Statutes of Limitations (NEBRASKA)
Personal Injury - 4 yrs. [Neb.Rev.St. § 25-207]
Wrongful Death - 2 yrs. (after death) [Neb.Rev.St. § 30-810]
Property Damage - 4 yrs. [Neb.Rev.St. § 25-207]
Written Contracts - 5 yrs. [Neb.Rev.St. § 25-205]
Oral Contracts - 4 yrs. [Neb.Rev.St. § 25-206]
Product Liability (including Breach of Warranty if Property Damage or Personal Injury) - 4 yrs. (discovery rule applies) [Neb.Rev.St. § 25-224; Thomas v. Countryside of Hastings, Inc. 524 N.W.2d 311 (Neb. 1994)]
Contract for Sale (goods) and Breach of Warranty - 4 yrs. (from tender of delivery) [Neb.Rev.St. U.C.C. § 25-224]
For a limitations period to begin to run, it is not necessary that Plaintiff have knowledge of the exact nature or source of a problem, but only that a problem exists. Plaintiff seeking to invoke the discovery clause to toll the statute of limitations must allege facts showing why the cause of action reasonably could not have been discovered during the limitations period. [Nuss v. Alexander, 691 N.W.2d 94 (Neb. 2005)]
Statute of Repose (Products) (NEBRASKA)
10 yrs. for products manufactured in Nebraska (if not manufactured in Nebraska, within the time allowed by the applicable statute of repose of the state where the product was made, but in no event less than 10 yrs.) [Neb.Rev.St. § 25-224].
Admissibility of Expert Testimony (NEBRASKA)
Daubert test has been adopted. The following considerations may be used by a trial court to evaluate the validity of scientific testimony: (1) whether the theory or technique can be, and has been, tested; (2) whether the theory or technique has been subjected to peer review and publication; (3) the known or potential rate of error, and the existence and maintenance of standards controlling the technique's operation; and (4) the general acceptance of the theory or technique [Schafersman v. Agland Coop., 631 N.W.2d 862 (Neb. 2001)].
Causes of Action (NEBRASKA)
Statutory Definition – Product liability action means any action brought against a manufacturer, seller, or lessor of a product, regardless of the substantive legal theory or theories upon which the action is brought, for or on account of personal injury, death, or property damage caused by or resulting from the manufacture, construction, design, formulation, installation, preparation, assembly, testing, packaging, or labeling of any product, or the failure to warn or protect against a danger or hazard in the use, misuse, or intended use of any product, or the failure to provide proper instructions for the use of any product [R.R.S. Neb. § 25-21,180].
Strict Liability – Nebraska has adopted Rest. (2nd) of Torts, 402A. One who sells any product in a defective condition unreasonably dangerous to the user (or to his property) is subject to liability for physical harm thereby caused to the ultimate user (or to his property) if: (1) the seller is engaged in the business of selling such a product; and (2) the product is expected to and does reach the user or consumer without substantial change in the condition in which it is sold [Freeman v. Hoffman-La Roche, Inc., 618 N.W.2d 827 (Neb. 2000)].
Negligence – In a cause of action based on negligence, the question involves the manufacturer's conduct, that is, whether the manufacturer's conduct was reasonable in view of the foreseeable risk of injury; whereas in a cause of action based on strict liability in tort, the question involves the quality of the product (that is, whether the product was unreasonably dangerous) [Freeman v. Hoffman-La Roche, Inc., 618 N.W.2d 827 (Neb. 2000)].
Breach of Warranty – Nebraska has adopted the standard UCC express warranty [R.R.S. Neb. (U.C.C.) § 2-313]; implied warranty of merchantability [R.R.S. Neb. (U.C.C.) § 2-314]; implied warranty of fitness for particular purpose [R.R.S. Neb. (U.C.C.) § 2-315]. A seller’s warranty (express or implied) extends to any natural person who is in the family or household of his buyer or who is a guest in his home if it is reasonable to expect that such person may use, consume or be affected by the goods and who is injured in person by breach of the warranty [R.R.S. Neb. (U.C.C.) § 2-318]. NOTE: In tort actions, instead of deciding whether a party has stated a theory of recovery for breach of implied warranty, Nebraska will simply recognize that any allegations regarding breach of implied warranty fall under allegations of design and manufacturing defects [Freeman v. Hoffman-La Roche, Inc., 618 N.W.2d 827 (Neb. 2000)].
Definition of “Defect” (NEBRASKA)
The notion of a defective product embraces two separate concepts: (1) commonly labeled as a manufacturing defect, is one in which the product differs from the specifications and plan of the manufacturer; (2) dective product is one in which the product meets the specifications of the manufacturer but the product nonetheless poses an unreasonable risk of danger (a design defect). A manufacturer may also be liable for a failure to warn [Freeman v. Hoffman-La Roche, Inc., 618 N.W.2d 827 (Neb. 2000)].
Under the consumer expectations test for strict liability, “unreasonably dangerous” means that a product has the propensity for causing physical harm beyond that which would be contemplated by the ordinary user or consumer who purchases it, with ordinary knowledge common to the foreseeable class of users as to its characteristics [Freeman v. Hoffman-La Roche, Inc., 618 N.W.2d 827 (Neb. 2000)].
Liability of Sellers (NEBRASKA)
No product liability action based on the doctrine of strict liability in tort may be commenced or maintained against any seller or lessor of a product which is alleged to contain a defective condition unreasonably dangerous to the user, unless the seller or lessor is also the manufacturer of the product or the part thereof claimed to be defective [R.R.S. Neb. § 25-21,181].
Comparative Negligence – Nebraska follows modified comparative negligence (damages are diminished in proportion to Plaintiff’s fault, but Plaintiff cannot recover if he is 50% at fault) [Neb.Rev.St. § 25-21,185.09]. Does not apply to strict liability actions [Shipler v. GMC, 710 N.W.2d 807 (Neb. 2006)].
Assumption of Risk ("AOR") – Complete defense. AOR means that: (1) Plaintiff knew of and understood the specific danger; (2) Plaintiff voluntarily exposed himself to the danger; and (3) Plaintiff's injury or death or the harm to property occurred as a result of his exposure to the danger [R.R.S. Neb. § 25-21,185.12]. AOR differs from contributory negligence in that a subjective standard is applied to the former and an objective standard is applied to the latter [Jay v. Moog Auto., Inc., 652 N.W.2d 872 (Neb. 2002)].
Product Misuse – A defense to strict liability action [Jay v. Moog Auto., Inc., 652 N.W.2d 872 (Neb. 8, 2002)]. The seller is entitled to expect a normal use of his product, and is not liable when it is put to an abnormal use (thus, the seller is not liable when the product is mishandled, or used in some unusual and unforeseeable way) [Erickson v. Monarch Industries, Inc., 347 N.W.2d 99 (Neb. 1984)]. In negligence cases, misuse is, most likely, included the comparative negligence analysis.
Product Alteration/Modification – A seller is not liable when he delivers a product in a safe condition and subsequent mishandling or other causes make it harmful by the time it is consumed [Erickson v. Monarch Industries, Inc., 347 N.W.2d 99 (Neb. 1984)].
Economic Loss Doctrine (ELD) (Product Destroys Only Itself) (NEBRASKA)
ELD is recognized/applied, with at least 2 potential exceptions. First, the doctrine of strict liability in tort may be used to recover damages to defective product itself, where damage occurred as result of a sudden, violent event and not as a result of inherent defect that reduced property’s value [National Crane Corp. v. Ohio Steel Tube Co., 332 N.W.2d 39 (Neb. 1983)]. Second, ELD does not apply in cases involving an independent tort duty alleged to be breached, which is separate and distinct from the contractual duty [Lesiak v. Central Valley Ag Co-op., Inc., 808 N.W.2d 67 (Neb. 2012)]
Malfunction Theory (Using Circumstantial Evidence to Prove Defect) (NEBRASKA)
Although expert testimony pointing to a specific defect would be the best means of proving the existence of a defect in some cases, proof that the warranted product is defective may be circumstantial in nature and may be inferred from the evidence [Genetti v. Caterpillar, Inc., 621 N.W.2d 529 (Neb. 2001)].
Design Defects (NEBRASKA)
In order to recover on a claim of strict liability in tort for a defectively designed product, a plaintiff must prove the following by a preponderance of the evidence: (1) the defendant placed the product on the market for use and knew (or in the exercise of reasonable care should have known) that the product would be used without inspection for defects; (2) the product was in a defective condition when it was placed on the market and left the defendant’s possession; (3) the defect was the proximate or a proximately contributing cause of plaintiff's injury sustained while the product was being used in the way and for the general purpose for which it was designed and intended; (4) the defect rendered the product unreasonably dangerous and unsafe for its intended use and (6) plaintiff's damages were a direct and proximate result of the alleged defect [Adams v. American Cyanamid Co., 498 N.W.2d 577 (Neb. Ct. App. 1992)].
Where the defective condition of the product makes it unreasonably dangerous to the user or consumer, the article sold must be dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics. This is commonly referred to as the “consumer expectations test.” Under the consumer expectations test for strict liability, “unreasonably dangerous” means that a product has the propensity for causing physical harm beyond that which would be contemplated by the ordinary user or consumer who purchases it, with ordinary knowledge common to the foreseeable class of users as to its characteristics [Freeman v. Hoffman-La Roche, Inc., 618 N.W.2d 827 (Neb. 2000)].
In any product liability action based upon negligent or defective design, testing, or labeling, proof establishing that such design, testing, or labeling was in conformity with the generally recognized and prevailing state of the art in the industry at the time the specific product involved in the action was first sold to any person not engaged in the business of selling such product is a defense. State of the art is defined as the best technology reasonably available at the time [R.R.S. Neb. § 25-21,182]
In order to prove that a particular product is defective in its design, Plaintiff is not required to show that there was some practicable way in which the product could have been made safer [Rahmig v. Mosley Machinery Co., 412 N.W.2d 56 (Neb. 1987)].
Failure to Warn (NEBRASKA)
Although a product may be free from manufacturing or design defects, it nonetheless may be defective if the manufacturer fails to warn (or inadequately warns) about dangers inherent in the use of the product that the manufacturer knows exist and about which the user is likely to be unaware. The duty to warn does not arise if the user knows or should know of the potential danger, especially when the user is a professional who should be aware of the characteristics of the product. Where warning is given, the seller may reasonably assume that it will be read and heeded; and a product bearing such a warning, which is safe for use if it is followed, is not in defective condition, nor is it unreasonably dangerous. If, despite deficient warnings by the manufacturer, a user is fully aware of the danger which a warning would alert him of, then the lack of warning is not the proximate cause of the injury [Peitzmeier v. Hennessy Indus., 97 F.3d 293 (8th Cir. Neb. 1996)].
Warning of a product's defects is unnecessary where the supplier of the product has reason to believe that those who will use it will have such special experience as will enable them to perceive the danger [Erickson v. Monarch Industries, Inc., 347 N.W.2d 99 (Neb. 1984)].
The seller is entitled to have his due warnings and instructions followed; and when they are disregarded, and injury results, he is not liable [Erickson v. Monarch Industries, Inc., 347 N.W.2d 99 (Neb. 1984)].
Independent Cause of Action for Evidence Spoliation (NEBRASKA)