Nevada’s products liability laws protect consumers from defective goods by allowing people who are injured by defective products to sue for damages. A products liability claim can arise from defects in a product’s design, manufacture, or marketing, or some combination of each. But what is a “marketing” defect?
When a marketing defect can arise
As the name suggests, a marketing defect occurs in the way products are presented or explained to consumers. It may have nothing to do with the product itself. Instead, the issue may be with the product’s packaging, documentation, or even advertising.
For injured plaintiffs, a preliminary concern will be to identify potentially responsible parties. Each product will require a different analysis to determine who might be responsible for a marketing defect. For example:
- Liability for inadequate instruction on the use of a factory-installed car jack probably rests with the auto manufacturer.
- Liability for a misleading food label (“contains no nuts” when in fact it contains peanuts) might rest with a packaging firm as well as the manufacturer.
- Liability for the incorrect statements of a salesperson might rest with the retailer.
Failure to warn of dangers
A common source of marketing-defect litigation is inadequate documentation about hidden dangers that consumers might face while using a product. In such cases, the plaintiff needs to show that the product was unreasonably safe because of the absence of adequate warnings or instruction. Nev. J.I. 7.05.
For legal purposes, a product is dangerous “if it fails to perform in the manner reasonably to be expected in light of its nature and intended function.” General Elec. Co. v. Bush
, 88 Nev. 360, 364 (1972). A product can be perfectly made and still be defective if it is unreasonably dangerous for it to be put into the hands of consumers without suitable warnings about its safe use. Id.
at 364-65. On the other hand, a manufacturer is “entitled to assume the product will not be subjected to abnormal or unintended uses.” Van Duzer v. Shoshone Coca Cola Bottling Co.
, 103 Nev. 383, 385 (1987).
As an example, consider a circular saw. Such a tool is undeniably dangerous in and of itself. Every circular saw on the market today carries hard-to-remove warning labels and comes with a detailed manual specifically to protect the manufacturer from marketing defect lawsuits. But it’s easy to imagine hypotheticals where things could go wrong:
- A consumer removes the saw guard because it interferes with her work. She later suffers a serious cut. The saw’s labeling and instructions, which the consumer had put away without glancing at them, are silent about removing the guard. Arguably, the manufacturer should have anticipated that a consumer would remove the intrusive part, but it will certainly label its removal as an “unintended use” in hopes of avoiding liability.
- Although the saw carries a warning label about the proper torque to be applied when installing a new blade, the warning is hidden behind the saw guard and is easy to miss. A consumer applies the improper amount of torque and the blade flies off, injuring someone. Was the warning label sufficient?
- An industrial-metal band uses the saw to create loud noises in the studio. The musician using the saw develops severe carpal tunnel from “playing” the saw too much. Is this an abnormal use?
As you can see, the facts of each products liability case require careful analysis from an experienced attorney. Easy answers are rarely available in these cases, because it can be hard to find the line between proper and improper use, safe and unsafe practices, and adequate or inadequate documentation.
Consult with GGRM about your marketing defect questions
The attorneys at Greenman Goldberg Raby Martinez work with clients in the Las Vegas area to recover what they deserve after a serious accident or injury. We specialize in taking a personal approach with each complex case. For a no-cost attorney consultation, call us today at 702-388-4476, or ask us to call you through our contact page