Nevada Product Defect Law

Commentary Provided by Jared Richards, Esq.

Editor’s Note: In general, there are three types of product defect cases:

1) Basic Malfunction: The product was poorly manufactured or designed, causing the product to malfunction.
2) Lack Safety Feature: The product failed to include safety feature that would have prevented the injury.
3) Failure to Warn: The manufacturer failed to include a warning that sufficiently advised the user of a risk.

In general, a manufacturer must create products that are free of defect.

“Defect” is a broad definition and can apply even if the manufacturer has manufactured a product perfectly and has committed no negligence.

Each of the three basic types of products cases have specific sub-elements and nuances of which practitioners must be aware.

Basic Elements of Product Defect

(1) the product had a defect which rendered it unreasonably dangerous,

(2) the defect existed at the time the product left the manufacturer, and

(3) the defect caused the plaintiff’s injury.

Rivera v. Philip Morris, Inc., 125 Nev. 185, 191, 209 P.3d 271, 275 (2009)

Editor’s note: There is an inherent conflict by using the term “reasonable” or “reasonableness” in the context of a strict liability theory. The Nevada Supreme Court has clearly rejected theories of contributory or comparative negligence in the context of strict liability. But the question remains: how can a jury hear the term “reasonable” in terms of strict liability and not, at some level, apply the term to the user as well as the manufacturer. Additionally, strict liability does not sound in negligence and applies to the manufacturer even if the manufacturer is not liable in negligence. If that is true, then how can a jury possibly consider whether a product is “unreasonably dangerous.”

The Nevada Supreme Court touches on this disconnect in Allison v. Merck & Co., 110 Nev. 762, 771-72, 878 P.2d 948, 955 (1994) where the Court rejected the theory that a drug manufacturer could create a drug that had a “reasonable risk”. The Allison court stated: “Mixing concepts of fault-free (“unavoidable”) manufacture and “reasonable risk” into the context of non-negligent, strict liability is entirely inconsistent with our products liability cases and with the law established in this state for almost thirty years.” Allison v. Merck & Co., 110 Nev. 762, 771-72, 878 P.2d 948, 955 (1994).

If the Allison court is correct that the concept of “reasonable risk” is “entirely inconsistent with our products liability cases”, then how can jury instructions address “unreasonably dangerous”. They are opposites sides of the same coin.

It is the opinion of this editor that the Nevada Supreme Court should follow other courts that have removed the term “reasonable” and “unreasonable” from the products defect analysis. Instead, the product is either “safe” or it is “unsafe”, under the basic strict liability analysis.

The case law indicates the following standards, which coincidentally matches ANSI 2 standards:

1. Remove all dangers that can be removed, based on existing technology at a cost consonant with the economical use of the product
2. Guards against all dangers that can be guarded against, based on existing technology at a cost consonant with the economical use of the product
3. Warn against all dangers that can neither be removed nor guarded against.

This analysis can be done without using the term “reasonable” and it keeps the focus on the manufacturer, instead of the user.

“State of the Art” Defined’

Editor’s Note: There is often confusion about the term “state of the art” vs. “custom of the industry”. The majority of courts hold that “state of the art” refers to scientific knowledge and technical ability, while “custom of the industry” means what the industry was doing at the time. Nevada has indirectly addressed the definition of “state of the art” in Fyssakis v. Knight Equip. Corp., 108 Nev. 212, 214, 826 P.2d 570, 572 (1992) where the Court stated “Under Nevada law, 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 liabilities claim.” Thus, the Court implicitly defined “state of the art” as “possible at the time of manufacture”. Moreover, in Robinson v. G.G.C., Inc., 107 Nev. 135, 138, 808 P.2d 522, 524 (1991), the Nevada Supreme Court held that manufacturers are “require[d]” to “make their products as safe as commercial feasibility and state of the art will allow.” If “state of the art” meant only “custom of the industry” then the Court’s statement in Robinson would be essentially neutered. Additionally, the Robinson court allowed evidence of post-manufacture standards as evidence of feasibility, indicating that state of the art does not mean custom of the industry. Finally, Robinson notes that an entire industry might be making a defective product. If that is true, then “state of the art” cannot mean custom of the industry.

CASES:

The question before us now is when, in spite of an adequate warning, a manufacturer is still liable for a foreseeable misuse. When the defect in the product is the lack of a safety device, the misuse is often an accidental misuse. In these situations, a warning, although it adequately informs of the danger, is of no help to the consumer. Strict products liability law should not punish manufacturers for unanticipated injuries from reasonably safe products, but it should encourage manufacturers to take all measures to avoid accidents from product misuse. Therefore, we must require manufacturers to make their products as safe as commercial feasibility and the state of the art will allow.
Robinson v. G.G.C., Inc., 107 Nev. 135, 138, 808 P.2d 522, 524 (1991)

In finding that a whole industry may have been producing a defective product, the court stated, “the question is not whether anyone else was doing more, although that may be considered, but whether the evidence discloses that anything more could reasonably and economically be done.” Id. at 907 (quoting Hancock v. Paccar, Inc., 283 N.W.2d 25, 35 (Neb.1979)). The best way to determine if a defendant should have built a safer product is to let the jury hear all the evidence relating to the course of conduct of both the industry, and the particular manufacturer.
Robinson v. G.G.C., Inc., 107 Nev. 135, 142–43, 808 P.2d 522, 527 (1991)

Other courts more directly address the distinction between “state of the art” and “custom of the industry”.

OTHER COURTS:

It is undisputed in the summary-judgment record that, in general, the design of the tanks, i.e., a steel “hemisphere” welded to each end of the cylindrical body, was the accepted method of manufacturing such tanks in 1971. However, there is a distinction between “custom in the industry” and “state of the art.” “Custom refers to what was being done in the industry; state of the art refers to what feasibly could have been done.” Chown v. USM Corp., 297 N.W.2d 218, 221 (Iowa 1980); see also Mercer v. Pittway Corp., 616 N.W.2d 602, 622 (Iowa 2000); Hughes v. Massey-Ferguson, Inc., 522 N.W.2d 294, 295 (Iowa 1994).

Falada v. Trinity Indus., Inc., 642 N.W.2d 247, 250 (Iowa 2002)

We state the facts very briefly because this appeal concerns instructions. The first issue relates to the state-of-the-art instructions. The trial was in November 1989. Then, as now, under Indiana law a defendant may assert a “state of the art” defense to a strict liability claim. Ind.Code § 33–1–1.5–4(b)(4). The statute does not define “state of the art” and there was, in 1989, some confusion among courts and commentators about the meaning of the term. See 1A L. Frumer & M. Friedman, Products Liability, § 2.26[8][b] at 2–1666 to 2–1670 (1991). Most considered it as signifying existing technological capability, but some related it to then-existing standards of the industry. In November 1989, Indiana had not expressly adopted either standard, although Indiana Pattern Jury Instruction 7.05 had recently cast its lot with the technological capability standard. Because the law was unsettled, the trial court opted not to define “state of the art,” although plaintiff offered an instruction substantially similar to, although not precisely the same as, the pattern instruction. The court left the fleshing-out of the concept to the arguments of counsel.
2 A few months later, the concept of industry practice was expressly rejected in Montgomery Ward & Co. v. Gregg, 554 N.E.2d 1145, 1155 (Ind.App. 1st Dist.1990). The court there embraced the concept of technological advancement inherent both in the pattern instruction and the instruction offered by plaintiff here.

Phillips v. Cameron Tool Corp., 950 F.2d 488, 490 (7th Cir. 1991)

State-of-the-art “refers to the existing level of technological expertise and scientific knowledge relevant to a particular industry at the time a product is designed.” O’Brien v. Muskin Corp., 94 N.J. 169, 182, 463 A.2d 298 (1983). State-of-the-art or “the very safest product of that type which [an] industry could design at the time of manufacture” “is defined as a product for which there was no reasonable alternative design.” Dreier, Goldman & Katz, New Jersey Products Liability & Toxic Torts Law § 14:2 at 330 (Gann 1999).

Cavanaugh v. Skil Corp., 331 N.J. Super. 134, 164, 751 A.2d 564, 581 (App. Div. 1999), aff’d, 164 N.J. 1, 751 A.2d 518 (2000)

FN8 “State of the art” means the level of pertinent scientific and technical knowledge existing at the time. 1 Frumer & Friedman, Products Liability s 6.05(15) (1978).

Wiska v. St. Stanislaus Soc. Club, Inc., 7 Mass. App. Ct. 813, 821, 390 N.E.2d 1133, 1138 (1979)

Plaintiff points out, correctly we believe, that a distinction exists between custom of the industry and state of the art. Custom refers to what was being done in the industry; state of the art refers to what feasibly could have been done

Chown v. USM Corp., 297 N.W.2d 218, 221 (Iowa 1980)

While the jury may consider, as evidence of the state of the art, the fact that no manufacturer is doing that which it is claimed could be done, such evidence will not establish conclusively the state of the art. Obviously, the inaction of all the manufacturers in an area should not be the standard by which the state of the art should be determined. Whether the design represents the state of the art is still a question of fact to be determined by the jury.

Hancock v. Paccar, Inc., 204 Neb. 468, 479, 283 N.W.2d 25, 35 (1979)

“State of the art includes all of the available knowledge on a subject at a given time, and this includes scientific, medical, engineering, and any other knowledge that may be available. State of the art includes the element of time: What is known and when was this knowledge available.”
Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1164 (4th Cir.1986).

State of the art is not synonymous with industry standards.

“Industry standards are the practices common to a given industry. They are often set forth in some type of code, such as a building code or electrical code, or **255 they may be adopted by the trade organization of a given industry. State of the art is a higher standard because scientific knowledge expands much more rapidly than industry can assimilate the knowledge and adopt it as a standard.”

ACandS, Inc. v. Asner, 344 Md. 155, 165, 686 A.2d 250, 254–55 (1996) (quoting Lohrmann v. Pittsburgh Corning Corp., 782 F.2d 1156, 1164 (4th Cir.1986)).

The “state-of-the-art” refers to the existing level of technological expertise and scientific knowledge relevant to a particular industry at the time a product is designed. Robb, “A Practical Approach to Use of State of the Art Evidence in Strict Products Liability Cases,” 77 Nw.U.L.Rev. 1, 4-5 & n. 15 (1977). Although customs of an industry may be relevant, Suter, 81 N.J. at 171-72, 406 A.2d 140, because those customs may lag behind technological development, they are not identical with the state-of-the-art. See Michalko, 91 N.J. at 397-98, 451 A.2d 179; Robb, supra, 77 Nw.U.L.Rev. at 4-5. A manufacturer *183 may have a duty to make products pursuant to a safer design even if the custom of the industry is not to use that alternative. Michalko, 91 N.J. at 397, 451 A.2d 179.

O’Brien v. Muskin Corp., 94 N.J. 169, 182–83, 463 A.2d 298, 305 (1983)

The majority of courts, however, have defined state-of-the-art evidence as the level of relevant scientific, technological and safety knowledge existing and reasonably feasible at the time of design. See, e.g., Carter v. Massey-Ferguson, Inc., 716 F.2d 344, 347 (5th Cir.1983) (“ ‘state of the art’ refers to the technological environment, that is, what can be done” [emphasis in original] ); Gosewisch v. American Honda Motor Co., 153 Ariz. 389, 394, 737 P.2d 365 (App.1985) (“state of the art refers to what feasibly could have been done”); Montgomery Ward & Co. v. Gregg, 554 N.E.2d 1145, 1155-56 (Ind.App.1990) (defining state of the art as technological advancement, not as industry custom or practice); Chown v. USM Corp., 297 N.W.2d 218, 222 (Iowa 1980) (defining state of the art as technological and practical feasibility); O’Brien v. Muskin Corp., 94 N.J. 169, 182, 463 A.2d 298 (1983) (defining state of the art as “existing level of technological expertise and scientific knowledge relevant to a particular industry at the time a product is designed”); Boatland of Houston, Inc. v. Bailey, 609 S.W.2d 743, 748 (Tex.1980) (“[state of the art] includes the scientific knowledge, economic feasibility, and the practicalities of implementation when the product was manufactured”); see also 2 American Law of Products Liability 3d (1996) § 30:50, p. 30-77 (“ ‘[s]tate of the art’ has been defined as the safety, technical, mechanical, and scientific knowledge in existence and reasonably feasible for use at the time of manufacture”).

Potter v. Chicago Pneumatic Tool Co., 241 Conn. 199, 247, 694 A.2d 1319, 1346 (1997)

Seller of a Product Defined

Rule of Law:Strict liability not applicable to the “occasional seller”

However, even if we assumed, arguendo, that a prefab house is a product subject to the law of strict products liability,2 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. See, e.g., Restatement (Second) of Torts § 402A (1965);3 Prosser and Keaton on Torts 705 (5th ed. 1984) (“Only a seller who can be regarded as a merchant or one engaged in the business of supplying goods of the kind involved in the case is subject to strict liability, whether on warranty or in tort.”); Bailey v. ITT Grinnell Corp., 536 F.Supp. 84, 87 (N.D.Ohio 1982) (“[S]trict tort liability is not an appropriate theory of liability for application to the occasional seller); Lemley v. J & B Tire Co., 426 F.Supp. 1376, 1377 (W.D.Penn.1977) (“The plaintiffs cannot prevail on their [strict liability cause of action] because the defendants … are not sellers engaged in the business of selling such a product.”).

Elley v. Stephens, 104 Nev. 413, 418, 760 P.2d 768, 771–72 (1988)

Liability in Product Defect Cases

In Nevada, a manufacturer or distributor of a product is strictly liable for injuries resulting from a defect in the product that was present when the product left its hands.

Michaels v. Pentair Water Pool & Spa, 131 Nev. Adv. Op. 81, 357 P.3d 387, 397 (Nev. App. 2015)

Affirmative Defense: Modification

• Substantial modification will shielded from liability if the injury is caused by substantial product modification, but will remain liable if the modification was insubstantial, foreseeable, or did not actually cause the injury.

Furthermore, manufacturers are not necessarily liable for injuries caused by a product that was substantially modified or misused by the consumer or by an intermediary. “Generally, a substantial alteration will shield a manufacturer from liability for injury that results from that alteration,” but a product manufacturer remains liable if the alteration was insubstantial, foreseeable, or did not actually cause the injury.8 Robinson v. G.G.C., Inc., 107 Nev. 135, 140, 808 P.2d 522, 525 (1991).
Michaels v. Pentair Water Pool & Spa, 131 Nev. Adv. Op. 81, 357 P.3d 387, 397 (Nev. App. 2015)

Generally, a substantial alteration will shield a manufacturer from liability for injury that results from that alteration. Gasdiel v. Federal Press Co., 78 Ill.App.3d 222, 33 Ill.Dec. 517, 396 N.E.2d 1241 (1979) (employer’s substitution of a significantly different starting mechanism on a punch press shielded the manufacturer from liability when the press malfunctioned). However, if the alteration was insubstantial, foreseeable, or did not actually cause the injury, then the manufacturer of a defective product remains liable. See Medina v. Air–Mite, 161 Ill.App.3d 502, 113 Ill.Dec. 785, 515 N.E.2d 770 (1987) (manufacturer of air press was not shielded from liability when the employer failed to install a safety device on the machine).
Robinson v. G.G.C., Inc., 107 Nev. 135, 140, 808 P.2d 522, 525 (1991)

• Substantial alteration is a jury question

In this case, the causal connection between the absent safety screen and the injury is clear. Therefore, the question left to the jury is whether the employer’s act of overriding the limit switch was a substantial alteration of the product.1
Robinson v. G.G.C., Inc., 107 Nev. 135, 140, 808 P.2d 522, 525 (1991)

• There is a difference between the cause of the accident and the cause of the injury

The trial court failed to distinguish between the proximate cause of Andrews’ accident and the proximate cause of his injuries. Andrews’ intoxication may have been the proximate cause of the accident. However, Harley Davidson’s design, if it was as defective as Andrews contends, was the proximate cause of his injuries.
Andrews v. Harley Davidson, Inc., 106 Nev. 533, 537, 796 P.2d 1092, 1095 (1990)

• Letting in evidence of negligence that is not the actual cause of injury (instead the cause of the accident) can be prejudicial.

We conclude that the court committed prejudicial error when it allowed evidence that Andrews was intoxicated on the night of the accident to come before the jury. Evidence that a plaintiff’s intoxication may have caused an accident is not relevant to the issue of whether there was a design defect or whether a design defect in his vehicle caused his injuries. The jury, however, may have concluded that Harley Davidson was not liable for Andrews’ injuries, despite the existence of a design defect on his motorcycle, because Andrews was intoxicated on the night of his accident.
Andrews v. Harley Davidson, Inc., 106 Nev. 533, 538, 796 P.2d 1092, 1095–96 (1990)

• It is the burden of the manufacturer to prove that the product has been altered.

Although a plaintiff consumer should know whether a product has been altered after he or she has received it, the manufacturer may obtain this information through discovery. A manufacturer of a product knows precisely how the product was manufactured, what condition it was originally in, and, if altered, the manner in which it may have been modified. Secondly, we conclude that it is unfair to force the plaintiff consumer to prove a negative, i.e., that the product was not altered. Therefore, we hold that the burden of proving that a product has been altered is on the defendant manufacturer in a products liability suit.3 See The Model Uniform Product Liability Act § 112(d) (1979); see also Shoshone Coca–Cola v. Dolinski, 82 Nev. 439, 444–45, 420 P.2d 855, 858–59 (1966); Hiller v. Kawasaki Motors Corp., U.S.A., 671 P.2d 369, 372 (Alaska 1983).
Andrews v. Harley Davidson, Inc., 106 Nev. 533, 539–40, 796 P.2d 1092, 1096–97 (1990)

• The only defenses in a product case is assumption of the risk and misuse of the product [presumably this includes substantial alteration]

A number of cases dealing with the concept of strict products liability were before this court prior to the enactment of NRS 41.141 in July, 1973. These cases indicate that no showing of negligence is necessary in a strict products liability action. See Worrell v. Barnes, 87 Nev. 204, 206, 484 P.2d 573 (1971); Shoshone Coca-Cola v. Dolinski, 82 Nev. 439, 420 P.2d 855 (1966). Moreover, we had recognized that the only defenses available in a strict products liability action were assumption of the risk and misuse of the product; ordinary contributory negligence was not to be considered. See General Electric Co. v. Bush, 88 Nev. 360, 365, 498 P.2d 366 (1972); Restatement of the Law 2d (Torts) § 402A, comments a and n.

Young’s Mach. Co. v. Long, 100 Nev. 692, 694, 692 P.2d 24, 25 (1984)

• The manufacturer is not liable for the failure of aftermarket parts if the defect was not present when the original product left the manufacturer

On the other hand, there was no evidence tending to show the defective relay was the same one installed by Dor-O-Matic before the door left the manufacturer; in which event, if there was a substitution of the part through remodeling or repair of the door, someone else, but not Dor-O-Matic, would be liable to appellant if the design were found not to be defective. The defect must have been present when the product left the manufacturer or he cannot be held liable. Shoshone Coca-Cola Bottling Co. v. Dolinski, supra; Suvada v. White Motor Co., supra; Restatement (Second) of Torts s 402A(1)(b).

Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 414, 470 P.2d 135, 138 (1970)

Affirmative Defense: Assumption of the Risk

In the case of strict products liability, the defendant must show:

(1) that the plaintiff actually knew and appreciated the particular risk or danger created by the defect,
(2) that the plaintiff voluntarily encountered the risk while realizing the danger, and
(3) that the plaintiff’s decision to voluntarily encounter the known risk was unreasonable.

Cent. Tel. Co. v. Fixtures Mfg. Corp., 103 Nev. 298, 300, 738 P.2d 510, 512 (1987)

While assumption of risk is no longer a bar to negligence, it is a defense to strict products liability. Young Machine Co. v. Long, 100 Nev. 692, 692 P.2d 24 (1984); Restatement (Second) of Torts § 402A comment a and n (1965).

Cent. Tel. Co. v. Fixtures Mfg. Corp., 103 Nev. 298, 300, 738 P.2d 510, 512 (1987)

In the case of strict products liability, the defendant must show (1) that the plaintiff actually knew and appreciated the particular risk or danger created by the defect, (2) that the plaintiff voluntarily encountered the risk while realizing the danger, and (3) that the plaintiff’s decision to voluntarily encounter the known risk was unreasonable. Johnson v. Clark Equipment Co., 274 Or. 403, 547 P.2d 132 (1976).

Cent. Tel. Co. v. Fixtures Mfg. Corp., 103 Nev. 298, 300, 738 P.2d 510, 512 (1987)

Bush’s contributory negligence would have had to consist of a failure to discover the defect in the eyebolt or to guard against the possibility of its existence (Seely v. White Motor Company, 63 Cal.2d 9, 45 Cal.Rptr. 17, 403 P.2d 145 (1965); Canifax v. Hercules Powder Co., supra; see Prosser, Strict Liability to the Consumer in California, 18 Hastings L.J. 9, 48—50 (1966)), nor is there evidence that the defect in the eyebolt was known to Bush nor to anyone for even upon visual inspection it would not have been apparent. Thus, he could not have assumed the risk of a danger that he did not know existed. Truckee-Carson Irr. Dist. v. Wyatt, 84 Nev. 662, 669, 448 P.2d 46 (1968); Downing v. Marlia, 82 Nev. 294, 299, 417 P.2d 150 (1966); Vierra v. Fifh Avenue Rental Service, 60 Cal.2d 266, 32 Cal.Rptr. 193, 196, 383 P.2d 777, 780 (1963); Bee v. Tungstar Corp., 65 Cal.App.2d 729, 151 P.2d 537 (1944).

Gen. Elec. Co. v. Bush, 88 Nev. 360, 366, 498 P.2d 366, 370 (1972) abrogated by Motenko v. MGM Dist., Inc., 112 Nev. 1038, 921 P.2d 933 (1996)

Moreover, we had recognized that the only defenses available in a strict products liability action were assumption of the risk and misuse of the product; ordinary contributory negligence was not to be considered. See General Electric Co. v. Bush, 88 Nev. 360, 365, 498 P.2d 366 (1972); Restatement of the Law 2d (Torts) § 402A, comments a and n.

Young’s Mach. Co. v. Long, 100 Nev. 692, 694, 692 P.2d 24, 25 (1984)

Other Jurisdictions

The court stated that for the defense of assumption of risk to apply
[p]laintiff must have a subjective knowledge of the danger and then voluntarily and unreasonably expose himself to that danger…. If those elements are found to exist the defense becomes operative and must be compared with the conduct of the defendant. The mechanics of comparison are the same as in comparison for contributory negligence.
40 Mont. —, 661 P.2d at 18-19. [Emphasis supplied].

Zahrte v. Sturm Ruger & Co., 709 F.2d 26, 28 (9th Cir. 1983)

Affirmative Defense: Misuse & Contributory Negligence

[Editor’s note: The following principles can be found in the cases below:]

1. A manufacturer is not liable for an unforeseeable misuse.

2. A manufacturer is liable for a foreseeable misuse.

3. Misuse is a defense only when it is a misuse that the manufacturer could not reasonably foresee.

4. When the category of misuses is foreseeable (example, a car crash), the specifics of the negligence (example, drunk driving) is not relevant.

5. Negligence causing the accident is distinct from a defect causing the injury. The product defect analysis focuses defect causing the injury as opposed to the negligence causing the accident.

a. Drunk driving causing the accident is distinct from the defect making the car unsafe in a crash, and thus causing the injury.
6. It can be prejudicial error to allow evidence of the negligence causing the accident [as distinct from the defect causing the injury].

[End Editor’s Note]

Cases:

• A manufacturer is liable for a foreseeable misuse.

The question before us now is when, in spite of an adequate warning, a manufacturer is still liable for a foreseeable misuse. When the defect in the product is the lack of a safety device, the misuse is often an accidental misuse. In these situations, a warning, although it adequately informs of the danger, is of no help to the consumer. Strict products liability law should not punish manufacturers for unanticipated injuries from reasonably safe products, but it should encourage manufacturers to take all measures to avoid accidents from product misuse. Therefore, we must require manufacturers to make their products as safe as commercial feasibility and the state of the art will allow.

Robinson v. G.G.C., Inc., 107 Nev. 135, 138, 808 P.2d 522, 524 (1991)

• Misuse is a defense only when it is a misuse that the manufacturer could not reasonably foresee.

A manufacturer has a duty to design a reasonably crashworthy vehicle. Huddell v. Levine, 537 F.2d 726, 737 (3d Cir.1976). In regard to the crashworthiness of a vehicle, once a court or jury determines that a design defect exists misuse precludes recovery only when the plaintiff misuses the product in a manner in which the defendant could not reasonably foresee. See Hughes v. Magic Chef, Inc., 288 N.W.2d 542, 545 (Iowa 1980).2
Andrews v. Harley Davidson, Inc., 106 Nev. 533, 537, 796 P.2d 1092, 1095 (1990)

• Negligent driving of a vehicle is a foreseeable misuse. The nature of the negligent driving (i.e. drunk driving) is irrelevant to the product design.
○ [Editor’s note: Andrews v. Harley Davidson seems to stand for the principle that the specifics of the misuse is not relevant and would distract the jury, so long as the category of misuse is foreseeable. If a manufacturer could foresee that a vehicle would crash, the reason for the crash is not relevant. It would follow that this logic would play out in other circumstances. If a manufacturer could anticipate that a product might be swallowed, it should not matter why or who swallowed the product. Likewise, if a manufacturer could anticipate that an machine or tool could cause a hand injury, it does not matter how the hand came in contact with the mechanism of injury under a misuses analysis. All that is relevant seems to be that the manufacturer could foresee the category of misuse, i.e. crashing, swallowing, hand injury.]
Negligent driving of a vehicle is a foreseeable risk against which a manufacturer is required to take precautions. Ford Motor Co. v. Hill, 404 So.2d 1049, 1052 (Fla.1981). Specifically, it is foreseeable that a plaintiff, who is intoxicated, will drive negligently and get in an accident since intoxication leads to a significant number of accidents yearly. Therefore, evidence of Andrews’ intoxication is not relevant to whether a design defect in his motorcycle was the proximate cause of his injuries. See Cota v. Harley Davidson, A Div. of AMF, Inc., 141 Ariz. 7, 684 P.2d 888, 895–896 (App.1984).
Andrews v. Harley Davidson, Inc., 106 Nev. 533, 537, 796 P.2d 1092, 1095 (1990)

• Negligence causing the accident is distinct from a defect causing the injury. The product defect analysis focuses defect causing the injury as opposed to the negligence causing the accident.

The trial court failed to distinguish between the proximate cause of Andrews’ accident and the proximate cause of his injuries. Andrews’ intoxication may have been the proximate cause of the accident. However, Harley Davidson’s design, if it was as defective as Andrews contends, was the proximate cause of his injuries.
Andrews v. Harley Davidson, Inc., 106 Nev. 533, 537, 796 P.2d 1092, 1095 (1990)

• It can be prejudicial error to allow evidence of the negligence causing the accident [as distinct from the defect causing the injury].

We conclude that the court committed prejudicial error when it allowed evidence that Andrews was intoxicated on the night of the accident to come before the jury. Evidence that a plaintiff’s intoxication may have caused an accident is not relevant to the issue of whether there was a design defect or whether a design defect in his vehicle caused his injuries. The jury, however, may have concluded that Harley Davidson was not liable for Andrews’ injuries, despite the existence of a design defect on his motorcycle, because Andrews was intoxicated on the night of his accident.
Andrews v. Harley Davidson, Inc., 106 Nev. 533, 538, 796 P.2d 1092, 1095–96 (1990)

• A manufacturer is entitled to assume that his product will not be subjected to abnormal and unintended uses.
○ [Editor’s note: This language of “abnormal and unintended uses” has not been used since the 1970’s. It is clear from other cases that a manufacturer is liable for foreseeable misuses.]

Under strict liability the manufacturer is entitled to assume that his product will not be subjected to abnormal and unintended uses, and consequently no liability follows an injury resulting from an abnormal or unintended use. International Derrick & Equipment Co. v. Croix, 241 F.2d 216, 222 (5th Cir. 1957). But here, the eyebolts were being used for lifting as intended by a procedure that was approved by custom and usage in the trade. There was no misuse or abuse. The eyebolt was being used in a manner which the seller should have reasonably anticipated. Johnson v. Standard Brands Paint Co., supra; see also Preissman v. Ford Motor Co., 1 Cal.App.3d 841, 82 Cal.Rptr. 108 (1969).

Gen. Elec. Co. v. Bush, 88 Nev. 360, 365, 498 P.2d 366, 369 (1972) abrogated by Motenko v. MGM Dist., Inc., 112 Nev. 1038, 921 P.2d 933 (1996)

Evidence of Contributory Negligence Can Be Kept Out

As the district court concluded, injection of these issues into the case would have entailed substantial expert testimony and a corresponding increase in the length of the trial. Given the difficulties of proof, the district court undoubtedly concluded that litigating these questions would have confused the jury and unduly emphasized a single, relatively insignificant aspect of the accident. A trial court is vested with discretion to simplify the issues and limit the number of expert witnesses allowed to testify. NRCP 16.3 The court is likewise authorized to exclude even relevant evidence if its probative value is substantially outweighed by the danger that it will confuse the issues, mislead the jury, or result in undue delay. Southern Pac. Transp. Co. v. Fitzgerald, 94 Nev. 241, 243, 577 P.2d 1234, 1235 (1978); NRS 48.035.4 We find no abuse of discretion in the district court’s action.5

Jeep Corp. v. Murray, 101 Nev. 640, 645–46, 708 P.2d 297, 301 (1985)

Negligent driving of a vehicle is a foreseeable risk against which a manufacturer is required to take precautions. Ford Motor Co. v. Hill, 404 So.2d 1049, 1052 (Fla.1981). Specifically, it is foreseeable that a plaintiff, who is intoxicated, will drive negligently and get in an accident since intoxication leads to a significant number of accidents yearly. Therefore, evidence of Andrews’ intoxication is not relevant to whether a design defect in his motorcycle was the proximate cause of his injuries. See Cota v. Harley Davidson, A Div. of AMF, Inc., 141 Ariz. 7, 684 P.2d 888, 895–896 (App.1984).
Andrews v. Harley Davidson, Inc., 106 Nev. 533, 537, 796 P.2d 1092, 1095 (1990)

The trial court failed to distinguish between the proximate cause of Andrews’ accident and the proximate cause of his injuries. Andrews’ intoxication may have been the proximate cause of the accident. However, Harley Davidson’s design, if it was as defective as Andrews contends, was the proximate cause of his injuries.
Andrews v. Harley Davidson, Inc., 106 Nev. 533, 537, 796 P.2d 1092, 1095 (1990)

Additionally, contributory negligence is not a defense in a strict liability case where the issue is whether the design of a vehicle is crashworthy. See Young’s Machine Co. v. Long, 100 Nev. 692, 694, 692 P.2d 24, 25 (1984); Horn v. General Motors Corporation, 17 Cal.3d 359, 131 Cal.Rptr. 78, 83, 551 P.2d 398, 403 (1976). A major policy behind holding manufacturers strictly liable for failing to produce crashworthy vehicles is to encourage them to do all they reasonably can do to design a vehicle which will protect a driver in an accident. Hence, the jury in such a case should focus on whether *538 the manufacturer produced a defective product, not on the consumer’s negligence.
Andrews v. Harley Davidson, Inc., 106 Nev. 533, 537–38, 796 P.2d 1092, 1095 (1990)

We conclude that the court committed prejudicial error when it allowed evidence that Andrews was intoxicated on the night **1096 of the accident to come before the jury. Evidence that a plaintiff’s intoxication may have caused an accident is not relevant to the issue of whether there was a design defect or whether a design defect in his vehicle caused his injuries. The jury, however, may have concluded that Harley Davidson was not liable for Andrews’ injuries, despite the existence of a design defect on his motorcycle, because Andrews was intoxicated on the night of his accident.
Andrews v. Harley Davidson, Inc., 106 Nev. 533, 538, 796 P.2d 1092, 1095–96 (1990)

In contrast, Nevada has made policy decisions to allow plaintiffs in strict liability actions to recover the full amount of their injuries regardless of fault but to prevent recovery by plaintiffs on other tort theories if their comparative fault exceeds 50%.
Gen. Motors Corp. v. Eighth Judicial Dist. Court of State of Nev. ex rel. Cty. of Clark, 122 Nev. 466, 477, 134 P.3d 111, 118 (2006)

We conclude that the court committed prejudicial error when it allowed evidence that Andrews was intoxicated on the night of the accident to come before the jury. Evidence that a plaintiff’s intoxication may have caused an accident is not relevant to the issue of whether there was a design defect or whether a design defect in his vehicle caused his injuries. The jury, however, may have concluded that Harley Davidson was not liable for Andrews’ injuries, despite the existence of a design defect on his motorcycle, because Andrews was intoxicated on the night of his accident.
Andrews v. Harley Davidson, Inc., 106 Nev. 533, 538, 796 P.2d 1092, 1095–96 (1990)

This court has long recognized that a manufacturer or distributor of a product is strictly liable for injuries resulting from a defect in the product that was present when the product left its hands. Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 413, 470 P.2d 135, 138 (1970). The district court correctly instructed the jury that a product is defective when it fails to perform in the manner reasonably to be expected in light of its nature and intended function. Id. As a corollary, the manufacturer or distributor is entitled to assume the product will not be subjected to abnormal or unintended uses. General Electric Co. v. Bush, 88 Nev. 360, 365, 498 P.2d 366, 369 (1972). Hence, there is no liability for an injury resulting from an abnormal or unintended use of the product. Id.
Van Duzer v. Shoshone Coca Cola Bottling Co., 103 Nev. 383, 385, 741 P.2d 811, 813 (1987)

At the outset, we have serious doubts about the relevance of the evidence. Appellants argue, for example, that Murray’s asserted failure to use his seat belt was relevant to show comparative negligence. Pending a legislative declaration to the contrary, however, we have refused to apply notions of comparative fault in the context of strict products liability. See generally Young’s Machine Co. v. Long, 100 Nev. 692, 692 P.2d 24 (1984).

Jeep Corp. v. Murray, 101 Nev. 640, 645, 708 P.2d 297, 301 (1985)

Appellant urges us to interpret this statute to include strict products liability in that class of actions in which contributory negligence may be asserted as a defense. This we refuse to do.

Young’s Mach. Co. v. Long, 100 Nev. 692, 693, 692 P.2d 24, 25 (1984)

Appellant cites numerous cases and law review articles which urge adoption of comparative fault principles in the strict products liability area as fair and equitable for all parties. It does appear that some authorities have recognized comparative fault in this area. See e.g., Duncan v. Cessna Aircraft Co., 665 S.W.2d 414 (Tex.1984); *695 Kennedy v. City of Sawyer, 228 Kan. 439, 618 P.2d 788 (1980); Murray v. Fairbanks Morse, 610 F.2d 149 (3d Cir.1979); Daly v. General Motors Corp., 20 Cal.3d 725, 144 Cal.Rptr. 380, 575 P.2d 1162 (1978) (three justices dissenting); Schwartz, Strict Liability and Comparative Negligence, 42 Tenn.L.Rev. 171 (1974).

There is, however, substantial authority to the contrary. Not all courts are convinced of the wisdom of applying comparative fault in the strict products liability field. See e.g., Correia v. Firestone Tire & Rubber Co., 388 Mass. 342, 446 N.E.2d 1033 (1983); Seay v. Chrysler Corp., 93 Wash.2d 319, 609 P.2d 1382 (1982); Kinard v. Coats Co., Inc., 37 Colo.App. 555, 553 P.2d 835 (1976) (superseded by statute, Colo.Rev.Stat. 13–21–406); Robinson, Square Pegs (Products Liability) in Round Holes (Comparative Negligence), 52 Cal.St.B.J. 16 (1977).

It is primarily because of this great diversity of authority that we believe that this issue is one better left to the legislature. If that branch of government decides to entertain the issue, it can give full consideration to the competing interests and policies in order to devise comprehensive and well-reasoned guidelines.

Young’s Mach. Co. v. Long, 100 Nev. 692, 694–95, 692 P.2d 24, 25–26 (1984)

[SAMPLE JURY INSTRUCTION EXAMINED AND APPROVED OF BY THE COURT]: Misuse of a product means a use which the designer and manufacturer could not reasonably foresee. The mere fact that a designer or manufacturer may not intend his product to be used in a certain way does not mean that using it in that way is a legal misuse of the product. If a designer and manufacturer should reasonably foresee that the product may be used in a way other than intended by him, such other use is not a misuse.

Crown Controls Corp. v. Corella, 98 Nev. 35, 37, 639 P.2d 555, 557 (1982)

Furthermore, although it is true that under strict liability a manufacturer is entitled to assume that his product will not be subjected to abnormal and unintended use, it is also true that use of a product in a manner which the manufacturer should reasonably anticipate is not misuse or abuse. General Electric Co. v. Bush, 88 Nev. 360, 498 P.2d 366 (1972). The instruction objected to merely repeats this principle.

Crown Controls Corp. v. Corella, 98 Nev. 35, 37, 639 P.2d 555, 557 (1982)

Gen. Elec. Co. v. Bush, 88 Nev. 360, 365, 498 P.2d 366, 369 (1972) abrogated by Motenko v. MGM Dist., Inc., 112 Nev. 1038, 921 P.2d 933 (1996)

Hierarchy of Design

When the risk of danger associated with a product is such that it cannot be corrected or mitigated by a commercially feasible change in the product’s design available at the time the product was placed in the stream of commerce, the manufacturer must give adequate warning to consumers of the potential danger. See id. at 138, 808 P.2d at 524

Michaels v. Pentair Water Pool & Spa, 131 Nev. Adv. Op. 81, 357 P.3d 387, 397 (Nev. App. 2015)

We have held that the public policy behind strict product liability law is that manufacturers and distributors of defective products should be held responsible for injuries caused by these products. See, e.g., Allison, 110 Nev. at 769, 878 P.2d at 953. However, we conclude that public policy is best served by our rejecting a heeding presumption. As noted in the Restatement (Third) of Torts, comment *195 j to section 402A of the Restatement (Second) of Torts implies that a manufacturer can satisfy its duty of making products safe by providing adequate warnings. Restatement (Third) of Torts: Products Liability § 2 cmt. l (1998). We find such a result to be untenable. Instead, we strongly adhere to the principle that a manufacturer must make products that are not unreasonably dangerous, no matter what instructions are given in the warning. Therefore, we conclude that it is better public policy not to encourage a reliance on warnings because this will help ensure that manufacturers continue to strive to make safe products. Further, as noted by the Riley court, it is not logical to presume that a plaintiff would have heeded an adequate warning, if provided. See Riley, 856 P.2d at 200. “[W]arnings are everywhere in the modern world and often go unread or, where read, ignored.” Id. For these reasons, we conclude that a heeding presumption has no place in our law.

Rivera v. Philip Morris, Inc., 125 Nev. 185, 194-95, 209 P.3d 271, 277 (2009)

More particularly, in Fyssakis v. Knight Equipment Corp., we held that adequacy of warnings was an issue of fact for the jury where an industrial strength soap manufacturer’s warnings did not alert the user that the soap could cause blindness.15 In Allison v. Merck and Company,16 a district court entered summary judgment in favor of a manufacturer of a children’s vaccine. We reversed in light of our conclusion that the drug manufacturer was required to adequately warn parents of possible side effects of immunization, including blindness, deafness or mental retardation. Accordingly, we held that a general warning that an inoculated child could encounter rashes and possible brain inflammation was arguably inadequate and issues of fact remained as to the sufficiency of the warnings given.17 In remanding the Allison case for trial on the adequacy of the warnings, we rejected the notion that a drug manufacturer could, via a general warning, avoid liability as a matter of law, even where the product was either reasonably or unavoidably unsafe.18

Lewis v. Sea Ray Boats, Inc., 119 Nev. 100, 107, 65 P.3d 245, 249 (2003)

Causation

Causation consists of two components: actual cause and proximate cause. See Sims v. General Telephone & Electric, 107 Nev. 516, 815 P.2d 151 (1991). To demonstrate actual cause with respect to Dow Corning’s product, the Mahlums had to prove that, but for the breast implants, Charlotte Mahlum’s illnesses would not have occurred. Id. at 524, 815 P.2d at 156. The second component, proximate cause, is essentially a policy consideration that limits a defendant’s liability to foreseeable consequences that have a reasonably close connection with both the defendant’s conduct and the harm which that conduct created. Id.

Dow Chem. Co. v. Mahlum, 114 Nev. 1468, 1481, 970 P.2d 98, 107 (1998)

Andrews v. Harley Davidson, Inc., 106 Nev. 533, 537, 796 P.2d 1092, 1095 (1990)

Res Ipsa

Although we have curtailed the use of a “mere happening” instruction in the context of res ipsa loquitor, we have never held that this instruction is limited to negligence cases only. See Carver v. El–Sabawi, 121 Nev. 11, 16, 107 P.3d 1283, 1286 (2005) (concluding that a mere happening instruction conflicts with the res ipsa loquitor presumption of negligence, and is thus a prejudicially confusing instruction). In the context of a strict liability claim, such as the case here, a plaintiff must still show evidence of a defect to bring a successful claim. See, e.g., Walker v. General Elec. Co., 968 F.2d 116, 120 (1st Cir.1992) (holding that “the malfunction theory in no way relieves the plaintiff of the burden of proving a defect” (quoting Ocean Barge Transport v. Hess Oil Virgin Islands, 726 F.2d 121, 125 (3d Cir.1984))). Therefore, issuance of the “mere happening” instruction would not present a similar conflict in strict liability cases, and thus, Instruction No. 27 did not misstate the law.3

Michelin N. Am., Inc. v. Deal, 128 Nev. 918 (2012)

Contrary to the Deals’ argument, this conclusion does not conflict with our prior decision in Stackiewicz v. Nissan Motor Corp., 100 Nev. 443, 686 P.2d 925 (1984). In Stackiewicz, we held that “[w]hen there is evidence of some dangerous condition, the ‘factfinder can find, where other identifiable causes are absent, that the mere evidence of a malfunction is sufficient evidence of a defect.’ “ Id. at 449, 686 P.2d at 928 (emphasis added) (quoting Kileen v. General Motors Corp., 36 Conn.Supp. 347, 421 A.2d 874, 876 (Conn.Super.Ct.1980)). Because Stackiewicz exists as a narrow exception to general liability principles by holding that the specific cause of a malfunction need not always be shown, an inference of liability is proper under Stackiewicz only where there is no other identifiable cause for the malfunction. Id. Here, Stackiewicz did not apply because Michelin had introduced evidence showing alternative explanations of a malfunction—the tire had been punctured, improperly repaired, suffered impact, and was underinflated—all of which were potentially identifiable causes of the separated tire.4

Michelin N. Am., Inc. v. Deal, 128 Nev. 918 (2012)

In Stackiewicz, we allowed a strict liability case to go to the jury on the plaintiff’s claim of an idiopathic steering defect in an automobile which the plaintiff claimed was the cause of her injuries. We said in Stackiewicz that when “ ‘machinery “malfunctions,” it obviously lacks fitness regardless of the cause of the malfunction.’ ” Id. at 448–49, 686 P.2d at 928 (quoting Lindsay v. McDonnell Douglas Aircraft Corp., 460 F.2d 631, 639 (8th Cir.1972)).
Allison v. Merck & Co., 110 Nev. 762, 768, 878 P.2d 948, 952 (1994)

In the case before us, plaintiffs are claiming in effect that the vaccine “malfunctioned”; and, if we are to follow Stackiewicz, then a vaccine which causes permanent brain damage “obviously lacks fitness regardless of the cause of the malfunction.”5 If the vaccine is found by a factfinder to have caused Thomas to develop the disabling encephalitis, then Merck’s “ ‘ “sin” is the lack of fitness as evidenced by the malfunction itself rather than some specific dereliction by the manufacturer.’ ” Id. 100 Nev. at 449, 686 P.2d at 928 (quoting Lindsay, 460 F.2d at 639).
Allison v. Merck & Co., 110 Nev. 762, 768, 878 P.2d 948, 952-53 (1994)

It is not easy to divine just why the framers of the comment thought that a drug manufacturer should be excused in cases in which it manufactured a drug that was “known” to be dangerous. The whole idea behind strict tort liability is that the manufacturer, not the consumer, should bear the responsibility for injuries, even when the product is ostensibly properly prepared and marketed and when the plaintiff is not in a position to prove the origin of the defect.8 See Stackiewicz, 100 Nev. at 443, 686 P.2d at 925.

Allison v. Merck & Co., 110 Nev. 762, 769-70, 878 P.2d 948, 953-54 (1994)

Although appellants have suggested a number of alternative causes of the accident, Murray was not required to negate them. Stackiewicz v. Nissan Motor Corp., 100 Nev. 443, 447, 686 P.2d 925, 927 (1984). The evidence he produced, though circumstantial, sufficiently established causation. Id. at 452, 686 P.2d at 930. The credibility of that evidence was a matter for the jury. Id. “In this case, as in most cases, positive proof either way is not available. Inferences must be drawn from the best available evidence produced by each side.” Shoshone Coca-Cola v. Dolinski, 82 Nev. 439, 444, 420 P.2d 855, 858 (1966).

Jeep Corp. v. Murray, 101 Nev. 640, 644–45, 708 P.2d 297, 300 (1985)

It has been held that “ ‘a specific defect in the product is not an essential element in establishing a cause of action,’ ” since “ ‘in the field of products liability the focus is on the product and not necessarily on its component parts.’ ” Kileen v. General Motors Corp., 36 Conn.Sup. 347, 421 A.2d 874, 875 (1980). When there is evidence of some dangerous condition, the “factfinder can find, where other identifiable causes are absent, that the mere evidence of a malfunction is sufficient evidence of a defect.” Id. 421 A.2d at 876.

Stackiewicz v. Nissan Motor Corp. in U.S.A., 100 Nev. 443, 449, 686 P.2d 925, 928 (1984)

Other courts have had occasion to apply these principles to the malfunctioning of the steering or control mechanism of a car. In Vanek v. Kirby, 253 Or. 494, 450 P.2d 778, rehearing denied, 253 Or. 494, 454 P.2d 647 (1969), plaintiff was unable to allege a specific defect in his pleading, but alleged that while riding as a passenger in a new Ford automobile he became injured when the vehicle became “uncontrollable in normal operation” and left the highway. Id. 450 P.2d at 780. The court held that proof of these allegations would support a recovery and therefore the complaint stated a cause of action.

Stackiewicz v. Nissan Motor Corp. in U.S.A., 100 Nev. 443, 450, 686 P.2d 925, 929 (1984)

Public Policy Behind Product Liability Law

We have held that the public policy behind strict product liability law is that manufacturers and distributors of defective products should be held responsible for injuries caused by these products. See, e.g., Allison, 110 Nev. at 769, 878 P.2d at 953. However, we conclude that public policy is best served by our rejecting a heeding presumption. As noted in the Restatement (Third) of Torts, comment j to section 402A of the Restatement (Second) of Torts implies that a manufacturer can satisfy its duty of making products safe by providing adequate warnings. Restatement (Third) of Torts: Products Liability § 2 cmt. l (1998). We find such a result to be untenable. Instead, we strongly adhere to the principle that a manufacturer must make products that are not unreasonably dangerous, no matter what instructions are given in the warning. Therefore, we conclude that it is better public policy not to encourage a reliance on warnings because this will help ensure that manufacturers continue to strive to make safe products. Further, as noted by the Riley court, it is not logical to presume that a plaintiff would have heeded an adequate warning, if provided. See Riley, 856 P.2d at 200. “[W]arnings are everywhere in the modern world and often go unread or, where read, ignored.” Id. For these reasons, we conclude that a heeding presumption has no place in our law.

Rivera v. Philip Morris, Inc., 125 Nev. 185, 194-95, 209 P.3d 271, 277 (2009)

Gen. Motors Corp. v. Eighth Judicial Dist. Court of State of Nev. ex rel. Cty. of Clark, 122 Nev. 466, 477, 134 P.3d 111, 118 (2006)

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.

Allison v. Merck & Co., 110 Nev. 762, 767-68, 878 P.2d 948, 952 (1994)

Although manufacturers are not insurers of their products, where injury is caused by a defective product, responsibility is placed upon the manufacturer and the distributor of the defective product rather than on the injured consumer. See Stackiewicz v. Nissan Motor Corp., 100 Nev. 443, 448, 686 P.2d 925, 928 (1984); see also Nat’l Union Fire Ins. v. Pratt and Whitney, 107 Nev. 535, 815 P.2d 601 (1991).

Allison v. Merck & Co., 110 Nev. 762, 768, 878 P.2d 948, 952 (1994)

Unless we are going to abandon long-standing public policy grounds for holding manufacturers and distributors of defective products responsible for injuries caused by manufactured products that prove to be defective, Thomas must be given an opportunity to prove that a malfunctioning vaccine caused his injuries, just as we allowed Ms. Stackiewicz to try to prove that her injuries were caused by a defective steering mechanism.

Allison v. Merck & Co., 110 Nev. 762, 769, 878 P.2d 948, 953 (1994)

The public policy considerations that support holding the defendants liable in this case (if plaintiffs can prove that the vaccine caused his injuries) were put well by Professor Prosser in the noted law review article, “The Fall of the Citadel”:

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….
50 Minn.L.Rev. 791, 799 (1966). This concept of “public interest” is the guiding principle of our present opinion.

Allison v. Merck & Co., 110 Nev. 762, 769, 878 P.2d 948, 953 (1994)

Merck claims that it is free from strict manufacturer’s liability by virtue of the dictum stated in comment k to section 402A of the Restatement (Second) of Torts.7 This comment suggests that a drug manufacturer should not be held liable for “the unfortunate consequences attending” the use of its drugs if: (1) the manufacturer supplies “the public with an apparently useful and desirable product, attended by a known but apparently reasonable risk,” (2) the drug is “properly prepared and marketed,” and (3) “proper warning is given.”
It is not easy to divine just why the framers of the comment thought that a drug manufacturer should be excused in cases in which it manufactured a drug that was “known” to be dangerous. The whole idea behind strict tort liability is that the manufacturer, not the consumer, should bear the responsibility for injuries, even when the product is ostensibly properly prepared and marketed and when the plaintiff is not in a position to prove the origin of the defect.8 See Stackiewicz, 100 Nev. at 443, 686 P.2d at 925.

Allison v. Merck & Co., 110 Nev. 762, 769-70, 878 P.2d 948, 953-54 (1994)

What the question in this case really gets down to is whether an exception should be made in a case in which a drug manufacturer injures a consumer with a drug that it knows is dangerous, but not too (“unreasonably”) dangerous. That is to say, should a drug manufacturer be allowed to profit with impunity from the distribution of a drug that it knows is capable of resulting in physical injury, so long as the drug can somehow be certified as not being unreasonably dangerous? We answer that question in the negative and say that a drug manufacturer should, under the strict liability jurisprudence of this state, be held liable in tort even when the drug is “properly prepared and marketed” (that is to say, non-negligently ) and even when the known danger inherent in the drug may be what the comment calls “reasonable.”

Allison v. Merck & Co., 110 Nev. 762, 770-71, 878 P.2d 948, 954 (1994)

Speaking of “unavoidable” danger or fault-free infliction of harm, or speaking of reasonable (and therefore acceptable) risk of harm, is very much alien to strict liability theory and should have no place in the Restatement provisions relating to strict liability. Mixing concepts of fault-free (“unavoidable”) manufacture and “reasonable risk” into the context of non-negligent, strict liability is entirely inconsistent with our products liability cases and with the law established in this state for almost thirty years. The well-accepted principle supporting our products liability cases is expressed in comment c of section 402 A of the Restatement:

[P]ublic policy demands that the burden of accidental injuries caused by products intended for consumption be placed upon those who market them, and be treated as a cost of production against which liability insurance can be obtained; and that the consumer of such products is entitled to the maximum of protection at the hands of someone, and the proper persons to afford it are those who market the products.
Allison v. Merck & Co., 110 Nev. 762, 771-72, 878 P.2d 948, 955 (1994)

It could not be said any more clearly than this. Merck, not Thomas Allison, must, if the Merck product did in fact cause Thomas’ overwhelming misfortune, bear the “burden of the accidental [intended] injuries caused by products intended for consumption.” Restatement (Second) of Torts, § 402 A, cmt. c (1965).

Allison v. Merck & Co., 110 Nev. 762, 772, 878 P.2d 948, 955 (1994)

Although, on policy grounds, Merck might talk some legislative body into immunizing it from liability, it would be certainly inappropriate for the court to make such a radical change in our well-established products liability law. Further, one would think that if a legislature were going to give such special benefits to drug manufacturers, most certainly the resultant legislation, to be just, would have to afford some kind of compensation or relief to the victims of “unavoidably unsafe” drugs. If, for example, a legislature provided that automobile manufacturers would be held to a standard of strict liability for manufacturing defects, even if injuries caused by a given defect are statistically infrequent and perhaps “unavoidable,” and at the same time immunized drug manufacturers from liability for injuries caused by their vaccines, the legislature would, as mentioned, very probably and properly include in such discriminatory legislation some kind of no-fault victim compensation plan to set off the advantage given to drug manufacturers over other kinds of manufacturers.

Allison v. Merck & Co., 110 Nev. 762, 772-73, 878 P.2d 948, 955 (1994)

Robinson v. G.G.C., Inc., 107 Nev. 135, 138, 808 P.2d 522, 524 (1991)

Additionally, it seems to us that the policy considerations which underlie NRS 48.095 are less compelling in the situation presented here than in the typical negligence case. Where the plaintiff has been injured by a defect in a sidewalk, for example, it may be realistic to suppose that the potential defendant will avoid making repairs, fearing that they might be construed as an admission of fault. But this assumption is not valid where the defect is in a product manufactured by the thousands. In such a case, “it is manifestly unrealistic to suggest that [the] producer will forego making improvements in its product, and risk innumerable additional lawsuits and the attendant adverse effect upon its public image, simply because evidence of … such improvement may be admitted in an action founded on strict liability for recovery on an injury that preceded the improvement.” Ault, 528 P.2d at 1152. Accordingly, while decisions on the subject are by no means unanimous, we believe the better rule is to allow admission of post-accident remedial measures in an action based upon strict liability. See, e.g., Schelbauer, 673 P.2d at 746–48 (post-accident warning); *648 Siruta v. Hesston Corp., 232 Kan. 654, 659 P.2d 799, 809 (1983) (design change); D.L. by Friederichs v. Huebner, 110 Wis.2d 581, 329 N.W.2d 890, 903–05 (1983) (design change and warning); Caldwell v. Yamaha Motor Co., Ltd., 648 P.2d 519, 525 (Wyo.1982) (design change); Caprara v. Chrysler Corp., 52 N.Y.2d 114, 436 N.Y.S.2d 251, 257, 417 N.E.2d 545, 551 (1981) (design change); Robbins v. Farmers Union Grain Terminal Ass’n, 552 F.2d 788, 793 (8th Cir.1977) (warning); Shaffer v. Honeywell, Inc., 249 N.W.2d 251, 257 n. 7 (S.D.1976) (design change); Ault, 528 P.2d 1148 (design change).7

Jeep Corp. v. Murray, 101 Nev. 640, 647–48, 708 P.2d 297, 302 (1985)

In 1966 this Court adopted the doctrine of strict tort liability against the manufacturer and distributor of a bottled beverage. Shoshone Coca-Cola v. Dolinski, 82 Nev. 439, 420 P.2d 855 (1966). 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 (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….”

Stackiewicz v. Nissan Motor Corp. in U.S.A., 100 Nev. 443, 447–48, 686 P.2d 925, 927–28 (1984)

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). Rather than proof of negligence, or privity, we held that the plaintiff’s case in strict liability would simply consist of proof “that his injury was caused by a defect in the product, and that such defect existed when the product left the hands of the defendant.” 82 Nev. at 443, 420 P.2d at 858.

Stackiewicz v. Nissan Motor Corp. in U.S.A., 100 Nev. 443, 448, 686 P.2d 925, 928 (1984)

Courts and commentators have been proceeding apace in advancing theories of action in products liability cases since MacPherson v. Buick Motor Co., 217 N.Y. 382, 111 N.E. 1050 (1916). See Comment, 15 Wayne L.Rev. 1558 (1969), and Comment, 23 Wash. & Lee L.Rev. 101 (1966). To a large extent on the basis of Dean Prosser’s urgings, innocent consumers have been allowed to sue manufacturers for injuries caused by defective products. See W. Prosser, The Assault upon the Citadel (Strict Liability to the Consumer), 69 Yale L.J. 1099 (1960); and W. Prosser, The Fall of the Citadel (Strict Liability to the Consumer), 50 Minn.L.Rev. 791 (1966). Under the theories advanced, injured consumers have been allowed to proceed on the theory of strict liability, which requires no showing of negligence. Shoshone Coca-Cola, supra, and Ginnis, supra; Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (1962); Fisher v. Simon, 15 Wis.2d 207, 112 N.W.2d 705 (1961).

Worrell v. Barnes, 87 Nev. 204, 206, 484 P.2d 573, 575 (1971) overruled by Calloway v. City of Reno, 116 Nev. 250, 993 P.2d 1259 (2000)

The manufacturer and seller are not held liable as insurers and their liability is not absolute simply upon evidence of injury alone. See, P. Keeton, Products Liability, 41 Tex.L.Rev. 855, 858 (1963). Rather, it is the claimant’s burden to demonstrate that the product was defective and that the defect arose out of design or manufacture while the article was in the control of the manufacturer. However, it makes no difference whether the manufacturer was or was not negligent, acted in good faith, or even took every possible precaution to prevent defects. If in fact the article was defective when it left the manufacturer’s control, liability will be imposed. Rapson, Products Liability under Parallel Doctrines: Contrasts between the Uniform Commercial Code and Strict Liability in Tort, 19 Rutgers L.Rev. 692, 698 (1965). There is a strong and growing tendency where there is no blame on either side to ask who can best bear the loss and hence to shift the loss by creating liability where there has been no fault. Prosser, Law of Torts, p. 508 (3d ed. 1964).

Worrell v. Barnes, 87 Nev. 204, 206–07, 484 P.2d 573, 575 (1971) overruled by Calloway v. City of Reno, 116 Nev. 250, 993 P.2d 1259 (2000)

We believe that the quoted expressions of policy are sound as applied to the manufacturer and distributor of a bottled beverage. Indeed, eighteen states have judicially accepted strict liability, without negligence and without privity, as to manufacturers of all types of products; and six more have done so by statute. See Prosser, ‘The Full of The Citadel,’ 50 Minn.L.Rev. 791, 794, 795, 796 (1966). Though the appellant suggests that only the legislature may declare the policy of Nevada on this subject, the weight of case authority is contra. As indicated, most states approving the doctrine of strict liability have done so by court declaration.

Shoshone Coca-Cola Bottling Co. v. Dolinski, 82 Nev. 439, 442, 420 P.2d 855, 857 (1966)

Safety Features

We have held that the public policy behind strict product liability law is that manufacturers and distributors of defective products should be held responsible for injuries caused by these products. See, e.g., Allison, 110 Nev. at 769, 878 P.2d at 953. However, we conclude that public policy is best served by our rejecting a heeding presumption. As noted in the Restatement (Third) of Torts, comment j to section 402A of the Restatement (Second) of Torts implies that a manufacturer can satisfy its duty of making products safe by providing adequate warnings. Restatement (Third) of Torts: Products Liability § 2 cmt. l (1998). We find such a result to be untenable. Instead, we strongly adhere to the principle that a manufacturer must make products that are not unreasonably dangerous, no matter what instructions are given in the warning. Therefore, we conclude that it is better public policy not to encourage a reliance on warnings because this will help ensure that manufacturers continue to strive to make safe products. Further, as noted by the Riley court, it is not logical to presume that a plaintiff would have heeded an adequate warning, if provided. See Riley, 856 P.2d at 200. “[W]arnings are everywhere in the modern world and often go unread or, where read, ignored.” Id. For these reasons, we conclude that a heeding presumption has no place in our law.

Rivera v. Philip Morris, Inc., 125 Nev. 185, 194-95, 209 P.3d 271, 277 (2009)

Lewis v. Sea Ray Boats, Inc., 119 Nev. 100, 107, 65 P.3d 245, 249 (2003)

Second, we conclude that Fyssakis has raised a genuine issue of fact regarding an alleged defect in the dispenser. Specifically, Fyssakis presented a safety expert’s affidavit stating that the safety switch on the dispenser could be bypassed by tilting the dispenser at a certain angle. Additionally, the expert stated that the dispenser could have been designed with a safer shrouding mechanism. Under Nevada law, 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 liabilities claim. Robinson v. G.G.C. Inc., 107 Nev. 135, 808 P.2d 522 (1991); McCourt v. J.C. Penney Co., 103 Nev. 101, 734 P.2d 696 (1987). The affidavit of Fyssakis’ safety expert has thus *215 raised a genuine issue of fact regarding a defect in the dispenser.

Fyssakis v. Knight Equip. Corp., 108 Nev. 212, 214-15, 826 P.2d 570, 572 (1992)

Under Nevada law, 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 liabilities claim. Robinson v. G.G.C. Inc., 107 Nev. 135, 808 P.2d 522 (1991); McCourt v. J.C. Penney Co., 103 Nev. 101, 734 P.2d 696 (1987).

Fyssakis v. Knight Equip. Corp., 108 Nev. 212, 214, 826 P.2d 570, 572 (1992)

This court has already held that manufacturers can still be liable for a foreseeable misuse of a product in spite of an adequate warning. Crown Controls Corp. v. Corella, 98 Nev. 35, 639 P.2d 555 (1982). In Crown, the plaintiff was injured when a power lift stacker fell on him. This court determined that a manufacturer cannot be liable for an abnormal and unintended use of a product, but may be liable for a foreseeable misuse. Id. at 37, 639 P.2d at 557. Therefore, in spite of a warning, the defendant in Crown was still liable for a foreseeable misuse.

Robinson v. G.G.C., Inc., 107 Nev. 135, 138, 808 P.2d 522, 524 (1991)

Many jurisdictions have adopted the rule that a manufacturer may be liable for the failure to provide a safety device if the inclusion of the device is commercially feasible, will not affect product efficiency, and is within the state of the art at the time the product was placed in the stream of commerce. Titus v. Bethlehem Steel Corp., 91 Cal.App.3d 372, 154 Cal.Rptr. 122 (1979) (oil well pumping unit designed without adequate safety features may be considered defective). See also Fabian v. E.W. Bliss Co., 582 F.2d 1257 (10th Cir.1978) (failure to incorporate a safety device *139 into a punch press renders manufacturer liable for design defect); Scott v. Dreis & Krump Manufacturing Co., 26 Ill.App.3d 971, 326 N.E.2d 74 (1975) (manufacturer’s liability for failure to put a safety guard on a press brake was a jury question); Fischer v. Cleveland Punch and Shear Works Co., 91 Wis.2d 85, 280 N.W.2d 280 (1979) (failure to interlock circuits on punch press created foreseeable risk of injury). These cases promote a compound goal of encouraging manufacturers to make products safe without unduly burdening them with excessive liability without fault.

Robinson v. G.G.C., Inc., 107 Nev. 135, 138–39, 808 P.2d 522, 524 (1991)

In Titus, supra, the court found a manufacturer liable when a child who was riding on an oil well pumping unit fell into the unguarded crank area. Even though the child’s action was a misuse of the product, the court found the unit defective because it did not have a safety guard that would have prevented the injury. The court stated,

[A]ny product so designed that it causes injury created when used or misused in a foreseeable fashion is defective if the design feature which caused the injury created a danger which was readily preventable through the employment of existing technology at a cost consonant with the economical use of the product….
Titus, 154 Cal.Rptr. at 128. The Titus court recognized that factfinders must consider existing technology and commercial feasibility when evaluating whether a product is defective. Notwithstanding these factors, manufacturers are in the best position to include devices to make their products safe. If the technology is available, the cost is not prohibitive, and the product remains efficient, then a potentially dangerous product which lacks a safety device is in a defective condition.

Robinson v. G.G.C., Inc., 107 Nev. 135, 139, 808 P.2d 522, 524–25 (1991)

This case differs from Titus because here the machine that caused the injury had warning decals. However, 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. Therefore, Instruction 22A, which informed the jury that an adequate warning will always shield manufacturers from liability, is not a correct statement of the law. Instead, 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)

Michaels v. Pentair Water Pool & Spa, 131 Nev. Adv. Op. 81, 357 P.3d 387, 397 (Nev. App. 2015)

In Robinson v. G.G.C., Inc., 107 Nev. 135, 808 P.2d 522 (1991), the district court instructed the jury: “A product which bears suitable and adequate warnings concerning the safe manner in which the product is to be used and which is safe to use if the warning is followed is not in a defective condition.” Id. at 138, 808 P.2d at 524. Because the instruction stated that an adequate warning will always shield the manufacturer from liability, this court held that it was an incorrect statement of the law. Id. at 139, 808 P.2d at 525. Instead, this court stated:

[W]arnings 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.
Id.

Werner argues that Robinson is inapplicable because the instant case does not involve a safety device. We cannot agree. While Robinson involved a product which was allegedly defective because it lacked a safety device, the holding was not fact specific. This is evident by the issue presented for review: “[W]hen, in spite of an adequate warning, a manufacturer is still liable for a foreseeable misuse.” Id. at 138, 808 P.2d at 524. Thus, Robinson applies in the instant case. Given the erroneous instruction, the jury could have easily concluded that since the warning was given, the ladder was not defective even if there was a commercially feasible design available when it was manufactured that probably would have prevented the accident.

Eads v. R.D. Werner Co., 109 Nev. 113, 115, 847 P.2d 1370, 1372 (1993)

Manufacturer’s Warnings

Michaels v. Pentair Water Pool & Spa, 131 Nev. Adv. Op. 81, 357 P.3d 387, 397 (Nev. App. 2015)

Where a plaintiff alleges that such warnings were not adequately given, the “plaintiff carries the burden of proving, in part, that the inadequate warning caused his injuries.” Rivera v. Philip Morris, Inc., 125 Nev. 185, 190, 209 P.3d 271, 274 (2009).

Michaels v. Pentair Water Pool & Spa, 131 Nev. Adv. Op. 81, 357 P.3d 387, 397 (Nev. App. 2015)

A product may be found unreasonably dangerous and defective if the manufacturer failed to provide an adequate warning. See Yamaha Motor Co. v. Arnoult, 114 Nev. 233, 238–39, 955 P.2d 661, 665 (1998)
Rivera v. Philip Morris, Inc., 125 Nev. 185, 191, 209 P.3d 271, 275 (2009)

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).
Rivera v. Philip Morris, Inc., 125 Nev. 185, 191, 209 P.3d 271, 275 (2009)

A heeding presumption, which Rivera seeks this court to adopt, departs from well-settled and established Nevada law. Instead of requiring that the plaintiff prove each element of a strict product liability case, a heeding presumption removes the plaintiff’s responsibility to carry the initial burden of production as to the element of causation. See Riley, 856 P.2d at 199; Seley v. G.D. Searle & Co., 67 Ohio St.2d 192, 423 N.E.2d 831, 838 (1981); Technical Chemical Company v. Jacobs, 480 S.W.2d 602, 606 (Tex.1972). A heeding presumption *192 “allow[s] the fact-finder to presume that the person injured by product use would have heeded an adequate warning, if given.” Golonka v. General Motors Corp., 204 Ariz. 575, 65 P.3d 956, 967 (App.2003); Bushong v. Garman Co., 311 Ark. 228, 843 S.W.2d 807, 811 (1992). Therefore, a heeding presumption shifts the burden of production from the plaintiff to the manufacturer, who must rebut the presumption by proving that the plaintiff would not have heeded a different warning. Golonka, 65 P.3d at 971; Bushong, 843 S.W.2d at 811; see NRS 47.180.

Rivera v. Philip Morris, Inc., 125 Nev. 185, 191-92, 209 P.3d 271, 275 (2009)

This court has consistently stated that the plaintiff must prove the element of causation. Shoshone Coca–Cola, 82 Nev. at 443, 420 P.2d at 857–58. In Sims, we concluded that the district court had improperly granted the manufacturer’s motion for summary judgment because the fact-finder could have found that the evidence indicated that Sims would have heeded an adequate warning, if one was given. 107 Nev. at 524, 815 P.2d at 156. Notably, this court did not reverse because the fact-finder could presume that Sims would have followed an adequate warning. Instead, this court stated that the evidence could demonstrate that he would have adhered to an adequate warning. See id.

Rivera v. Philip Morris, Inc., 125 Nev. 185, 192, 209 P.3d 271, 275 (2009)

Rivera next contends that this court should recognize a heeding presumption because this court has adopted the Restatement (Second) of Torts section 402A, comment j, which favors the presumption. We disagree. While this court has cited to the Restatement (Second) of Torts section 402A, comment j, the manner in which we relied on comment j indicates our intention to require the plaintiff in strict product liability failure-to-warn cases to carry the burden of production on the element of causation. Our use of comment j does not support a heeding presumption.

Rivera v. Philip Morris, Inc., 125 Nev. 185, 192, 209 P.3d 271, 276 (2009)

However, we did not adopt comment j wholesale. Instead, in citing comment j, we specifically noted that the evidence could demonstrate that the manufacturer had not provided a sufficient warning. Id. At no point did we imply that comment j supported adopting a presumption that the Allisons would have heeded an adequate warning had one been provided. Therefore, we reject Rivera’s argument that this court’s discussion of comment j to section 402A of the Restatement (Second) of Torts in Allison supports our adoption of a heeding presumption. To the contrary, we conclude that the manner in which we have previously cited to comment j indicates that we will not stray from the principle that the plaintiff carries the burden of production of the element of causation.

Rivera v. Philip Morris, Inc., 125 Nev. 185, 193, 209 P.3d 271, 276 (2009)

Rivera v. Philip Morris, Inc., 125 Nev. 185, 194-95, 209 P.3d 271, 277 (2009)

Respondent contends that warnings instructions in cases such as this one should be generally worded and that the adequacy of warnings should be left to the common sense of the finder of facts. Appellants contend that the district court erred by not instructing the jury with their more specific definition of “adequate warning.” We agree with appellants.
In American Casualty Co. v. Propane Sales & Service, we held that a party is entitled to have the jury instructed on all of his theories of the case that are supported by the evidence,8 and that general, abstract or stock instructions on the law are insufficient if a proper request for a specific instruction on an important point has been duly proffered to the court.9 We reversed in American Casualty Co. because the jury was left to guess “from general ‘stock’ instructions” discrete elements of proof “in the rather unusual context of a gas explosion case.”10 However, in American Casualty Co., we also observed that “[i]n some instances a requested instruction, although proper, will not be essential to the jury’s understanding of the case.”11

Lewis v. Sea Ray Boats, Inc., 119 Nev. 100, 106, 65 P.3d 245, 249 (2003)

Inherent in this doctrine is that “a product must include a warning that adequately communicates the dangers that may result from its use or foreseeable misuse.”14

Lewis v. Sea Ray Boats, Inc., 119 Nev. 100, 107, 65 P.3d 245, 249 (2003)

First, in Fyssakis and Allison, we refused to exonerate products manufacturers as a matter of law from strict tort liability based upon general warnings language.

Lewis v. Sea Ray Boats, Inc., 119 Nev. 100, 108, 65 P.3d 245, 250 (2003)

Third, given that experts testified in this case to the nature and quality of the warnings that were given and their supposed behavioral impact, the jurors were entitled to more specific guidance as to the law governing the duty to warn in connection with consumer products.

Lewis v. Sea Ray Boats, Inc., 119 Nev. 100, 108, 65 P.3d 245, 250 (2003)

We therefore embrace the rule of law stated in the Pavlides instructions offered by appellants below, and hold that Nevada trial courts should advise juries that warnings in the context of products liability claims must be (1) designed to reasonably catch the consumer’s attention, (2) that the language be comprehensible and give a fair indication of the specific risks attendant to use of the product, and (3) that warnings be of sufficient intensity justified by the magnitude of the risk.

Lewis v. Sea Ray Boats, Inc., 119 Nev. 100, 108, 65 P.3d 245, 250 (2003)

We conclude that the record contains substantial evidence upon which the jury could have based its verdict. First, Fergestrom testified that he was using the grinding wheel in the normal and intended manner. It appears from the record that Norton did not dispute this fact. Second, Norton’s experts were cross-examined extensively about the safety instructions provided with the grinding wheel. We conclude that the jury could have reasonably concluded, based on this testimony, that the product warnings were deficient. Third, there was evidence presented to the jury that no testing was done on the wheels after they were shipped from Brazil to Texas and that the wheels could have been damaged during shipment. Finally, there was evidence presented to the jury that the wheel’s instructions inadequately explained that the consumer needed to perform a “ring test on vitrified wheels” in order to identify any defects in the wheel.

Norton Co. v. Fergestrom, No. 35719, 2001 WL 1628302, at *4 (Nev. Nov. 9, 2001)

To successfully prove a failure-to-warn case, a plaintiff must produce evidence demonstrating the same elements as in other strict product liability cases: “(1) the product had a defect which rendered it unreasonably dangerous, (2) the defect existed at the time the product left the manufacturer, and (3) the defect caused the plaintiff’s injury.” See Fyssakis v. Knight Equipment Corp., 108 Nev. 212, 214, 826 P.2d 570, 571 (1992).

Rivera v. Philip Morris, Inc., 125 Nev. 185, 191, 209 P.3d 271, 275 (2009)

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. Oak Grove Inv. v. Bell & Gossett Co., 99 Nev. 616, 668 P.2d 1075 (1983). Since it is not clear that the soap’s warning adequately communicated that the soap could cause blindness, we conclude that Fyssakis has raised a genuine issue of fact as to whether the soap was defective.

Fyssakis v. Knight Equip. Corp., 108 Nev. 212, 214, 826 P.2d 570, 571-72 (1992)

Robinson v. G.G.C., Inc., 107 Nev. 135, 138, 808 P.2d 522, 524 (1991)

Robinson v. G.G.C., Inc., 107 Nev. 135, 139, 808 P.2d 522, 525 (1991)

Finally, appellants contend that the district court erred in refusing to instruct the jury that warnings need not be given against dangers which are generally known. While this is certainly true as a general proposition of law, see General Electric Co. v. Bush, 88 Nev. 360, 365, 498 P.2d 366, 369 (1972), there was no evidentiary basis for the instruction here. Although Murray agreed with defense counsel that the CJ–5 “handled a little differently” than an ordinary passenger vehicle, there is no indication that he was aware of the Jeep’s propensity to overturn. Nor is there any evidence that consumers generally were aware of the danger.9 A party is entitled to an instruction on every theory of his case that is supported by the evidence. Beattie v. Thomas, 99 Nev. 579, 583, 668 P.2d 268, 271 (1983). Conversely, where such evidence is absent, the instruction should not be given. Id. at 583–84, 668 P.2d at 271; Village Development Co. v. Filice, 90 Nev. 305, 312–13, 526 P.2d 83, 87 (1974). We think this was the situation here.

Jeep Corp. v. Murray, 101 Nev. 640, 649, 708 P.2d 297, 303 (1985)

Where the defendant has reason to anticipate that danger may result from a particular use of his product, and he fails to warn adequately of such a danger, the product sold without a warning is in a defective condition. Strict liability may be imposed even where the product is faultlessly made, if it was unreasonably dangerous to place the product in the hands of the consumer without adequate warnings concerning its safe and proper use. Outboard Marine Corp. v. Schupbach, 93 Nev. 158, 162–63, 561 P.2d 450, 453 (1977). See General Electric Co. v. Bush, 88 Nev. 360, 364–65, 498 P.2d 366, 369 (1972); Jacobsen v. Ducommun, Inc., 87 Nev. 240, 484 P.2d 1095 (1971). See also Anderson v. Heron Engineering Co., 198 Colo. 391, 604 P.2d 674, 676 (1979); McKee v. Moore, 648 P.2d 21, 23 (Okl.1982).

Oak Grove Inv’rs v. Bell & Gossett Co., 99 Nev. 616, 624, 668 P.2d 1075, 1080 (1983) disapproved of by Calloway v. City of Reno, 116 Nev. 250, 993 P.2d 1259 (2000)

The adequacy of the warnings provided is ordinarily a jury question. Reiger v. Toby Enterprises, 45 Or.App. 679, 609 P.2d 402, 405 (1980).

Oak Grove Inv’rs v. Bell & Gossett Co., 99 Nev. 616, 624, 668 P.2d 1075, 1080 (1983) disapproved of by Calloway v. City of Reno, 116 Nev. 250, 993 P.2d 1259 (2000)

In the case before us the electric cart was safe when used in nonhazardous surroundings. It was not sparkproof nor intended to be so. It became a dangerous and defective product only when used in a hazardous atmosphere where its sparking characteristic foreseeably could cause damage. It was used in such an atmosphere, and since Outboard did not give warning that it should not be so used, the plaintiffs contend that the failure to warn may itself be deemed a defect causing injury. We agree with this contention since it is in line with this court’s mentioned expressions in the cases of Jacobsen v. Ducommun, Inc., supra, and General Electric Co. v. Bush, supra. We, therefore, turn to consider Outboard’s alternative contention that it was not under a duty to warn since the danger resulting from the use of the cart in a hazardous atmosphere was actually known to the user.

Outboard Motor Corp. v. Schupbach, 93 Nev. 158, 163, 561 P.2d 450, 453 (1977)

The record does not show that the employees knew of danger if they used the cart in a chemical atmosphere. Although aware that the cart sparked, they did not know the intensity required to cause an explosion. Indeed, that very cart had been used in all areas of the plant for years without an explosion resulting from such use. In these circumstances, it is appropriate to deem the defect in the product, that is, the failure to give suitable warning, as latent or hidden. Our decision in Bradshaw v. Blystone Equipment Co. of Nevada, 79 Nev. 441, 386 P.2d 396 (1963), concerning an open and obvious danger is, for this reason alone, inapposite.1

Moreover, we reject Outboard’s contention that it is a matter of a common knowledge that sparks cause an explosion in a chemical atmosphere. Many factors must coexist before an explosion occurs. The record does not establish that the employees possessed essential detailed knowledge as to render the danger open and obvious to them. Sierra Pacific v. Anderson, 77 Nev. 68, 358 P.2d 892 (1961).

Outboard Motor Corp. v. Schupbach, 93 Nev. 158, 163, 561 P.2d 450, 453 (1977)

Beyond that a product being defective gives rise to strict tort liability 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. Pike v. Frank G. Hough Co., 2 Cal.3d 465, 85 Cal.Rptr. 629, 467 P.2d 229 (1970); Johnson v. Standard Brands Paint Co., 274 Cal.App.2d 331, 340, 79 Cal.Rptr. 194 (1969); Barth v. B. F. Goodrich Tire Co., 265 Cal.App.2d 228, 245, 71 Cal.Rptr. 306 (1968); Gherna v. Ford Motor Co., 246 Cal.App.2d 639, 651, 55 Cal.Rptr. 94 (1966); Canifax v. Hercules Powder Co., 237 Cal.App.2d 44, 52—53, 46 Cal.Rptr. 552 (1965).

Gen. Elec. Co. v. Bush, 88 Nev. 360, 365, 498 P.2d 366, 369 (1972) abrogated by Motenko v. MGM Dist., Inc., 112 Nev. 1038, 921 P.2d 933 (1996)

Warning need not be given against dangers which are generally known (Helene Curtis Industries, Inc. v. Pruitt, 385 F.2d 841, 858 (5th Cir. 1967)), but the hazard here was not one generally known to these workmen. Nothing in their work experience could have forewarned them of the defective bolt or that a vertical lift was the only safe method of lifting this cabinet.

Gen. Elec. Co. v. Bush, 88 Nev. 360, 365, 498 P.2d 366, 369 (1972) abrogated by Motenko v. MGM Dist., Inc., 112 Nev. 1038, 921 P.2d 933 (1996)

[W]arnings 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.

Gen. Elec. Co. v. Bush, 88 Nev. 360, 365, 498 P.2d 366, 369 (1972) abrogated by Motenko v. MGM Dist., Inc., 112 Nev. 1038, 921 P.2d 933 (1996)

Burden of Proof in Product liability cases

Proof of the defective condition can be made either circumstantially or directly.20
Norton Co. v. Fergestrom, No. 35719, 2001 WL 1628302, at *3 (Nev. Nov. 9, 2001)

Regardless of the cause of action, causation—encompassing both medical causation and sufficient exposure—is a necessary element in proving appellants’ case.5 See Klasch v. Walgreen Co., 127 Nev. ––––, ––––, 264 P.3d 1155, 1158 (2011) (plaintiff bears burden to establish causation as an element of negligence); Rivera v. Philip Morris, Inc., 125 Nev. 185, 191, 209 P.3d 271, 275 (2009) (plaintiff bears burden to prove causation in products liability cases); Rutherford v. Owens–Illinois, Inc., 16 Cal.4th 953, 67 Cal.Rptr.2d 16, 941 P.2d 1203, 1214 (1997) *193 (“Most asbestos personal injury actions are tried on a products liability theory.”).
Holcomb v. Georgia Pac., LLC, 128 Nev. Adv. Op. 56, 289 P.3d 188, 192-93 (2012)

In strict product liability cases, the plaintiff carries both the burden of production and the burden of persuasion. See Shoshone Coca–Cola v. Dolinski, 82 Nev. 439, 443, 420 P.2d 855, 857–58 (1966).
Rivera v. Philip Morris, Inc., 125 Nev. 185, 191, 209 P.3d 271, 275 (2009)

Second, these instructions left lay jurors, persons in much the same position as the users of the product at issue, to search their imaginations to test the adequacy of the warnings.
Lewis v. Sea Ray Boats, Inc., 119 Nev. 100, 108, 65 P.3d 245, 250 (2003)

The Mahlums pleaded both negligence and strict liability against Dow Corning, and under either theory they were obligated to demonstrate causation. See Price v. Blaine Kern Artista, Inc., 111 Nev. 515, 518, 893 P.2d 367, 369 (1995) (causation is germane to both negligence and strict tort liability).
Dow Chem. Co. v. Mahlum, 114 Nev. 1468, 1481, 970 P.2d 98, 107 (1998)

To establish liability under a strict tort liability theory, Thomas must establish that his injury “was caused by a defect in the product, and that such defect existed when the product left the hands of the defendant.” Shoshone Coca–Cola Co. v. Dolinski, 82 Nev. 439, 443, 420 P.2d 855, 858 (1966).
Allison v. Merck & Co., 110 Nev. 762, 767, 878 P.2d 948, 952 (1994)

If Thomas can establish that the vaccine caused him to suffer permanent brain damage, then surely the vaccine failed to perform in the manner reasonably to be expected “in light of [its] nature and intended function.” The nature and intended function of this vaccine, of course, is to create an immunity to measles, mumps and rubella without attendant blindness, deafness, mental retardation and permanent brain damage.4
Allison v. Merck & Co., 110 Nev. 762, 767, 878 P.2d 948, 952 (1994)

In the case before us, plaintiffs are claiming in effect that the vaccine “malfunctioned”; and, if we are to follow Stackiewicz, then a vaccine which causes permanent brain damage “obviously lacks fitness regardless of the cause of the malfunction.”5 If the vaccine is found by a factfinder to have caused Thomas to develop the disabling encephalitis, then Merck’s “ ‘ “sin” is the lack of fitness as evidenced by the malfunction itself rather than some specific dereliction by the manufacturer.’ ” Id. 100 Nev. at 449, 686 P.2d at 928 (quoting Lindsay, 460 F.2d at 639).
Allison v. Merck & Co., 110 Nev. 762, 768, 878 P.2d 948, 952-53 (1994)

Allison v. Merck & Co., 110 Nev. 762, 769-70, 878 P.2d 948, 953-54 (1994)

Stackiewicz v. Nissan Motor Corp. in U.S.A., 100 Nev. 443, 449, 686 P.2d 925, 928 (1984)

In Tweedy v. Wright Ford Sales, Inc., 64 Ill.2d 570, 2 Ill.Dec. 282, 357 N.E.2d 449 (1976), which the district judge cited but declined to follow in the instant case, the defendant manufacturer alleged that the plaintiff had not made a sufficient case for the jury, when the plaintiff had offered evidence of a brake malfunction at the time of the accident. The automobile in question was approximately six months old and had been driven approximately 7,500 miles without any brake problems. Plaintiff’s daughter testified that she had experienced a temporary brake failure. Plaintiff testified that the brakes went out completely several hours later on the same day while the car was being driven carefully at a reasonable rate of speed, on dry roads and in good weather. Plaintiff did not offer any expert testimony concerning the presence of a specific defect, while defendant’s expert testified that there was no defect. The Illinois Supreme Court affirmed judgment for plaintiff, holding that both a defect and its existence when it left the manufacturer were established by proof that the product failed to perform in the manner reasonably to be expected in light of its nature and intended function, in the absence of abnormal use or reasonable secondary causes. The failure of the brakes to function in the manner reasonably to be expected, in itself and without more, established the defect.

Stackiewicz v. Nissan Motor Corp. in U.S.A., 100 Nev. 443, 449, 686 P.2d 925, 928–29 (1984)

In the leading and oft-cited case of Greco v. Bucciconi Engineering Co., supra, 407 F.2d 87 (3d Cir.1969), affirming 283 F.Supp. 978 (W.D.Pa.1967), the plaintiff was injured when a magnetic steel piler malfunctioned while being used as it was *450 intended to be used. The defendants, the manufacturer and seller of the piler, contended that plaintiff failed to sustain his burden of showing the existence of a defect at the time of sale. The only evidence of a defect was that the machine malfunctioned, and was a relatively new machine, having been in operation about six months prior to the accident.
The Court of Appeals, applying Pennsylvania law, held that a defective condition is established, “within the meaning of [Restatement (Second) of Torts] Section 402A by proving that the product functioned improperly in the absence of abnormal use and reasonable secondary causes,” 407 F.2d at 89–90. Although defendants contended that an electrical problem in the control panel, which defendants neither manufactured nor supplied, caused the malfunction, the Court of Appeals held that the jury could nevertheless properly have inferred that the malfunction was caused by a defect in defendants’ product. Id. at 91 n. 7.

Stackiewicz v. Nissan Motor Corp. in U.S.A., 100 Nev. 443, 449–50, 686 P.2d 925, 929 (1984)

Stackiewicz v. Nissan Motor Corp. in U.S.A., 100 Nev. 443, 450, 686 P.2d 925, 929 (1984)

Dennis v. Ford Motor Co., 332 F.Supp. 901 (W.D.Pa.1971), aff’d, 471 F.2d 733 (3d Cir.1973), also involved evidence similar to that at bar in that plaintiff’s employee was driving a new (2-day old) tractor-trailer combination which left the highway, causing loss of the property. The driver testified that he felt the right front wheel give way and he then lost steering control. Construing the law under Restatement (Second) of Torts, Section 402A, the District Court said that the evidence was sufficient to establish that the accident was caused by a malfunction of the steering mechanism. 332 F.Supp. at 903. The court held that “evidence of a malfunction of a vehicle is sufficient to establish liability without proof of the specific defect causing the malfunction.” Id.

Stackiewicz v. Nissan Motor Corp. in U.S.A., 100 Nev. 443, 450, 686 P.2d 925, 929 (1984)

On the facts presented in this case, we conclude that evidence of a steering malfunction which resulted in the driver losing control of the vehicle 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.1

Stackiewicz v. Nissan Motor Corp. in U.S.A., 100 Nev. 443, 450–51, 686 P.2d 925, 929 (1984)

We agree with the Supreme Court of Oregon that when the plaintiff has presented circumstantial evidence that a defect caused the accident in question, the credibility of such evidence is an issue to be left to the jury. “If the jury believes plaintiffs’ evidence, the defendants, as is true in any case when the jury initially believes the plaintiffs’ evidence, must come forward and convince the jury that the plaintiffs’ evidence is incorrect, or the inferences to be drawn from plaintiffs’ evidence do not lead to the conclusion that a defect in the vehicle was the cause of the damage.” Brownell v. White Motor Corporation, supra, 490 P.2d at 186. Defendants are not entitled to short-circuit the normal adversary process by convincing the court, rather than the jury, of the virtue of their position.

Stackiewicz v. Nissan Motor Corp. in U.S.A., 100 Nev. 443, 452, 686 P.2d 925, 930 (1984)

In strict tort liability cases, evidence of prior or subsequent mishaps similar to the one in issue, involving the same product, are admissible to show faulty design or manufacture or other elements of the strict liability cause of action. Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 415–16, 470 P.2d 135, 139–40 (1970). See Reiger v. Toboy Enterprises, 45 Or.App. 679, 609 P.2d 402 (1980); Stoltz v. McKowen, 14 Wash.App. 808, 545 P.2d 584 (1976).

Beattie v. Thomas, 99 Nev. 579, 585, 668 P.2d 268, 272 (1983)

Although it is true that in reviewing the grant of a Rule 41(b) motion “the plaintiff’s evidence must be accepted as true … (and) this court must draw all permissible inferences in his favor and not pass upon the credibility of the witnesses nor weigh the evidence,” Bates v. Cottonwood Cove Corp., 84 Nev. 388, 391, 441 P.2d 622, 624 (1968), it is equally true that the plaintiff must present a prima facie case upon which the triers of fact can grant relief. Warner v. Dillion, 92 Nev. 677, 588 P.2d 540 (1976). In a strict liability case, such as that before us, the burden of proving liability rests upon the plaintiff, who, “must still establish that his injury was caused by a defect in the product, and that such defect existed when the product left the hands of the defendant.” *912 Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 413, 470 P.2d 135, 138 (1970); Duncan v. Rockwell Manufacturing Co., 173 Mont. 382, 567 P.2d 936, 939 (1977).

Griffin v. Rockwell Int’l, Inc., 96 Nev. 910, 911–12, 620 P.2d 862, 863 (1980)

Further, such a contention [that damages need not be proved] is without merit for actual injury must be shown to recover on a theory of strict liability in tort and mere nominal damages to vindicate a technical right are insufficient. Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 470 P.2d 135 (1970); Shoshone Coca-Cola v. Dolinski, 82 Nev. 439, 420 P.2d 855 (1966).

Werner v. Shoshone Coca-Cola Bottling Co., 91 Nev. 286, 287, 535 P.2d 161, 162 (1975)

Worrell v. Barnes, 87 Nev. 204, 206–07, 484 P.2d 573, 575 (1971) overruled by Calloway v. City of Reno, 116 Nev. 250, 993 P.2d 1259 (2000)

In Shoshone Coca-Cola Bottling Co. v. Dolinski, 82 Nev. 439, 420 P.2d 855 (1966), we judicially adopted the doctrine of strict tort liability for Nevada in the field of foodstuffs and bottled beverages. We now extend that doctrine to the design and manufacture of all types of products. Suvada v. White Motor Co., 32 Ill.2d 612, 210 N.E.2d 182 (1965). In doing so, a plaintiff, in relying upon the doctrine, must still prove his case. As we said in Shoshone, ‘He must still establish that his injury was caused by a defect in the product, and that such defect existed when the product left the hands of the defendant. The concept of strict liability does not prove causation, nor does it trace the cause to the defendant.’ Id. at 443, 420 P.2d at 858.

Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 413, 470 P.2d 135, 138 (1970)

Jury Instructions

First, in Fyssakis and Allison, we refused to exonerate products manufacturers as a matter of law from strict tort liability based upon general warnings language.
Lewis v. Sea Ray Boats, Inc., 119 Nev. 100, 108, 65 P.3d 245, 250 (2003)

Jeep Corp. v. Murray, 101 Nev. 640, 649, 708 P.2d 297, 303 (1985)

We note that products liability claims are frequently submitted to the jury on both strict liability and negligence theories. In such a case, it may be appropriate for the trial court to instruct the jury that evidence of remedial measures may not be considered by the jury in its determination of the negligence claim. See Robbins, 552 F.2d at 795. This is an issue, however, that we need not and do not resolve.

Jeep Corp. v. Murray, 101 Nev. 640, 648, 708 P.2d 297, 302 (1985)

Regarding strict products liability, the jury was instructed that “no liability follows an injury resulting from abnormal or unintended use.” Even if the jury found the product unreasonably dangerous, it may have found that John Manfredi’s conduct constituted abnormal or unintended use resulting in no liability on the part of Rotometals. As Brenda was not using the product and did not leave it within Justin’s reach, the jury again consistently could have found she was entitled to recover on a strict products liability theory. While Manfredi convincingly argues that his conduct is not the sort of misuse which bars recovery on strict products liability claims, he failed to request that the jury be instructed concerning the correct definition of “misuse” in the context of the instant case. While respondents and the district court may have understood that Manfredi should not have been barred by his negligence from recovering under a strict liability cause of action, it was possible for the jury to conclude otherwise based on its instructions. Manfredi, therefore, has failed to demonstrate that it would have been “impossible” for the jury to have reached its verdict that he was not entitled to recover against the appellant. Weaver Brothers, Ltd. v. Misskelley, 98 Nev. 232, 234, 645 P.2d 438, 439 (1982). The district court’s order granting judgment notwithstanding the verdict is, therefore, vacated, and the judgment upon the jury verdict denying John Manfredi any recovery is reinstated. Having made this determination, we need not reach Rotometals’ other contentions regarding John Manfredi’s case.

Jacobson v. Manfredi by Manfredi, 100 Nev. 226, 235–36, 679 P.2d 251, 257 (1984)

The fifth section of the instruction is a correct statement of the law in Nevada. For example, in General Electric Co. v. Bush, 88 Nev. 360, 498 P.2d 366 (1972), we held:
We have heretofore held that a defective product is dangerous if it fails to perform in the manner reasonably to be expected in the light of its nature and intended function. Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 470 P.2d 135 (1970). Beyond that a product being defective gives rise to strict tort liability even though faultlessly made if it was unreasonably dangerous for the manufacturer or supplier to place that product in the hands of a user … (Emphasis added.)
Id. 88 Nev. at 364, 498 P.2d 366. Accord, Outboard Marine Corp. v. Schupbach, 93 Nev. 158, 561 P.2d 450 (1977). We therefore hold that the district court did not err in giving the fifth section of Jury Instruction ### 4.

Ward v. Ford Motor Co., 99 Nev. 47, 48–49, 657 P.2d 95, 96 (1983)

Crown Controls Corp. v. Corella, 98 Nev. 35, 37, 639 P.2d 555, 557 (1982)

Misc.

Nevada recognizes the doctrine of strict tort liability for defective products. See e.g., Outboard Marine Corp. v. Schupbach, 93 Nev. 158, 561 P.2d 450 (1977) (manufacture of an electric utility cart); Worrell v. Barnes, 87 Nev. 204, 484 P.2d 573 (1971) (installation of a residential gas line into a previously existing gas system); Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 470 P.2d 135 (1970) (manufacture of automatic doors); Shoshone Coca–Cola Bottling Co. v. Dolinski, 82 Nev. 439, 420 P.2d 855 (1966). However, this court has not yet decided whether strict liability should also extend to abnormally dangerous activities.
Valentine v. Pioneer Chlor Alkali Co. Inc., 109 Nev. 1107, 1109, 864 P.2d 295, 297 (1993)

The doctrine of Rylands has been explained and codified in the Restatement (Second) of Torts, section 519 (1977): “One who carries on an abnormally dangerous activity is subject to liability for harm to the person, land or chattels of another resulting from the activity, although he has exercised the utmost care to prevent the harm.”
Valentine v. Pioneer Chlor Alkali Co. Inc., 109 Nev. 1107, 1110, 864 P.2d 295, 297 (1993)

Section 520 of the Restatement (Second) of Torts sets forth six factors relevant to a determination of whether an activity is abnormally dangerous: (a) existence of a high degree of risk of some harm to the person, land or chattels of others; (b) likelihood that the harm that results from it will be great; (c) inability to eliminate the risk by the exercise of reasonable care; (d) extent to which the activity is not a matter of common usage; (e) inappropriateness of the activity to the place where it is carried on; and (f) extent to which its value to the community is outweighed by its dangerous attributes.
Valentine v. Pioneer Chlor Alkali Co. Inc., 109 Nev. 1107, 1110, 864 P.2d 295, 297 (1993)

When a product injures only itself the reasons for imposing a tort duty are weak and those for leaving the party to its contractual remedies are strong.

The tort concern with safety is reduced when an injury is only to the product itself. When a person is injured, the “cost of an injury and the loss of time or health may be an overwhelming misfortune,” and one the person is not prepared to meet. Escola v. Coca Cola Bottling Co., 24 Cal.2d [453] at 462, 150 P.2d [436] at 441 [ (1944) ]…. In contrast, when a product injures itself, the commercial user stands to lose the value of the product, risks the displeasure of its customers who find that the product does not meet their needs, or, as in this case, experiences increased costs in performing a service. Losses like these can be insured. See 10A G. Couch, Cyclopedia of Insurance Law §§ 42:385–42:401, 42:414–417 (2d ed.1982); 7 E. Benedict, Admiralty, Form No. 1.16–7, p. 1–239 (7th ed.1985); 5A J. Appleman & J. Appleman, *540 Insurance Law and Practice § 3252 (1970). Society need not presume that a customer needs special protection. The increased cost to the public that would result from holding a manufacturer liable in tort for injury to the product itself is not justified. Cf. United States v. Carroll Towing Co., 159 F.2d 169, 173 (CA2 1947).
Id. at 871–72, 106 S.Ct. at 2302.

Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Pratt & Whitney Canada, Inc., 107 Nev. 535, 539–40, 815 P.2d 601, 603–04 (1991)

Strict liability may extend not only to the dealer and retail seller of the product, but to the manufacturer of the product and the manufacturers of its component parts. Rocky Mountain Fire & Cas. Co. v. Biddulph Oldsmobile, 640 P.2d at 854.

Oak Grove Inv’rs v. Bell & Gossett Co., 99 Nev. 616, 624, 668 P.2d 1075, 1080 (1983) disapproved of by Calloway v. City of Reno, 116 Nev. 250, 993 P.2d 1259 (2000)

On appeal appellants also suggest that the doctrine of strict liability in tort establishes the liability of EPS for the bees’ failure to pollinate. We do not agree. To support their strict liability argument appellants argue that they need prove only that the bees were defective, citing Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 470 P.2d 135 (1970). We fail to follow appellants’ reasoning. In Ginnis this court adopted the following definition of defect in a strict liability setting: “those products are defective which are dangerous because they fail to perform in the manner reasonably to be expected in light of their nature and intended function.” Ginnis v. Mapes Hotel Corp., supra, 413. The purpose of the bees was to pollinate the alfalfa fields; the bees were not dangerous. The doctrine of strict liability has no application in the instant case.

Stickelman v. Moroni, 97 Nev. 405, 408, 632 P.2d 1159, 1161 (1981)

The claimed defect in this case, the absence of an interlock safety device on a 10 inch table saw manufactured by respondent, was not sufficiently shown to withstand the motion to dismiss. The only evidence offered by appellant Griffin was his testimony, the stricken testimony of his proposed expert, and an instruction booklet on a Rockwell 10 inch saw that was printed the year after the accident occurred. Even by viewing this evidence most favorably to Griffin, the testimony of the witnesses does not sufficiently demonstrate that such an interlock switch was or was not a part of the saw when it left the control of respondent manufacturer. While an inference could possibly be drawn that the offered booklet came from an identically built saw, the jury would then have had to draw the further inference (based not upon a proved fact, but upon the foregoing conclusion) that if such a device were on the saw it would be reflected in the booklet. The actual facts shown at trial do not provide a reasonable basis for drawing such inference regarding such an essential element of appellant’s case in chief. See Rickard v. City of Reno, 71 Nev. 266, 272-73, 288 P.2d 209, 212 (1955).

Griffin v. Rockwell Int’l, Inc., 96 Nev. 910, 912, 620 P.2d 862, 863 (1980)

Liability may attach to a defendant in a products liability case under several disparate theories of recovery: express or implied warranty, negligence, or strict liability in tort. 63 Am.Jur.2d, Products Liability, ss 1-4. The instant case revolves around whether the complaint pleaded a cause of action in negligence or strict liability or both.

Chavez v. Robberson Steel Co., 94 Nev. 597, 599, 584 P.2d 159, 160 (1978)

Nevada is a notice-pleading jurisdiction and liberally construes pleadings to place into issue matter which is fairly noticed to the adverse party, NRCP 8(a); Taylor v. State and Univ., 73 Nev. 151, 311 P.2d 733 (1957). A single count may allege alternative theories of recovery. NRCP 8(e)(2).

“(D)efendants . . . were engaged in the design, fabrication and the furnishing of certain structural steel members to be used in the construction . . .; further, that said structural steel members were negligently designed and negligently and defectively fabricated.”

Chavez v. Robberson Steel Co., 94 Nev. 597, 599, 584 P.2d 159, 160 (1978)

Werner v. Shoshone Coca-Cola Bottling Co., 91 Nev. 286, 287, 535 P.2d 161, 162 (1975)

In Long, we declined to consider strict liability theories, tendered for the first time on appeal, but later we did adopt strict liability in tort for persons injured by defectively manufactured or designed products, whether they are in privity with the seller or not. Worrell v. Barnes, 87 Nev. 204, 484 P.2d 573 (1971); Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 470 P.2d 135 (1970); Shoshone Coca-Cola v. Dolinski, 82 Nev. 439, 420 P.2d 855 (1966).

Amundsen v. Ohio Brass Co., 89 Nev. 378, 380, 513 P.2d 1234, 1235 (1973)

Worrell v. Barnes, 87 Nev. 204, 206, 484 P.2d 573, 575 (1971) overruled by Calloway v. City of Reno, 116 Nev. 250, 993 P.2d 1259 (2000)

Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 413, 470 P.2d 135, 138 (1970)

In Escola v. Coca Cola Bottling Co., 24 Cal.2d 453, 150 P.2d 436, 440 (1944), Justice Traynor, in a concurring opinion, wrote: ‘Even if there is no negligence, however, 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.’ That point of view ultimately became the philosophy of the full court in Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 27 Cal.Rptr. 697, 377 P.2d 897 (1962). There Justice Traynor wrote: ‘The purpose of such liability is to insure that the cost of injuries resulting from defective products are borne by the manufacturer that put such products on the market rather than by the injured persons who are powerless to protect themselves.’

Shoshone Coca-Cola Bottling Co. v. Dolinski, 82 Nev. 439, 442, 420 P.2d 855, 857 (1966)

Causation

We conclude that the court committed prejudicial error when it allowed evidence that Andrews was intoxicated on the night of the accident to come before the jury. Evidence that a plaintiff’s intoxication may have caused an accident is not relevant to the issue of whether there was a design defect or whether a design defect in his vehicle caused his injuries. The jury, however, may have concluded that Harley Davidson was not liable for Andrews’ injuries, despite the existence of a design defect on his motorcycle, because Andrews was intoxicated on the night of his accident.
Andrews v. Harley Davidson, Inc., 106 Nev. 533, 538, 796 P.2d 1092, 1095–96 (1990)

Jeep Corp. v. Murray, 101 Nev. 640, 644–45, 708 P.2d 297, 300 (1985)

Jeep Corp. v. Murray, 101 Nev. 640, 645, 708 P.2d 297, 301 (1985)

Stackiewicz v. Nissan Motor Corp. in U.S.A., 100 Nev. 443, 449, 686 P.2d 925, 928–29 (1984)

Stackiewicz v. Nissan Motor Corp. in U.S.A., 100 Nev. 443, 449–50, 686 P.2d 925, 929 (1984)

Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 413, 470 P.2d 135, 138 (1970)

Admissibility of Evidence

This court has recognized that prior and subsequent accidents are admissible in an action based on strict liability. Beattie v. Thomas, 99 Nev. 579, 668 P.2d 268 (1983) (prior and subsequent mishaps are admissible to show faulty design); Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 470 P.2d 135 (1970). In Ginnis, the plaintiff was injured in an automatic door. We held that evidence of prior and subsequent repair orders and subsequent accidents involving the same door were admissible to show a defective and dangerous condition and causation. Id. at 413, 470 P.2d at 139.

Robinson v. G.G.C., Inc., 107 Nev. 135, 140, 808 P.2d 522, 525 (1991)

Robinson tried to offer evidence of safety devices on analogous machines to show that the interlocking guard that Enterprise should have included in the baler had been available for many years. This court has recognized that alternative safer designs are a factor in determining the existence of a design defect. McCourt v. J.C. Penney Co., 103 Nev. 101, 734 P.2d 696 (1987). In McCourt, we reversed a defense verdict because the jury was not given the opportunity to feel alternative safer fabrics, even though the defense expert claimed that such fabrics were uncomfortable and therefore not commercially feasible. We noted that *141 when commercial feasibility is in dispute, the court must permit the plaintiff to impeach the defense expert with evidence of alternative design. Id. at 103, 734 P.2d at 698. In this case, Enterprise’s expert testified that the design **526 was reasonably safe, and that it was the state of the art at the time it was built. Robinson should have had the chance to dispute that claim with evidence of alternative designs that were available at the time.

Robinson v. G.G.C., Inc., 107 Nev. 135, 140–41, 808 P.2d 522, 525–26 (1991)

To comply with federal standards promulgated in 1982, Enterprise changed the design of its baler to include an interlocking safety guard. NRS 48.095 provides that subsequent remedial measures are not admissible to prove negligence or culpable conduct. Therefore, the court below excluded evidence of these design changes.
However, this court had previously adopted the rule that such measures are admissible in strict liability actions. Jeep Corporation v. Murray, 101 Nev. 640, 708 P.2d 297 (1985). In Jeep, the manufacturer sent warning stickers advising consumers that their vehicles lacked adequate occupant protection in the tops and doors. We concluded that the public policy reason to exclude such evidence in negligence actions does not apply in strict liability cases. Id. at 647, 708 P.2d at 302. A producer will not forego making improvements if failing to do so will subject it to additional lawsuits. Therefore, the better rule is to admit post-accident remedial measures, and let the jury decide if the manufacturer should have known how to correct the defect at the time it built the product.

Robinson v. G.G.C., Inc., 107 Nev. 135, 141, 808 P.2d 522, 526 (1991)

Legislative or administrative regulatory standards are admissible as evidence of a product’s safety. Falk v. Keene Corp., 113 Wash.2d 645, 782 P.2d 974 (1989) (evidence of compliance with regulatory standards for asbestos products is relevant to the burden on the manufacturer to design a safe product); Walker v. Maxwell City, Inc., 117 Ill.App.3d 571, 73 Ill.Dec. 92, 453 N.E.2d 917 (1983) (ANSI standards for motorcycle helmet admissible whether promulgated before or after the helmet was made). Enterprise argued that standards promulgated after the baler was sold should be inadmissible because Enterprise could not have complied with a standard not yet in existence. However, Enterprise could offer evidence of the relevant dates, and thereby give the jury full knowledge of the surrounding circumstances.

Robinson v. G.G.C., Inc., 107 Nev. 135, 142, 808 P.2d 522, 526 (1991)

ANSI standards set design guidelines for manufacturers. The ramifications for failing to comply with a standard varies depending on the product and the nature of the industry. Enterprise could rebut any false presumptions a standard raises by informing the jury of the date the institute promulgated the standard, or by showing that the industry did not adhere to the standard when Enterprise sold the baler. However, these issues should go to weight, and not admissibility of the industry or regulatory standards themselves. Seward v. Griffin, 116 Ill.App.3d 749, 72 Ill.Dec. 305, 452 N.E.2d 558 (1983). In Seward, the trial court admitted federal motor vehicle standards even though some were newer **527 than the vehicle. The appellate court appropriately left to the jury the determination of whether the manufacturer could have been expected to adhere to the equivalent of the standard. Id. 72 Ill.Dec. at 315, 452 N.E.2d at 568.

Robinson v. G.G.C., Inc., 107 Nev. 135, 142, 808 P.2d 522, 526–27 (1991)

In addition, post-manufacture industry standards are circumstantial evidence that alternative courses of conduct may have been available to an entire industry. D.L. By Friederichs v. Huebner, 110 Wis.2d 581, 329 N.W.2d 890 (1983). In Huebner the court admitted evidence of post-manufacture industry standards which required manufacturers to include safety features on forage wagons. Id. 329 N.W.2d at 896. In finding that a whole industry may have been producing a defective product, the court stated, “the question is not whether anyone else was doing more, although that may be considered, but whether the evidence discloses that anything more could reasonably and economically be done.” Id. at 907 (quoting Hancock v. Paccar, Inc., 283 N.W.2d 25, 35 (Neb.1979)). The best way to determine if a defendant should have built a safer product is to let the jury hear all the evidence relating to the course of conduct of both the industry, and the particular manufacturer.

Robinson v. G.G.C., Inc., 107 Nev. 135, 142–43, 808 P.2d 522, 527 (1991)

Andrews v. Harley Davidson, Inc., 106 Nev. 533, 537, 796 P.2d 1092, 1095 (1990)

Andrews v. Harley Davidson, Inc., 106 Nev. 533, 537–38, 796 P.2d 1092, 1095 (1990)

Andrews v. Harley Davidson, Inc., 106 Nev. 533, 538, 796 P.2d 1092, 1095–96 (1990)

Jeep Corp. v. Murray, 101 Nev. 640, 645, 708 P.2d 297, 301 (1985)

Jeep Corp. v. Murray, 101 Nev. 640, 645–46, 708 P.2d 297, 301 (1985)

In Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 470 P.2d 135 (1970), we held that post-accident repair orders, though not admissible to show negligence, were admissible to prove the existence of a defect “or any other necessary element” of a cause of action sounding in strict liability. 86 Nev. at 416, 470 P.2d at 139–40.

Jeep Corp. v. Murray, 101 Nev. 640, 646, 708 P.2d 297, 301–02 (1985)

We believe that NRS 48.095 has no application here. By its terms, the statute comes into play only where negligence or other “culpable” conduct is alleged. See Schelbauer v. Butler Mfg. Co., 35 Cal.3d 442, 198 Cal.Rptr. 155, 159, 673 P.2d 743, 747 (1984); Ault v. International Harvester Company, 13 Cal.3d 113, 117 Cal.Rptr. 812, 814–15, 528 P.2d 1148, 1150–51 (1975); Burke v. Almaden Vineyards, Inc., 86 Cal.App.3d 768, 150 Cal.Rptr. 419, 421 n. 2 (1978) (construing statute similar to NRS 48.095). In a strict liability action, of course, culpability in the sense of fault need not be established. See Ginnis, 86 Nev. at 413, 470 P.2d at 138; Shoshone Coca-Cola, 82 Nev. at 441, 420 P.2d at 857. Had the legislature, in enacting NRS 48.095, intended “culpable” to denote simple legal responsibility, without regard to fault, we think it would have expressed its intention in unequivocal terms.

Jeep Corp. v. Murray, 101 Nev. 640, 647, 708 P.2d 297, 302 (1985)

Additionally, it seems to us that the policy considerations which underlie NRS 48.095 are less compelling in the situation presented here than in the typical negligence case. Where the plaintiff has been injured by a defect in a sidewalk, for example, it may be realistic to suppose that the potential defendant will avoid making repairs, fearing that they might be construed as an admission of fault. But this assumption is not valid where the defect is in a product manufactured by the thousands. In such a case, “it is manifestly unrealistic to suggest that [the] producer will forego making improvements in its product, and risk innumerable additional lawsuits and the attendant adverse effect upon its public image, simply because evidence of … such improvement may be admitted in an action founded on strict liability for recovery on an injury that preceded the improvement.” Ault, 528 P.2d at 1152. Accordingly, while decisions on the subject are by no means unanimous, we believe the better rule is to allow admission of post-accident remedial measures in an action based upon strict liability. See, e.g., Schelbauer, 673 P.2d at 746–48 (post-accident warning); Siruta v. Hesston Corp., 232 Kan. 654, 659 P.2d 799, 809 (1983) (design change); D.L. by Friederichs v. Huebner, 110 Wis.2d 581, 329 N.W.2d 890, 903–05 (1983) (design change and warning); Caldwell v. Yamaha Motor Co., Ltd., 648 P.2d 519, 525 (Wyo.1982) (design change); Caprara v. Chrysler Corp., 52 N.Y.2d 114, 436 N.Y.S.2d 251, 257, 417 N.E.2d 545, 551 (1981) (design change); Robbins v. Farmers Union Grain Terminal Ass’n, 552 F.2d 788, 793 (8th Cir.1977) (warning); Shaffer v. Honeywell, Inc., 249 N.W.2d 251, 257 n. 7 (S.D.1976) (design change); Ault, 528 P.2d 1148 (design change).7

Jeep Corp. v. Murray, 101 Nev. 640, 647–48, 708 P.2d 297, 302 (1985)

At trial, respondents introduced the new container and the circular into evidence. NRS 48.095, patterned after Rule 407 of the Federal Rules of Evidence, excludes evidence of subsequent remedial measures to prove negligence or culpable conduct, unless such evidence is offered to prove another purpose such as feasibility of precautionary measures.3 In this case the feasibility exception applies because Rotometals contested the utility and safety provided by the original container and labels versus the subsequent product container and labels.
Whether something is feasible relates not only to actual possibility of operation, and its cost and convenience, but also to its ultimate utility and success in its intended performance. That is to say, “feasible” means not only “possible,” but also means “capable of being … utilized, or dealt with successfully.” Webster’s Third New International Dictionary 831 (unabridged ed. 1967); see Black’s *232 Law Dictionary 549 (5th ed. 1979) (“reasonable assurance of success.”).
Anderson v. Malloy, 700 F.2d 1208, 1213 (8th Cir.1983). We therefore hold that admission of the evidence regarding subsequent remedial product changes was within the district court’s discretion.

Jacobson v. Manfredi by Manfredi, 100 Nev. 226, 231–32, 679 P.2d 251, 254–55 (1984)

Beattie v. Thomas, 99 Nev. 579, 585, 668 P.2d 268, 272 (1983)

However, there is a distinct difference between showing the accident/injury history of a product and the legal history of a product. Many factors influence the filing of a lawsuit, among them the amenability of defendant’s insurer to prompt out-of-court settlements. Even if the absence of prior lawsuits concerning a particular product remotely tends to indicate that no substantial defect exists, the prejudicial value and confusing nature of such evidence would seem to outweigh considerably its probative value. Respondent cites no cases holding that the prior legal history of a product is admissible.

Beattie v. Thomas, 99 Nev. 579, 585–86, 668 P.2d 268, 272 (1983)

State of the Art / Feasibility / Standards

Robinson tried to offer evidence of safety devices on analogous machines to show that the interlocking guard that Enterprise should have included in the baler had been available for many years. This court has recognized that alternative safer designs are a factor in determining the existence of a design defect. McCourt v. J.C. Penney Co., 103 Nev. 101, 734 P.2d 696 (1987). In McCourt, we reversed a defense verdict because the jury was not given the opportunity to feel alternative safer fabrics, even though the defense expert claimed that such fabrics were uncomfortable and therefore not commercially feasible. We noted that when commercial feasibility is in dispute, the court must permit the plaintiff to impeach the defense expert with evidence of alternative design. Id. at 103, 734 P.2d at 698. In this case, Enterprise’s expert testified that the design was reasonably safe, and that it was the state of the art at the time it was built. Robinson should have had the chance to dispute that claim with evidence of alternative designs that were available at the time.

Robinson v. G.G.C., Inc., 107 Nev. 135, 140–41, 808 P.2d 522, 525–26 (1991)

Robinson v. G.G.C., Inc., 107 Nev. 135, 141, 808 P.2d 522, 526 (1991)

Robinson v. G.G.C., Inc., 107 Nev. 135, 142, 808 P.2d 522, 526 (1991)

ANSI standards set design guidelines for manufacturers. The ramifications for failing to comply with a standard varies depending on the product and the nature of the industry. Enterprise could rebut any false presumptions a standard raises by informing the jury of the date the institute promulgated the standard, or by showing that the industry did not adhere to the standard when Enterprise sold the baler. However, these issues should go to weight, and not admissibility of the industry or regulatory standards themselves. Seward v. Griffin, 116 Ill.App.3d 749, 72 Ill.Dec. 305, 452 N.E.2d 558 (1983). In Seward, the trial court admitted federal motor vehicle standards even though some were newer than the vehicle. The appellate court appropriately left to the jury the determination of whether the manufacturer could have been expected to adhere to the equivalent of the standard. Id. 72 Ill.Dec. at 315, 452 N.E.2d at 568.

Robinson v. G.G.C., Inc., 107 Nev. 135, 142, 808 P.2d 522, 526–27 (1991)

In addition, post-manufacture industry standards are circumstantial evidence that alternative courses of conduct may have been available to an entire industry. D.L. By Friederichs v. Huebner, 110 Wis.2d 581, 329 N.W.2d 890 (1983). In Huebner the court admitted evidence of post-manufacture industry standards which required manufacturers to include safety features on forage wagons. Id. 329 N.W.2d at 896. In finding that a whole industry may have been producing a defective product, the court stated, “the question is not whether anyone else was doing more, although that may be considered, but whether the evidence discloses that anything more could reasonably and economically be done.” Id. at 907 *143 (quoting Hancock v. Paccar, Inc., 283 N.W.2d 25, 35 (Neb.1979)). The best way to determine if a defendant should have built a safer product is to let the jury hear all the evidence relating to the course of conduct of both the industry, and the particular manufacturer.

Robinson v. G.G.C., Inc., 107 Nev. 135, 142–43, 808 P.2d 522, 527 (1991)

Indemnity and Restitution

We are inclined to follow the reasoning in Pender. As the Comment to Section 886B of the Restatement (Second) of Torts notes, the basis for indemnity is restitution; one person is unjustly enriched when another discharges liability that it should be his responsibility to pay. The premise is that indemnity should be granted in any situation where, as between the parties themselves, it is just and fair that the indemnitor should bear the entire loss, rather than leaving it on the indemnitee or dividing it proportionately between the parties by contribution. An indemnitee is not “held harmless” pursuant to an express or implied indemnity agreement if it must incur costs and attorney’s fees to vindicate its rights. Heritage v. Pioneer Brokerage & Sales, Inc., 604 P.2d at 1066–67. Furthermore, the more restrictive Westfield rule provides absolutely no protection to retailers and distributors, who may be compelled to expend large sums to defend a products liability action merely because a defective product, the defect of which may be attributable solely to the manufacturer’s conduct, passed through their hands.

Piedmont Equip. Co. v. Eberhard Mfg. Co., 99 Nev. 523, 528, 665 P.2d 256, 259 (1983)

However, the right to fees and costs remains limited. The manufacturer has no duty to defend a distributor or retailer charged with negligence, breach of warranty, or strict liability where the latter party is attempting to prove that it was not actively negligent. See Koch v. City of Seattle, 9 Wash.App. 580, 513 P.2d 573, 576–77 (Wash.App.1973). Cf. Restatement (Second) of Judgments § 57(2) & (3) (1982) (“conflict of interest” preventing indemnitor from properly assuming defense of indemnitee exists when injured person’s claim against indemnitee is such that it could be sustained on different grounds, one of which is within scope of indemnitor’s obligation to indemnify and another of which is not). Therefore, the indemnitee’s right to attorney’s fees and costs depends on the evidence presented as well as the facts found at trial; the indemnitee may recover only those fees and expenses attributable to the making of defenses which are not primarily directed toward rebutting charges of active negligence.1

Piedmont Equip. Co. v. Eberhard Mfg. Co., 99 Nev. 523, 529, 665 P.2d 256, 260 (1983)
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2010-2019

1. Michaels v. Pentair Water Pool & Spa, 131 Nev. Adv. Op. 81, 357 P.3d 387, 397 (Nev. App. 2015)
2. Holcomb v. Georgia Pac., LLC, 128 Nev. Adv. Op. 56, 289 P.3d 188, 194 (2012)
3. Michelin N. Am., Inc. v. Deal, 128 Nev. 918 (2012)

2000-2009

1. Rivera v. Philip Morris, Inc., 125 Nev. 185, 191, 209 P.3d 271, 275 (2009)
2. Gen. Motors Corp. v. Eighth Judicial Dist. Court of State of Nev. ex rel. Cty. of Clark, 122 Nev. 466, 476, 134 P.3d 111, 118 (2006)
3. Lewis v. Sea Ray Boats, Inc., 119 Nev. 100, 107, 65 P.3d 245, 249 (2003)
4. Norton Co. v. Fergestrom, No. 35719, 2001 WL 1628302, at *3 (Nev. Nov. 9, 2001)
5. Calloway v. City of Reno, 116 Nev. 250, 258, 993 P.2d 1259, 1264 (2000)

1990-1999

1. Dow Chem. Co. v. Mahlum, 114 Nev. 1468, 1481, 970 P.2d 98, 107 (1998)
2. Yamaha Motor Co., U.S.A. v. Arnoult, 114 Nev. 233, 239, 955 P.2d 661, 665 (1998)
3. Maduike v. Agency Rent-A-Car, 114 Nev. 1, 6, 953 P.2d 24, 27 (1998)
4. ARCO Products Co. v. May, 113 Nev. 1295, 1298-99, 948 P.2d 263, 266 (1997)
5. Reingold v. Wet “N Wild Nevada, Inc., 113 Nev. 967, 969-70, 944 P.2d 800, 802 (1997) overruled by Bass-Davis v. Davis, 122 Nev. 442, 134 P.3d 103 (2006)
6. Price v. Blaine Kern Artista, Inc., 111 Nev. 515, 520, 893 P.2d 367, 371 (1995)
7. Allison v. Merck & Co., 110 Nev. 762, 767, 878 P.2d 948, 952 (1994)
8. Valentine v. Pioneer Chlor Alkali Co. Inc., 109 Nev. 1107, 1109, 864 P.2d 295, 296 (1993)
9. Fyssakis v. Knight Equip. Corp., 108 Nev. 212, 214, 826 P.2d 570, 571 (1992)
10. Sims v. Gen. Tel. & Elecs., 107 Nev. 516, 815 P.2d 151 (1991) overruled by Tucker v. Action Equip. & Scaffold Co., 113 Nev. 1349, 951 P.2d 1027 (1997)
11. Nat’l Union Fire Ins. Co. of Pittsburgh, Pa. v. Pratt & Whitney Canada, Inc., 107 Nev. 535, 815 P.2d 601 (1991)
12. Robinson v. G.G.C., Inc., 107 Nev. 135, 808 P.2d 522 (1991)
13. Andrews v. Harley Davidson, Inc., 106 Nev. 533, 537, 796 P.2d 1092, 1095 (1990)

1980-1989

1. Elley v. Stephens, 104 Nev. 413, 417–18, 760 P.2d 768, 771 (1988)
2. Van Duzer v. Shoshone Coca Cola Bottling Co., 103 Nev. 383, 385, 741 P.2d 811, 813 (1987)
3. Jeep Corp. v. Murray, 101 Nev. 640, 708 P.2d 297 (1985)
4. Young’s Mach. Co. v. Long, 100 Nev. 692, 692 P.2d 24 (1984)
5. Stackiewicz v. Nissan Motor Corp. in U.S.A., 100 Nev. 443, 686 P.2d 925 (1984)
6. Jacobson v. Manfredi by Manfredi, 100 Nev. 226, 679 P.2d 251 (1984)
7. Oak Grove Inv’rs v. Bell & Gossett Co., 99 Nev. 616, 619, 668 P.2d 1075, 1077 (1983) disapproved of by Calloway v. City of Reno, 116 Nev. 250, 993 P.2d 1259 (2000)
8. Beattie v. Thomas, 99 Nev. 579, 668 P.2d 268 (1983)
9. Piedmont Equip. Co. v. Eberhard Mfg. Co., 99 Nev. 523, 526, 665 P.2d 256, 258 (1983)
10. Ward v. Ford Motor Co., 99 Nev. 47, 657 P.2d 95 (1983)
11. Crown Controls Corp. v. Corella, 98 Nev. 35, 639 P.2d 555 (1982)
12. Stickelman v. Moroni, 97 Nev. 405, 632 P.2d 1159 (1981)
13. Griffin v. Rockwell Int’l, Inc., 96 Nev. 910, 620 P.2d 862 (1980)

1970-1979

1. Chavez v. Robberson Steel Co., 94 Nev. 597, 584 P.2d 159 (1978)
2. Outboard Motor Corp. v. Schupbach, 93 Nev. 158, 561 P.2d 450 (1977)
3. Werner v. Shoshone Coca-Cola Bottling Co., 91 Nev. 286, 535 P.2d 161 (1975)
4. Bradshaw v. Gen. Elec. Co., 91 Nev. 124, 531 P.2d 1358 (1975)
5. Amundsen v. Ohio Brass Co., 89 Nev. 378, 513 P.2d 1234 (1973)
6. Gen. Elec. Co. v. Bush, 88 Nev. 360, 498 P.2d 366 (1972) abrogated by Motenko v. MGM Dist., Inc., 112 Nev. 1038, 921 P.2d 933 (1996)
7. Worrell v. Barnes, 87 Nev. 204, 484 P.2d 573 (1971) overruled by Calloway v. City of Reno, 116 Nev. 250, 993 P.2d 1259 (2000)
8. Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 470 P.2d 135 (1970)

1960-1969

1. Shoshone Coca-Cola Bottling Co. v. Dolinski, 82 Nev. 439, 420 P.2d 855 (1966)

Restatement Adopted

Editor’s Note: In general, there are three types of product defect cases:

1) Basic Malfunction: The product was poorly manufactured or designed, causing the product to malfunction.
2) Lack Safety Feature: The product failed to include safety feature that would have prevented the injury.
3) Failure to Warn: The manufacturer failed to include a warning that sufficiently advised the user of a risk.

In general, a manufacturer must create products that are free of defect. “Defect” is a broad definition and can apply even if the manufacturer has manufactured a product perfectly and has committed no negligence. Each of the three basic types of products cases have specific sub-elements and nuances of which practitioners must be aware.

• Basic Elements of Product Defect

(1) the product had a defect which rendered it unreasonably dangerous,
(2) the defect existed at the time the product left the manufacturer, and
(3) the defect caused the plaintiff’s injury.

Rivera v. Philip Morris, Inc., 125 Nev. 185, 191, 209 P.3d 271, 275 (2009)

A Comprehensive Examination of Nevada Product Defect Liability.

Basic Elements of Product Defect

“State of the Art” Defined’

CASES:

OTHER COURTS:

Seller of a Product Defined

Liability in Product Defect Cases

Affirmative Defense: Modification

Affirmative Defense: Assumption of the Risk

Affirmative Defense: Misuse & Contributory Negligence

Hierarchy of Design

Causation

Res Ipsa

Public Policy Behind Product Liability Law

Safety Features

Manufacturer’s Warnings

Burden of Proof in Product liability cases

Jury Instructions

Misc.

Causation

Admissibility of Evidence

State of the Art / Feasibility / Standards

Indemnity and Restitution

Restatement Adopted

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