Nevada

 

 

Statutes of Limitations (NEVADA)

 

Personal Injury - 2 yrs. [N.R.S. 11.190(4)]

Wrongful Death - 2 yrs. [N.R.S. 11.190(4)]

Real Property Damage - 4 yrs. [N.R.S. 11.220; Oak Grove Investors v. Bell & Gossett Co., 668 P.2d 1075 (Nev. 1983)]

Personal Property Damage - 3 yrs. [N.R.S. 11.190(3)]

Trespass to Real Property - 3 yrs. [N.R.S. 11.190(3)]

Written Contracts - 6 yrs. [N.R.S. 11.190(1)]

Oral Contracts - 4 yrs. [N.R.S. 11.190(2)]

Contracts for Sale (goods) - 4 yrs. [N.R.S. 104.2725]

Breach of Warranty - 4 yrs. if Implied and 6 yrs if Express [N.R.S. 11.190]

 

Statute of limitation will not commence to run until aggrieved party knew, or reasonably should have known, of the facts giving rise to the breach [Nevada State Bank v. Jamison Family Partnership, 801 P.2d 1377 (Neb. 1990)].

 

 

 

 

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Statute of Repose (Products) (NEVADA)

 

None.

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Admissibility of Expert Testimony (NEVADA)

 

Nevada Supreme Court has not adopted the US Supreme Court’s interpretation of Fed. R. Evid. 702 in Daubert, but Daubert and the federal court decisions discussing it may provide persuasive authority in determining whether expert testimony should be admitted in Nevada courts.  In determining whether an expert’s opinion is based upon reliable methodology, a court should consider whether the opinion is: (1) within a recognized field of expertise; (2) testable and has been tested; (3) published and subjected to peer review; (4) generally accepted in the scientific community; and (5) based more on particularized facts rather than assumption, conjecture, or generalization.  If the expert formed his or her opinion based upon the results of a technique, experiment, or calculation, then a court should also consider whether: (1) the technique, experiment, or calculation was controlled by known standards; (2) the testing conditions were similar to the conditions at the time of the incident; (3) the technique, experiment, or calculation had a known error rate; and (4) it was developed by the proffered expert for purposes of the present dispute. These factors are not exhaustive, may be accorded varying weights, and may not apply equally in every case [Hallmark v. Eldridge, 189 P.3d 646, 648 (Nev. 2008)].

 

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Causes of Action (NEVADA)

 

Strict Liability – Plaintiff must show that: (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 Plaintiff's injury [Fyssakis v. Knight Equip. Corp., 826 P.2d 570 (Nev. 1992)].

 

Negligence – Plaintiff must show: (1) a defect in the product; (2) that it was in existence when the product left manufacturer’s possession; and (c) that the defect came about as the result of the failure of the manufacturer to use ordinary care; and (4) proximate cause [Long v. Flanigan Warehouse Co., 382 P.2d 399 (Nev. 1963)].

 

Breach of Warranty – Nevada has adopted the standard UCC express warranty [N.R.S. 104.2313]; implied warranty of merchantability [N.R.S. 104.2314]; implied warranty of fitness for particular purpose [N.R.S. 104.2315].  A seller’s warranty (express or implied) extends to any natural person who is in the family or household of the seller’s buyer or who is a guest in his or her home if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty [N.R.S. 104.2318].

 

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Definition of “Defect” (NEVADA)

 

Although 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 [Ginnis v. Mapes Hotel Corp., 470 P.2d 135 (Nev. 1970)].

 

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Liability of Sellers (NEVADA)

 

Sellers are strictly liable [Elley v. Stephens, 760 P.2d 768 (Nev. 1988)].  For liability to apply, the seller must be engaged in the business of selling such products.

 

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Defenses (NEVADA)      

 

Comparative Negligence – Nevada follows modified comparative negligence (damages are diminished in proportion to Plaintiff’s fault, but Plaintiff cannot recover if he is 51% at fault) [N.R.S. 41.141].  But it does not apply in strict product liability actions [Young’s Mach. Co. v. Long, 692 P.2d 24 (Nev. 1984)].

 

Assumption of Risk – A defense to strict products liability.  Defendant must show that: (1) Plaintiff actually knew and appreciated the risk or danger created by the defect; (2) Plaintiff voluntarily encountered the risk while realizing the danger; and (3) Plaintiff’s decision to voluntarily encounter the known risk was unreasonable [Asay v. Kolberg-Pioneer, 2010 U.S. Dist. LEXIS 83105 (D. Nev. 2010)].

 

Product Misuse – Misuse of a product, which is not reasonably foreseeable, is a defense to strict products liability (but use of a product that the manufacturer should reasonably anticipate is not misuse or abuse) [Asay v. Kolberg-Pioneer, 2010 U.S. Dist. LEXIS 83105 (D. Nev. 2010)].  A manufacturer cannot be liable for an abnormal and unintended use of a product, but may be liable for a foreseeable misuse [Robinson v. G.G.C., Inc., 808 P.2d 522 (Nev. 1991)].

 

Product Alteration/Modification – A substantial alteration will shield a manufacturer from liability for injury that results from that alteration.  However, if the alteration was insubstantial, foreseeable, or did not actually cause the injury, then the manufacturer of a defective product remains liable [Robinson v. G.G.C., Inc., 808 P.2d 522 (Nev. 1991)].  The burden of proving that a product has been altered is on the defendant [Andrews v. Harley Davidson, Inc., 796 P.2d 1092 (Nev. 1990)].

 

 

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Economic Loss Doctrine (ELD) (Product Destroys Only Itself) (NEVADA)

 

Plaintiff may not recover economic loss under theories of strict products liability or negligence [Central Bit Supply, Inc. v. Waldrop Drilling & Pump, Inc., 717 P.2d 35 (Nev. 1986)].  When an integrated component of a product, such as a building’s heating or plumbing system, fails and causes damage to the larger product but not to other property, only economic loss has occurred [Tharaldson Financial Group, Inc. v. AAF McQuay Inc., 2014 WL 4829649 (D. Nev. 2014) - unpublished decision]. 

 

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Malfunction Theory (Using Circumstantial Evidence to Prove Defect) (NEVADA)

 

Evidence of an unexpected, dangerous malfunction gives rise to an inference of a manufacturing defect. In such a situation, direct proof of the malfunction's cause is unnecessary; the circumstantial evidence of the malfunction can prove a manufacturing defect [Krause Inc. v. Little, 34 P.3d 566 (Nev. 2001)].  The factfinder can find that the mere evidence of a malfunction is sufficient evidence of a defect when there is evidence of some dangerous condition and where other identifiable causes are absent [Stackiewicz v. Nissan Motor Corp., 686 P.2d 925 (Nev. 1984)].

 

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Design Defects (NEVADA)

 

Any product so designed that it causes injury when used in a foreseeable fashion is defective if the design feature which caused the injury created a danger which was readily preventable through the employment of existing technology at a cost consonant with the economical use of the product [Robinson v. G.G.C., Inc., 808 P.2d 522 (Nev. 1991)].

 

Neither the consumer-expectations test, nor the risk-utility test has been adopted in Nevada.  Nevada law resembles the consumer expectation test in that strict liability applies when the product: (1) failed to perform in the manner reasonably to be expected in light of its nature and intended function; and (2) was more dangerous than would be contemplated by the ordinary user having the ordinary knowledge available in the community [Thompson v. TRW Auto., Inc., 2015 U.S. Dist. LEXIS 125235 (D. Nev. 2015)].

 

Warnings will shield manufacturers from liability unless the defect could have been avoided by a commercially feasible change in design that was available at the time the manufacturer placed the product in the stream of commerce [Robinson v. G.G.C., Inc., 808 P.2d 522 (Nev. 1991)].

 

Alternative safer designs are a factor in determining the existence of a design defect. Manufacturers must make their products as safe as commercial feasibility and the state of the art will allow.  Legislative or administrative regulatory standards are admissible as evidence of a product's safety [Robinson v. G.G.C., Inc., 808 P.2d 522 (Nev. 1991)].

 

 

 

 

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Failure to Warn (NEVADA)

 

A product being defective gives rise to strict tort liability even though faultlessly made if it was unreasonably dangerous for the manufacturer or supplier to place that product in the hands of a user without giving suitable and adequate warnings concerning the safe and proper manner in which to use it.  Warning need not be given against dangers which are generally known [General Elec. Co. v. Bush, 498 P.2d 366 (Nev. 1972)].

 

Where the defendant has reason to anticipate that danger may result from a particular use of his product, and he fails to warn adequately of such a danger, the product sold without a warning is in a defective condition [Yamaha Motor Co., U.S.A. v. Arnoult, 955 P.2d 661 (Nev. 1998)]

 

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. A product may be found unreasonably dangerous and defective if the manufacturer failed to provide an adequate warning.  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 [Rivera v. Philip Morris, 209 P.3d 271 (Nev. 2009)].

 

Nevada does not recognize a heeding presumption [Rivera v. Philip Morris, 209 P.3d 271 (Nev. 2009)].

 

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Independent Cause of Action for Evidence Spoliation (NEVADA)

 

No independent tort exists for spoliation of evidence regardless of whether the alleged spoliation is committed by a first or third party [Timber Tech Engineered Bldg. Products v. The Home Ins. Co., 55 P.3d 952 (Nev. 2002)]