Recent Blog Posts in July 2009

The Las Vegas Sun reported that a four-year-old boy drowned last Saturday in an apartment complex pool. The tragic incident marks the seventh child drowning this year in Nevada.

ABC reports that there are approximately 1,500 child deaths each year from drowning.

Although swimming pools offer fun and refreshment during the hot summer months, they are dangerous if proper caution is not used. Here are some tips from the American Academy of Pediatrics:

• Never leave your children alone in or near the pool, even for a moment. An adult who knows CPR should actively supervise children at all times.

• Practice touch supervision with children younger than 5 years. This means that the adult is within an arm's length of the child at all times.

• You must put up a fence to separate your house from the pool. Most young children who drown in pools wander out of the house and fall into the pool. Install a fence at least 4 feet high around all 4 sides of the pool. This fence will completely separate the pool from the house and play area of the yard. Use gates that self-close and self-latch, with latches higher than your children's reach.

• Keep rescue equipment (such as a shepherd's hook or life preserver) and a telephone by the pool.

• Do not use air-filled "swimming aids" as a substitute for approved life vests.

• Remove all toys from the pool after use so children aren't tempted to reach for them.

• After the children are done swimming, secure the pool so they can't get back into it.

• A power safety cover that meets the standards of the American Society for Testing and Materials (ASTM) may add to the protection of your children but should not be used in place of the fence between your house and the pool. Even fencing around your pool and using a power safety cover will not prevent all drownings.

• Remember, teaching your child how to swim DOES NOT mean your child is safe in water. 

The Nevada Supreme Court refused to recognize a "heeding presumption" in strict products liability failure-to-warn cases, in its June 4 decision, Rivera v. Philip Morris, Inc.

A heeding presumption is a rebuttable presumption that allows a fact-finder to presume that the injured plaintiff would have heeded an adequate warning if one had been given.

The Court's reasoning:

In Nevada, it is well-established law that in strict product liability failure-to-warn cases, the plaintiff bears the burden of production and must prove, among other elements, that the inadequate warning caused his injuries. Because a heeding presumption shifts the burden of proving causation from the plaintiff to the manufacturer, it is contrary to Nevada law. Rather than demanding that the plaintiff prove that the inadequate warning caused his injuries, a heeding presumption requires the manufacturer to rebut the presumption that the plaintiff would have heeded an adequate warning by demonstrating that a different warning would not have changed the plaintiff's actions. While other jurisdictions have permitted this shifting of the burden of production, we are unwilling to do so.

See Rivera v. Philip Morris, Inc., 125 Nev. Adv. Op. No. 18 (June 4, 2009) for the full opinion.