party is irrelevant where a product is sufficiently defective that society wishes to shift the risk to the party best able to bear the cost -- the manufacturer. Other states, by case law or statute, have permitted comparative negligence to be asserted as a defense in strict liability actions, if the plaintiffs negligent use of the product was a substantial cause of the accident. Under this theory the fact that a dirt bike rider crashed head-on into another bike rider because he looked away was not a defense because there was no evidence that he negligently used the helmet which the defendant manufactured.

Assumption Of The Risk

The common law also recognized an absolute defense where the plaintiff, with knowledge of the defect in the product and the inherent risk, nevertheless assumes the risk, voluntarily proceeds to utilize the defective product and is injured. Unlike contributory negligence, this "assumption of risk" defense involves the subjective knowledge of the plaintiff. Since comparative negligence became the predominant standard, the viability of assumption of risk as a defense to negligence actions has been in question. Some states have considered the defense merged into that of comparative negligence.

Product Modification Or Misuse

The manufacturer, distributor, or retailer generally will not be liable for injury caused by unforeseeable misuse, intentional misuse, or use in violation of safety standards. However, misuse is not a defense unless it is both the proximate cause of the accident and unforeseeable. For example, failure to wear a seat belt may not necessarily be misuse of an automobile because such conduct is reasonably foreseeable. This limitation often eviscerates the effectiveness of the defense. The manufacturer or seller will not be strictly liable if the product was substantially modified by the user or a third party, provided that alteration caused the accident in question and was not reasonably foreseeable.

Breach Of Express And Implied Warranty

The following breach of warranty claims may be used in a defective product lawsuit:

Express Warranty

Express warranties are those oral or written promises made by the manufacturer or the seller of goods that the goods shall conform to an affirmation or promise which became a part of the basis of the bargain. If injury results from the products failure to conform to the express promise, the injured party (the buyer, another user, or a third party beneficiary) may sue for a contractual breach of warranty. While this theory is technically one of contract, it is typically coupled with claims of negligence and strict liability. Affirmation of the safety of a product is an express warranty which may subject the manufacturer or seller to an action for breach of that warranty in addition to claims of negligence or strict liability. A design defect may also constitute a breach of an express warranty if the manufacturer or seller warranted that the product was free of defects. Express warranties may be created by an explicit promise, an advertisement, a description, or display of a sample that possesses certain characteristics.

Implied Warranty Of Merchantability

This warranty covers the buyer’s reasonable expectation that goods purchased from a merchant will be free of significant defects and will perform in the way goods of that kind should perform. It arises automatically in every sale of goods by one who is a merchant in those goods, and is breached if the product is defective to a normal buyer making ordinary use of the product, causing injury to a person or to property. Unlike a claim for breach of express warranty, no reliance on the implied warranty is necessary. Goods must be fit for their ordinary purpose, which means they should not break frequently or be unsafe for normal foreseeable uses. Design defects and failures to warn, particularly in the instruction manual or in advertisements, also can form the basis for a breach of implied warranty claim. In contrast to a strict liability action, the plaintiff usually need not show that the product was unreasonably dangerous.

Implied Warranty Of Fitness For A Particular Purpose

The implied warranty of fitness requires proof that (1) the seller was informed of the purpose for which the article was purchased, (2) the buyer relied on the seller’s skill and judgment, (3) the sold good was defective and unfit for that particular purpose, and (4) this defect proximately caused the plaintiff damage. Should this implied warranty apply, it is no defense that the seller was unaware of the product’s defect and could not have discovered it or corrected it. However, this risk can be allocated to the manufacturer by contractual indemnity provisions.

Examples Of Defective Products Claims

Some of the bad products which would be familiar to us may include: tire blowouts, SUV rollovers, defective medical devices, defective diet pills, exploding gas tanks, and drug side effects. This is merely the tip of the iceberg because there are as many potential defecgtive products claims as there are products. Below is a small list of some of the more common products liability claims:

Asbestos Cancer Claim
Brake Shift Interlock Failure Claim
Silicosis Claim
Drug Recall Claim
Ephedra Claim
Seat Belt Defect Claim
Tire Defect Claim
Sport Utility Vehicle Rollovers
Lead Paint Poisoning Defect Claim
Silicone Breast Implants Claim
Pharmaceutical Injury Claim
Toxic Birth Defect Claim
Fen Phen Claim
Celebrex Claim
Sick Building Syndrome Claim
Hip Replacement Defect Claim
Knee Replacement Defect Claim
Diet Drug Claim
Vioxx Claim
Benzene Claim
Ephedrine Claim

Heart Valve Defect Claim
Lotronex Claim
Elevator Defect Claims
Engineering Defect Claim
Manufacturing Defect Claim
Workplace Machinery Defect Claim
Ephedra Claim
Rezulin Claim
Propulsid Claim
Accutane Claim
Lotronex Claim
Firestone Tire Recall Claim
Ford Explorer Rollover Claim
Vaccine Innoculation Claim
Rezulin Claim
Propulsid Claim
Defective Baby Products Claim
Airbag Defect Claim
Roof Crush Defect Claim
Head Restraint Defect Claim
Baycol Claim

Contact Us For A Free Consultation On Your Products Liability Claim

If you want a free evaluation of your Las Vegas defective product claim, contact David Matheny, Esq. (of the law firm of Dempsey, Roberts & Smith, Ltd) for a free personal injury consultation. We are located in Las Vegas, Nevada and we provide legal services for Las Vegas Products Liability claims (and many other injury claims) throughout the State of Nevada.