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     Products liability refers to fault assigned to designers, manufacturers and distributors of defective goods that cause harm to consumers or those that product was loaned, given or otherwise used that product lawfully.  Generally, products are thought of as tangible goods.  However, products liability can extend to intangibles including: 1) gas products, pets, real estate and certain writings (such as maps and charts).  In addition, products liability law may reach any or all parties along the chain of manufacture of any product for damage caused by that product.  This includes:

  1. The Designer of the Product;
  2. The manufacturer of that products component parts;
  3. The firm or person that assembles that product;
  4. The wholesaler, and
  5. The retail store owner (at the bottom of the chain).

BASIS OF LIABILITY

     Products liability claims can be based on negligence, strict liability, or breach of warranty of fitness. Products Liability is generally considered a strict liability offense. Strict liability wrongs do not depend on the degree of carefulness by the defendant. Translated to products liability terms, a defendant is liable when it is shown that the product is defective. It is irrelevant whether the manufacturer or supplier exercised great care; if there is a defect in the product that causes harm, he or she will be liable for it.

     In Nevada, a Plaintiff must prove that the product is defective in some way to succeed on a products liability theory.  Generally, there are three types of product defects that incur liability in manufacturers and suppliers:

  1. Design defects;
  2. Manufacturing defects; and
  3. Defects in marketing.

DESIGN DEFECTS

     Design defects are inherent; they exist before the product is manufactured.   In Nevada, design defects are treated as strict liability torts.  In Nevada, strict liability is defined as follows: (1) One who sells any product in a defective condition unreasonably dangerous to the user or consumer or to his property is subject to liability for physical harm thereby caused to the ultimate user or consumer, or to his property, if (a) the seller is engaged in the business of selling such a product, and (b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold. (2) The rule stated in Subsection (1) applies although (a) the seller has exercised all possible care in the preparation and sale of his product, and (b) the user or consumer has not bought the product or entered into any contractual relation with the seller. 

 

 

MANUFACTURING DEFECTS

 

     The Restatement (Third) of Torts defines a manufacturing defect as follows: Products Liability, a product "contains a manufacturing defect when the product departs from its intended design even though all possible care was exercised in the preparation and marketing of the product."

 

     An example of such a defect is when the braking system on a vehicle malfunctions, causing an accident. Obviously, the manufacturer did not intend for the brakes to malfunction.  Nevertheless, under a strict liability theory that manufacturer is liable for the manufacturing defect

 

     This theory of liability can be difficult to prove.  In the example above, even though the brakes malfunctioned, the driver may have contributed to the accident in some way.  Under those circumstances, a plaintiff may rely on the "malfunction doctrine" to prove causation. Under this doctrine, proving the absence of other causes may prove that the manufacturing defect was to blame.

 

MARKETING DEFECTS

     Finally, a manufacturer may be held liable for failing to warn of some inherently dangerous characteristic belonging to a product. Under the Restatement (Third), a product may be defective "because of inadequate instructions or warnings when the foreseeable risks of harm posed by the product could have been reduced or avoided by the provision of reasonable instructions or warnings by the seller or other distributor...and the omission of the instructions or warnings renders the product not reasonably safe."

Accordingly, a manufacturer has the following duties:

  • To warn consumers of hidden dangers
  • Instruct consumers on the products proper use

     As an example, a battery-operated toy may tend to overheat if used for a long period of time.  If the toy overheats, it is prone to catching fire.  If the manufacturer does not warn a consumer of this danger and instruct that consumer on the maximum amount of time to run the toy, then that manufacturer may be held liable.

     A warning generally must be clear, conspicuously placed and easily understand.  Consequently, one may find bright yellow warnings with ominous looking signs in various languages on any given product.