Lewis v. Sea Ray Boats, Inc.

• Decision Date: 21 March 2003
• Docket Number: No. 36831.,36831.
• Citation: 65 P.3d 245,119 Nev. 100
• Parties: Robin LEWIS, Teresa Rae Webb and Tricia Marie Gasse, Appellants, v. SEA RAY BOATS, INC., a Tennessee Corporation, Respondent.
• Court: Nevada Supreme Court

65 P.3d 245

119 Nev. 100

Robin LEWIS, Teresa Rae Webb and Tricia Marie Gasse, Appellants, v. SEA RAY BOATS, INC., a Tennessee Corporation, Respondent.

No. 36831.

Supreme Court of Nevada.

March 21, 2003.

Beckley Singleton, Chtd., and Daniel F. Polsenberg and Rex A. Jemison, Las Vegas, for Appellant Lewis.

Frank C. Cook, Las Vegas, for Appellants Webb & Gasse.

Parnell & Associates and Christian E. Hardigree and Richard B. Parnell, Las Vegas; Snell & Wilmer and Alex Marconi, Phoenix, Arizona, for Respondent.

BEFORE THE COURT EN BANC.

OPINION

By the Court, MAUPIN, J.:

Leo Gasse was killed and Robin Lewis catastrophically injured due to carbon monoxide poisoning during an overnight outing in a Sea Ray pleasure boat at the Lake Mead National Recreation Area. Lewis, along with Gasse's heirs, Teresa Rae Webb and Tricia Marie Gasse, brought suit against Sea Ray Boats, Inc., alleging that Sea Ray is strictly liable in tort in connection with the incident. A jury returned a verdict in favor of Sea Ray, finding that the boat was not a defective or unreasonably dangerous product. This appeal followed.

Appellants' primary contention centers on the district court's failure to adopt appellants' proffered instructions on their theory of liability; that warnings concerning the risk of carbon monoxide migration secondary to use of the boat's air conditioning system were inadequate. Because we conclude that appellants were entitled to more specific instructions with regard to the warnings issue, we reverse the district court's judgment and remand this matter for a new trial.

FACTS

In May 1991, Leo Gasse and Jimmy Paxson purchased a used Sea Ray pleasure boat from a Las Vegas area Sea Ray dealership. In addition to gasoline propulsion engines, the boat contained a small gasoline generator, which powered the boat's accessories, including the air conditioner.

On May 29, 1993, during a weekend cruise on Lake Mead, Gasse and Lewis "side-tied" the boat to a beach and went to sleep in the boat's cabin, leaving the gasoline generator running to power the air conditioner. The next morning, Anthony Caro, Jr., a friend who was staying at the beach, knocked on the cabin door and received no response. He returned later that afternoon, boarded the boat, and found Gasse dead and Lewis barely breathing. Mr. Caro testified that the engines were not running when he first checked on the couple and when he returned.

Subsequent investigation confirmed that the generator, rather than the engines, was the source of the carbon monoxide, a tasteless odorless gas. This proposition was bolstered by other trial testimony that, had engine exhaust been the source, the couple may have been able to detect the problem because of the distinctive odor of exhaust fumes.

Two warnings regarding carbon monoxide poisoning accompanied the sale of this type of boat in 1981, one written by ONAN, the generator manufacturer,¹ and the other by the National Marine Manufacturers' Association (NMMA).² Sea Ray provided boat purchasers with an assortment of other manuals, none of which are relevant to this case. Both warnings primarily addressed the danger of carbon monoxide exposure from engine exhaust.

When Gasse and Paxson purchased the boat, the Sea Ray dealership service manager, George Schenk, and the salesman, Curt Snouffer, warned of the danger of exhaust fumes and carbon monoxide, and the necessity of ventilating the boat to remove hazardous fumes. Schenk and Snouffer demonstrated this process by opening a window and the hatch to allow for flow-through ventilation, and explained the need to have the rear door remain open when running the main propulsion engines. Lastly, Schenk indicated that idling the engine with the front hatch closed could cause accumulations of carbon monoxide.

Appellants theorized that a process described as "migrating carbon monoxide" caused the accident. The process occurs when carbon monoxide, although safely exhausted from the boat's gasoline generator into the open air, is blown back into the boat by wind, entering the passenger cabin through small openings. Sea Ray's expert agreed with this theory of causation, but noted that such a phenomenon is quite rare and for carbon monoxide to accumulate to dangerous levels, passenger cabin ventilation must have been obstructed.

Sea Ray's expert testified regarding the safety of sleeping with the air conditioner running. He admitted that although boaters will often sleep with the air conditioner running unless warned not to do so, certain precautions should be taken. These include: (1) posting a watch, since in 1981, the year the boat was manufactured, no carbon monoxide detection devices were available; (2) anchoring the boat from the bow rather than the side, so that any wind currents would blow away from the stern; or (3) creating flow-through ventilation before going to sleep. The expert conceded that Sea Ray's manual contained no such instructions or warnings, but stressed that no incidents of this type resulting in death had ever been reported in connection with the particular pleasure boat model involved in this case. Sea Ray's expert also voiced his opinion that the warnings given were adequate with regard to carbon monoxide exposure, and that the risk of "migrating" carbon monoxide from on-board generators was not a known hazard when the boat was originally purchased in 1981.

Sea Ray's expert additionally relied upon a Nevada Department of Wildlife booklet found on the boat after the incident. The booklet discussed the hazards of exhaust fumes, warned that carbon monoxide itself is tasteless and odorless, that plenty of air flow should be maintained because exhaust fumes can blow back into a boat when running downwind, and that adequate ventilation was required when using catalytic heaters for warmth. The warnings that are the subject of this appeal specifically addressed the danger of carbon monoxide exposure from exhaust fumes, generally addressed dangers attendant to carbon monoxide exposure, and only inferentially addressed dangers in connection with generator fumes. All of this is important because, as noted, the discrete odor from engine exhaust would arguably alert the passengers to the presence of noxious fumes, while emissions from the generator probably would not.

Jury instructions on "adequate warning"

Appellants submitted a proposed jury instruction regarding legal requirements for an "adequate warning" based on Pavlides v. Galveston Yacht Basin, Inc.,³ a Fifth Circuit case applying a three-factor test under Texas law⁴ for determining whether a product warning was adequate. The proposed instruction read as follows:

A warning must (1) be designed so it can reasonably be expected to catch the attention of the consumer; (2) be comprehensible and give a fair indication of the specific risks involved with the product; and (3) be of an intensity justified by the magnitude of the risk.

The district court rejected this proposed instruction and instead gave the following two instructions:

First:

Although you are to consider only the evidence in the case in reaching a verdict, you must bring to the consideration of the evidence your everyday common sense and judgment as reasonable men and women. Thus, you are not limited solely to what you see and hear as the witnesses testify. You may draw reasonable inferences from the evidence which you feel are justified in the light of common experience, keeping in mind that such inferences should not be based on speculation or guess.

Second:

The question of whether or not a given warning is legally sufficient depends upon the language used and the impression that such language is calculated to make upon the mind of the average user of the product.

The first instruction is a stock instruction that the jury should simply use its common sense in evaluating and drawing inferences from the evidence introduced at trial. The second instruction is generally worded, containing partial excerpts from Pavlides.⁵

During deliberations, the jury sent a note to the trial judge, requesting a definition of an "adequate warning." Appellants proposed an instruction taken from a products liability treatise to the district court.⁶ The district court rejected this instruction, as well as again rejecting appellants' proposed Pavlides instruction. Consequently, the district court simply reread the two instructions it had previously given on the issue to the jury.

After the trial judge reread the instructions, the jury foreman informed the judge that the reading did not assist the jury in its deliberations. The district court again sought a definition of "adequate warning" from the parties. Appellants reoffered the treatise definition, arguing that it was essentially consistent with Nevada case authority.⁷ The district court again rejected the treatise definition, and refused to instruct the jury further, despite the confusion. Soon after the rereading of the jury instructions, one juror was replaced during deliberations for unspecified reasons. Shortly thereafter, the jury returned a verdict in favor of Sea Ray. This appeal followed.

DISCUSSION

Failure to give appellants' proposed "adequacy of warnings" instruction

Respondent contends that warnings instructions in cases such as this one should be generally worded and that the adequacy of warnings should be left to the common sense of the finder of facts. Appellants contend that the district court erred by not instructing the jury with their more specific definition of "adequate warning." We agree with appellants.

In American Casualty Co. v. Propane Sales & Service, we held that a party is entitled to have the jury instructed on all of his theories of the case that are supported by the evidence,⁸ and that general, abstract or stock instructions on the law are insufficient if a proper request for a specific instruction on an important point has been duly proffered to the court.⁹ We reversed in...