Category: Product Defect

Defective Product Claims In Nevada

Products liability law is an area of Personal Injury Law which is used to provide compensation for a consumer was injured because a product was defectively designed, manufactured or marketed. Design defects are inherent in a defective product. This means that the flaw existed even before the manufacturer made the product. A manufacturing defect happens when the product is being made. A marketing defect concerns product labels and instructions which fail to warn consumers about product dangers. A Nevada product defect lawsuit can sometimes be brought against any business in the “chain of commerce” of the defective product. This can include the wholesaler, retailer, distributor and manufacturer.

Products Liability is often a strict liability claim. This means that the defendant can be held liable upon proof that the product is defective and the defect caused injury. Nevada Products Liability Law is based on Tort Law principles derived from common law. Also, since Nevada has adopted the Uniform Commercial Code (UCC), Nevada consumers who were injured by defective products can make additional claims based on the express and implied warranties of merchantibility in the sales of goods under the UCC. Many familiar products can cause serious injury, disfigurement, impairment and sometimes death. Some of the familiar common defective product lawsuits have involved exploding gas tanks, tire blowouts, SUV rollovers, defective medical devices and drug side effects.

Nevada products liability law protects Nevada consumers from products which are or can be dangerous. Here are some rules from Nevada cases which may apply in a Nevada defective product claim: When an injury occurs because of a defective product, the manufacturer and the distributor of the defective product are held responsible instead of the injured consumer. Under a strict tort liability theory in Nevada, in order to prove liability, a person must show that the injury was caused by a product defect, and that the defect existed when the product left the defendant’s hands. With respect to the term “defect” as used in products liability law, the definitions share the common premise that those products are defective which are dangerous when they do not perform in the manner reasonably to be expected in light of their intended function and nature. The failure to give proper warning, renders a product defective. A manufacturer cannot be relieved of its responsibility to assure that an unsafe product is dispensed with a proper warning.

If a defective product has caused you pain and suffering, you may have the legal right to recover money damages for medical expenses, pain and suffering, lost wages and sometimes punitive damages. You can get free legal advice on Products Liability and any other person injury matter in an initial consultation with David Matheny, Esq. of the law firm of Dempsey, Roberts & Smith, Ltd. Our office is located in Las Vegas, and we provide legal services for personal injury claims throughout Nevada.

Loss Of Chance Doctrine

Under this doctrine, the injury to be redressed by the law is not defined as the death itself, but, rather, as the decreased chance of survival caused by the medical malpractice. Herskovits, 664 P.2d at 487 (Pearson, J., concurring); see also Note, Medical Malpractice: The Right to Recover for the Loss of a Chance of Survival, 12 Pepperdine L. Rev. 973 (1985) (authored by Patricia L. Andel). Of course, the plaintiff or injured person cannot recover merely on the basis of a decreased chance of survival or of avoiding a debilitating illness or injury; the plaintiff must in fact suffer death or debilitating injury before there can be an award of damages. Additionally, the damages are to be discounted to the extent that a preexisting condition likely contributed to the death or serious debilitation. Specifically, “[t]he amount of damages recoverable is equal to the percent of chance [of survival] lost [due to negligence] multiplied by the total amount of damages which are ordinarily allowed in a wrongful death action.” McKellips, 741 P.2d at 476.

By defining the injury as the loss of chance of survival, the traditional rule of preponderance is fully satisfied. In cases in which the plaintiff prevails, it can be said that the medical malpractice more probably than not decreased a substantial chance of survival and that the injured person ultimately died or was severely debilitated. Specifically, in order to create a question of fact regarding causation in these cases, the plaintiff must present evidence tending to show, to a reasonable medical probability, that some negligent act or omission by health care providers reduced a substantial chance of survival given appropriate medical care. In accord with other courts adopting this view, we need not now state exactly how high the chances of survival must be in order to be “substantial.” We will address this in the future on a case by case basis. There are limits, however, and we doubt that a ten percent chance of survival as referred to in the example in the dissenting opinion would be actionable. Survivors of a person who had a truly negligible chance of survival should not be allowed to bring a case fully through trial. Perhaps more importantly, in cases where the chances of survival were modest, plaintiffs will have little monetary incentive to bring a case to trial because damages would be drastically reduced to account for the preexisting condition.

Intoxication And The “Intentional Acts” Exclusion Clause

R]egardless of the insured’s intoxicated state, the act of striking another is intentional, that such an act is not a covered occurrence under the policy in question here, and that such incidents are subject to a properly drafted “intentional acts” exclusion clause. Consequently, we hold that the liability insurer in this instance is under no duty to defend or indemnify its insured in connection with an action seeking damages stemming from the insured’s intentional infliction of bodily injury, even when the insured was intoxicated or believed he acted in self-defense.

The insurance agreement in this case obligates State Farm to defend and indemnify Beckwith in connection with actions brought against him for damages caused by an “occurrence.” The policy defines the term “occurrence” as an accident resulting in bodily injury. Although the policy does not define the term “accident,” a common definition of the term is “a happening that is not expected, foreseen, or intended.” In addition, the policy contains exclusionary language precluding coverage for bodily injury or property damage “(1) which is either expected or intended by the insured; or (2) which is the result of willful and malicious acts of the insured.”

This court dealt with a similarly worded insurance policy in Mallin v. Farmers Insurance Exchange [108 Nev. 788, 790, 839 P.2d 105, 106 (1992)]. In Mallin, this court observed that “‘intent’ or ‘intention’ denotes a design or desire to cause the consequences of one’s acts and a belief that given consequences are substantially certain to result from the acts.” Applying this definition of intent, we concluded that a homeowner’s liability insurance policy did not cover the insured’s actions of fatally shooting his wife and two of her friends, despite a claim that the insured did not intend his actions because he acted in a psychotic fit of rage. We also noted that the insured’s “supposed inability to control his acts [was] not the same as an inability to intend his acts.”

We take this opportunity to extend our holding in Mallin and reject appellants’ argument that Beckwith was unable to act intentionally as a result of his voluntary intoxication. Whether Beckwith thought Reccelle was God or his evil master is of no matter because he admittedly struck Reccelle in the eye with the desire of getting away from him. This is a non-accidental intentional act even if Beckwith did not intend to harm Reccelle. Thus, we conclude that Beckwith’s act of striking Reccelle is not an occurrence under the insurance policy and is excluded from coverage under the policy language concerning intentional misconduct. In this, we recognize Beckwith’s claims that the intentional-acts exclusion does not apply because, given his advanced state of intoxication, he did not intend to injure Reccelle and that, because he believed he acted in self-defense, his conduct was not malicious. We reject this line of argument because the exclusion properly dovetails with the reasonable construction of the policy that an occurrence requires an accidental event. Accordingly, State Farm is not obligated to defend or indemnify Beckwith with respect to any judgment obtained against him by Reccelle.

Applying this court’s holding in Mallin, we conclude that . . . notwithstanding the claim that he was too intoxicated to intend the acts and resulting injuries to [the victim], the intentional-act exclusionary clause applies to negate coverage.