Griffin v. Rockwell Intern., Inc., 12368

• Decision Date: 29 December 1980
• Docket Number: No. 12368,12368
• Citation: 620 P.2d 862,96 Nev. 910
• Parties: Henry C. GRIFFIN and Nevada Industrial Commission, Appellants, v. ROCKWELL INTERNATIONAL, INC., and Does I through X, Respondents.
• Court: Nevada Supreme Court

Page 862

620 P.2d 862

96 Nev. 910

Henry C. GRIFFIN and Nevada Industrial Commission, Appellants, v. ROCKWELL INTERNATIONAL, INC., and Does I through X, Respondents.

No. 12368.

Supreme Court of Nevada.

Dec. 29, 1980.

Rehearing Denied Feb. 5, 1981.

Fitzgibbons & Beatty, Las Vegas, for appellant Henry C. griffin.

Harkins & Beckett, Ltd., Carson City, for appellant Nevada Industrial Commission.

Thorndal, Gentner, Backus, Lyles & Maupin, Ltd., Las Vegas, for respondent Rockwell International, Inc.

[96 Nev. 911] Nevada Trial Lawyers Association, J. R. Crockett, Jr., Las Vegas, amicus curiae.

OPINION

PER CURIAM:

This is an appeal in a products liability case where in the trial court granted defendant-respondent's motion for involuntary dismissal, NRCP 41(b), following the conclusion of plaintiff-appellant's case in chief.

Appellant first contends that the trial court erred in striking the testimony of appellant's expert witness. We have carefully reviewed the record and briefs on appeal and find that the trial court properly struck the proffered expert testimony as the witness did in fact, as found by the trial court, testify "out of his field" of expertise. We find no abuse of discretion and will not interfere with the lower court's determination. Provence v. Cunningham, 95 Nev. 4, 7, 588 P.2d 1020, 1021 (1979); Levine v. Remolif, 80 Nev. 168, 172-73, 390 P.2d 718, 720 (1964).

Appellant next contends that irrespective of whether the first assignment of error succeeds, the trial court committed reversible error in involuntarily dismissing appellant's case. We disagree.

Although it is true that in reviewing the grant of a Rule 41(b) motion "the plaintiff's evidence must be accepted as true ... (and) this court must draw all permissible inferences in his favor and not pass upon the credibility of the witnesses nor weigh the evidence," Bates v. Cottonwood Cove Corp., 84 Nev. 388, 391, 441 P.2d 622, 624 (1968), it is equally true that the plaintiff must present a prima facie case upon which the triers of fact can grant relief. Warner v. Dillion, 92 Nev. 677, 588 P.2d 540 (1976). In a strict liability case, such as that before us, the burden of proving liability rests upon the plaintiff, who, "must still establish that his injury was caused by a defect in the product, and that such defect existed when the product left the hands of the defendant." Ginnis v. Mapes Hotel Corp., 86 Nev. 408, 413, 470 P.2d 135, 138 (1970); Duncan v. Rockwell Manufacturing Co., 173 Mont. 382, 567 P.2d 936, 939 (1977).

The claimed defect in this case, the absence of an interlock safety device on a 10 inch table saw manufactured by respondent, was not sufficiently shown to withstand the motion to dismiss. The only evidence offered by appellant Griffin was his testimony, the...