Product Liability Complaint - Nebraska

PRODUCT LIABILITY COMPLAINT — NEBRASKA

TABLE OF CONTENTS

1. Caption
2. Parties, Jurisdiction, and Venue
3. Background Facts
4. Count I — Strict Liability: Manufacturing Defect
5. Count II — Strict Liability: Design Defect (Consumer-Expectation)
6. Count III — Strict Liability: Failure to Warn
7. Count IV — Negligence
8. Count V — Breach of Implied Warranty of Merchantability
9. Damages
10. Prayer for Relief
11. Demand for Trial by Jury
12. Reservation of Rights
13. Signature and Service Blocks
14. Verification
15. Certificate of Service
16. Nebraska Practice Notes
17. Sources and References

1. CAPTION

IN THE DISTRICT COURT OF [COUNTY] COUNTY, NEBRASKA

CASE NO. [________________________________]

COMPLAINT AND DEMAND FOR JURY TRIAL

Plaintiff, by and through undersigned counsel, complains of Defendants and alleges as follows:

2. PARTIES, JURISDICTION, AND VENUE

1.1. Plaintiff [PLAINTIFF NAME] ("Plaintiff") is a citizen and resident of [COUNTY] County, Nebraska, and was so at all relevant times.

1.2. Defendant [MANUFACTURER NAME] ("Manufacturer") is a corporation organized under the laws of the State of [STATE OF INCORPORATION] with its principal place of business at [ADDRESS], and is engaged in the business of designing, manufacturing, marketing, distributing, and selling [PRODUCT TYPE] for use throughout the United States, including in Nebraska.

1.3. Defendant [DISTRIBUTOR / SELLER NAME] ("Seller") is a [entity type] organized under the laws of the State of [STATE] and at all relevant times engaged in the business of distributing, selling, and/or leasing the subject product within Nebraska.

1.4. Defendants John Does 1-10 are unknown manufacturers, designers, suppliers, distributors, retailers, and/or component manufacturers whose identities will be ascertained through discovery.

1.5. The amount in controversy exceeds the jurisdictional minimum of the District Court. Subject-matter jurisdiction is conferred under Neb. Const. art. V, § 9 and Neb. Rev. Stat. § 24-302.

1.6. Personal jurisdiction over Defendants is proper pursuant to Neb. Rev. Stat. § 25-536 (long-arm statute) because Defendants transact business in Nebraska and the cause of action arises from Defendants' placing the subject product into the stream of commerce with the reasonable expectation that it would be purchased and used in Nebraska.

1.7. Venue is proper in [COUNTY] County under Neb. Rev. Stat. § 25-403.01 because the injury occurred in this County and/or Plaintiff resides in this County.

3. BACKGROUND FACTS

2.1. On or about [DATE], Plaintiff was using a [PRODUCT NAME, MAKE, MODEL, SERIAL/LOT NUMBER] (the "Product") in [COUNTY] County, Nebraska.

2.2. The Product was designed, manufactured, assembled, tested, inspected, marketed, distributed, and sold by Defendants in the course of their respective businesses.

2.3. The Product was sold to [PLAINTIFF / FIRST USER NAME] on or about [DATE OF SALE] by Defendant Seller and was first delivered for use or consumption on or about [DATE], which is within ten (10) years of the filing of this Complaint for purposes of Neb. Rev. Stat. § 25-224(2).

2.4. Plaintiff used the Product in a manner that was intended, foreseeable, and consistent with the instructions, warnings, and labeling provided by Defendants. Plaintiff did not alter, modify, or misuse the Product.

2.5. While Plaintiff was using the Product on [DATE], the Product [DESCRIBE FAILURE — e.g., unexpectedly fractured, ignited, malfunctioned, ejected component, etc.], causing Plaintiff to suffer severe and permanent injuries (the "Incident").

2.6. As a direct and proximate result of the Incident, Plaintiff sustained [DESCRIBE INJURIES — e.g., traumatic brain injury, severe burns, fractures, amputation] requiring emergency medical care, surgical intervention, and ongoing treatment.

2.7. The Product was in substantially the same condition at the time of the Incident as when it left Defendants' possession and control, ordinary wear and tear excepted.

2.8. Plaintiff first discovered, or in the exercise of reasonable diligence should have discovered, the existence of the injury and its causal connection to the Product on [DATE OF DISCOVERY], within four (4) years of the filing of this Complaint for purposes of Neb. Rev. Stat. § 25-224(1).

4. COUNT I — STRICT LIABILITY: MANUFACTURING DEFECT

(Against Defendant Manufacturer)

3.1. Plaintiff realleges and incorporates Paragraphs 1.1 through 2.8 as if fully set forth herein.

3.2. Pursuant to Restatement (Second) of Torts § 402A as adopted by the Nebraska Supreme Court in Kohler v. Ford Motor Co., 187 Neb. 428, 191 N.W.2d 601 (1971), one who sells a product in a defective condition unreasonably dangerous to the user or consumer is subject to liability for physical harm caused by the defect.

3.3. Defendant Manufacturer is engaged in the business of selling the Product.

3.4. The Product was expected to and did reach the user without substantial change in the condition in which it was sold.

3.5. At the time the Product left Defendant Manufacturer's control, it deviated in a material way from its intended design specifications, manufacturing performance standards, and/or other identical units in the same product line, in that [DESCRIBE MANUFACTURING DEFECT — e.g., weld was improperly fused, fastener was undersized, weld bead lacked penetration, component was missing, internal cavity contained foreign material].

3.6. The manufacturing defect rendered the Product in a defective condition unreasonably dangerous to ordinary users such as Plaintiff.

3.7. The defect was the proximate cause of the Incident and Plaintiff's injuries.

5. COUNT II — STRICT LIABILITY: DESIGN DEFECT (CONSUMER-EXPECTATION)

(Against Defendant Manufacturer)

4.1. Plaintiff realleges and incorporates Paragraphs 1.1 through 3.7 as if fully set forth herein.

4.2. Under Nebraska law, a product is defectively designed if it fails to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. Restatement (Second) of Torts § 402A cmt. i; Kohler v. Ford Motor Co., 187 Neb. 428.

4.3. The Product's design failed to perform as safely as an ordinary consumer would expect because [DESCRIBE — e.g., the product lacked a guard that prevented foreseeable contact with moving parts; the product's stability failed within ordinary operating parameters; the product was not crashworthy at routine highway speeds].

4.4. Safer alternative designs were technologically and economically feasible at the time the Product was placed into the stream of commerce, including but not limited to:

• [ALTERNATIVE DESIGN 1 — e.g., interlock guard standard in industry];
• [ALTERNATIVE DESIGN 2 — e.g., redesigned center of gravity / wider track];
• [ALTERNATIVE DESIGN 3 — e.g., reinforced occupant compartment].

4.5. The risks inherent in the Product's design substantially outweighed any utility of the chosen design, and the design defect rendered the Product in a defective condition unreasonably dangerous to ordinary users such as Plaintiff.

4.6. The design defect was the proximate cause of the Incident and Plaintiff's injuries.

6. COUNT III — STRICT LIABILITY: FAILURE TO WARN

(Against Defendant Manufacturer)

5.1. Plaintiff realleges and incorporates Paragraphs 1.1 through 4.6 as if fully set forth herein.

5.2. At the time the Product left Defendant Manufacturer's control, the Product carried a foreseeable risk of harm — specifically, [DESCRIBE LATENT HAZARD] — that was not obvious to ordinary users.

5.3. Defendant Manufacturer knew or, in the exercise of reasonable care, should have known of the latent hazard at the time the Product was sold.

5.4. Defendant Manufacturer failed to provide adequate warnings or instructions to enable users to avoid the hazard, in that [DESCRIBE INADEQUACY — e.g., no warning was given of the particular hazard; the warning was hidden, ambiguous, or contradicted by other instructions; the warning understated the severity of the risk].

5.5. Adequate warnings, had they been provided, would have been heeded by Plaintiff and would have prevented the Incident.

5.6. The Product, lacking adequate warnings, was in a defective condition unreasonably dangerous to ordinary users such as Plaintiff.

5.7. Defendant Manufacturer's failure to warn was the proximate cause of the Incident and Plaintiff's injuries.

7. COUNT IV — NEGLIGENCE

(Against All Defendants)

6.1. Plaintiff realleges and incorporates Paragraphs 1.1 through 5.7 as if fully set forth herein.

6.2. Defendants owed Plaintiff a duty of reasonable care in the design, manufacture, testing, inspection, marketing, distribution, sale, and post-sale surveillance of the Product.

6.3. Defendants breached that duty by, among other acts and omissions:

• Negligently designing the Product without due regard for foreseeable risks of harm;
• Negligently selecting components, materials, and suppliers;
• Negligently failing to test the Product for foreseeable failure modes;
• Negligently failing to inspect the Product before placing it into the stream of commerce;
• Negligently marketing the Product without adequate warnings or instructions;
• Negligently failing to recall, retrofit, or notify users of known hazards after sale;
• Negligently failing to comply with applicable industry standards and federal regulations.

6.4. Defendants' breaches of duty proximately caused the Incident and Plaintiff's injuries.

8. COUNT V — BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY

(Against All Defendants)

7.1. Plaintiff realleges and incorporates Paragraphs 1.1 through 6.4 as if fully set forth herein.

7.2. Defendants are merchants of the Product within the meaning of Neb. U.C.C. § 2-104.

7.3. By placing the Product into the stream of commerce, Defendants impliedly warranted that the Product was merchantable — fit for the ordinary purposes for which such goods are used — under Neb. U.C.C. § 2-314.

7.4. The Product was not merchantable because of the defects described herein.

7.5. Defendants' breach of the implied warranty was the proximate cause of the Incident and Plaintiff's injuries.

7.6. Plaintiff has provided notice of breach to the extent required by law, and any further notice is excused by Defendants' actual knowledge of the Incident or is otherwise futile.

9. DAMAGES

8.1. Past medical expenses: approximately $[AMOUNT].

8.2. Future medical expenses: to be proven at trial, including [describe — surgical, rehabilitative, prosthetic, attendant care].

8.3. Lost wages and lost earning capacity: approximately $[AMOUNT] to date and continuing into the future.

8.4. Property damage and out-of-pocket expenses: approximately $[AMOUNT].

8.5. Non-economic damages: physical pain and suffering, mental anguish, disfigurement, permanent impairment, loss of enjoyment of life, and inconvenience.

10. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully prays for judgment against Defendants, jointly and severally to the extent permitted by Neb. Rev. Stat. § 25-21,185.10, as follows:

• A. Compensatory damages in an amount to be determined by the jury, in excess of any minimum jurisdictional threshold;
• B. Pre-judgment and post-judgment interest as allowed by Neb. Rev. Stat. § 45-103 et seq.;
• C. Costs of this action and disbursements;
• D. Such other and further relief as the Court deems just and equitable.

11. DEMAND FOR TRIAL BY JURY

Plaintiff 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.

12. RESERVATION OF RIGHTS

Plaintiff reserves the right to amend this Complaint to assert additional claims, name additional parties, and/or substitute John Doe defendants upon completion of discovery, consistent with Neb. Ct. R. Pldg. § 6-1115.

13. SIGNATURE AND SERVICE BLOCKS

Date: [__/__/____]

Respectfully submitted,

[LAW FIRM NAME]

By: [________________________________]

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

Counsel for Plaintiff

[STREET ADDRESS]

[CITY, NE ZIP]

Telephone: [NUMBER]

Email: [EMAIL]

14. VERIFICATION

STATE OF NEBRASKA

COUNTY OF [COUNTY]

I, [PLAINTIFF NAME], being first duly sworn upon oath, depose and state that I am the Plaintiff in the foregoing action; that I have read the foregoing Complaint and know the contents thereof; and that the same is true to my own knowledge except as to those matters stated upon information and belief, and as to those matters I believe them to be true.

[________________________________]

[PLAINTIFF NAME]

Subscribed and sworn to before me this [____] day of [_______________], 20[____].

[________________________________]

Notary Public

(My Commission Expires: [_______________])

15. CERTIFICATE OF SERVICE

I hereby certify that on [__/__/____], I caused a true and correct copy of the foregoing COMPLAINT AND DEMAND FOR JURY TRIAL to be served upon each Defendant by [METHOD — sheriff's service / certified mail with restricted delivery / private process server pursuant to Neb. Rev. Stat. § 25-505.01] at the addresses set forth on the praecipe.

[________________________________]

[ATTORNEY NAME]

16. NEBRASKA PRACTICE NOTES

• Pleading regime. Nebraska is a fact-pleading jurisdiction. Although Neb. Ct. R. Pldg. § 6-1108(a) tracks the federal "short and plain statement" language, Nebraska courts require facts sufficient to state each element. Doe v. Omaha Pub. Sch. Dist., 273 Neb. 79, 727 N.W.2d 447 (2007).

• § 402A adopted. Nebraska adopted Restatement (Second) of Torts § 402A in Kohler v. Ford Motor Co., 187 Neb. 428, 191 N.W.2d 601 (1971). Comment k (unavoidably unsafe products), comment n (assumption of risk), and comment i (consumer-expectation) are likewise embraced.

• Statute of limitations: 4 years. Neb. Rev. Stat. § 25-224(1) imposes a four-year limitation period that runs from the date the cause of action accrued (or, for products manufactured in Nebraska, from the date of discovery — see § 25-224(5) for products containing latent hazards). Compare Condon v. A.H. Robins Co., 217 Neb. 60, 349 N.W.2d 622 (1984).

• Statute of repose: 10 years. Neb. Rev. Stat. § 25-224(2) extinguishes any product liability action ten (10) years after the product is "first sold or leased for use or consumption." For products manufactured outside Nebraska, the repose period is the longer of (a) the manufacture-state period or (b) ten years (§ 25-224(2)(b)). The repose runs from first delivery to an end user, not from the manufacturer's first stream-of-commerce release.

• Innocent-seller statute. Strict-liability claims against non-manufacturer sellers and lessors are barred by Neb. Rev. Stat. § 25-21,181. Plead negligence and breach of warranty against the seller in the alternative.

• State-of-the-art defense. Neb. Rev. Stat. § 25-21,182 provides an affirmative defense for design, testing, or labeling claims if the design conformed to the "best technology reasonably available at the time" of first sale to a non-merchant. Plaintiff should anticipate this defense and plead facts demonstrating that safer alternative designs were both feasible and known.

• Comparative fault. Neb. Rev. Stat. § 25-21,185.09 imposes a modified comparative fault rule: damages are reduced by the plaintiff's percentage of fault, but if the plaintiff's fault is "equal to or greater than" the combined fault of all parties from whom recovery is sought, recovery is wholly barred. Although the statute uses the phrase "contributory negligence," it applies to product liability actions per Neb. Rev. Stat. § 25-21,185.07 (defining "negligence" to include product-liability conduct).

• No punitive damages. Punitive damages are not recoverable in Nebraska. Distinctive Printing & Packaging Co. v. Cox, 232 Neb. 846, 443 N.W.2d 566 (1989); Neb. Const. art. VII, § 5 (penalties to school fund).

• Joint and several liability allocation. Neb. Rev. Stat. § 25-21,185.10 permits joint and several liability for economic damages but apportions non-economic damages by the defendant's percentage of fault.

• Learned-intermediary doctrine. For prescription drug and medical device claims, Nebraska adopted the learned-intermediary doctrine in Freeman v. Hoffman-La Roche, Inc., 260 Neb. 552, 618 N.W.2d 827 (2000), embracing Restatement (Third) of Torts: Products Liability § 6(d) (1998).

• Service of process. Service may be made under Neb. Rev. Stat. § 25-505.01 by the sheriff, by certified mail, or by designated process server. Foreign corporations are typically served through the registered agent listed with the Nebraska Secretary of State, or by the long-arm statute § 25-536 for non-registered foreign corporations.

• Federal removal. Many Nebraska product liability actions are removed to the U.S. District Court for the District of Nebraska under 28 U.S.C. §§ 1332, 1441, 1446. Anticipate diversity removal where the manufacturer is non-Nebraska and the non-Nebraska seller is fraudulently joined or non-diverse.

17. 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 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 (Comparative negligence — 50%/50% bar) — https://nebraskalegislature.gov/laws/statutes.php?statute=25-21,185.09
• Neb. Rev. Stat. § 25-21,185.10 (Joint and several liability allocation)
• 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
• Freeman v. Hoffman-La Roche, Inc., 260 Neb. 552, 618 N.W.2d 827 (2000) (learned-intermediary doctrine)
• Stahlecker v. Ford Motor Co., 266 Neb. 601, 667 N.W.2d 244 (2003) (proximate cause / superseding criminal conduct)
• Distinctive Printing & Packaging Co. v. Cox, 232 Neb. 846, 443 N.W.2d 566 (1989) (no punitive damages)
• Condon v. A.H. Robins Co., 217 Neb. 60, 349 N.W.2d 622 (1984) (discovery rule)
• Restatement (Second) of Torts § 402A
• 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.