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Product Liability

Clear Counsel Law Group / Product Liability

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What Are the Legal Requirements of a Trustee?

What are the Legal Obligations of a Trustee?

Transcript:

Hi, my name is Jordan Flake. I'm an attorney with Clear Counsel Law Group. Sometimes a client, or potential client, will come to me and say, "I was left as the trustee on my parent's estate and now they're both passed away," and they want to know what do they have to do?

Well, a trust basically imposes several different legal responsibilities on the named trustee. There's a trust administration process that we have to go through in order to make sure that that trustee fulfills all of his or her legal responsibilities. That's basically the trust administration process.

trustee, Trust certificate, estate planning, Las Vegas, Nevada

A lot of people don't realize that they have these duties. When their parents' listed them as trust, maybe they didn't reach out to them and say, "Hey, by the way, I'm going to impose all these legal responsibilities on you," but the duties, nonetheless, exist. Sometimes, a lot of questions can arise about making sure that everything is distributed properly, administered properly.

Our objective, as a law firm, when we represent trustees, is to make sure that everything is done, according to the terms of the trust, and especially that the trustee isn't in any kind of legal peril or that there's no liability or any potential claims of breach of fiduciary duties.

In other words, the trustee, when they hire us, can take complete comfort and confidence in knowing that they are doing everything according to the law and that nothing's going to come back to bite them. If you're listed as the trustee of your parent's trust, you may want to set up an appointment, we don't charge for the initial consultation, just to come sit down with me.

If you have a copy of the trust, that'd be best. If not, we can just talk about how a trust administration works and what some of your responsibilities will be. Thank you.

Probate Videos / Product Liability - 03/08/2016

Cryotherapy and Liabilty

There can be so many benefits to unconventional therapies and natural remedies. Many people like to dabble in essential oils, vitamins, and yoga. But some people like to go to the extreme. Case in point: Cryotherapy. This new and largely unknown procedure works by exposing people to extremely cold temperatures using liquid nitrogen for short periods of time. This exposure to various parts of the body is thought to act as an extreme “ice pack” of sorts by reducing inflammation, pain, and soreness in the body. Cryotherapy also claims to be able to heal tissues of the body, increase energy, reduce aging, and combat depression¹⁾according to the company that sells it, anyway…. Certain athletes are rumored to use it to heal injuries instead of an ice bath. These cryotherapy “spas” have recently popped up in Las Vegas, and then quickly made the news when an off-duty manager froze to death in a cryotherapy chamber after hours. Sounds terrifying if you ask me, but apparently it is catching on.

At least it was.

A Fatal Cryotherapy Accident

On October 20^th, the body of the 24 year old manager was found in the fetal position, frozen to death inside the chamber. According to various news sources, it appears that the worker attempted to use the cryotherapy chamber on herself while she was alone, against standard procedures. However, at this time of publication, it is unclear what really happened. The chambers are supposed to be properly adjusted for a person’s height so they always have access to oxygen above the level of the cryotherapy chamber. News reports speculate that the machine may have put out too much nitrogen, possibly locked her in, or otherwise malfunctioned. But a machine malfunction is nothing more than speculation at this point until further investigation can be done. News reports are also fairly consistent in noting that the cause of the death was most likely “operator error.”

Will There be a Lawsuit?

But what about compensation for the victim’s family? This is a tougher question. No regulatory agency appears to oversee the cryotherapy business. Not the cosmetology board, not the medical board, and certainly not the FDA. Users are invited to participate in cryotherapy at their own risk. This is the same as the disclaimer on a bottle of vitamin C, which notes that it is not a drug regulated by FDA; but clearly the risk is quite different. So, the only option at this point looks like civil litigation. Although it would initially appear to be an uphill battle because users participate in the therapy at their own risk, this might not really be the case. Depending on what actually went wrong, if the victim’s family can prove that the “operator error” was a reasonably foreseeable misuse, then they will have a fairly strong case against the company. Should it have been fairly obvious that a user of the machine might try to operate it alone? Maybe the machine should have had an automatic shut off or a finger print pad confirming that there were two operators overseeing the use…. On the other hand, the victim was clearly violating safety procedures by using the machine alone after hours. But again, maybe her employer should also be held liable for not having better security which could have prevented employees from entering the building after hours alone. These are all factors that will play out in what will most definitely be an interesting case.

Products liability is a somewhat unique area of law which puts a huge burden on the manufacture of a product to anticipate all “reasonably foreseeable” misuses. In this case, a cryotherapy chamber carries so much risk as a reasonably foreseeable misuse can (and maybe did) cause death. No amount of warnings and disclaimers can negate liability if an economically feasible safety feature could have been incorporated into the product. The examples above, like an automatic shut off or device to ensure two operates were present, certainly do not seem too complicated in light of the innate risk of the product being sold. If there is a company policy that a person should never use the machine alone, then this is clearly a foreseeable misuse. But, this is all just speculation at this point, as we do not know enough facts surrounding the incident to know anything for sure. We will continue to follow the matter closely as it plays out.

Footnotes[+]

Footnotes
↑1	according to the company that sells it, anyway…

General Interest / Las Vegas / Nevada Law / News / Product Liability - 11/05/2015

Seat Belt, Helmet, and Social Costs

If someone were to ask me whether failing to wear a helmet or a seat belt was a contributing factor to an injury, I would tell them "no" and that evidence of the seat belt and helmet should not be admissible. The idea being that there is a difference between (1) causing an accident and (2) failing to do everything you can to protect yourself from injury, just in case someone else causes an accident.

Generally, it is accepted that evidence of seat belt use is not admissible in trial unless you are suing the manufacturer for an injury related to the seat belt. Courts around the country go either way on the seat belt defense, but the prohibition of the seat belt defense is codified in NRS 484D.495(4)(b) and (c), which states that not wearing a seat belt:

(b) May not be considered as negligence or as causation in any civil action or as negligent or reckless driving under NRS 484B.653.

(c) May not be considered as misuse or abuse of a product or as causation in any action brought to recover damages for injury to a person or property resulting from the manufacture, distribution, sale or use of a product.

Thus, Nevada does not allow evidence of the use of a seat belt, except when the seatbelt manufacturer is being sued under a products liability theory.¹⁾Naturally, it makes sense to let the product manufacturer argue that its product did not cause the injury because the victim was not using the product at the time

Nevada does not have a corresponding helmet admissibility rule, but the principle is the same. To the extent that courts accept the wisdom of "failure to wear a helmet did not cause the injury, instead the driver that knocked you off the motorcycle caused the injury" then a jury should never know about the helmet.

A few (not so) rhetorical questions to consider in reference to a seat belt or helmet

1) Did the failure to use a seat belt or helmet cause the accident? No. Use (or lack thereof) of a seat belt or helmet had nothing to do with the accident. The negligence of the defendant caused the accident.

2) Did the failure to use a seat belt or helmet cause the injury? No, the impact of the victim's head on the ground caused the injury. Thus, use or non-use of seat belt or helmet has nothing to do with causation of the accident or the causation of the injury.

3) Most importantly, did the plaintiff violate the Rule of Avoidable Consequences and fail to mitigate damages by non-use of a seat belt or helmet? Here people differ. I agree with the courts that say "no". Failure to mitigate the harm of the tort only involves actions taken after the accident. The decision to not use a seat belt or helmet happens before the tort occurs. Thus, the plaintiff’s requirement to mitigate damages does not apply, unless the plaintiff had the power²⁾as most 7 year olds think they have to put the seat belt on between the time that the crash was obviously imminent and when the injury was sustained.

4) What about the statutory obligation to use seat belts or helmets? Interesting question. To whom does that duty run? Does my duty to wear a helmet run to the state or society generally³⁾to decrease public obligation to pay hospital bills, does it run to me, or does it run to the person who hit me? It does not seem reasonable that I should owe a duty to the person who hit me. If it does not run to the person who hit me, s/he should not gain the benefit of said duty.

It may seem unfair that a tortfeasor should pay for an injury that could have been avoided by the prudence of the victim. But which is more unfair?

Consider the following scenario:

A 30 year old single mother of two is riding as a passenger on a motorcycle and is not wearing a helmet. At a stop light, a car rear-ends the bike, ejecting our victim. She clearly is not at fault for the accident. She dies as a result of a traumatic brain injury from the accident. It is likely that she would not have been severely injured if she had been wearing a helmet. Do we really give the driver of the car a break because the person he killed might have lived if she was wearing a helmet? Does that really lessen his fault in the accident? As a society, where is it just to assign the burden of the loss? On the innocent victim who knows that there is some risk of an accident every time she goes on the road, but does not consent to being hit? Or on the tortfeasor who actually has committed a wrongful act?

Any simple Coasian⁴⁾Read The Problem of Social Cost here analysis would conclude that haphazard driving of the tortfeasor is adding no utility to society, so why should s/he be shielded from liability? Although we would prefer that all folks wear seat belt or helmet, but the primary objective of the law in these instances is to encourage people to drive with prudence, regardless of their fellow road travelers are helmeted/wearing a seat belt.

Footnotes[+]

Footnotes
↑1	Naturally, it makes sense to let the product manufacturer argue that its product did not cause the injury because the victim was not using the product at the time
↑2	as most 7 year olds think they have
↑3	to decrease public obligation to pay hospital bills
↑4	Read The Problem of Social Cost here

Nevada Law / Personal Injury / Product Liability - 07/09/2015

Product Liability Personal Injury Lawsuit

Product liability is a type of personal injury lawsuit that is brought against a designer or manufacturer, and in some cases the seller, of a dangerous or defective product that causes injury to the user. Product liability lawsuits differ from other types of personal injury claims, and those differences are important.

Unlike most personal injury claims, which are based on negligence, most product liability cases are based on strict liability. Strict liability applies when a person is injured during the use of a product that has a defective or dangerous design. In this case, there is no burden to show proof of negligence, but only to prove that the product in question caused the injuries. There are three different categories that may be used in this type of lawsuit:

• Design Defects – These are flaws that are introduced during the initial design of the product. A defect can also be introduced during modification of the original design.
• Manufacturing Defects – This type of defect occurs when the design of the product has no noticeable flaws, yet something occurs during the manufacturing process or assembly that renders it dangerous.
• Marketing Defects – This occurs when a product does not have any flaws or defects, but is labeled in a way that does not provide needed information for safe use, or misrepresents the product’s real benefits.

Unavoidable Danger

There are some products that, by design, present danger to the user, yet would be ineffective or useless if this were not the case. For example, a lighter must create a flame in order to be useful. Since it is common knowledge that a flame is dangerous, and must be used with caution, as long as the label clearly states the dangers and proper usage, it cannot be considered in a product liability case. However, if the user was following all usage directions properly, and the lighter exploded, he or she may have a liability claim.

Strict Product Liability Defenses

As with any personal injury case, the “at fault” party will have a chance to defend themselves against your claim. The most common defenses are:

• The product was without defect in design, manufacturing, and marketing.
• The injured person knew that there was a defect that caused danger, yet still chose to use it.
• The injured person was using the product improperly, or abusing it during its use.
• The injured person either did not read the labels, or chose to ignore them.

If the manufacturer is able to show that any of these factors played a role in your injury, it will then be up to you to prove that those defenses are incorrect.
When trying to prove that a defect exists in a strict liability case, you will need to be able to identify the exact cause. As this process can be lengthy and expensive, it is best that you have a lawyer working on the case with you. He or she will be able to subpoena important documents, and assist with independent testing that may need to be done.

Personal Injury / Product Liability - 03/26/2015

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