Product Liability Complaint

PRODUCT LIABILITY COMPLAINT — NEW HAMPSHIRE

TABLE OF CONTENTS

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

1. CAPTION

THE STATE OF NEW HAMPSHIRE

[COUNTY NAME] COUNTY, SS.

SUPERIOR COURT

DOCKET NO. [________________________________]

VERIFIED COMPLAINT (PRODUCT LIABILITY — STRICT LIABILITY, NEGLIGENCE, AND WARRANTY)

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

2. PARTIES, JURISDICTION, AND VENUE

1.1. Plaintiff [PLAINTIFF NAME] ("Plaintiff") is an individual residing at [ADDRESS], [CITY], [COUNTY] County, New Hampshire, and was so at all times material hereto.

1.2. Defendant [MANUFACTURER] ("Manufacturer") is a [STATE OF INCORPORATION] corporation with its principal place of business at [ADDRESS] and, at all times material hereto, was engaged in the business of designing, manufacturing, marketing, distributing, and selling the [PRODUCT NAME / MODEL / SERIAL NO.] (the "Product") for use by consumers in New Hampshire and elsewhere.

1.3. Defendant [DISTRIBUTOR] ("Distributor") is a [STATE] [entity type] with its principal place of business at [ADDRESS] and, at all times material hereto, was engaged in the business of distributing the Product to retailers and end-users in New Hampshire.

1.4. Defendant [RETAILER] ("Retailer") is a [STATE] [entity type] with its principal place of business at [ADDRESS] and, at all times material hereto, sold the Product at retail to consumers in New Hampshire, including the unit sold to Plaintiff.

1.5. Each Defendant is a "manufacturer," "seller," and/or "user" within the meaning of RSA 507-D:1 and § 402A of the Restatement (Second) of Torts as adopted by Buttrick v. Arthur Lessard & Sons, Inc., 110 N.H. 36 (1969).

1.6. Subject-matter jurisdiction is proper in the Superior Court pursuant to RSA 491:7, the amount in controversy exceeding $1,500.00 exclusive of interest and costs.

1.7. Personal jurisdiction over each Defendant is proper because each Defendant transacts business within New Hampshire, contracts to supply goods within New Hampshire, and has caused tortious injury in New Hampshire by an act or omission within or outside the State, RSA 510:4, satisfying both statutory long-arm requirements and constitutional due-process minimum-contacts standards.

1.8. Venue is proper in [COUNTY] County under RSA 507:8-h because the cause of action arose in [COUNTY] County and/or Plaintiff resides there.

3. FACTUAL BACKGROUND

2.1. On or about [DATE OF SALE], Plaintiff purchased a new [PRODUCT NAME / MODEL / SERIAL NO.] from Defendant Retailer at [STORE LOCATION] for the price of $[AMOUNT].

2.2. The Product was designed and manufactured by Defendant Manufacturer, distributed by Defendant Distributor, and sold by Defendant Retailer in the regular course of each Defendant's business.

2.3. The Product was placed into the stream of commerce by Defendants in a condition that was expected to and did reach the ultimate consumer (Plaintiff) without substantial change.

2.4. Plaintiff used the Product in its intended and reasonably foreseeable manner, in accordance with all instructions and warnings provided by Defendants, and without alteration or modification.

2.5. On [DATE OF INJURY], while Plaintiff was using the Product as described in Paragraph 2.4, the Product [DESCRIBE FAILURE — e.g., the safety guard disengaged, the lithium battery cell ruptured, the steering linkage fractured], causing [DESCRIBE INJURY MECHANISM].

2.6. As a direct and proximate result of the failure described in Paragraph 2.5, Plaintiff sustained [DESCRIBE INJURIES — e.g., third-degree burns, traumatic amputation, spinal-cord injury], was transported by [AMBULANCE / OTHER] to [HOSPITAL], and has since undergone [SUMMARY OF MEDICAL TREATMENT].

2.7. The defective condition that caused the failure existed at the time the Product left the control of each Defendant and was not the result of any alteration, modification, or misuse by Plaintiff or any third party. RSA 507-D:3.

2.8. Plaintiff did not discover, and in the exercise of reasonable diligence could not have discovered, the defective condition or its causal relationship to Plaintiff's injuries until [DATE OF DISCOVERY], when [DESCRIBE DISCOVERY EVENT — e.g., a recall notice was issued, a metallurgical analysis was completed]. RSA 508:4 (discovery rule); Furbush v. McKittrick, 149 N.H. 426 (2003); Glines v. Bruk, 140 N.H. 180 (1995).

4. COUNT I — STRICT PRODUCTS LIABILITY (MANUFACTURING DEFECT)

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

3.2. The Product was in a defective condition unreasonably dangerous to the user when it left the hands of each Defendant in that [DESCRIBE MANUFACTURING DEFECT — e.g., the weld at the [LOCATION] was incomplete; the printed circuit board contained a cold solder joint; the bolt was undertorqued], deviating from Defendants' own design specifications and from other units of the same model.

3.3. Such defective condition was unreasonably dangerous to a user or consumer using the Product in a manner reasonably anticipated.

3.4. The defective condition existed at the time the Product left the control of each Defendant and reached Plaintiff without substantial change.

3.5. The defective condition was a legal and proximate cause of Plaintiff's injuries and damages.

3.6. Each Defendant is strictly liable in tort under § 402A of the Restatement (Second) of Torts as adopted in Buttrick v. Arthur Lessard & Sons, Inc., 110 N.H. 36 (1969), and Bagley v. Controlled Environment Corp., 127 N.H. 556 (1986).

5. COUNT II — STRICT PRODUCTS LIABILITY (DESIGN DEFECT)

4.1. Plaintiff realleges and incorporates Paragraphs 1.1 through 3.6 as if fully set forth herein.

4.2. The Product was defectively designed in that [DESCRIBE DESIGN DEFECT — e.g., the lithium-ion battery pack lacked thermal-runaway isolation; the safety stops were fixed rather than adjustable; the guard could be defeated without disabling the machine].

4.3. Application of the multi-factor risk-utility analysis adopted in Thibault v. Sears, Roebuck & Co., 118 N.H. 802 (1978), and reaffirmed in Vautour v. Body Masters Sports Industries, Inc., 147 N.H. 150 (2001), establishes that the Product's risks outweighed its utility, considering at least:

• the usefulness and desirability of the Product;
• the probability and severity of the danger posed by the design;
• the feasibility of a safer alternative design at the time of manufacture, including [DESCRIBE ALTERNATIVE DESIGN];
• the financial cost of an improved design;
• the ability of the user to avoid the danger;
• the user's anticipated awareness of the danger; and
• the feasibility of spreading the loss by raising the price or carrying liability insurance.

4.4. A safer, technologically and economically feasible alternative design existed at the time of manufacture and would have prevented or substantially reduced the risk of the harm Plaintiff suffered without significantly impairing the utility of the Product.

4.5. The design defect rendered the Product unreasonably dangerous to the user.

4.6. The design defect was a legal and proximate cause of Plaintiff's injuries and damages.

6. COUNT III — STRICT PRODUCTS LIABILITY (FAILURE TO WARN)

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 Defendants' control, Defendants knew or, in the exercise of reasonable care, should have known of the risk of harm presented by [DESCRIBE HAZARD].

5.3. The risk was not obvious to ordinary users and could not be eliminated through reasonable design alternatives without unduly compromising the Product's utility.

5.4. Defendants failed to provide adequate warnings or instructions concerning the risk in the Product's labels, packaging, manuals, or other accompanying materials.

5.5. Adequate warnings would have caused Plaintiff to [USE THE PRODUCT DIFFERENTLY / DECLINE TO PURCHASE / TAKE PRECAUTIONS], avoiding or substantially reducing the harm.

5.6. The absence of adequate warnings rendered the Product unreasonably dangerous and was a legal and proximate cause of Plaintiff's injuries. Brochu v. Ortho Pharmaceutical Corp., 642 F.2d 652 (1st Cir. 1981) (applying New Hampshire law).

7. COUNT IV — NEGLIGENCE

6.1. Plaintiff realleges and incorporates Paragraphs 1.1 through 5.6 as if fully set forth herein.

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

6.3. Each Defendant breached that duty by, inter alia:

• failing to design the Product in accordance with reasonable engineering standards and applicable industry consensus standards;
• failing to test the Product adequately before placing it into the stream of commerce;
• failing to inspect the Product before sale;
• failing to provide adequate warnings or instructions;
• failing to issue a timely recall, retrofit, or post-sale warning when Defendants knew or should have known of the defect; and
• [ADDITIONAL BREACHES SPECIFIC TO THE FACTS].

6.4. Defendants' negligence was a legal and proximate cause of Plaintiff's injuries and damages.

8. COUNT V — BREACH OF IMPLIED WARRANTY OF MERCHANTABILITY

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

7.2. Each Defendant is a "merchant" with respect to goods of the kind sold (the Product) within the meaning of RSA 382-A:2-104.

7.3. By placing the Product into the stream of commerce, each Defendant impliedly warranted that the Product was merchantable, fit for the ordinary purposes for which such goods are used, and adequately contained, packaged, and labeled. RSA 382-A:2-314.

7.4. The Product was not merchantable because of the defects described in Counts I through III.

7.5. The breach of the implied warranty of merchantability was a legal and proximate cause of Plaintiff's injuries and damages.

7.6. Plaintiff has provided notice of breach to Defendants pursuant to RSA 382-A:2-607(3)(a) by [DESCRIBE NOTICE], or such notice is excused as to a personal-injury claim against a remote manufacturer/distributor.

9. COUNT VI — BREACH OF EXPRESS WARRANTY

8.1. Plaintiff realleges and incorporates Paragraphs 1.1 through 7.6 as if fully set forth herein.

8.2. Defendants made affirmations of fact and promises concerning the Product, including [QUOTE OR DESCRIBE EXPRESS WARRANTIES — e.g., "rated for continuous duty," "lifetime warranty against manufacturing defects," "engineered for safety"], which became part of the basis of the bargain. RSA 382-A:2-313.

8.3. The Product failed to conform to those express affirmations and promises.

8.4. The breach of express warranty was a legal and proximate cause of Plaintiff's injuries and damages.

10. DAMAGES

9.1. Economic Damages. As a direct and proximate result of Defendants' acts and omissions, Plaintiff has incurred and will continue to incur:

• past and future medical, hospital, surgical, rehabilitative, and pharmaceutical expenses;
• past lost wages and future loss of earning capacity;
• property damage to the Product and to other property; and
• incidental and consequential expenses.

9.2. Non-Economic Damages. Plaintiff has suffered and will continue to suffer past and future physical pain, mental anguish, emotional distress, disfigurement, scarring, permanent impairment, and loss of enjoyment of life.

9.3. Enhanced Compensatory Damages. New Hampshire does not authorize "punitive damages" by that name, but enhanced compensatory damages are recoverable under Vratsenes v. New Hampshire Auto, Inc., 112 N.H. 71 (1972), and RSA 507:16, where a defendant's conduct was wanton, malicious, or oppressive. Plaintiff seeks such enhanced compensatory damages based on the facts pleaded above.

11. PRAYER FOR RELIEF

WHEREFORE, Plaintiff respectfully demands judgment against Defendants, jointly and severally, and prays for the following relief:

• A. Compensatory damages in an amount to be determined by the jury, in excess of the jurisdictional minimum;
• B. Enhanced compensatory damages where supported by the evidence;
• C. Pre-judgment and post-judgment interest as allowed by RSA 524:1-a and RSA 524:1-b;
• D. Costs of suit;
• E. Reasonable attorney's fees where authorized by statute, contract, or equitable doctrine; and
• F. Such other and further relief as the Court deems just and equitable.

12. DEMAND FOR TRIAL BY JURY

Plaintiff hereby demands a trial by jury on all issues so triable as a matter of right, pursuant to Part I, Article 20 of the New Hampshire Constitution and N.H. Super. Ct. R. 8.

13. RESERVATION OF RIGHTS

Plaintiff reserves the right to amend this Complaint, including the right to add parties and claims, as discovery may reveal, consistent with N.H. Super. Ct. R. 9.

14. SIGNATURE AND SERVICE BLOCKS

Date: [__/__/____]

Respectfully submitted,

[PLAINTIFF NAME]

By his/her attorneys,

[LAW FIRM NAME]

By: [________________________________]

[ATTORNEY NAME], N.H. Bar No. [####]

Counsel for Plaintiff

[STREET ADDRESS]

[CITY, STATE ZIP]

Telephone: [NUMBER]

Email: [EMAIL]

15. VERIFICATION

STATE OF NEW HAMPSHIRE

COUNTY OF [COUNTY], SS.

I, [PLAINTIFF NAME], being first duly sworn, depose and state that I am the Plaintiff in the foregoing action; that I have read the foregoing Verified 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]

Sworn to and subscribed before me this [____] day of [_______________], 20[____].

[________________________________]

Justice of the Peace / Notary Public

(My Commission Expires: [_______________])

16. CERTIFICATE OF SERVICE

I hereby certify that on this [____] day of [_______________], 20[____], a true and correct copy of the foregoing VERIFIED COMPLAINT was served upon all counsel of record, or upon Defendants by sheriff or designated process server pursuant to N.H. Super. Ct. R. 4 and RSA 510, at the addresses listed below:

[SERVICE LIST WITH ADDRESSES]

[________________________________]

[ATTORNEY NAME]

17. NEW HAMPSHIRE PRACTICE NOTES

• Theories available. New Hampshire recognizes strict liability under § 402A (Buttrick, 1969), negligence, and warranty (UCC Article 2). All three are routinely pleaded together because they have different elements, defenses, and statutes of limitations for warranty (RSA 382-A:2-725: four years from tender of delivery, generally; personal-injury warranty claims may be subject to RSA 508:4's three-year discovery period, but pleaders should hedge).
• Design defect — risk-utility, not consumer expectations. Vautour expressly rejected the consumer-expectations test for design defect and adopted a multi-factor risk-utility approach. Expert testimony framing the risk-utility factors and (where available) a reasonable alternative design is typically required.
• State-of-the-art. The state-of-the-art at the time of distribution is admissible in design-defect and warning cases. Brochu v. Ortho Pharmaceutical Corp., 642 F.2d 652 (1st Cir. 1981); Thibault, 118 N.H. at 809. It is a defense factor, not a complete bar.
• No punitive damages. RSA 507:16 abolishes punitive damages by name. Enhanced compensatory damages remain available under Vratsenes where wanton or oppressive conduct is shown. Plead the factual predicate; do not rely on the legal label.
• Comparative fault. RSA 507:7-d (51% bar; 50/50 still recoverable; damages reduced proportionally). The statute applies in product-liability actions.
• Joint and several liability. RSA 507:7-e provides for several liability with re-allocation in cases involving fault of less than 50%; counsel should track each defendant's share.
• Statute of limitations. RSA 508:4: three years from accrual, with a two-prong discovery rule (knowledge of injury + causal relationship to defendant's conduct). Plead discovery facts if relevant.
• Statute of repose. RSA 507-D:2's products statute of repose (12 years) was held unconstitutional in Heath v. Sears, Roebuck & Co., 123 N.H. 512 (1983). RSA 508:4-b is a separate construction repose for improvements to real property and does not generally bar product claims against a manufacturer of a chattel. Bartlett v. New Hampshire Dep't of Transportation and JD Supra commentary confirm this distinction.
• Alteration / modification. RSA 507-D:3 limits liability to harm that would have occurred had the Product been used in its unaltered and unmodified condition. Plead non-alteration affirmatively (Paragraph 2.7).
• Filing fees and venue. Filing in Superior Court requires the current entry fee and a Civil Cover Sheet. Venue lies in the county of plaintiff residence or where the cause of action arose; transitory torts have flexible venue.
• Demand for jury. Part I, Article 20 of the New Hampshire Constitution preserves the right to civil jury trial. The demand should appear in the Complaint or be filed within the period set by N.H. Super. Ct. R. 8.
• Pleading particularity. Although New Hampshire is a "fact pleading" state, broad allegations supported by enough specificity to give notice of the theory will withstand most motions to dismiss; a more particular pleading is required when fraud or mistake is alleged (N.H. Super. Ct. R. 9).

18. SOURCES AND REFERENCES

• New Hampshire General Court — RSA Chapter 507-D (Product Liability Actions): https://gc.nh.gov/rsa/html/lii/507-D/507-D-mrg.htm
• RSA 507:7-d (Comparative Fault): https://gc.nh.gov/rsa/html/LII/507/507-7-d.htm
• RSA 508:4 (Personal Actions): https://www.gencourt.state.nh.us/rsa/html/lii/508/508-4.htm
• RSA 508:4-b (Statute of Repose — Real Property Improvements): https://www.gencourt.state.nh.us/rsa/html/lii/508/508-4-b.htm
• RSA 507:16 (Punitive Damages Not Authorized): https://www.gencourt.state.nh.us/rsa/html/lii/507/507-16.htm
• RSA Chapter 382-A (Uniform Commercial Code): https://www.gencourt.state.nh.us/rsa/html/NHTOC/NHTOC-XXXIX-382-A.htm
• Buttrick v. Arthur Lessard & Sons, Inc., 110 N.H. 36 (1969) — adoption of § 402A
• Thibault v. Sears, Roebuck & Co., 118 N.H. 802 (1978) — risk-utility design-defect framework
• Vautour v. Body Masters Sports Industries, Inc., 147 N.H. 150 (2001) — alternative design relevant but not required
• Heath v. Sears, Roebuck & Co., 123 N.H. 512 (1983) — RSA 507-D:2 statute of repose unconstitutional
• Bagley v. Controlled Environment Corp., 127 N.H. 556 (1986) — strict-liability principles
• Brochu v. Ortho Pharmaceutical Corp., 642 F.2d 652 (1st Cir. 1981) — duty to warn / state of the art
• Vratsenes v. New Hampshire Auto, Inc., 112 N.H. 71 (1972) — enhanced compensatory damages
• New Hampshire Judicial Branch — Superior Court Rules: https://www.courts.nh.gov/rules/scr/
• Restatement (Second) of Torts § 402A

Disclaimer: This template is provided for informational purposes only and does not constitute legal advice. An attorney licensed in New Hampshire must review and customize this document before filing. Statutes, rules, and case law change; verify all authorities before use.