Product Defect Case Series
Rivera v. Philip Morris, Inc., 125 Nev. 185, 209 P.3d 271 (2009).
Product:
Product: Cigarettes
Injury: Death
Mechanism of Injury: Smoking. It turns out that it is bad.
Nature of Defect: Failure to warn.
Jury Verdict: None. This was before the Nevada Supreme Court on a question certification from the United States District Court, District of Nevada.
Issue on appeal: Whether Nevada will follow a "heeding presumption" in product suits.
Product Defect Law Categories:
- Heeding presumption
- Warnings
- Definition of Defect
- Public Policy
- Hierarchy of Design
- Burden of Proof
Result: No. Nevada will not follow a heeding presumption.
Full Case Text: Rivera v. Philip Morris, Inc., 125 Nev. 185, 209 P.3d 271 (2009)
Case Quotes:
In strict product liability cases, the plaintiff carries both the burden of production and the burden of persuasion. See Shoshone Coca–Cola v. Dolinski, 82 Nev. 439, 443, 420 P.2d 855, 857–58 (1966).
Rivera v. Philip Morris, Inc., 125 Nev. 185, 191, 209 P.3d 271, 275 (2009)
To successfully prove a failure-to-warn case, a plaintiff must produce evidence demonstrating the same elements as in other strict product liability cases: “(1) the product had a defect which rendered it unreasonably dangerous, (2) the defect existed at the time the product left the manufacturer, and (3) the defect caused the plaintiff's injury.” See Fyssakis v. Knight Equipment Corp., 108 Nev. 212, 214, 826 P.2d 570, 571 (1992).
Rivera v. Philip Morris, Inc., 125 Nev. 185, 191, 209 P.3d 271, 275 (2009)
A product may be found unreasonably dangerous and defective if the manufacturer failed to provide an adequate warning. See Yamaha Motor Co. v. Arnoult, 114 Nev. 233, 238–39, 955 P.2d 661, 665 (1998)
Rivera v. Philip Morris, Inc., 125 Nev. 185, 191, 209 P.3d 271, 275 (2009)
Further, the burden of proving causation can be satisfied in failure-to-warn cases by demonstrating that a different warning would have altered the way the plaintiff used the product or would have “prompted plaintiff to take precautions to avoid the injury.” See Riley v. American Honda Motor Co., Inc., 259 Mont. 128, 856 P.2d 196, 198 (1993).
Rivera v. Philip Morris, Inc., 125 Nev. 185, 191, 209 P.3d 271, 275 (2009)
A heeding presumption, which Rivera seeks this court to adopt, departs from well-settled and established Nevada law. Instead of requiring that the plaintiff prove each element of a strict product liability case, a heeding presumption removes the plaintiff's responsibility to carry the initial burden of production as to the element of causation. See Riley, 856 P.2d at 199; Seley v. G.D. Searle & Co., 67 Ohio St.2d 192, 423 N.E.2d 831, 838 (1981); Technical Chemical Company v. Jacobs, 480 S.W.2d 602, 606 (Tex.1972). A heeding presumption *192 “allow[s] the fact-finder to presume that the person injured by product use would have heeded an adequate warning, if given.” Golonka v. General Motors Corp., 204 Ariz. 575, 65 P.3d 956, 967 (App.2003); Bushong v. Garman Co., 311 Ark. 228, 843 S.W.2d 807, 811 (1992). Therefore, a heeding presumption shifts the burden of production from the plaintiff to the manufacturer, who must rebut the presumption by proving that the plaintiff would not have heeded a different warning. Golonka, 65 P.3d at 971; Bushong, 843 S.W.2d at 811; see NRS 47.180.
Rivera v. Philip Morris, Inc., 125 Nev. 185, 191-92, 209 P.3d 271, 275 (2009)
This court has consistently stated that the plaintiff must prove the element of causation. Shoshone Coca–Cola, 82 Nev. at 443, 420 P.2d at 857–58. In Sims, we concluded that the district court had improperly granted the manufacturer's motion for summary judgment because the fact-finder could have found that the evidence indicated that Sims would have heeded an adequate warning, if one was given. 107 Nev. at 524, 815 P.2d at 156. Notably, this court did not reverse because the fact-finder could presume that Sims would have followed an adequate warning. Instead, this court stated that the evidence could demonstrate that he would have adhered to an adequate warning. See id.
Rivera v. Philip Morris, Inc., 125 Nev. 185, 192, 209 P.3d 271, 275 (2009)
Rivera next contends that this court should recognize a heeding presumption because this court has adopted the Restatement (Second) of Torts section 402A, comment j, which favors the presumption. We disagree. While this court has cited to the Restatement (Second) of Torts section 402A, comment j, the manner in which we relied on comment j indicates our intention to require the plaintiff in strict product liability failure-to-warn cases to carry the burden of production on the element of causation. Our use of comment j does not support a heeding presumption.
Rivera v. Philip Morris, Inc., 125 Nev. 185, 192, 209 P.3d 271, 276 (2009)
However, we did not adopt comment j wholesale. Instead, in citing comment j, we specifically noted that the evidence could demonstrate that the manufacturer had not provided a sufficient warning. Id. At no point did we imply that comment j supported adopting a presumption that the Allisons would have heeded an adequate warning had one been provided. Therefore, we reject Rivera's argument that this court's discussion of comment j to section 402A of the Restatement (Second) of Torts in Allison supports our adoption of a heeding presumption. To the contrary, we conclude that the manner in which we have previously cited to comment j indicates that we will not stray from the principle that the plaintiff carries the burden of production of the element of causation.
Rivera v. Philip Morris, Inc., 125 Nev. 185, 193, 209 P.3d 271, 276 (2009)
We have held that the public policy behind strict product liability law is that manufacturers and distributors of defective products should be held responsible for injuries caused by these products. See, e.g., Allison, 110 Nev. at 769, 878 P.2d at 953. However, we conclude that public policy is best served by our rejecting a heeding presumption. As noted in the Restatement (Third) of Torts, comment *195 j to section 402A of the Restatement (Second) of Torts implies that a manufacturer can satisfy its duty of making products safe by providing adequate warnings. Restatement (Third) of Torts: Products Liability § 2 cmt. l (1998). We find such a result to be untenable. Instead, we strongly adhere to the principle that a manufacturer must make products that are not unreasonably dangerous, no matter what instructions are given in the warning. Therefore, we conclude that it is better public policy not to encourage a reliance on warnings because this will help ensure that manufacturers continue to strive to make safe products. Further, as noted by the Riley court, it is not logical to presume that a plaintiff would have heeded an adequate warning, if provided. See Riley, 856 P.2d at 200. “[W]arnings are everywhere in the modern world and often go unread or, where read, ignored.” Id. For these reasons, we conclude that a heeding presumption has no place in our law.
Rivera v. Philip Morris, Inc., 125 Nev. 185, 194-95, 209 P.3d 271, 277 (2009)
As noted in the Restatement (Third) of Torts, comment *195 j to section 402A of the Restatement (Second) of Torts implies that a manufacturer can satisfy its duty of making products safe by providing adequate warnings. Restatement (Third) of Torts: Products Liability § 2 cmt. l (1998). We find such a result to be untenable. Instead, we strongly adhere to the principle that a manufacturer must make products that are not unreasonably dangerous, no matter what instructions are given in the warning. Therefore, we conclude that it is better public policy not to encourage a reliance on warnings because this will help ensure that manufacturers continue to strive to make safe products. Further, as noted by the Riley court, it is not logical to presume that a plaintiff would have heeded an adequate warning, if provided. See Riley, 856 P.2d at 200. “[W]arnings are everywhere in the modern world and often go unread or, where read, ignored.” Id. For these reasons, we conclude that a heeding presumption has no place in our law.
Rivera v. Philip Morris, Inc., 125 Nev. 185, 194-95, 209 P.3d 271, 277 (2009)
