In the United States, to prove a products liability claim based upon a design defect, the plaintiff must either meet: (1) the consumer-expectation test, or (2) the risk-utility test, depending upon the jurisdiction. Although Nevada has historically followed the consumer-expectation test, in a recent decision the Supreme Court of Nevada evaluated whether to adopt the more stringent risk-utility test. Ultimately, the court rejected adoption of the risk-utility test and reaffirmed its prior precedent holding that a plaintiff need only meet the consumer-expectation test. See Ford Motor Company v. Trejo, 2017 Nev. LEXIS 90 (September 27, 2017).

In Ford Motor Company, Teresa Trejo was operating a 2000 Ford Excursion when it rolled over on the road. As a result of the rollover, Mrs. Trejo’s husband, Rafael, was crushed by the Excursion’s roof. Mrs. Trejo filed suit against Ford Motor Company (Ford) alleging that the roof of the Excursion was defectively designed. At trial, the district court denied Ford’s request to instruct the jury on the risk-utility test in favor of instructing the jury on the consumer-expectations test. The jury found in favor of Ms. Trejo, and awarded $4.5 million in damages.

Ford appealed the district court’s denial of its requested instruction regarding the risk-utility test. Under the risk-utility test, a product is defective in design “when the foreseeable risks of harm posed by the product could have been reduced or avoided by the adoption of a reasonable alternative design by the seller or other distributor, or a predecessor in the commercial chain of distribution, and the omission of the alternative design renders the product not reasonably safe.” Restatement (Third) of Torts: Products Liability §2(b).

According to the court, Alabama, Georgia, Iowa, Kentucky, Louisiana, Mississippi and Montana have adopted the risk-utility test. Ford contended that the risk-utility test provides a lay jury with a concrete framework in which to analyze complex or technical products.

In denying Ford’s appeal, the Supreme Court of Nevada concluded that, if it adopted the risk-utility test, it would place an additional burden on the plaintiff to prove the existence of a reasonable alternative design, which it found was fundamentally unfair. Under Nevada law, to prove a design defect, a plaintiff need only show that a product, “fail[s] to perform in a manner reasonably to be expected in light of its nature and intended function and [is] more dangerous than would be contemplated by the ordinary user having the ordinary knowledge available in the community.”

Based on the court’s holding in Ford Motor Company, in Nevada, a plaintiff pursuing a design defect claim need only show that the product was designed in a manner that was more dangerous that the consumer expected, a standard that does not require proof of an alternative design. Although the court pointed out that evidence of the existence of a reasonable alternative design is the most expedient method for meeting the consumer-expectation test, the court found that adoption of the risk-utility test would improperly insert “a negligence standard into an area of law where this court has intentionally departed from traditional negligence analysis.”