About Attorney Bret Whipple

Bret Whipple is one of only four Board Certified Criminal Trial Specialists in the entire State of Nevada. He has extensive experience in every Nevada county, including the Nevada Supreme Court. Bret is also licensed to practice in Arizona. When you choose a national board certified trial attorney, you know that your Nevada Lawyer is the best in the business.

Crashworthiness

CRASHWORTHINESS DOCTRINE

 

When you are talking about automotive litigation you will have 1 of 3 possibilities:

1.         Manufacturing defect cases;

2.         A design defect in the automobile causes the accident to happen, e.g. defective     accelerator; and

3.         The design defect didn’t cause the accident but instead “enhanced” the injury. The car’s   lack of crashworthiness enhanced the injury. Instead of suffering a normal injury, you       have a catastrophic one or even death. Also referred to as second-collision cases       meaning, the first collision is when you hit a tree. The second collision is your body colliding with the interior of the car.

Point 1: The Crashworthiness doctrine stems from the recognition that an automobile accident is a foreseeable misuse of a car.  Accidents happen all the time.  An accident is not an intended use of your car but it is a foreseeable misuse. The duty to design a crashworthy car stems from the fact that accidents are foreseeable misuses. That’s where the basic duty comes from.

Point 2: Burden of Proof.  If you’re arguing in a crashworthiness case that you are paralyzed and you only should have had whiplash, is it the plaintiff’s burden to prove that but for the defect I’m only minimally injured and instead I’m paralyzed or does the defendant bear the burden that the alternative design you suggest, it wouldn’t have helped and you’d still be in the same condition given the dynamics of this accident. Who has that burden of either proving or disproving the enhancement?  Third Restatement Section 16 puts the burden on the defendant. If the defendant is unable to prove that enhancement – if they are unable to divide up the harm, they are on the hook for the severe injury. A majority of jurisdictions follow the Third Restatement on this.

Point 3: Should the plaintiff’s conduct in causing the accident count against him in crash worthiness case? If you were drunk and you drive into a tree. Your door is not sufficiently reinforced. Should the fact that you were drunk be something the defendant could use against you? I would argue no, because accidents are foreseeable drunk or not.  Accidents happen, let’s see how the car reacts. Under the Third Restatement and the majority of jurisdictions, plaintiff’s conduct is fair game for the defendant to raise in crash-worthiness.

Point 4: These cases often involve that issue where reasonable alternative design made defeat the very nature of the vehicle. It comes up a lot in crashworthiness cases.

Important Crashworthiness Cases

Burgos v. Lutz

New York Supreme Court, 1987

The expert failed to explain how the proposed design would have prevented any of the decedent’s injuries under the circumstances of the actual collision. The plaintiff’s expert failed to indicate how the alternative design would have absorbed more energy than the steering column design used in the decedent’s vehicle.

These are the most expensive cases to litigate. You divide up the injury in cases where the plaintiff did not wear his seatbelt.

For purposes of products liability, crashworthiness is not exclusively automobiles – it is any moving vehicle.

Crashworthiness cases are the most costly. They are interesting and complex and they are exceedingly expensive. The costs of these cases are well into the 6 figures. They are expert dependent. You have to be careful in deciding which cases to take, especially with Daubert. Given Daubert and the exactitude of expert testimony now required, not only do you need a lot of experts but also you need the best ones and they charge a lot of money for their time. It would not be at all unrealistic if you put a $200,000 into the preparation of a case and that’s fine if you get $4.2 million verdict. It’s not fine if you get no-caused or a $300,000 verdict – not to mention a 3 month trial. If you are a sole practitioner, that’s 3 months of new business that you are not focusing on.

Sumnicht v. Toyota

Supreme Court of WI, 1984

Third Restatements (RIII) § 16 Comment b: In connection with a design defect claim in the context of increased harm, the plaintiff must establish that a reasonable alternative design (RAD) would have reduced the plaintiff’s harm.

One of the thematic issues is dividing up the harm. Crashworthiness cases are so hypothetical – what would have happened had the car been crashworthy? In this case it is apparent that his injuries would have been minor.

Plaintiff’s liability experts included an accident reconstructionist, a mechanical engineer, a biomedical engineer, a safety engineer, a metallurgist, and a neurosurgeon.

Burden of Proof

Should the plaintiff bear the burden of proof of what would have happened had the car been crashworthy? Does the plaintiff have to prove that but for the lack of crashworthiness I have chipped teeth, scrapes and bruises – in essence, parcel out the crashworthiness issue or does the defendant find themselves liable for the entirety of the injury unless they can divide it up?

The Huddell court placed the burden on the plaintiff to make that division. The contrary position is represented by the Fox case. In Fox the 10th circuit found no reason to require plaintiffs in second collision cases to bring forth proof in addition to what you have to do in any case.

The position of both the Fox court (majority view) and the RIII is the plaintiff need not prove a negative. The plaintiff need not prove, but for the defect, I have chipped teeth.

Comment b

Proof of defect does not, on itself, establish as case of increased harm. The plaintiff must also establish that the defect was a substantial factor in increasing the plaintiff’s harm beyond the harm that would have occurred from other causes. When proof does not support a determination of increased harm, the product seller is liable for all harm suffered by the victim.

If the harm cannot be divided – if the defendant cannot satisfy that burden, they are on the hook for the whole thing. That is the Fox approach and the majority approach.

In addition to expert testimony, design defectiveness can be established by the presentation of circumstantial evidence. You can negate other causes with circumstantial evidence. It is also helpful in crashworthiness cases as a proof issue.

Dreisonstok v. VW – classic crashworthiness case. Does the RAD solve one problem and create another? In Dreisonstock, does the RAD perhaps defeat or compromise the very purpose of the vehicle? A VW microbus is a van-type multipurpose vehicle. The design was developed to provide maximum cargo space. There was no way to improve the crashworthiness of the vehicle that would have made it consistent with its purpose. Time and time again, this is an issue in crashworthiness cases. You can’t have it both ways. You buy this car for the express purpose of maximizing cargo space, recognizing that when you are sitting in the front seat, you don’t have much space. Be mindful of that when you talk about RAD in crashworthiness cases – Is the alternative being suggested inconsistent with the inherent purpose of the vehicle?

Duty, Burden of Proof, and Reasonable Alternative Design

1.         Duty. The duty to design reflects the fact that accidents are foreseeable misuses.

2.         Burden of Proof. Does the plaintiff bear the burden of but for your lack of crashworthiness I would have suffered a minor injury but instead I am paralyzed. It is the defendant’s burden to divide up the harm. If the defendant is unable to divide up the harm, they will be responsible for the entirety of the injury.

3.         Reasonable Alternative Design. If you are trying a design defect, without it, you will not make it to a jury. Time and time again in crashworthiness cases the RAD solves one problem, but it creates another problem or perhaps it defeats the very purpose for which you bought the vehicle. That’s the tradeoff that you made. You bought the car because of that feature of cargo space.

Dawson v. Chrysler – had the vehicle been designed differently it would have bounced off the pole, not wrapped around it. Chrysler’s experts say the design offered by Dawson would be less safe. Is it true that this design is not the best for this specific accident? Yes, but for most accidents Chrysler’s design is better. It is unsettling that we are giving a jury the power to say in a particular case like this that we disagree with Chrysler.

Fixing the Dawson problem – The fear in Dawson. Most courts today would probably conclude that a manufacturer is protected from Dawson-type claims, on the ground that reasonable automotive design safety necessarily involves tradeoffs that will result in injury to certain occupants in certain crash situations in order to protect against more serious types of risks to other occupants in other crash situations.

Products Liability Restatement: “When evaluating the reasonableness of a design alternative, the overall safety of the product must be considered. It is not sufficient that the alternative design would have reduced or prevented the harm suffered by the plaintiff if it would also have introduced into the product other dangers of equal or greater magnitude.

Chrysler’s expert testimony has to carry the day.

Cars without airbags are federally preempted. See Geier.

If you are representing an automaker in a crashworthiness case, as a defense lawyer you have two new arrows: (1) RAD; and (2) implied preemption arguments from the Geier case.

Fair and practical note. Juries are very sympathetic in these cases despite the merits. Regardless of what the merits of the case may be, is the jury really listening to the experts? Especially since design engineers pre-planned for such accident scenarios but don’t bank on jury sympathy with marginal cases.

Quintana-Ruiz v. Hyundai Motor Corp.

US Court of Appeals, PR, 2002

Classic airbag case with a small person in the car

15 year old Ines suffered multiple injuries to her arm when the airbag was deployed. Her experts claim that the airbag should not deploy until a higher Barrier equivalent velocity (BEV). Many disastrous accidents happen at BEV levels similar to the one in this case – it is the classic tradeoff discussion again. Yes airbags will frequently harm and at times kill smaller people in cars, but that’s the tradeoff for saving thousands of others. Recognize the tradeoffs in most RAD arguments.

Federal law preempted any failure to warn claim. Federal preemption is a lurking issue in these crashworthiness issues.

The jury charge is both a consumer expectation and risk-utility charge. The verdict cannot stand because of the negative ramifications of the alternative design.

Driver’s Fault

Lowe v. Estate Motors

Supreme Court of MI, 1987

Two major comparative fault issues:

1.         Seatbelt Issue

2.         Intoxication Issue

For purposes of comparative fault, failure to wear a seatbelt is admissible. What the court says about failure to wear a seatbelt and crashworthiness I find to be inscrutable.

Seatbelt evidence in a crashworthiness case: If you represent a defendant, you are absolutely going to bring up failure to wear a seatbelt for comparative fault. Failure to wear a seatbelt visa vie crashworthiness, certainly it is fair game for an automobile manufacturer to argue that an integral part of the crashworthy design of their car is for the user to wear his or her seatbelt. When you are talking about causation in a crashworthiness case of enhanced injury, a good defense lawyer can bring in failure to wear a seatbelt for purposes of comparative causation and how this enhancement occurred.

The critical thing is the jury finds the plaintiff’s failure to wear a seatbelt 60% responsible for causing the injuries.

RIII. A plaintiff’s failure to use a seatbelt is relevant to plaintiff’s fault and to the apportioning of damages. The RIII also acknowledges that seatbelt evidence is relevant in both contexts – comparative fault and enhancement of injuries.

Interesting and problematic. Should the plaintiff’s negligent conduct in causing the accident matter? If you are drunk and you hit a tree, should your drunkenness be considered against you visa vie crashworthiness? Henke: No because you could have just as easily hit the tree by hitting a patch of ice, or swerving to avoid hitting a deer, or whatever the case might be. Hitting the tree is the foreseeable event irrespective of how your driving contributed to it – it could have happened anyway.

Some courts hold that the manufacturer’s duty to build crashworthy cars should protect occupants no matter what the cause of the crash. The majority view is that comparative fault should be applied to such an enhanced injury case. We just don’t see it. Your car is either crashworthy or it’s not.

If your vehicle turned out to be defective in a car crash, call the Las Vegas crashworthiness attorneys at The Law Office of Brett Whipple today at 702.731.0000.

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Survivorship

SURVIVORSHIP

In a survivorship action, the person who is representing the interest of the decedent’s estate is an executor or executrix. The executor is the person who is bringing the survivorship claim. Because a survivorship claim is all about the continuation of the decedent’s lifetime claim. This is what about the decedent lost. What damages fall under the survivorship column? Whatever conscious pain and suffering the decedent had before he died, clearly falls under the survivorship column. You do not need proximate cause.

1.            If someone dies instantaneously, there is no survivorship claim.  The threshold prerequisite to a survivorship claim is to show that in fact the person had some conscious pain and suffering before they died.  Expert testimony is needed to prove that they did suffer and what is its value e.g. airline crashes.

2.            Personal Effects – Clothing falls under this category.

3.            The percentage of the decedent’s lost income that they would have used for their own maintenance. You take the total lost income over normal life expectancy, let the economists reduce that to its present value and then take whatever percentage of that that would have gone to the maintenance of the family, put that in the wrongful death column and whatever percentage of this person’s income that they would have used for themselves, that goes in the survivorship column.

This is where wrongful death and survivorship claims can become very unseemly.  Often times we have very disparate interests here.  Folks that qualify as beneficiaries for wrongful death they may be different people than who is in charge of the decedent’s estate.  All of a sudden, somebody finds out they qualify as a beneficiary under a wrongful death statute and they realize they may come into some money. This makes for very interesting deposition testimony.

Loss of consortium:  Money damages for loss of sexual relations

If the decedent contributed to the happening of his accident, if comparative fault could have been an affirmative defense to his lifetime claim that comparative fault defense will carryover and impact the survivorship claim and the wrongful death claim as well.

Defenses based on conduct of the beneficiaries.  Teeter v. Missouri Hwy and Transp. Commission.  Mother’s contributory at fault while driving killed daughter. Her percentage of recovery for wrongful death will be impacted due to her comparative negligence but that will not impact the husband’s claim.  Be mindful of the decedent as well as any beneficiary.

If you or a loved one has a claim for survivorship for a wrongful death, call the experienced injury attorneys at The Justice Law Center
702.731.0000 | 1100 S 10th St Las Vegas Nevada 89104.

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Wrongful Death Lawyers

WRONGFUL DEATH

A wrongful death claim is statutorily based cause of action brought by someone who qualifies as a beneficiary under the wrongful death statute and compensates that person for the pecuniary loss that they have suffered as a result of the death of their loved one. Pecuniary is elastic in this sense. It is a derivative claim.  The beneficiaries claim derives from the wrongful death of their loved one.

Not included in a wrongful death is a claim for emotional distress.  The sorrow and grief of beneficiaries is not to be included under the general umbrella of wrongful death.  A claim for emotional distress is separate and apart from any wrongful death action in the majority of jurisdictions.  Some courts have come to believe that no matter how much the judge instructs the jury not to include it, they do anyway.

Certainly monies for the maintenance of the family are available in the traditional sense.  What percentage of the decedent’s income was going to maintain the family?  Clothing, shelter, food, sustenance – that certainly comes under wrongful death.  In order to succeed on a wrongful death claim, the wrongful death attorneys at The Justice Law Center must show that the tort was a proximate cause of the death.  It is essential that we must link the tort to the death or there’s no cause of action.

If someone in your family has died wrongfully, you need to seek the guidance of experienced wrongful death lawyers. Call our office today at 702.731.0000.

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Accident and Injury Law

Accident and Injury Law: How Can an Attorney Use the Law to Help You?

An automobile accident falls under the category of tort law. A tort is a civil wrong, other than a breach of contract, that the law provides a remedy in the nature of damages.

Why do we have tort law?  Why is it so important?  Civil tort law exists because as a society, we do not want to encourage vengeance. We want you, the injured party, to use the judicial process and not take matters into your own hands. Nevada tort law promotes socially responsible behavior, and at the same time, it deters vengeful-like conduct that a modern-day society would find reprehensible.

We at The Justice Law Center know that you are hurting physically, mentally, emotionally, and maybe even financially because of the negligence of another driver. You hire us to recover money for personal injury to get you back to where you were before the accident. If you’ve been seriously injured, you’re never going to be made “whole”, but we will use the law to get you compensated for your loss as the injured party as much as possible.

If a loved one has died, or you have lost a limb, there is no way any amount of monetary compensation will make you whole.  As your injury lawyers, we will use corrective justice to get the insurance company to pay you the damages you are entitled to. Injury is the harm and money is the compensation.

We help injured people get more compensation for their injuries. Call us today for a free consultation regarding your injury rights at 702.731.0000.

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Products Liability

NEVADA PRODUCTS LIABILITY

Introduction to Product Liability

Manufacturers of products and medicines have a duty to us as consumers to put forth products that are free from defects when we either use them or consume them. When people use a product there is an expectation that the product is safe and will not harm us. This duty and expectation extends to the amusement parks we visit with our families to the cars we drive to the food we eat every day.

Product Liability Law

As product liability lawyers, one of the first things we do is identify what type or types of defects are at issue. The type of defect will often determine what your most appropriate theory of recovery might be. If you’ve been injured or harmed by a product, it will fall into one or more of the following categories:

There are three essential types of defects in products liability cases.

1. Manufacturing defect: A manufacturing defect occurs when one or a small number of units of an otherwise adequately designed product line malfunctions due either to a flaw in the component parts of the product or due to some flaw in the manufacturing process.

Proving the Case

The difficult thing about manufacturing defect cases is often how you prove the case. How do you prove the defect existed at the time it the manufacturer’s control as opposed to something happening to the product after it was out in the world?

Intellectually we know that products cannot be perfect. The amount of money a company would have to spend to even aspire to make a perfect product would be so cost prohibitive that we would never be able to afford the product. Emotionally, when we buy a product we expect it to perform. If it fails to perform and we are injured, we expect a remedy. It’s heart vs. head.

The concept of defect is not self-defining when a product contains a flaw. Since all products are flawed at some technological level, the decision must still be made as to when a flaw emerges as a defect.

As a matter of law, when a small imperfection becomes a significantly legal defect, you need to call The Justice Law Center and protect your rights and recover money for your injuries. Call us today: 702.731.0000.

2. Design Defect: A design defect occurs when the plaintiff alleges that the entire product line is defective due typically to the defendant’s failure to comply with state-of-the-art technology or information at the time of manufacture. The classic example is the Ford Pinto. The entire product line is dangerous. The two analytical tools that will guide you in design defect are:

1. The Risk Utility Test; and
2. The Consumer Expectation Test.

3. Warning Defect: Based upon state-of-the-art information and science at the time of manufacture, did the defendant have a duty to warn?

1. Failure to Warn Claim: If they had a duty to warn and they did not provide a
warning; or

2. Inadequate Warning Claim: They had a duty to warn and they provided a
warning, but for some reason the warning inadequately conveyed the magnitude
of the known risk.

Based upon state-of-the-art information at the time of manufacture, did the manufacturer have a duty to warn and yet fail to warn you? If they had a duty to warn, and they provided a warning but the warning failed to convey the magnitude of the known risk and was thus inadequate?

If you’ve been injured because a manufacturer failed to warn you or perhaps there was a warning but it was inadequate, we will attack its effectiveness. In many product liability cases, a design defect and a warning defect will coexist.

In virtually every product liability case, the attorneys representing the manufacturer will somehow attempt to get your conduct into the case as a defense – i.e. misuse of a product, comparative fault principals, proximate cause, assumption of the risk, and the sophisticated user defense – that based upon your subjective knowledge, a different standard should apply to you.

Warnings for Dangerous Chemicals

A manufacturer who undertakes to produce and sell to the general public a product with high risk of human harm must provide specification, instruction, and warning so that it is reasonably safe for ordinary persons to use it, not only for the purposes for which it is produced and intended to be used but also all other necessarily incidental and attendant uses (such as storage or disposal) and to give reasonable notice and warning of after or delayed effect or latent or lingering dangers not known or reasonably to be expected by the ordinary user, but which are “foreseeably probable” to the manufacturer with his expertise.

You need to hire a skilled products liability attorney to help defend you. Call our office today if you or a loved one has been injured because of a defective product at 702.731.0000.

THEORIES OF RECOVERY

There are essentially three theories of recovery:

1. Negligence. Negligence remains extremely important in product liability claims despite the advent of strict liability in tort. We want to show that a company knew something and failed to act in the face of that knowledge.

2. Strict liability in tort. When an article is placed on the market by a manufacturer who knows the product will be used without inspection for defects, the manufacturer will be strictly liable in tort for any injury caused by a defect in the product.

3. Contract theories:

i. UCC 2-313 (Express Warranty)
ii. UCC 2-314 (Implied Warranty of Merchantability)
iii. UCC 2-315 (Fitness for a Particular Purpose)

The UCC theories are most critical in cases of economic loss only whereas in cases of personal injury typically you are going to be in a negligence or strict liability regime.

Example: If you go out and purchase a new boat and on its maiden voyage the boat takes on water. Nobody gets hurt and there is no substantial property damage. It’s a case of direct economic loss. You paid $25,000.00 for a boat, but in its defective state, it’s only worth $10,000.00. That’s a products liability claim – the boat is defective. In a case like that, your theory will probably be under the UCC. That is where you will really need 2-313 and 2-314.

FIRST THEORY OF RECOVERY: NEGLIGENCE

The development of theories in products liability is very interesting. The way that you learn tort law is you are led to believe that strict liability is this grand and majestic thing. We have a tendency to back away from negligence a bit thinking that strict liability is all the rage. Negligence based theories remain the heart and soul of product liability litigation. Most products liability cases at some level, conjure up notions of the defendant’s fault or conduct. In fact, it is the relatively rare case in which there is true strict liability.

More people injured by a product would prefer to present their respective cases to a jury on a negligence, theory rather than on a strict liability basis. Negligence is “hot” and strict liability is “cold.” It is easier to prevail by showing that the defendant did something wrong than that there is something technically defective about the product.

It has been our experience that juries seem to be more receptive to plaintiff’s causes of action that sound in negligence, meaning, juries in products liability cases will have an easier time finding fault if an injured plaintiff can show the jury fault on the part of the manufacturer. For example, some of the Vioxx cases have been multi-million dollar verdicts. Why? Because juries have been sitting there listening to testimony about what corporate people knew regarding the dangers of Vioxx – it’s a negligence based case. In order to ever get to punitive damages as a practical matter, unless you find a lot of dirt you’re never going to get past compensatory damages in a products liability claim.

That’s why we are here – to guide you through the maze of a products liability case. If you’ve been injured by a dangerous product, call us today for a free consultation regarding your rights. We believe so strongly in helping people that our motto is: Help. Defend. Liberate. And we stand by that with every client.

More About Negligence in a Products Liability Case

Many judges have stated that the basis of strict liability in design and warning cases is similar – if not identical – to negligence liability. It has been our experience that negligence and strict liability are functionally the same in this context. Jurors respond more favorably to injured plaintiffs – in terms of both the likelihood of success and verdict size – whose claims are based on negligence rather than strict liability.

“Whether a duty exists is ultimately a question of fairness. The inquiry involves a weighing of the relationship of the parties, the nature of the risk, and the public interest in the proposed solution.”

In a manufacturing defect case, strict liability will often be necessary. In a design defect, negligence is critical because a failure to adopt a reasonable alternative design will be a breach of reasonable care. Negligence in its purest form is the lynch pin of warning defect cases as well.

SECOND THEORY OF RECOVERY: STRICT LIABILITY IN TORT

A manufacturer incurs strict liability when an article that is placed on the market, knowing that it is to be used without inspection, proves to have a defect that causes injury to human beings. Even if there is no negligence, public policy demands that responsibility be fixed wherever it will most effectively reduce the hazards to life and health.

People who are injured are not prepared for its consequences. The cost of an injury and the loss of time or health may be an overwhelming misfortune to the person injured, and a needless one, for the risk of injury can be insured by the manufacturer and distributed among the public as a cost of doing business.

The retailer, even though not equipped to test a product, is under strict liability to his customer and should apply to all products, not just unwholesome foods.

Why Do We Have Strict Liability?

The purpose of strict liability is to ensure that the costs of injuries resulting from defective products are borne by the manufacturers that put such products on the market rather than by the injured persons who are powerless to protect themselves.

The consumer no longer has means or skill enough to investigate for himself the soundness of a product, even when it is not contained in a sealed package, and his erstwhile vigilance has been lulled by the steady efforts of manufacturers to build up confidence by advertising and marketing devices such as trademarks

Las Vegas Product Liability Lawyers

As Las Vegas product liability attorneys, we believe that the general layperson cannot ascertain a latent defect anyway, but even to the extent that if a layperson could, because of the bombardment of advertising, that person is not inclined to. As a skeptic of the consumer expectations, should the expectations that we bring to a product have any ultimate relevance in terms of whether that product is adequately designed?

We at the Justice Law Center believe that in order to establish a manufacturer’s liability it is sufficient that someone suffering personal injury prove that he or she was injured while using a product in a way it was intended to be used. This may suggest that misuse may negate a strict liability claim as a result of a defect in design and manufacturer of which an injured plaintiff was not aware. It is entirely possible to suggest that notions of contributory or comparative negligence may temper a potential strict liability claim that makes a particular product unsafe for its intended use.

A word of caution: Many sweeping opinions on strict liability in tort suggest that if a manufacturer puts a product out there, and you get injured using that product, the manufacturer is going to pay you – but let’s not be so fast. A manufacturer of a product may not have to pay you if you are misusing the product or if you have knowledge of the danger and you proceed in the face of a known risk.

Two important terms of art in Strict Liability Law (402A):

(1) One who sells; What constitutes a seller of a product for purposes of strict liability? It will also include retailers, distributors, wholesalers and those who are in the business of leasing products and renting cars.

Example: You go to a plastic surgeon for breast augmentation. He does numerous implants every week using Dow Corning implants because he has a bulk-sale discount with Dow Corning and only uses Dow implants. Suppose that this surgeon gives you a defective implant that ruptures. Should that surgeon be held strictly liable? Is he a seller of a product? The word seller is not always obvious – and that’s why you need to hire an experienced products liability lawyer for your case.

…any product, Is an animal purchased at Wal-Mart considered a product? The third Restatement says yes.

Example: If you buy a hamster at Wal-Mart and it gives you a communicable disease, is Wal-Mart liable? Yes, pets are products for strict liability treatment.

Example: Electromagnetic Fields (EMF). Some of the science was a bit dubious but one of the threshold issues was whether or not EMF’s, generated by high tension power lines, constituted a product for purposes of 402A. Some jurisdictions said yes it was a product.

…in a defective condition unreasonably dangerous. That statement has not withstood the test of time. It’s a dual requirement – you’ve got to show it’s defective and it’s really bad. Most jurisdictions today, in their basic definition of strict liability, when a judge is giving a jury instruction, they’ll say something like – you must find that the product was not reasonably fit, suitable and safe. That’s much more modern language.

…to the user or consumer (or to the foreseeable bystander – a bystander would have the same claim that you would have) or to his property (Indicating that 402A principals apply to both personal injury and property damage).

(a) If the seller is engaged in the business of selling such a product, The implied warranty of merchantability only applies to those who are merchants with respect to those goods. The person who is an occasional seller is not subject to strict liability.

(b) it is expected to and does reach the user or consumer without substantial change in the condition in which it is sold A frequent issue is, what happened to that product from the time it left the warehouse to the time you were hurt? (Substantial Alteration Defense). Judge Traynor was talking about misuse toward the end of Greenman, 402A is talking more about alteration.

(2) This rule applies although

(a) the seller has exercised all possible care in the preparation and sale of his product The intent of (2)(a) is to distinguish this regime from negligence but this has not withstood the test of time. We know today that strict liability and negligence have a lot of similarity. The ALI was trying to suggest that strict liability would be different from negligence.

(b) the user or consumer has not bought the product from or entered into any contractual relation with the seller. Also suggesting that this regime is supposed to be different from warranty theories.

Comment m:

The rule stated in this Section does not require any reliance on the part of the consumer. Why sue under 402B, where you have to show reliance, when you can sue under 402A where right in the terms of the comments of 402A we are told by the ALI that there is no reliance requirement. The rule stated in this Section is not governed by the UCC so it’s not affected by limitations, i.e. 2-719, disclaimers, or notice of breach – none of those apply.

THIRD THEORY OF RECOVERY: UNIFORM COMMERCIAL CODE (UCC)

Express Warranty

UCC § 2-313. Express Warranties by Affirmation, Promise, Description, Sample

(1) Express warranties by the seller are created as follows:

(a) Any affirmation of fact or promise made by the seller to the buyer which relates
to the goods and becomes part of the basis of the bargain creates an express
warranty that the goods shall conform to the affirmation or promise.

402B requires actual reliance. The conceptual similarity here is under express warranty you have to show that the warranty became a basis of the bargain.

Express warranties must be read in terms of their significance in the trade and relative to what would normally pass in the trade without objection under the contract description. For example, if you are eating an olive from a can and you bite into a pit, it is unrealistic to impart to a manufacturer that the olives in the can are entirely free of pits or pit fragments unless the can is marked: “pit free”. In order for olives to be merchantable, every now and again an olive still might have a pit in it and therefore, no breach of an express warranty.

As Nevada product liability attorneys, if we can show that the warranty was a basis of the bargain between you and the manufacturer, then there was an express warranty and it has been breached. This type of recovery is not about fault. Moreover, we don’t have to show a defect other than a failure to conform to the warrantor’s representations. What we need to show is that the manufacturer made a promise – a warranty – and they didn’t keep it.

Implied Warranty of Merchantability

UCC § 2-314. Implied Warranty: Merchantability; Usage of Trade

(1) A warranty that the goods shall be merchantable is implied in a contract for their sale if the seller is a merchant with respect to goods of that kind.

(2) Goods to be merchantable must be at least such as

(c) are fit for the ordinary purposes for which such goods are used;

If you sell a used car to a friend and that car malfunctions, a claim for breach of the implied warranty of merchantability will not succeed because you are not a seller or merchant with respect to those goods.

Shoes must have their heels attached so that they will not break off under normal use, but if those shoes are used for mountain climbing, there is no implied warranty that the heels will be fit for this extraordinary purpose.

There is a sense of misuse in (2)(c). Not only do we need a merchant but we need the goods to be used for their reasonably foreseeable purpose.

Potential pitfalls for a person injured by a defective product plaintiff are the affirmative defenses that the defendant manufacturer may raise. For instance: warranty disclaimed, notice of breach not timely, assumption of the risk, or statute of limitations.

Yes the UCC giveth, creating theories upon which to bring a products liability claim, but it may taketh away as well. It also indicates that implied warranties are more easily disclaimed than are express warranties.

Disclaimers
UCC § 2-316. Exclusion or Modification of Warranties
(2) The language must mention merchantability and in case of a writing, it must be conspicuous.
(3) (b) when the buyer before entering into the contract has examined the goods or the sample or model as fully as he desired or has refused to examine the goods there is no implied warranty with regard to defects which an examination ought in the circumstances to have revealed.
Open and Obvious Dangers: If the buyer discovers the defect and uses the goods anyway, or if he unreasonably fails to examine the goods before he uses them, resulting injuries may be found to result from his own action rather than proximately from a breach of warranty. In a case like that, the implied warranty will not even apply.

Limitations Under the UCC

UCC § 2-719. Contractual Modification or Limitation of Remedy

(3) Consequential damages may be limited or excluded unless the limitation or exclusion is unconscionable. Limitation of consequential damages for injury to the person in the case of consumer goods is prima facie unconscionable but limitation of damages where the loss is commercial is not.

A disclaimer clause is a device used to exclude or limit the seller’s warranties; it attempts to control the seller’s liability by reducing the number of situations in which the seller can be in breach. An exclusionary clause [limitation of remedies] on the other hand, restricts the remedies available to one or both parties once a breach is established. Assume for example that a new-car buyer sues for breach of warranty, and the seller raises defenses based on disclaimer and exclusionary clauses. The disclaimer defense denies the existence of any cause of action. The exclusionary-clause defense, on the other hand, denies that the buyer is entitled to the remedy he demands – for example, consequential damages.

Consumer Goods: Goods used or bought for use primarily for personal, family or household purposes, e.g., family car, etc. Approximately one-half of all products liability cases involve commercial, rather than consumer goods.

UCC 2-302: Unconscionability

If a court finds a limitation of remedy to be unconscionable, this section permits the court in its discretion to refuse to enforce the contract as a whole, if it is permeated by the unconscionability, or to strike any single clause or group of clauses which are so tainted or which are contrary to the essential purpose of the agreement, or to simply limit unconscionable clauses so as to avoid unconscionable results. Thus, any clause purporting to modify or limit remedies in an unconscionable manner is subject to deletion and will not be given effect.

No matter how serious your injury is, call The Justice Law Center. Our consultations are free and we welcome the opportunity to represent you in your Nevada product liability case. Manufactures of defective products have lawyers too and they will do everything they can to keep you from recovering damages. Call us today at: 702.731.0000. We are here to Help, Defend, and Liberate.

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Las Vegas Brain Injury Attorney

Close to two million people suffer from some sort of brain injury every year in the United States alone, and close to 100,000 of these injuries result in a long-term disability. Sadly, automobile accidents, which are often preventable, account for the majority of these at nearly 28%. Even more frightening is the fact that half of all traumatic brain injuries, which are defined as those requiring hospitalization, are caused by automobile accidents. There are so many factors that go into how individuals and families deal with these tragedies, and the emotional toll it can take is immeasurable. However, there can also be a severe financial cost as well.

If you have suffered a brain injury due to an auto accident in Las Vegas, Nevada, call Attorney Brett Whipple today at 702.731.0000.

In the worst case scenario, with a traumatic brain injury that requires hospitalization and causes a long-term disability, one person will typically pay close to $4 million dollars in medical bills and daily living expenses related to his or her disability over a lifetime. Add to this the fact that a brain injury this severe often causes a person to be permanently unemployed, and a brain injury caused by an automobile accident can quit literally cause financial ruin.

So often, a person who is the victim of an automobile accident resulting in a brain injury, no matter how severe, is not at fault. Yet somehow, they are still forced to foot the bill for this tragedy. Attorney Brett Whipple does everything in his power to make sure that this isn’t the case. Because with the unbelievable emotional toll that this type of injury can take on a person and his or her family, money should be the last thing on the victim’s mind. Call Attorney Brett Whipple to get the special care and compensation needed for brain injuries.

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Las Vegas Car Crash Attorney

With as many distractions that are here in Las Vegas, it’s understandable why so many people are involved in automobile accidents everyday.

The roads and highways in and around town are perpetually under construction which adds to the confusion and distraction of driving here.

If you find yourself in the unfortunate situation of an auto accident in Las Vegas, call auto accident attorney Bret Whipple at 702-731-0000 today.

Automobile Accidents in Nevada

In the United States, there are over five million automobile accidents every year, and nearly two million of these result in physical injury to one or more parties. In Nevada alone, there were over 1,300 people injured seriously in a car accident in 2010, and this doesn’t include cases of whiplash, sprains or other relatively minor injuries.

The truth is, unless you’re a professional stunts person, operating a motor vehicle is the single most dangerous thing you do on any given day. Even if you are the perfect driver, there is always someone who will be distracted or lacking the skills necessary to make it out of a sticky situation safely; sadly, you can be the victim of an automobile accident even if you do everything right.

In a perfect world, everyone would have full-coverage car insurance and go out of their way to right any wrongs they have committed. As you probably know, this isn’t usually the case. Oftentimes, a victim of an automobile accident is left with higher insurance premiums through no fault of his or her own and with injuries that, even when minor, can be detrimental to his or her job, either in the short or long term.

The truth is the professionals working with Las Vegas Accident Attorney Brett Whipple work tirelessly to make sure that the responsible party does do everything possible to make up for his or her mistake and to ensure that the victim of an automobile accident isn’t left out in the cold.

Call Accident Lawyer Bret Whipple today at 702-731-0000

Las Vegas Personal Injury Attorney

Why Hire Attorney Bret Whipple?

An injury is a catastrophic event for you and your family. You deserve more than the run around from the insurance companies. Las Vegas personal injury attorney Bret Whipple will get you the medical care you need and make sure you receive compensation for your pain and suffering. Don’t suffer because of someone else’s mistake. Call car crash attorney Bret Whipple today at 702-731-0000.