Bahrampour v. Sierra Nev. Corp.

• Decision Date: 13 January 2022
• Docket Number: 82826-COA
• Citation: 502 P.3d 185 (Table)
• Parties: Afshin BAHRAMPOUR, an Individual, Appellant, v. SIERRA NEVADA CORPORATION, a Nevada Corporation; Sierra Nevada Corporation Shareholders; Sierra Nevada Corporation Board of Directors; Sierra Nevada Corporation Officers and Employees; Lev Sadovnik; and Vladimir Manasson, Respondents.
• Court: Nevada Court of Appeals

502 P.3d 185 (Table)

Afshin BAHRAMPOUR, an Individual, Appellant,

v.SIERRA NEVADA CORPORATION, a Nevada Corporation; Sierra Nevada Corporation Shareholders; Sierra Nevada Corporation Board of Directors; Sierra Nevada Corporation Officers and Employees; Lev Sadovnik; and Vladimir Manasson, Respondents.¹

No. 82826-COA

Court of Appeals of Nevada.

FILED JANUARY 13, 2022

Afshin Bahrampour

Holland & Hart LLP/Reno

ORDER OF AFFIRMANCE

Bahrampour filed the underlying lawsuit against respondents (collectively SNC) and various government officials. In relevant part, Bahrampour alleges that government actors have been surreptitiously using him as a human test subject for a microwave-emitting, riot-control weapon manufactured by SNC, thereby causing him to suffer cognitive, neurological, and financial injury. In his complaint, Bahrampour purported to set forth eight different claims against all defendants: unreasonably dangerous product, invasion of privacy, negligent failure to warn, design defect, implied warranty of merchantability, negligence per se, ultrahazardous activity, and infliction of emotional distress. SNC filed a motion to dismiss the claims against it, arguing that Bahrampour failed to state a claim under NRCP 12(b)(5) and that all of his claims were barred under the doctrine of claim preclusion and the relevant statute of limitations. Over Bahrampour's opposition, and without reaching the claim-preclusion or statute-of-limitations issues, the district court entered an order granting SNC's motion and dismissing all of the claims against it under NRCP 12(b)(5). This appeal followed, and the district court subsequently entered an order certifying the dismissal as a final judgment.²

We review a district court order granting an NRCP 12(b)(5) motion to dismiss de novo, accepting all factual allegations in the plaintiff's complaint as true and drawing all inferences in the plaintiff's favor. Buzz Stew, LLC v. City of N. Las Vegas , 124 Nev. 224, 227-28, 181 P.3d 670, 672 (2008). Dismissal is appropriate "only if it appears beyond a doubt that [the plaintiff] could prove no set of facts, which, if true, would entitle [the plaintiff] to relief." Id. at 228, 181 P.3d at 672. In evaluating an NRCP 12(b)(5) motion, the court must determine whether "the challenged pleading sets forth allegations sufficient to make out the elements of a right to relief." Breliant v. Preferred Equities Corp. , 109 Nev. 842, 846, 858 P.2d 1258, 1260 (1993) (internal quotation marks omitted).

Considering his claims for "unreasonably dangerous product," "design defect," and "negligent failure to warn" together, Bahrampour essentially sets forth both a design-defect and failure-to-warn theory of strict product liability against SNC. See Motor Coach Indus., Inc. v. Khiabani , 137 Nev., Adv. Op. 42, 493 P.3d 1007, 1015 (2021) (recognizing both as distinct theories of strict product liability); see also Nev. Power Co. v. Eighth Judicial Dist. Court , 120 Nev. 948, 960, 102 P.3d 578, 586 (2004) (providing that, when evaluating a complaint, "we must look at the substance of the claims, not just the labels used"). Both theories have the same elements; the 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 the plaintiff's injury." Motor Coach , 137 Nev., Adv. Op. 42, 493 P.3d at 1011 (internal quotation marks omitted).

The difference is, under a design-defect theory, a product is defective when it "failed to perform in the manner reasonably to be expected in light of its nature and intended function and was more dangerous than would be contemplated by the ordinary user having the ordinary knowledge available in the community." Ford Motor Co. v. Trejo , 133 Nev. 520, 523, 402 P.3d 649, 652 (2017) (internal quotation marks omitted). Whereas under a failure-to-warn theory, the relevant defect simply is the lack of a warning, as "strict liability may be imposed even though the product is faultlessly made if it was unreasonably dangerous to place the product in the hands of the user without suitable and adequate warning concerning safe and proper use." Motor Coach , 137 Nev., Adv. Op. 42, 493 P.3d at 1011-12 (alteration and internal quotation marks omitted).

Bahrampour essentially contends that the microwave-emitting function of SNC's weapon poses inherent risks of damage to a target's brain such that the weapon is unreasonably dangerous as a result of both its design and SNC's failure to warn potential users of these risks. But Bahrampour fails to set forth any facts giving rise to an inference that the weapon actually suffers from a design defect, as he does not allege that the weapon in any way failed to perform as reasonably expected in light of its nature and intended function as a non-lethal tool for incapacitation and riot control, nor does he allege that the weapon is any more dangerous than would be expected by an ordinary user of such technology. See Ford , 133 Nev. at 523, 402 P.3d at 652. Instead, he largely focuses on the extent to which he has allegedly suffered injuries as a result of prolonged and repeated use of the weapon against him by various government actors, which, even assuming as we must that the allegations are true, does not itself imply that the weapon is unreasonably dangerous when used as intended by an ordinary user. Bahrampour therefore fails to set forth facts sufficient to establish the most fundamental element of his design-defect theory—i.e., that the product's design is defective—and the district court appropriately dismissed this claim. See Motor Coach , 137 Nev., Adv. Op. 42, 493 P.3d at 1011 ; Breliant , 109 Nev. at 846, 858 P.2d at 1260.

With respect to his failure-to-warn theory, although Bahrampour alleges that SNC furnished its weapon to users without any warnings concerning its proper use, he fails to set forth any facts giving rise to an inference that doing so renders the weapon unreasonably dangerous. See Motor Coach , 137 Nev., Adv. Op. 42, 493 P.3d at 1011-12. Under Nevada law, manufacturers are not required to warn against generally known dangers, id. at 1012, and Bahrampour does not allege that SNC furnished the weapon to users who would not generally know that prolonged and repeated use of a weapon designed to incapacitate human targets by emitting microwaves directly into their brains may result in substantial harm to those targets. Accordingly, the district court appropriately dismissed both of Bahrampour's claims for strict product liability. See Breliant , 109 Nev. at 846, 858 P.2d at 1260.

Bahrampour also appears to assert a garden-variety negligence claim based on SNC's failure to warn of the weapon's dangers. Although "the law does not impose a general affirmative duty to warn others of dangers," a plaintiff may recover under a failure-to-warn theory of negligence if there was a special relationship between the parties and the danger was foreseeable. Wiley v. Redd , 110 Nev. 1310, 1316, 885 P.2d 592, 596 (1994)....