Product Liability Answer and Affirmative Defenses - Nebraska

ANSWER, AFFIRMATIVE DEFENSES, AND DEMAND FOR JURY TRIAL — NEBRASKA

TABLE OF CONTENTS

1. Caption
2. Preliminary Statement
3. Answer to Allegations of the Complaint
4. General Denial
5. Affirmative Defenses
6. Reservation of Rights
7. Prayer for Relief
8. Demand for Trial by Jury
9. Signature Block
10. Certificate of Service
11. Nebraska Practice Notes
12. Sources and References

1. CAPTION

IN THE DISTRICT COURT OF [COUNTY] COUNTY, NEBRASKA

CASE NO. [________________________________]

ANSWER, AFFIRMATIVE DEFENSES, AND DEMAND FOR JURY TRIAL OF DEFENDANT [DEFENDANT NAME]

2. PRELIMINARY STATEMENT

Defendant [DEFENDANT NAME] ("Defendant"), by and through undersigned counsel, answers the Complaint of Plaintiff [PLAINTIFF NAME] ("Plaintiff") as follows. Each numbered paragraph below corresponds to the like-numbered paragraph of the Complaint. Any allegation not expressly admitted is denied.

3. ANSWER TO ALLEGATIONS OF THE COMPLAINT

Parties, Jurisdiction, and Venue

1.1. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations in Paragraph 1.1 and on that basis denies the same.

1.2. Defendant [ADMITS / DENIES] that it is a corporation organized under the laws of [STATE] with its principal place of business at [ADDRESS]. Defendant [ADMITS / DENIES] the remaining allegations of Paragraph 1.2.

1.3. [ADMIT / DENY / LACK KNOWLEDGE] as to Paragraph 1.3.

1.4. Paragraph 1.4 contains allegations directed to fictitious defendants and requires no response from this Defendant. To the extent a response is required, Defendant denies the allegations.

1.5. Paragraph 1.5 states a legal conclusion to which no response is required. To the extent a response is required, Defendant denies the allegation.

1.6. Paragraph 1.6 states a legal conclusion to which no response is required. Defendant [ADMITS / DENIES] that it transacts business in Nebraska but DENIES that it has subjected itself to jurisdiction with respect to the claims pleaded in this action, except to the extent expressly admitted.

1.7. Paragraph 1.7 states a legal conclusion regarding venue to which no response is required.

Background Facts

2.1. [ADMIT / DENY / LACK KNOWLEDGE] as to Paragraph 2.1.

2.2. Defendant ADMITS only that it manufactured and/or sold the [PRODUCT] in the ordinary course of business and DENIES the remaining allegations of Paragraph 2.2.

2.3. Defendant is without knowledge or information sufficient to form a belief as to the truth of the allegations regarding the date of sale or first delivery for use, and on that basis DENIES the same. Defendant expressly DENIES that the product, if any, was first sold or leased for use within ten (10) years preceding the filing of the Complaint.

2.4. DENIED. Defendant denies that Plaintiff used the Product in a manner that was intended, foreseeable, and consistent with the warnings and instructions provided.

2.5. Defendant is without knowledge or information sufficient to form a belief as to the occurrence of the alleged Incident and on that basis DENIES the same.

2.6. Defendant lacks knowledge sufficient to admit or deny the nature or extent of Plaintiff's alleged injuries and on that basis DENIES them.

2.7. DENIED. Defendant denies that the Product, if any, was in substantially the same condition as when it left Defendant's control.

2.8. DENIED. Defendant denies that Plaintiff timely discovered (or could not, in the exercise of reasonable diligence, have discovered) the alleged injury and its causal connection to the Product within the limitations period.

Counts I through V

3.1 – 7.6. Defendant incorporates by reference its responses to Paragraphs 1.1 through 2.8 as if fully set forth herein. Defendant DENIES each and every allegation of Counts I through V of the Complaint, including but not limited to allegations of defect, negligence, breach of warranty, causation, and damages.

Prayer for Relief

Defendant DENIES that Plaintiff is entitled to any relief whatsoever and demands that the Complaint be dismissed with prejudice and that judgment be entered in Defendant's favor.

4. GENERAL DENIAL

Defendant denies each and every allegation of the Complaint not expressly admitted herein.

5. AFFIRMATIVE DEFENSES

By pleading the following affirmative defenses, Defendant does not concede that it bears the burden of proof or persuasion as to any issue for which Plaintiff bears the burden under Nebraska law.

FIRST AFFIRMATIVE DEFENSE — Failure to State a Claim

The Complaint, in whole or in part, fails to state a claim upon which relief can be granted under Neb. Ct. R. Pldg. § 6-1112(b)(6).

SECOND AFFIRMATIVE DEFENSE — Statute of Limitations (Neb. Rev. Stat. § 25-224(1))

Plaintiff's claims are barred, in whole or in part, by the four-year statute of limitations for product liability actions set forth in Neb. Rev. Stat. § 25-224(1). Plaintiff knew or, in the exercise of reasonable diligence, should have known of the alleged injury and its causal connection to the Product more than four (4) years before this action was commenced.

THIRD AFFIRMATIVE DEFENSE — Statute of Repose (Neb. Rev. Stat. § 25-224(2))

Plaintiff's claims are barred by the ten-year statute of repose set forth in Neb. Rev. Stat. § 25-224(2). The Product, if manufactured or sold by Defendant, was first sold or leased for use or consumption more than ten (10) years before the filing of the Complaint, extinguishing the cause of action as a matter of substantive law. To the extent the Product was manufactured outside Nebraska, the statute of repose of the state or country of manufacture also bars the claim, or at minimum the ten-year period of § 25-224(2)(b) applies.

FOURTH AFFIRMATIVE DEFENSE — No Defect

The Product was not defective in design, manufacture, warning, or otherwise, and was not in a "defective condition unreasonably dangerous" within the meaning of Restatement (Second) of Torts § 402A as adopted in Kohler v. Ford Motor Co., 187 Neb. 428, 191 N.W.2d 601 (1971). The Product performed as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner.

FIFTH AFFIRMATIVE DEFENSE — State-of-the-Art (Neb. Rev. Stat. § 25-21,182)

To the extent Plaintiff alleges negligent or defective design, testing, or labeling, Defendant invokes the state-of-the-art defense under Neb. Rev. Stat. § 25-21,182. The Product's design, testing, and labeling conformed in all respects to the generally recognized and prevailing state of the art — that is, the best technology reasonably available — at the time the Product was first sold to a person not engaged in the business of selling such product.

SIXTH AFFIRMATIVE DEFENSE — Modified Comparative Fault (Neb. Rev. Stat. § 25-21,185.09)

To the extent Plaintiff was negligent or otherwise at fault in causing the alleged injuries, any recovery must be diminished proportionately under Neb. Rev. Stat. § 25-21,185.09. If Plaintiff's contributory fault is equal to or greater than the combined fault of all persons against whom recovery is sought, recovery is wholly barred.

SEVENTH AFFIRMATIVE DEFENSE — Allocation of Fault to Non-Parties (Neb. Rev. Stat. § 25-21,185.11)

Pursuant to Neb. Rev. Stat. § 25-21,185.11 and applicable common law, fault must be allocated to all persons whose acts or omissions contributed to Plaintiff's alleged injuries, including non-parties whose identities will be developed through discovery. Defendant is liable, if at all, only for its own percentage share of fault as determined by the trier of fact for non-economic damages. See Neb. Rev. Stat. § 25-21,185.10.

EIGHTH AFFIRMATIVE DEFENSE — Misuse and Unforeseeable Use

Plaintiff's injuries, if any, were caused by the misuse, abnormal use, or unintended and unforeseeable use of the Product, in a manner not reasonably anticipated by Defendant and contrary to instructions and warnings supplied with the Product. See Kohler v. Ford Motor Co., 187 Neb. 428 (recognizing misuse as a defense to strict liability).

NINTH AFFIRMATIVE DEFENSE — Post-Sale Alteration and Modification

After leaving Defendant's possession and control, the Product was substantially altered, modified, repaired, or used in conjunction with incompatible components by Plaintiff or third parties, which alteration was the proximate cause of the alleged injuries. The Product was not in substantially the same condition at the time of the alleged Incident as when it left Defendant's control.

TENTH AFFIRMATIVE DEFENSE — Assumption of the Risk

Plaintiff knew of, appreciated, and voluntarily assumed the risks associated with the use of the Product as alleged. Restatement (Second) of Torts § 402A cmt. n.

ELEVENTH AFFIRMATIVE DEFENSE — Sealed Container / Sophisticated User

To the extent Defendant supplied the Product in a sealed container or to a sophisticated downstream purchaser who possessed equal or superior knowledge of the alleged hazard, Defendant's duty to warn is satisfied or excused.

TWELFTH AFFIRMATIVE DEFENSE — Learned Intermediary

To the extent any claim arises from a prescription drug, medical device, or other product distributed through licensed health-care professionals, Defendant's duty to warn is owed to the prescribing or implanting professional, not to Plaintiff. Freeman v. Hoffman-La Roche, Inc., 260 Neb. 552, 618 N.W.2d 827 (2000) (adopting Restatement (Third) of Torts: Products Liability § 6(d)).

THIRTEENTH AFFIRMATIVE DEFENSE — Government / Regulatory Compliance

The Product complied with all applicable federal and state regulations, statutes, and mandatory standards, including without limitation [CITE — e.g., FMVSS 208, 16 C.F.R. § 1500.xx, 21 C.F.R. § xxx]. Such compliance is evidence that the Product was not defective and supports preemption defenses where federal law occupies the field or expressly preempts state-law tort claims.

FOURTEENTH AFFIRMATIVE DEFENSE — Federal Preemption

Some or all of Plaintiff's claims are preempted, in whole or in part, by federal law, including without limitation the [CITE — e.g., Federal Food, Drug, and Cosmetic Act; Medical Device Amendments of 1976, 21 U.S.C. § 360k(a); Federal Insecticide, Fungicide, and Rodenticide Act; Federal Boat Safety Act].

FIFTEENTH AFFIRMATIVE DEFENSE — Innocent Seller / Non-Manufacturer (Neb. Rev. Stat. § 25-21,181)

To the extent Defendant is a seller or lessor of the Product but is not its manufacturer, no strict liability action may be maintained against Defendant under Neb. Rev. Stat. § 25-21,181.

SIXTEENTH AFFIRMATIVE DEFENSE — Superseding / Intervening Cause

Plaintiff's injuries, if any, were caused by superseding and intervening acts, omissions, or events of third parties, including but not limited to [describe — e.g., subsequent owner alteration, criminal conduct, employer's failure to maintain], which break the chain of proximate causation between any conduct of Defendant and the alleged injuries. See Stahlecker v. Ford Motor Co., 266 Neb. 601, 667 N.W.2d 244 (2003).

SEVENTEENTH AFFIRMATIVE DEFENSE — Failure to Mitigate

Plaintiff failed to exercise reasonable diligence to mitigate the alleged damages.

EIGHTEENTH AFFIRMATIVE DEFENSE — Setoff / Collateral Source

Any judgment must be reduced by amounts received or receivable by Plaintiff from collateral sources to the extent permitted under Nebraska law and any applicable workers' compensation, no-fault insurance, or settlement set-off principles.

NINETEENTH AFFIRMATIVE DEFENSE — Lack of Privity (Warranty)

To the extent Plaintiff asserts breach of express or implied warranty, the claims are barred by lack of privity, lack of timely notice (Neb. U.C.C. § 2-607), the four-year warranty limitation (Neb. U.C.C. § 2-725), or effective disclaimer or limitation of remedies (Neb. U.C.C. §§ 2-316, 2-719).

TWENTIETH AFFIRMATIVE DEFENSE — No Punitive Damages Under Nebraska Law

Punitive damages are not recoverable under Nebraska law. Distinctive Printing & Packaging Co. v. Cox, 232 Neb. 846, 443 N.W.2d 566 (1989); Neb. Const. art. VII, § 5. Any prayer for punitive, exemplary, or treble damages must be stricken.

TWENTY-FIRST AFFIRMATIVE DEFENSE — Spoliation

To the extent Plaintiff or third parties have lost, destroyed, altered, repaired, or failed to preserve the Product, its components, or other material evidence, Defendant is entitled to spoliation sanctions, adverse inferences, and/or dismissal of affected claims.

TWENTY-SECOND AFFIRMATIVE DEFENSE — Reservation of Defenses

Defendant reserves the right to assert additional affirmative defenses as discovery proceeds and the facts develop.

6. RESERVATION OF RIGHTS

Defendant expressly reserves the right to amend this Answer to assert additional defenses, counterclaims, cross-claims, third-party claims, and to designate non-parties at fault, as discovery may warrant, consistent with Neb. Ct. R. Pldg. § 6-1115.

7. PRAYER FOR RELIEF

WHEREFORE, Defendant [DEFENDANT NAME] respectfully prays:

• A. That Plaintiff's Complaint be dismissed with prejudice;
• B. That judgment be entered in favor of Defendant and against Plaintiff;
• C. That Defendant be awarded its costs and disbursements;
• D. That, in the alternative, any judgment against Defendant be reduced by Plaintiff's percentage of fault, allocated among non-parties, and offset by collateral sources as permitted by Nebraska law; and
• E. Such other and further relief as the Court deems just and equitable.

8. DEMAND FOR TRIAL BY JURY

Defendant hereby demands a trial by jury on all issues so triable as a matter of right pursuant to Neb. Const. art. I, § 6 and Neb. Ct. R. Pldg. § 6-1138.

9. SIGNATURE BLOCK

Date: [__/__/____]

Respectfully submitted,

[LAW FIRM NAME]

By: [________________________________]

[ATTORNEY NAME], Nebraska Bar No. [####]

Counsel for Defendant [DEFENDANT NAME]

[STREET ADDRESS]

[CITY, NE ZIP]

Telephone: [NUMBER]

Email: [EMAIL]

10. CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], I caused a true and correct copy of the foregoing ANSWER, AFFIRMATIVE DEFENSES, AND DEMAND FOR JURY TRIAL to be served on all counsel of record via the Nebraska JUSTICE eFiling system and/or by [METHOD] at the addresses indicated on the docket.

[________________________________]

[ATTORNEY NAME]

11. NEBRASKA PRACTICE NOTES

• Time to answer. A defendant served with a summons and complaint must serve an answer within thirty (30) days under Neb. Ct. R. Pldg. § 6-1112(a)(1)(A). Service by publication extends the time to sixty (60) days. Calendar carefully — default judgments are routinely entered.

• Motion in lieu of answer. A defendant may file a Rule § 6-1112(b) motion to dismiss (lack of jurisdiction, improper venue, failure to state a claim, etc.) before answering. The statute-of-repose defense under Neb. Rev. Stat. § 25-224(2) is well-suited to a § 6-1112(b)(6) motion when the date of first sale appears on the face of the Complaint or in attached exhibits.

• Statute of repose is substantive. Givens v. Anchor Packing, Inc., 237 Neb. 565, 466 N.W.2d 771 (1991), confirms that the ten-year repose period extinguishes the underlying right, not merely the remedy. It is constitutional under both state and federal due process and equal protection challenges. See Gillam v. Firestone Tire & Rubber Co., 241 Neb. 414, 489 N.W.2d 289 (1992).

• Repose for foreign-manufactured products. Section 25-224(2)(b) imposes the longer of (a) the manufacture-state period or (b) ten years. Where the manufacture-state period is shorter than ten years, the ten-year minimum controls.

• Discovery rule. For products containing latent defects, accrual under § 25-224(1) is delayed until the injury and its cause are or should be reasonably discovered. Condon v. A.H. Robins Co., 217 Neb. 60, 349 N.W.2d 622 (1984).

• Comparative fault threshold. Section 25-21,185.09 bars recovery if plaintiff fault is "equal to or greater than" combined defendant fault — sometimes loosely called the "51% bar," but it is functionally a 50% bar (50/50 = no recovery; 49/51 plaintiff/defendant = reduced recovery). Verdict forms must permit allocation across all parties and non-parties.

• Allocation to non-parties. Section 25-21,185.11 permits allocation of fault to non-parties whose identities are pleaded or developed in discovery. Plead the affirmative defense and disclose non-party allocation timely under the court's scheduling order or local practice.

• Joint and several liability. Section 25-21,185.10 retains joint and several liability for economic damages but apportions non-economic damages by percentage of fault. Settlement set-offs are governed by Uniform Contribution Among Tortfeasors Act, Neb. Rev. Stat. § 25-21,185 et seq.

• No punitive damages. Nebraska's constitutional prohibition against penalties payable other than to the school fund (Neb. Const. art. VII, § 5) bars punitive damages in tort actions. Move to strike any punitive prayer.

• State-of-the-art defense scope. Section 25-21,182 applies to "negligent or defective design, testing, or labeling" claims. It generally does NOT shield manufacturing defect claims. See Kent v. Sun Refining & Marketing Co., 242 Neb. 814, 496 N.W.2d 531 (1993) (scope of defense).

• Innocent-seller bar. Section 25-21,181 forecloses strict liability against non-manufacturer sellers and lessors. Negligence and warranty claims against the seller still proceed; assess whether to invoke § 25-21,181 by Rule 12(b)(6) motion.

• Federal preemption hot spots. Implant medical devices (21 U.S.C. § 360k(a); Riegel v. Medtronic); pesticides (FIFRA, 7 U.S.C. § 136v(b)); auto crashworthiness for certain FMVSS-compliant designs (Geier v. American Honda); locomotive and railroad equipment (49 U.S.C. § 20106). Plead preemption with citation to the controlling federal scheme.

• Verification. Unlike some jurisdictions, Nebraska does not require verification of an Answer in product liability cases unless the Complaint is verified. Confirm by reviewing the Complaint and applicable local rules.

12. SOURCES AND REFERENCES

• Neb. Rev. Stat. § 25-224 (Actions on product liability) — https://nebraskalegislature.gov/laws/statutes.php?statute=25-224
• Neb. Rev. Stat. § 25-21,180 (Definitions) — https://nebraskalegislature.gov/laws/statutes.php?statute=25-21,180
• Neb. Rev. Stat. § 25-21,181 (Strict liability — manufacturer-only against seller/lessor) — https://nebraskalegislature.gov/laws/statutes.php?statute=25-21,181
• Neb. Rev. Stat. § 25-21,182 (State-of-the-art defense) — https://nebraskalegislature.gov/laws/statutes.php?statute=25-21,182
• Neb. Rev. Stat. § 25-21,185.09 (Modified comparative fault) — https://nebraskalegislature.gov/laws/statutes.php?statute=25-21,185.09
• Neb. Rev. Stat. § 25-21,185.10 (Joint and several liability) — https://nebraskalegislature.gov/laws/statutes.php?statute=25-21,185.10
• Neb. Rev. Stat. § 25-21,185.11 (Allocation of fault to released parties) — https://nebraskalegislature.gov/laws/statutes.php?statute=25-21,185.11
• Kohler v. Ford Motor Co., 187 Neb. 428, 191 N.W.2d 601 (1971) (adopting § 402A) — https://law.justia.com/cases/nebraska/supreme-court/1971/37796-1.html
• Givens v. Anchor Packing, Inc., 237 Neb. 565, 466 N.W.2d 771 (1991) (repose substantive)
• Gillam v. Firestone Tire & Rubber Co., 241 Neb. 414, 489 N.W.2d 289 (1992) (repose constitutional)
• Condon v. A.H. Robins Co., 217 Neb. 60, 349 N.W.2d 622 (1984) (discovery rule)
• Freeman v. Hoffman-La Roche, Inc., 260 Neb. 552, 618 N.W.2d 827 (2000) (learned-intermediary)
• Stahlecker v. Ford Motor Co., 266 Neb. 601, 667 N.W.2d 244 (2003) (proximate cause)
• Distinctive Printing & Packaging Co. v. Cox, 232 Neb. 846, 443 N.W.2d 566 (1989) (no punitive damages)
• Kent v. Sun Refining & Marketing Co., 242 Neb. 814, 496 N.W.2d 531 (1993) (state-of-the-art scope)
• Restatement (Second) of Torts § 402A (cmts. i, k, n)
• Restatement (Third) of Torts: Products Liability § 6(d) (1998)
• Nebraska Court Rules of Pleading in Civil Cases — https://supremecourt.nebraska.gov/

Disclaimer: This template is provided for informational purposes only and does not constitute legal advice. An attorney licensed in Nebraska must review and customize this document before filing. Laws, citations, and court rules change frequently; verify all authorities before use.