30 Design Defects (Socratic Script)

Ford Motor Company v. Trejo, Supreme Court of Nevada (2017)
(133 Nev. 520)

[***] In 1999, appellant Ford Motor Company introduced the Ford Excursion, the largest and heaviest SUV ever produced and sold in North America. At trial, Ford conceded that it did not perform any physical roof-crush tests on the Excursion. In 2002, Ford ran computer-simulated testing on the Excursion, using modeling that had been developed during the development of the Super Duty pickup trucks [on which the Excursion’s design had been based]. Ford’s internal guidelines required that a vehicle weighing less than 8,500 pounds have a roof strength-to-weight ratio of 1.725 pounds. The strength-to-weight ratio of the Excursion was only 1.25. If the windows *522 were not available to act as added support (e.g., if the windows broke), the strength-to-weight ratio dropped to 0.79. Though the Excursion’s actual weight was 7,730 pounds, its gross vehicle weight rating was 8,600 pounds. Ford did not have internal guidelines for strength-to-weight ratios for vehicles weighing over 8,500 pounds. Therefore, Ford did not issue any recalls on the Excursion, or otherwise advise dealerships or the public that early versions of the Excursion did not meet Ford’s internal guidelines for roof strength.

On December 16, 2009, respondent Teresa Trejo, a resident of Las Vegas, was driving a 2000 Ford Excursion, with a trailer attached, through New Mexico. Her husband Rafael Trejo was seated in the passenger seat. While driving on the highway, Trejo attempted to change lanes to make room for merging traffic. The trailer attached to the Excursion started to fishtail. Trejo swerved, and though the Excursion slowed, it began to roll, somewhere between 1.5 and 2.5 times.

After the rollover sequence, the Excursion came to rest upside down. Trejo managed to remove her seatbelt and exit the Excursion through the driver’s side window. She went to the passenger side of the vehicle, but the roof was so crushed that Trejo was unable to see Rafael. She returned to look through the driver’s side window. Trejo saw Rafael, who could not move but was looking back at her. Trejo later testified that Rafael’s eyes were moving at this time. A couple driving by assisted Trejo in removing Rafael from the vehicle. Emergency services arrived shortly thereafter and confirmed that Rafael had died.

Trejo subsequently filed a complaint against Ford, alleging a design defect in the roof of the Excursion and seeking damages based on twin theories of strict products liability and common law negligence. The case proceeded to trial solely on the strict products liability theory. During trial, Trejo presented expert testimony to support her theory of “hyperflexion”—that the roof of the Excursion crushed, breaking and pinning Rafael’s neck, and causing him to suffocate. Trejo also presented evidence that Ford could have reinforced the roof of the Excursion for an additional $70 in production costs, adding an additional 70 pounds of weight to the Excursion.

Ford presented evidence supporting its theory of “torso augmentation”—that Rafael died during the first rollover, because the moment the Excursion turned upside down, the weight of Rafael’s body “diving” into the roof caused his neck to break, killing him instantly. *523 Ford also disputed the feasibility of Trejo’s proposed reinforcement to the roof design of the Excursion.

While settling jury instructions, Ford requested the district court to give design defect instructions based on the “risk-utility” test set forth in the Third Restatement.^[1] To this end, Ford requested Instruction nos. 21, 22, and 23. The parties also provided the district court with agreed upon alternatives to these instructions, nos. 21A, 22A, and 23A, in the event the court declined to adopt the Third Restatement. Noting that Nevada has not adopted the Third Restatement approach to claims of design defect, the district court declined to give Ford’s requested instructions. The district court instead gave the parties their agreed-upon alternatives which were stock instructions and reflected the current state of the law.

Ultimately, the jury returned a special verdict in favor of Trejo, answering in the affirmative the following two questions: (1) whether the 2000 Ford Excursion’s roof was defective in design, and, if so, (2) whether the 2000 Ford Excursion’s roof design defect was a proximate cause of Rafael Trejo’s death. The district court entered judgment on the jury’s $4.5 million damages award and granted in part and denied in part Ford’s subsequent motion to retax costs. Ford filed a motion for judgment as a matter of law or for a new trial, which the district court denied. Ford now appeals.

To determine whether a product is defective in its design under strict tort liability, Nevada has long used the consumer-expectation test. Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 413(1970). Under the consumer expectation test, a plaintiff must demonstrate that a product “failed to perform in the manner reasonably to be expected in light of its nature and intended function and was more dangerous than would be contemplated by the ordinary user having the ordinary knowledge available in the community.” [c]

In 1998, the drafters of the Third Restatement proposed the risk-utility test for strict product liability design defect claims. Under this test, a product “is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design … and the omission of the alternative design renders the product not reasonably safe.” *524 Restatement (Third) of Torts: Prods. Liab. § 2(b) (Am. Law Inst. 1998). Thus, under the risk-utility test, in addition to proving elements of negligence, plaintiffs also bear the new burden of proving a “reasonable alternative design.” Id.

[***] The risk-utility test, especially its requirement of proof of a reasonable alternative design, would prove fundamentally unfair to Nevada plaintiffs. Instead of being allowed to bolster their case with evidence of an alternative design after the discovery process, a plaintiff would face the barrier of establishing a reasonable alternative design from the outset, even in those cases where no reasonable design may exist, or where the defendant is in complete control of the necessary information related to product design. Because we further conclude that Trejo presented sufficient evidence of design defect under the consumer-expectation test and causation, we affirm the judgment of the district court. [c]

In 1966, this court examined a case in which Leo Dolinski purchased a bottle of Squirt soda from a vending machine, took a drink, and discovered the remains of a decomposing mouse. Shoshone Coca–Cola Bottling Co. v. Dolinski, 82 Nev. 439, 441 (1966). Dolinski presented his case to the jury solely on the theory of strict product liability, and the jury awarded Dolinski $2,500 in damages. In affirming the jury’s verdict, this court determined that when a manufacturer has placed a dangerous or defective product into the stream of commerce, sound public policy requires the imposition of strict liability, even in those situations where “the seller has exercised all reasonable care, and the user has not entered into a contractual relation with him.” [***]

Nonetheless, this court cautioned that while a manufacturer and distributor of a bottled beverage may be strictly liable without a showing of negligence or privity, the adoption of strict tort liability as a theory of recovery “does not mean that the plaintiff is relieved of the burden of proving a case.” Id. at 443. Rather, this court noted that a plaintiff was required to demonstrate that (1) the product at issue was defective, (2) the defect existed at the time the product left the manufacturer, and (3) the defect caused the plaintiff’s injury. [c]

Four years later in Ginnis, this court extended the doctrine of strict tort liability “to the design and manufacture of all types of products.” 86 Nev. at 413. With respect to proving whether a product is defective, this court also adopted the consumer-expectation test, which is set forth in Section 402A of the Restatement (Second) of Torts (Am. Law Inst. 1965). Id. at 414. In adopting the consumer-expectation test in Ginnis, this court explained that

[a]lthough the definitions of the term “defect” in the context of products liability law use varying language, all of them rest upon the common premise that 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.

Id. at 413 [c]. Further, defective products are “more dangerous than would be contemplated by the ordinary user having the ordinary knowledge available in the community.” [c]

This court has subsequently recognized three categories of strict tort liability claims: manufacturing defects, design defects, and the failure to warn. [cc] In the realm of manufacturing and design defects, this court has consistently applied the consumer-expectation test to determine liability. [cc]

In the context of proving that a product was defective under the consumer-expectation test, this court has concluded that “[a]lternative design is one factor for the jury to consider when evaluating *526 whether a product is unreasonably dangerous.” [c] Therefore, a plaintiff may choose to support their case with evidence “that a safer alternative design was feasible at the time of manufacture.” [c] However, any alternative design presented must be commercially feasible. [***] In addition to evidence of alternative designs, evidence of other accidents involving analogous products, post-manufacture design changes, and post-manufacture industry standards will support a strict product liability claim. [c]

Ford urges this court to depart from this well-settled line of jurisprudence and adopt the risk-utility test for design defects set forth in the Third Restatement. Under the risk-utility test, a product

is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe.

Restatement (Third) of Torts: Prods. Liab. § 2(b) (Am. Law Inst. 1998). The drafters of the Third Restatement provide a number of factors relevant to analyzing whether there was a reasonable alternative design and whether the omission of the alternative design renders a product not reasonably safe. Some of the factors for consideration include the magnitude and probability of foreseeable risks of harm; the instructions and warnings included with the product; the nature and strength of consumer expectations regarding the product, including expectations arising from product advertising and marketing; the advantages and disadvantages of product function arising from the alternative design, as well as the effects of the alternative design on production costs; and the effects of the alternative design on product longevity, maintenance, repair, and esthetics. Id. § 2 cmt. f.

Some analysts of the risk-utility approach have posited that the test is better suited to analyzing cases involving complicated or technical design. These proponents of the risk-utility approach also contend that the average consumer does not have ascertainable “expectations” about the performance of a complex product, such as a car, in unfamiliar circumstances. See Douglas A. Kysar, The Expectations of Consumers, 103 Colum. L. Rev. 1700, 1716 (2003). *527 Accordingly, adopting courts have observed that when faced with a complicated or technical design, the risk-utility analysis “provides objective factors for a trier of fact to analyze when presented with a challenge to a manufacturer’s design.” Branham v. Ford Motor Co., 390 S.C. 203 (2010).

Based on these perceived advantages, a number of jurisdictions have exclusively adopted the risk-utility analysis in design defect cases through either caselaw or statute. [Collecting cases from Alabama, Georgia, Iowa, Kentucky, Louisiana, Mississippi, Montana and Texas)] Still others have adopted a hybrid approach, utilizing the risk-utility approach only in complex design situations. [Citing cases from California and Illinois]

Ford urges this court to join those jurisdictions that have concluded that the risk-utility test better allows a jury to analyze complex cases in which consumer expectations are less clear. Ford also argues that the risk-utility test provides a lay jury with a concrete framework in which to analyze complex or technical products. Despite Ford’s arguments, we find that the proposed advantages of the risk-utility test over the consumer-expectations test are largely overstated. Further, as discussed below, the adoption of negligence standards into strict products liability, as well as the affirmative requirement that plaintiffs provide proof of a reasonable alternative design, stands contrary to the public policy supporting Nevada’s long-standing use of the consumer-expectation test.

With respect to the clarity of consumer expectations, we conclude that even in cases of complex or technical products, a lay jury is sufficiently equipped to determine whether a product performs in a manner to be reasonably expected under certain circumstances, pursuant to the consumer-expectation test. [***]

With respect to the instant case, Ford argues that it is extremely unlikely that the Trejos bought their Excursion with any specific expectation regarding the strength-to-weight ratio of the vehicle roof. Nonetheless, Trejo presented sufficient evidence for the jury to conclude that the level of protection actually provided by the roof in a rollover accident was less than would be expected by a reasonable consumer, indicating that in this case, the distinction between the risk-utility and consumer expectation tests is without practical difference.

Further, to the extent scientific or technical evidence is presented, we note that juries are often requested to digest unfamiliar technical material. [***] “[J]uries are always called upon to make decisions based upon complex facts in many different kinds of litigation. … The problems presented in products liability jury trials would appear no more insurmountable than similar problems in other areas of the law.” [cc] Ford presents no evidence that the jury was incapable of digesting the expert testimony and evidence admitted in this case.

[***] In addition to our determination that the proposed benefits of the risk-utility test are overstated, the risk-utility approach also presents several tangible disadvantages. When we first adopted the theory of strict liability in Shoshone, this court reasoned that when a seller has advertised a product, and invited and solicited its use, the seller should not be permitted to avoid the consequences of a “disaster” by arguing that he used all reasonable care. 82 Nev. at 442. Accordingly, the consumer-expectation test focuses on the reasonable expectations of a consumer regarding the use and performance of a product. Rather than focus on the product itself, the risk-utility test subverts this analysis, focusing on the “foreseeable risks of harm” apparent to a manufacturer when adopting a design. This inserts a negligence standard into an area of law where this court has intentionally departed from traditional negligence analysis. See Aubin, 177 So.3d at 506; [c] (noting that the risk-utility test unnecessarily “blurs the distinction between strict products liability claims and negligence claims”). By focusing on the conduct of the manufacturer in designing and developing, rather than the product itself, the risk-utility test is in direct conflict with the reasoning of this court in Shoshone and its progeny.

Further, as noted by the Kansas Supreme Court, the risk-utility test

is impoverished especially insofar as the [drafters of the Third Restatement] ruled out consumer expectations as an independent test. They thereby ignored the centrality of what we all know as people …: the centrality of product portrayals and images and their role in creating consumer motives to purchase or encounter products.

[cc]. Given the unique position of manufacturers, we agree that by advocating for the negligence-based risk-utility approach, “the Third Restatement fails to consider the crucial link *530 between a manufacturer establishing the reasonable expectations of a product that in turn cause consumers to demand that product.” Aubin at 508. [***]

The jury in this case was properly instructed on the consumer-expectation test. Further, the record demonstrates that Trejo presented sufficient evidence to demonstrate that the roof of the Ford Excursion failed to perform in a manner reasonably expected in light of its nature and intended function and was more dangerous than would be contemplated by the ordinary user having the ordinary knowledge available in the community. Trejo also presented evidence sufficient to demonstrate that Rafael Trejo’s death was caused by this defect. Therefore, we affirm the judgment on the jury verdict, as well as the post-judgment order awarding costs.

PICKERING, J., dissenting:

The jury instructions the district court gave and the majority affirms were inadequate. They told the jury to decide this case based solely on “consumer expectations,” that is, on how the jurors thought an “ordinary user having the ordinary knowledge available in the community” would have expected the Excursion’s roof to function in a highway-speed rollover. The district court refused Ford’s request that the court also instruct the jury on whether, based on the expert testimony they heard, a feasible alternative design existed *533 for the roof that would have protected Trejo, who was in the front passenger seat, from being crushed in the rollover.

Neither Nevada law, nor the law nationally, supports deciding a design defect case such as this based solely on consumer expectations. The failure to instruct the jury on alternative design left the jurors with no specific guidance on the law by which to decide the case. While I would not pursue an alternative design or “risk-utility” analysis to the exclusion of consumer expectations—a position the majority erroneously attributes to the Restatement (Third) of Torts: Products Liability (Am. Law Inst. 1998)—the jury can and should be instructed on alternative design in addition to consumer expectations where, as here, evidence has been presented to support it. As this instructional error clouds the verdict’s reliability, I would reverse and remand for a new trial. I therefore dissent.

Nevada imposes strict liability on manufacturers and distributors who place in the hands of users a product that is “unreasonably dangerous.” [c] As the majority notes, there are three principal types of products liability claims: manufacturing defect; design defect; and inadequate warnings. In Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 413 (1970), we endorsed what has come to be known as the consumer expectation test as an appropriate means of assessing “unreasonable dangerousness.” Under this test, the plaintiff must demonstrate that the product “fail[ed] to perform in the manner reasonably to be expected in light of [its] nature and intended function” and “was more dangerous than would be contemplated by the ordinary user having the ordinary knowledge available in the community.” [***] As part of, or in addition to, the consumer expectation test, Nevada has endorsed using the existence of a safer alternative design to prove that a design defect or lack of warnings made a product unreasonably dangerous. McCourt v. J.C. Penney Co., 103 Nev. 101, 102, 104 (1987) (citing Ginnis and reversing because the district court erred in refusing, in a design defect case, to admit evidence of feasible alternative design: “Alternative design is one factor for the jury to consider when evaluating whether a product is unreasonably dangerous”); see also *534 [***] Robinson v. G.G.C., Inc., 107 Nev. 135, 138 (1991) (“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”); [c]. Though not denominated as such by our case law, this balancing of a possible safer alternative design against its commercial feasibility is known as the “risk-utility” approach to determining product defect. See 1 David G. Owen & Mary J. Davis, Owen & Davis on Products Liability § 8:7 (4th ed. 2014). A risk-utility analysis determines “[w]hether a particular design danger is ‘unreasonable’ (that is, ‘defective’)” by balancing “ ‘the probability and seriousness of harm against the costs of taking precautions. Relevant factors to be considered include the availability of alternative designs, the cost and feasibility of adopting alternative designs, and the frequency or infrequency of injury resulting from the design.’ ” Id.

At trial, both sides presented evidence regarding alternative roof designs and their commercial feasibility, as McCourt and its progeny allow. Trejo affirmatively alleged that a safer alternative design was available and presented expert testimony that the design was commercially reasonable. Ford presented contradictory evidence, to the effect that Trejo’s expert’s proposed design was not, in fact, safer and, further, created issues of commercial unreasonableness.

Based on this admitted evidence, Ford sought to have the jury instructed on alternative design by adding the italicized language to the stock product-defect jury instruction:

[Proposed] Instruction No. 21

In order to establish a claim of strict liability for a defendant product, the plaintiff must prove the following elements by a preponderance of the evidence:

1. That Ford Motor Company was the manufacturer of the 2000 Ford Excursion;

2. That the 2000 Ford Excursion’s roof structure was defectively designed;

3. That the defect existed when the 2000 Ford Excursion left Ford Motor Company’s possession;

*535 4. That the 2000 Ford Excursion was used in a manner which was reasonably foreseeable by Ford Motor Company;

5. There existed a reasonable alternative design; and

6. That the defect was a proximate cause of the injury to Rafael Trejo.

(emphasis added to show proposed addition to Nevada Jury Instructions—Civil § 7PL.4 (2011)).

Ford also offered [Proposed] Instruction No. 22, as follows:

A product is defective in design when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design and the omission of the alternative design renders the product not reasonably safe.

Although these requested instructions accurately stated Nevada law under McCourt, the district court rejected them. It also rejected every other jury instruction Ford proposed that touched on reasonable alternate design.^[2] As a result, the jury received no instructions on how to apply the evidence regarding a safer alternative design and its commercial feasibility to determine whether the Excursion was unreasonably dangerous due to a design defect.

The court gave only stock product liability instructions to the jury. Thus, the district court gave as Instruction No. 19 what Ford had tendered as [Proposed] Instruction No. 21, minus the italicized language about reasonable alternative design, reprinted supra at 3–4. It also gave, as the only other guidance on how the jury should decide design defect, the following stock instructions:

Instruction No. 20

A product is defective in its design if, as a result of its design, the product is unreasonably dangerous.

*536 Instruction No. 21

A product is unreasonably dangerous if it failed to perform in the manner reasonably to be expected in light of its nature and intended function, and was more dangerous than would be contemplated by the ordinary user having the ordinary knowledge available in the community.

See Nevada Jury Instructions—Civil § 7PL.7 (2011). While these instructions are accurate, they are incomplete and misleading as a result. “[C]onsumers comprehend that automobiles are not completely crashproof, but they have no meaningful expectations as to the extent to which a vehicle may be compromised in the event of a collision or rollover at substantial speeds.” 1 Owen & Davis, supra, at § 8:5. The jury should have been instructed on all of the law pertinent to the evidence presented, including alternative design.

The instructions the jury received failed to give them any guidance on how to utilize the ample expert evidence presented over the course of the two-week trial regarding Trejo’s proffered alternative design and Ford’s arguments that the alternative design was proven neither to be safer nor commercially feasible. See Woosley v. State Farm Ins. Co., 117 Nev. 182, 188 (2001) (providing that it is error for the court to refuse to give a jury “instruction when the law applies to the facts of the case”). Indeed, with the instructions given to the jury, such evidence would not even factor into their decision as to whether the Excursion was unreasonably dangerous as designed.

The refusal to give an instruction regarding the evidence presented contravenes this court’s long-held tenet that “a party is entitled to have the jury instructed on all of [its] case theories that are supported by the evidence.” [cc] While the majority recognizes that Nevada’s jurisprudence allows for the presentation of risk-utility evidence in products liability cases (albeit as part of the consumer-expectation test), it disconcertingly concludes that there was no error in the district court’s failure to instruct the jury regarding alternative design or risk-utility in this case.^[3] With this holding, it is unclear whether the majority intends to *537 place limits on the use of risk-utility evidence in products liability cases^[4] or intends to relax the requirement that district courts must instruct juries based on the evidence presented at trial, but what is clear is that this holding diverges from current Nevada law. The failure to give the jury instructions that are supported by both this court’s prior jurisprudence and the evidence and pleadings presented by the parties constitutes reversible error because, had the jury been instructed on the risk-utility test, the outcome of the case may have been different. Id.; [***].

This court encountered a similar jury instruction issue in Lewis v. Sea Ray Boats, Inc., 119 Nev. 100 (2003). In that case involving an allegation of an inadequate warning on a boat’s generator, a party requested an instruction that would define “adequate warning” for the jury. Id. at 104–05. The court refused to give the instruction and instead gave more generalized instructions.^[5] Id. at 105. On appeal, this court held that the general instructions were insufficient to guide the jury both because jurors had “to search their imaginations to test the adequacy of the warnings” and because, due to the expert witness testimony given, the jurors were “entitled to more specific guidance” on the law governing the case. Id. at 108.

The same reasoning should be applied here: the more specific instructions provided greater guidance to the jury and the district court’s failure to give those more specific instructions warrants a reversal of the jury verdict and a remand for a new trial. [***]

Based on the foregoing, I would reverse and remand this matter for a new trial.

The majority’s approval of jury instructions that focus on consumer expectations to the exclusion of risk-utility considerations not only contravenes preexisting Nevada law, it also makes Nevada an outlier, as only a small minority of jurisdictions rely solely on consumer expectations in design defect cases. See Twerski & Henderson, Manufacturers’ Liability for Defective Product Designs, 74 Brook. L. Rev. at 1104–05 (stating that only Kansas, Nebraska, Oklahoma, Wisconsin, and possibly Maryland solely apply a consumer-expectation test to design defect claims); but see Wis. Stat. Ann. § 895.047(1)(a) (West 2015) (by statute adopted in 2011, Wisconsin follows a risk-utility approach in design defect cases). En route to this holding, the majority also mischaracterizes the risk-utility test as presented by the Restatement (Third) and how it is applied.

Like Nevada (at least until today), most jurisdictions recognize that both consumer expectations and feasible alternative design or risk-utility evidence have legitimate roles to play in design defect cases. Feasible alternative design evidence plays a predominant role in design defect, as opposed to manufacturing defect, cases because of the difference in the two types of claims: “Whereas a manufacturing defect consists of a product unit’s failure to meet the manufacturer’s design specifications, a product asserted to have a defective design meets the manufacturer’s design specifications but raises the question whether the specifications themselves create unreasonable risk.” Restatement (Third) of Torts: Products Liability § 2 cmt. d.

Analyzing the manufacturer’s design choice cannot be done in a void, leading courts to strike a balance between the consumer-expectation test and risk-utility test. California has created a test *539 wherein consumer expectations are reserved for those cases where “everyday experience of the product’s users permits a conclusion that the product’s design violated minimum safety assumptions, and is thus defective regardless of expert opinion about the merits of the design.” [c]; see also Twerski & Henderson, Manufacturers’ Liability for Defective Product Designs, 74 Brook. L. Rev. at 1098–1101 (listing ten other jurisdictions that use the same approach as California). Thus, the jury [in those jurisdictions] is exclusively instructed on risk-utility only when the evidence presented would not support a jury verdict based on consumer expectations. [c] Illinois’ approach is to include consumer expectations as a factor to consider under the risk-utility test when the evidence presented at trial implicates both tests, with the alternative design criteria controlling in design defect cases. [c]

Even those jurisdictions that appear to exclusively adopt a risk-utility test for design defect cases nevertheless recognize consumer expectations as a factor for consideration. Compare Gen. Motors Corp. v. Jernigan, 883 So.2d 646, 662 (Ala. 2003) (holding that a safer alternative design is required in design defect cases raised under Alabama’s Extended Manufacturer’s Liability Doctrine and cited by the majority for the proposition that Alabama exclusively uses the risk-utility test), with Horn v. Fadal Machining Ctrs., LLC, 972 So.2d 63, 70 (Ala. 2007) (providing that a claim under the same doctrine can be won by showing the product failed to meet consumer expectations). See also Banks v. ICI Americas, Inc., 264 Ga. 732 (1994) (listing factors relevant to a risk-utility analysis, which include “the user’s knowledge of the product … as well as common knowledge and the expectation of danger”); Wright v. Brooke Grp. Ltd., 652 N.W.2d 159, 170 (Iowa 2002) (“Although consumer expectations are not the sole focus in evaluating the defectiveness of a product under the [Third] Products Restatement, consumer expectations remain relevant in design defect cases.”); Nichols v. Union Underwear Co., 602 S.W.2d 429, 432–33 (Ky. 1980) (holding that consumer expectations is a factor to be considered in a design defect case, along with other risk-utility factors); Williams v. Bennett, 921 So.2d 1269, 1275 (Miss. 2006) (quoting Clark v. Brass Eagle, Inc., 866 So.2d 456, 460 (Miss. 2004), with approval and Clark notes that Mississippi’s products liability law is a hybrid of the consumer-expectation test and the risk-utility test); Uniroyal Goodrich Tire Co. v. Martinez, 977 S.W.2d 328, 335–37 (Tex. 1998) (refusing to adopt a new rule of law regarding design defect and recognizing that the risk-utility test includes consideration of the consumer’s expectations of the product). The Restatement (Third) also provides a comprehensive analysis of this issue, concluding that the risk-utility analysis should predominate in design defect cases but *540 still include consideration of consumers’ expectations. Restatement (Third) of Torts: Products Liability § 2 & cmt. f.

The varied foregoing approaches to incorporating both the consumer-expectations test and the risk-utility test into design defect cases demonstrate the difficulty presented by this issue. The fact that the task is difficult or that there may be more than one possible solution, however, does not justify the majority’s decision to exclude all references to risk-utility evidence in the instructions given to the jury.

The majority gives a series of reasons for rejecting the risk-utility approach offered by the Restatement (Third). On the surface, the concerns seem legitimate but, at their core, they rest on a fundamental misunderstanding of what the Restatement (Third) actually proposes in design defect cases.

First, the majority asserts that by requiring evidence of a feasible alternative design prior to the discovery process, the risk-utility test places a “prohibitive barrier” to a plaintiff bringing a case, especially since the defendant controls the information related to product design. [c] But the Restatement’s feasible alternative design provision relates to proof at trial, after discovery, and specifically “assume[s] that the plaintiff will have the opportunity to conduct reasonable discovery so as to ascertain whether an alternative design is practical.” Restatement (Third) of Torts: Products Liability § 2 cmt. f. Thus, the feasible alternative design requirement is not a mandatory prerequisite to filing a design defect claim under the Restatement (Third).

Second, the majority criticizes the Restatement (Third) as failing to recognize that proof of a feasible alternative design should not be required in every design defect case, especially those where no feasible alternative design exists. [c] But again, the Restatement (Third) does not propose the rule the majority criticizes. On the contrary, the Restatement makes specific provision for design defect claims that do not require feasible alternative design evidence. For example, if the product is manifestly unreasonable, or it has little social use and a high degree of danger, a court may declare it to be defective in design without evidence of a feasible alternative design. See Restatement (Third) of Torts: Products Liability § 2 cmt. e (using the example of a child’s pellet gun that uses pellets hard enough to cause injury).

Going beyond the comments to section 2, section 3 of the Restatement (Third) provides for imposition of strict liability without regard to alternative design in cases involving inexplicable product malfunction. Restatement (Third) of Torts: Products Liability § 3 *541 [***] This section comports with Nevada product liability law. Indeed, the Reporter’s Note to section 3, cmt. b, of the Restatement (Third) quotes with approval this court’s holding in Stackiewicz v. Nissan Motor Corp. in U.S.A., 100 Nev. 443, 448 (1984), “that proof of an unexpected, dangerous malfunction may suffice to establish a prima facie case for the plaintiff of the existence of a product defect.” [***]

In sum, the majority’s suggestion that the Restatement (Third) requires proof of alternative design in all design defect cases is simply incorrect. There are numerous instances wherein a plaintiff could succeed on a design defect claim without providing evidence of a feasible alternative design.

The error in the instructions requires reversal and remand for a new trial. By affirming the instructions the jury was given, the majority has moved Nevada from the mainstream—where courts and commentators alike are striving to strike the proper balance between risk-utility and consumer-expectations analyses in design defect cases—to a minority of three or four jurisdictions that rely solely on consumer expectations. While I do not necessarily advocate for the Restatement (Third) over the approaches variously taken by California or Illinois, Nevada should at a minimum adhere to its prior case law recognizing that feasible alternative design has a legitimate and important role to play in design defect cases. As the complete elimination of feasible alternative design from the design-defect calculus is unsound, I respectfully dissent.

Note 1. The Role of the Jury. Trejo reflects the extensive process that can take place when the parties seek to finalize jury instructions before a trial. They may fight about the language of a single instruction or dispute the legal accuracy of one or more instructions as they are “settling instructions,” as the court puts it. In general, jury decision making is like a “black box” in that we do not know what led to their decisions or how they arrived at particular numbers, other than by comparing final verdicts with what parties requested or argued. However, in certain cases, the parties may propose use of a “special verdict” form in which the jury is asked to answer a number of questions or to provide answers regarding amounts of damages. In Trejo, the jury was asked to answer (1) whether the 2000 Ford Excursion’s roof was defective in design, and, if so, (2) whether the 2000 Ford Excursion’s roof design defect was a proximate cause of Rafael Trejo’s death. Judges are very reluctant to set aside a jury verdict once it has been issued. To do so usually requires that it be “against the weight of the evidence.” With a general verdict—one in which a jury is asked just whether a party is liable or guilty or not—the parties may struggle on appeal since there is little to which to attach criticism of the jury’s verdict. Unlike judicial opinions, which contain precedents and other authorities as well as rationales and reasoning to critique, jury verdicts do not provide their analysis for subsequent parties to review. This places additional pressure on the wording and nature of the jury instructions. Appellate review of the accuracy and propriety of jury instructions is a question of law subject to the de novo standard of review. While “harmless errors” will not provide grounds for reversal, judges do have considerably more latitude to find errors exist with respect to jury instructions versus their much more limited ability to disturb jury verdicts. Consider why you might wish to use a special verdict, or not to use one, if you were involved in litigation. What factors might shape your thinking?

Fewer and fewer cases make it all the way to a jury in civil litigation in our era; the institution has been referred to as “the vanishing jury” and “the disappearing jury,” for instance. This change is partly a function of changes to motion practice and partly reflective of the rise of administrative mechanisms for resolving claims in a fashion that permits parties to end disputes more inexpensively and quickly. In addition, insurance companies played a larger and larger role in tort law over the course of the 20^th century, which mean both that efficiency drove decision making and individual claims could be more easily handled at scale. Yet many of the cases you read feature a fight over the jury, or jury instructions. Lawyers researching prior case law and students learning the law read many cases in which the jury plays a prominent role. Is the fixation on the jury a relic? Or is it purely symbolic, given the dropping rates at which trials are statistically likely to feature them? One theory of the jury’s role is that it scares both parties into settling more readily since juries are thought to be more unpredictable. Another theory of the jury function is that it humanizes and democratizes the law, however, and that its role remains critical, if diminished by number of cases, in our legal regime. If tort law seeks to determine what is “reasonable” under the circumstances, doesn’t it still need the jury?

Note 2. State of the Art Defense. The court mentions that Ford requested a “state of the art defense” (and was refused). This is an affirmative defense recognized judicially or legislatively in a number of jurisdictions which permits defendant manufacturers to assert that they behaved according to the best available knowledge at the time. In other words, their theory of non-liability is that they could not have known about the hazard when they made or sold their product because the state of the art at that time had not yet discovered particular risks. As you can see, there may be overlap between the evidence required to show the feasibility of a reasonable alternative design and the evidence required to prove up the state of the art defense. Who should be taxed with offering this kind of evidence, in your view, the plaintiff or the defendant?

Note 3. In the unabridged version of Ford v. Trejo, the court cites to a Wisconsin case that held that the consumer expectations test “does not inevitably require any degree of scientific understanding about the product itself. Rather, it requires understanding of how safely the ordinary consumer would expect the product to serve its intended purpose.” (p. *528 citing Green v. Smith & Nephew AHP, Inc., 245 Wis.2d 772 (2001)). Ford argued that it was “extremely unlikely that the Trejos bought their Excursion with any specific expectation regarding the strength-to-weight ratio of the vehicle roof.” Ultimately, the court disregard Ford’s argument and ruled that Trejo had presented sufficient evidence for the jury to conclude that the level of protection actually provided by the roof in a rollover accident was less than would be expected by a reasonable consumer. The court stated that, in this case, the distinction between the risk-utility and consumer expectation tests was immaterial. But was Ford’s argument the right one, in any event? Do you think that the consumer expectations test asks jurors to determine whether a reasonable consumer would investigate and form expectations about the strength-to-weight ratios of vehicles? What alternative framings can you articulate for what the consumer expectations test would ask in this case?

Defective Instructions or Warnings

Shinedling v. Sunbeam Products, Inc., U.S. Dist. Court, C.D. Cal. (2014)
(2014 WL 12589646)(not reported)

This is a products liability action arising from the death of Amy Celeste Shinedling in a house fire on January 5, 2011. Ms. Shinedling’s surviving husband, Kenneth Shinedling, brought this action on behalf of himself and as Guardian ad Litem for their surviving children (collectively, “Plaintiffs”) on December 15, 2011. Plaintiffs’ remaining claims assert strict products liability and negligence against Defendant Sunbeam Products, Inc., (“Sunbeam”), the manufacturer of the portable space heater that allegedly caused the house fire. [c] Plaintiffs allege that the heater caused the fire because it was defectively designed, contained a manufacturing defect, and failed to include adequate warnings. Before the Court is Sunbeam’s motion for partial summary judgment as to Plaintiffs’ manufacturing defect and failure-to-warn bases for their strict products liability and negligence claims. [fn]

The product at issue is the Holmes Quartz Heater, Model HQH307, manufactured in 2006 (the “Heater”). [fn] The Heater is a type of portable electric heater known as a radiant quartz heater. As opposed to ceramic or convection-type heaters, which blow hot air to heat an entire space, radiant heaters radiate infrared heat that directly heats solid objects in its path. The Heater is sold with an instructional leaflet with a number of warnings, including:

“When using electrical appliances, basic safety precautions should always be followed to reduce the risk of fire, electric shock, and injury to persons, including the following: … 3. This heater is hot when in use. To avoid burns, do not let bare skin touch hot surfaces. If provided, use handles when moving this heater. Keep combustible materials, such as furniture, pillows, bedding, paper, clothes, and curtains at least 3 feet (0.9 m) from the front of the heater and keep them away from the sides and rear.”

A similar warning regarding keeping materials 3 feet away was displayed on the Heater’s power cord and on the body of the Heater itself. The instructional leaflet provided with the Heater also describes the Heater’s “Auto Safety Shut-Off” feature. The description states:

“The heater is equipped with a patented, technologically-advanced safety system that requires the user to reset the heater if there is a potential overheat situation. When a potential overheat temperature is reached, the system will automatically shut the heater off.”

*2 The night of January 4, 2011, Mr. and Mrs. Shinedling went to sleep with the Heater and another space heater in operation in the master bedroom of their home. At the time Mr. Shinedling went to sleep there were no clothes or combustible materials within 3 feet of the Heater. In the early morning hours, Mr. Shinedling awoke to the sound of a smoke alarm. He got up and saw clothes in front of the Heater which had caught fire, along with the Heater itself. His wife told him to get the children out of the house, which he did, and then he called 911. Mr. Shinedling attempted to reenter the home to locate his wife but the fire had grown too intense. Mrs. Shinedling died in the fire.

[***] *3 Under California law, “ ‘[a] manufacturer is strictly liable in tort when an article he places on the market, knowing that it is to be used without inspection for defects, proves to have a defect that causes injury to a human being.’ ” [c]. [***] Sunbeam’s motion for partial summary judgment is limited to Plaintiffs’ manufacturing defect and warning defect theories only. The Court will address these theories in turn.

a. Manufacturing Defect

[***] (“[A] product has a manufacturing defect if the product as manufactured does not conform to the manufacturer’s design.”). “[T]o establish liability, it is not enough that the action happened, nor may liability inferences favorable to plaintiff be drawn from that fact. The plaintiff must prove by competent evidence that the product was [defective in manufacture].” [c]

Plaintiffs have not introduced sufficient evidence to create a genuine dispute that the Heater in question contained a manufacturing defect. Plaintiffs concede that they have no direct evidence of any manufacturing defect. Instead, Plaintiffs rely on Vandermark v. Ford Motor Co., 61 Cal. 2d 256, 260 (1964), and Elmore v. American Motors Corp., 70 Cal. 2d 578 (1969), to argue that circumstantial evidence may suffice to prove the existence of a manufacturing defect where the product was destroyed in the incident at issue. The circumstantial evidence that, according to Plaintiffs, creates a genuine dispute that the Heater had a manufacturing defect includes: there is no evidence that the Heater was modified after it left Sunbeam’s possession; “there are historical reports of the bottom of this type of heater burning and melting and starting fires, as verified by Sunbeam”; Mr. Shinedling testified that he saw the Heater itself on fire in addition to the clothes surrounding the Heater; a failure of an internal connection could potentially start a fire; such a failure could have produced a fire burning at the same temperature as the fire at issue; the carpet underneath the Heater was burned; and the point of origin of the fire was determined to be at or near the Heater’s location.

Plaintiffs’ circumstantial evidence is too speculative to proceed before a jury on the issue of whether the Heater contained a manufacturing defect. The cases Plaintiffs rely on for the proposition that the existence of a defect can be established by circumstantial evidence all involved at least some evidence from which an inference of a defect could be drawn. Elmore, for instance, was a products liability action arising from a car accident that occurred because a part detached from the bottom of the plaintiff’s car and dragged on the cement, causing her to lose control and crash. [c] The plaintiff’s evidence included expert testimony that the vehicle’s drive shaft detached prior to the accident, the cause of the drive shaft detaching was loose fastenings or metal failure, and a drive shaft would not detach because of normal wear and tear, the forces of the subsequent accident, or “anything the driver did.” [c] The expert testified that it was his opinion that the drive shaft connection was defective. In contrast, Plaintiffs’ own expert on the issue of manufacturing defect cannot conclude that the Heater contained a manufacturing defect. Plaintiffs’ expert merely states that he could not rule out the possibility of a manufacturing defect. (“[T]he possibility that extreme heat was generated at that connection leading to ignition of the heater from the inside could be neither confirmed nor refuted.”).) Further, Plaintiffs concede that their “origin and cause” expert, as well as Sunbeam’s experts, all agree that “it is more likely than not that the cause of the fire was the ignition of the clothing by the heater.” Sunbeam is entitled to partial summary judgment as to the manufacturing defect basis for Plaintiffs’ strict liability claim.^[6]

b. Failure to Warn

*4 To prevail on a failure-to-warn theory, the plaintiff must show that the defendant “did not adequately warn of a particular risk that was known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and distribution.” [c] (“[A] product, although faultlessly made, may nevertheless be deemed ‘defective’ under the rule and subject the supplier thereof to strict liability if it is unreasonably dangerous to place the product in the hands of a user without a suitable warning and the product is supplied and no warning is given.”) California courts have identified several factors pertinent to determining the adequacy of warnings, including the risk of harm and magnitude of potential harm the product presents, the normal expectations of the consumer as to how the product will perform, how complicated it is to use the product, and the feasibility and beneficial effect of a warning. [c] The adequacy of the warnings provided with a product is generally a question of fact for the jury. [c]

Genuine disputed issues regarding the adequacy of the Heater’s warnings preclude partial summary judgment on Plaintiffs’ failure-to-warn theory. These issues include, among others, whether the warnings were inadequate because they failed to advise the user that the Heater should never be left on while sleeping. A bulletin published by the U.S. Consumer Products Safety Commission regarding portable electric heater fires between 2008 and 2010 included safety warnings which, in addition to warning consumers to keep materials at least 3 feet away from heaters, also warned consumers “[n]ever leave the heater operating while unattended, or while you are sleeping.”

A triable issue also exists as to Plaintiffs’ contention that additional warnings should have been given regarding the Heater’s Auto Safety Shut-Off feature. Sunbeam argues that this feature was intended to address potential overheat temperatures occurring inside the Heater only. A reasonable jury, however, could find that, in light of the representation in the Heater leaflet that “[w]hen a potential overheat temperature is reached, the system will automatically shut the heater off” and the risk of danger and magnitude of harm a space heater could cause, the lack of additional warnings made the Heater defective. Nor does the fact that Mr. Shinedling testified at deposition that he read and understand the warning to keep materials 3 feet away from the Heater preclude a jury determination as to whether additional warnings were necessary under these circumstances.

c. Negligence

Sunbeam also moves for partial summary judgment on Plaintiffs’ negligence claim to the extent it relies on manufacturing defect or warning defect theories. Negligent products liability, like strict liability, requires proof that a defect in the product caused the plaintiff’s injury. [c] A negligence claim requires the additional element that the defect in the product was due to the defendant’s negligence. Sunbeam is entitled to partial summary judgment on Plaintiffs’ negligence claim to the extent that it is premised on a manufacturing defect in the Heater, for the same reasons discussed in connection with strict liability above. Sunbeam has not shown that summary judgment is warranted as to Plaintiffs’ negligent warning defect theory.

For the foregoing reasons, the Court GRANTS IN PART Sunbeam’s motion for partial summary judgment.

Note 1. Why did the court find that the plaintiffs had failed to make out a manufacturing defect? What might have made a difference, in your view?

Note 2. What was the significance of the plaintiffs’ assertion that the heater had not been modified after it left Sunbeam’s possession?

Note 3. A manufacturer may be liable for a failure to warn if they “did not adequately warn of a particular risk that was known or knowable in light of the generally recognized and prevailing best scientific and medical knowledge available at the time of manufacture and distribution” (emphasis added). What does it mean for a risk to be “known or knowable”? What standard or standards of conduct does the phrase reflect, and why do you think the range exists?

Note 4. What factors, in combination, caused the court to allow the case to proceed on a theory of failure to warn? What standard (objective or subjective) did the court’s reasoning reflect? Why did it not seem to matter that Mr. Shinedling testified that he had understand the warning to keep materials 3 feet away from the heater? You may recall Garrison v. Deschutes (Sup. Ct. Or. 2002)) from Module 3, Causation, in which the court found there was no liability for Deschutes County’s failure to warn of risk of falling due to the lack of any barrier guarding the drop-off at the Fryrear transfer station given that Garrison and his wife admitted knowing of the danger). Is this case distinguishable, in your opinion? If so, what makes it so?

Note 5. The Malleability of The “Unreasonably Dangerous” Standard. California rejected the Restatement § 402A’s approach to “unreasonably dangerous” products, but given that the majority of jurisdictions have chosen to retain it in some fashion, how are “unreasonably dangerous” products defined? Many accidents occur each year in connection with ladders, lawn mowers, and swimming pools. Significant injuries and death continue to result from gun ownership and tobacco use (which also causes substantial disease in users and those in their households). But all—from ladders through tobacco—are indisputably prevalent features of American life. Should all products that are classified as “inherently dangerous” in some way be treated differently under tort law? For instance, what warnings should manufacturers (and sellers) be required to provide for products like cigarettes? Alcohol? Vapes? Cannabis-infused products? How about products that include butter, as an ingredient traced to heart disease? Sugary sodas and fatty foods? Should products associated with significant dangerous allergies be required to carry warnings?

There are doctrinal and pragmatic answers to these questions. Doctrinally, once significant risks become foreseeable (“known or knowable,” to be more precise), a failure to warn can lead to liability but usually requires that the risk be general enough to be of common application. If a tiny percentage of the population has a rare allergy to some component of a product, the risk may not be enough to create a duty to warn. The sufferer of this rare allergy is almost certainly on notice that they must take extra precautions. But the greater the prevalence of the risk, the greater the likelihood that the duty will arise. Pragmatically, the answer is partly a function of political power; products with powerful industry organizations can and do lobby for favorable legislation that may immunize or limit their likely liability, regardless of the danger of their products.