Nevada State Warning Liability Survey
June, 2006
American Bar Association, Section of Litigation, Products Liability
2005-2006 State Warnings Liability Survey
State warning monograph - Nevada
- SUMMARY
A manufacturer must place a warning on a product where it "has reason to anticipate that danger may result from a particular use of his product." Oak Grove Investors v. Bell & Gossett Co., 668 P2d 1075, 1080 (Nev 1983). Failure to warn in such a situation renders the product defective. Id. A proper warning "adequately communicates the dangers that may result from its use or foreseeable misuse." Lewis v. Sea Ray Boats, 65 P3d 245, 249 (Nev 2003). Warnings must catch the user's attention, be understandable, indicate the specific risks of using the product, and be sufficiently intense to match the magnitude of the risk. Id. at 250. The manufacturer need not warn about dangers that are known or obvious, however. Yamaha Motor Co. v. Arnoult, 955 P2d 661, 666 (Nev 1998). A manufacturer will be held strictly liable "if it was unreasonably dangerous to place [its] product in the hands of the user without suitable and adequate warning concerning safe and proper use." Lewis, 65 P3d at 249. To establish a prima facie case of failure to warn in negligence or strict liability, the plaintiff must prove that the failure to warn was the proximate cause of plaintiff's injuries. Yamaha, 955 P2d at 664.
- STATUTES
N.R.S. § 11.220 (2004); most recently amended 1929; statute of limitations for failure to warn claim: "An action for relief, not hereinbefore provided for, must be commenced within 4 years after the cause of action shall have accrued."
N.R.S. § 585.450 (2004); most recently amended 1941; warnings on label of drugs: "A drug or device shall be deemed to be misbranded unless its label bears: (a) adequate directions for use; and (b) such adequate warnings against use in those pathological conditions or by children where its use may be dangerous to health, or against unsafe dosage or methods or duration or administration or application, in such manner and form as are necessary for the protection of users."
N.R.S. § 639.2801 (2004); most recently amended 2003; "Requirements for labeling containers for prescribed drugs." This statute lists the information that must accompany prescribed drugs, and states, "[T]he label must contain the warning: Caution: Do not use with alcohol or nonprescribed drugs without consulting the prescribing practitioner."
- CASE LAW
Lewis v. Sea-Ray Boats, 65 P3d 245 (Nev 2003). Action to recover for death and severe injury due to carbon monoxide poisoning sustained while decedent and victim were sleeping in the cabin of their boat with the air conditioning running. Id. at 246. Court applied strict liability for failure to warn, stating "strict liability may be imposed even though the product is faultlessly made if it was unreasonably dangerous to place the product in the hands of the user without suitable and adequate warning concerning safe and proper use." Id. at 249. Further, the court stated Nevada trial courts should advise juries that warnings in products liability claims must be "(1) designed to reasonably catch the consumer's attention," (2) include language that is comprehensible and gives a "fair indication of the specific risks attendant to use of the product," and (3) "be of sufficient intensity justified by the magnitude of the risk." Id. at 250.
Yamaha Motor Company v. Arnoult, 955 P2d 661 (Nev 1998). Defendant ATV manufacturer challenged plaintiff's adequacy of warning claim. The court noted that "Nevada law requires that warnings adequately communicate any dangers that may flow from the use or foreseeable misuse of a product." Id. at 665. A product is defective where defendant sells the product without a warning when defendant has reason to know it is dangerous. Id., (quoting Oak Grove Investors v. Bell & Gossett Co., 668 P2d 1075, 1080 (Nev., 1983). Court will apply strict liability "if it was unreasonably dangerous to place the product in the hands of the consumer without adequate warnings concerning its safe and proper use." Id. Defendant "was not required to warn against dangers that are generally known." Id. at 666. Whether or not the dangers are generally known to a particular consumer are dependent upon the facts and circumstances of each case.
Allison v. Merck, 878 P2d 948 (Nev 1994). Plaintiff-infant contracted encephalitis and suffered from blindness, deafness and mental retardation after receiving a vaccine manufactured by Merck. Id. at 951. Defendant claimed exemption from liability for insufficient warnings because it contracted with the government to provide the necessary warnings. Id. at 958. The court held that "although a manufacturer may decide to assign its duty to warn of the unsafeness of its product to others, a manufacturer cannot be relieved of ultimate responsibility for assuring that its unsafe product is dispensed with a proper warning." Id. at 959. The court also rejects comment k to Section 402A of the Restatement (Second) of Torts.
Eads v. R.D. Werner Co., 847 P2d 1370 (Nev 1993). Injured appellant sought review of judgment upon a jury verdict for respondent ladder manufacturer, arguing that the district court's heeding presumption jury instruction was improper. Id. at 1371. Court held that the instruction was error because it appeared to absolve a manufacturer from responsibility to employ a feasible safer alternative design as long as manufacturer warned consumer of the risks. Id. at 1372. The court held a jury instruction that an adequate warning will always shield the manufacturer from liability is an incorrect statement of the law. Id. Rather, a manufacturer will be liable for foreseeable misuse of its product in spite of an adequate warning.
Fyssakis v. Knight Equipment Corp., 826 P2d 570 (Nev 1992). Appellant dishwasher sued manufacturers of soap and soap dispenser when he was blinded by dishwashing soap. Id. at 571. Neither the soap nor the dispenser carried a warning that the soap could cause blindness. Id. at 571. The court concluded that under Nevada law, "a product must include a warning that adequately communicates the dangers that may result from its use or foreseeable misuse; otherwise, the product is defective." Id. at 572.
- THIRD RESTATEMENT
The Nevada Supreme Court has not commented on the Restatement of Torts, Product Liability 3d § 2(c) treatment of product warnings as "defects." Products are, however, considered "defective" if they have inadequate warnings.
- LANGUAGE
Nevada has not addressed whether warnings must be given in languages other than English.
- HEEDING PRESUMPTION
Nevada courts have declined to recognize a heeding presumption. Eads v. R.D. Werner Co. 847 P2d 1370, 1372 (Nev 1993).
- INTERMEDIARY
There is no statute regarding learned intermediaries, and Nevada courts have not yet expressly adopted or rejected the learned intermediary doctrine. Gennock v. Warner-Lambert Co., 208 F Supp 2d 1156, 1159-60 (D Nev 2002) (citing Allison v. Merck, Allison v. Merck, 878 P2d 948 (Nev 1994). Allison strongly suggests that if Nevada adopted the doctrine, Nevada would require, as at least one element of the defense, that the manufacturer warn the physician or other learned intermediary, even if it need not warn the ultimate consumer.
- SOPHISTICATED USER
Nevada courts have not recognized an exemption from the duty to warn when selling to a sophisticated user or purchaser. Two Nevada U.S. District Court cases have discussed the possible adoption of the "bulk supplier" defense, which holds that a bulk supplier who supplies a dangerous product to a sophisticated purchaser cannot be liable for not warning the ultimate users of the product of its danger. Neither court determined Nevada had adopted the exemption. See Fisher v. Professional Compounding Centers of America inc., 311 F Supp 2d 1008, 1019-20 (D Nev 2004) ("[A] manufacturer cannot be relieved of ultimate responsibility for assuring that its unsafe product is dispensed with a proper warning.'"); see also Forest v. E.I. DuPont de Nemours, 791 F Supp 1460, 1465 (D Nev 1992).
- STATUTES RE FEDERAL RULES
Nevada has no statutes dealing with the effect of federal warnings on product liability for warnings.
- PREEMPTION/PERSUASIVE FORCE BY FEDERAL RULES:
Nevada has determined that the Federal Insecticide, Fungicide, and Rodenticide Act (FIFRA) impliedly preempts failure to warn claims. Davidson v. Velsicol Chemical Corp., 834 P2d 931, 938 (Nev 1992).