Nature of the Case
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Facts
In May 1991, Leo Gasse (P) and Jimmy Paxson purchased a used D pleasure boat from a Las Vegas area D dealership. In addition to gasoline propulsion engines, the boat contained a small gasoline generator, which powered the boat's accessories, including the air conditioner. During a weekend cruise on Lake Mead, Ps '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, Gasse (P) was dead and Lewis (P) was barely breathing. Caro, the guy who found them, testified that the engines were not running when he first checked on the couple and when he returned. The generator, rather than the engines, was the source of the carbon monoxide, a tasteless odorless gas. Two warnings regarding carbon monoxide poisoning accompanied the sale of this type of boat in 1981, one written by ONAN, the generator manufacturer, and the other by the National Marine Manufacturers' Association (NMMA). Both warnings primarily addressed the danger of carbon monoxide exposure from engine exhaust. The D 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 and explained the need to have the rear door remain open when running the main propulsion engines. Schenk indicated that idling the engine with the front hatch closed could cause accumulations of carbon monoxide. Ds theorized that carbon monoxide, although safely exhausted from the boat's gasoline generator into the open air, was blown back into the boat by wind, entering the passenger cabin through small openings. D's expert agreed 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. Precautions would include: (1) posting a watch; (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. D'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. A Nevada Department of Wildlife booklet found on the boat after the incident 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. Ds submitted a proposed jury instruction: 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 gave the following two instructions:...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. 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. During deliberations the jury sent a note to the trial judge, requesting a definition of an 'adequate warning.' The district court rejected proffered instructions by Ps and D simply reread the two instructions it had previously given on the issue to the jury. The jury foreman informed the judge that the reading did not assist the jury in its deliberations. The court rejected any further input from Ps and D and refused to instruct the jury further. One juror was replaced during deliberations for unspecified reasons. The jury returned a verdict in favor of D. Ps appealed.
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