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Definition of "Reasonableness"

 

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 coincidently matches ANSI 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.

 

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