Fill and Sign the Complaint Product Liability Sample Form

- 1 - IN THE CHANCERY COURT OF_________ COUNTY, ____________ NAME OF PLAINTIFF ) ) ) V. ) NO. ) ) NAME OF DEFENDANT ) ) COMPLAINT COMES NOW the Plaintiff ___________________________, (“_______________”) by and through his attorney, and makes this his Complaint to recover damages against the Defendants, and in support thereof would show unto the Court the following: 1. The Plaintiff, ___________________________, is an adult resident citizen of the State of _______ and was residing in __________________________ County when the losses alleged herein occurred. 2. The Defendant, ____________________________, ("________________"), is a corporation duly organized and existing under the laws of the State of _______________________, and does business within the State of ________________, and whose registered agent for service of process. 3. The Defendant, _______________________ ("_________________"), is a corporation duly organized and existing under the laws of the State of _________________ and domiciled in _____________ County, _______________ and whose registered agent for service of process is _____________________________________________________________________________. 4. At all times herein material, Defendant __________________________ was engaged in the design, manufacture, sale and distribution of industrial woodworking machinery, those machi nes being ultimately sold in the State of _______________, among other states. 5. At all times herein material, Defendant __________________________ was engaged in the retail sale of industrial woodworking machinery, including the sale of industrial w oodworking machinery that were designed, manufactured and sold by Defendant _______________________ including the _______________________ hereinafter described and purchased by the Plaintiff. 6. Defendant _____________________ designed, manufactured, sold and placed into the stream of commerce a Delta Model No. ___________________ two-speed heavy duty wood shaper, bearing identification No.________________ equipped with a Safe Guard II shaper spindle - 2 - guard (hereafter collectively referred to as the "____________________"). This Delta Shaper was purchased by the Plaintiff from Defendant ____________ on ___________, 20______. 7. On ___________________ ________, 20_____, Plaintiff was operating the Delta Shaper in the County of __________________, State of ______________. 8. While operating the Delta Shaper, Plaintiff was shaping a piece of 9 x 12 fiber core wood material through the machine, at which time Plaintiff's left hand came in contact with the spindle guard (Safe Guard II) and cutterhead causing Plaintiff to suffer the damages a nd injuries as hereafter described. 9. At the time and as a result of the aforesaid incident, Plaintiff susta ined the following serious, painful, disabling injuries and conditions, some or all of which are permanent in nature: (a) mangling injury to left hand, resulting in amputation of the fourth and fifth fingers on tha t hand; (b) open joint injury to left third finger requiring the joint to be pinned; (c) skin graft to left third finger from amputated part; (d) lacerations and other disfiguring characteristics; (e) severe embarrassment and great emotional disturbance and attendant nervous disorders; (f) was made sick, sore, lame and disabled and was obliged to endure great pain and suffering of body and anguish of mind; (g) has sustained a loss of energy, strength, and ability to enjoy life; and (h) was prevented from attending his usual occupations and will thereby be prevented from attending to his usual occupations for a period or periods in the future. 10. The injuries suffered by Plaintiff in the accident are of a permanent nature and have caused him severe injuries resulting in pain and suffering, medical expenses, lost wage s and a lost earning capacity, all of which will continue in the future for the rest of his life. 11. The acts and/or omissions of the Defendants were the proximate cause of the aforesaid incident complained of and the resulting injuries to Plaintiff, and the acts a nd/or omissions of Defendants constitute the combined, concurrent and joint negligence, breach of express warranty, breach of implied warranty of fitness, breach of implied warranty of merchantabilit y, and strict liability for which Defendants are jointly and/or severally liable to Plaintiff. COUNT ONE STRICT LIABILITY 12. All of the averments contained in paragraphs 1 through 11 are incorporated herein be reference as if fully set forth below. 13. Immediately prior to the time Plaintiff sustained the injuries set fort h above, Plaintiff had removed the Delta Shaper from the sealed packaging furnished by __________________. Plaintiff is informed and believes that the Delta Shaper was then in the condition e xisting when ______________________ sold and/or delivered the product to _____________________. - 3 - Plaintiff is informed and believes that the same condition of the Delta Shaper existed when _____________________ sold and delivered the product to Plaintiff, and the condition of the product remained substantially unchanged when Plaintiff removed it from the packaging and sustained injuries while using it. 14. The Delta Shaper was defective in its design, workmanship, construction, manufa cture, marketing and testing and investigation of component parts, and as a result was defective, unsafe and inadequate for the use for which it was made, intended to be used and was being used. 15. The Delta Shaper, because of its defective design, workmanship, construction, ma nufacture, marketing and testing and investigation of component parts, was inherently dangerous a nd capable of causing serious bodily injury when wood was being fed into it for shaping and, as a res ult, was unreasonably dangerous to potential purchasers and users and the Plaintiff. 16. The Delta Shaper was additionally defective in design, workmanship, manufacture , production, marketing and testing and investigation of component parts, and inherently dangerous in that the exposed spindle guard (Safe Guard II) was so defectively designed and manufac tured as to offer an accident hazard in itself in that it rotated at the same or a pproximate same speed as the cutterhead and failed to adequately protect the operator's hand from injury from contact with the cutterhead, the spindle guard itself, or both. The Delta Shaper was so defective ly designed and manufactured in that the point of operation of the machine exposed the operator to unre asonable risks of injury. As a result, the Delta Shaper was unreasonably dangerous to potenti al purchasers and users and to the Plaintiff. 17. The Defendants knew, or should have known, that the Delta Shaper would be used in t he manner complained of, and, nevertheless, permitted the purchase of said machine by purc hasers and in particularly the Plaintiff for such use without adequate point of operation guarding and without adequate safety warnings and/or safety instructions. 18. The Delta Shaper, were it properly designed, manufactured and marketed would not have been inherently dangerous but, because of its defective design, manufacturing and marketing, it was unreasonably dangerous to Plaintiff who was unaware of its dangers, hazards, and peril. 19. As a direct and proximate result of the defects in Defendants' Delta S haper and of the failure of Defendants to give Plaintiff adequate safety warnings of those defects, Plai ntiff sustained serious and permanent bodily injuries as set forth above. COUNT TWO BREACH OF EXPRESS WARRANTY 20. All of the averments contained in paragraphs 1 through 19 are incorporated herein be reference as if fully set forth below. 21. Plaintiff avers that Defendants are jointly and/or severally liable for the injuries to Plaintiff and for the resulting damages in that the Delta Shaper was defectively des igned and manufactured and in a defective condition when sold to the Plaintiff thereby violating the expre ss warranties - 4 - which were attached to and accompanied this product. 22. Before Plaintiff purchased the Delta Shaper, Defendants described the product to Plaintiff as being free from defects in material and workmanship. Defendants expressly warranted that the spindle guard (Safe Guard II) was a special safety guard for wood shapers that would provi de adequate point of operation guarding to protect the operator's hands from coming in contact with the revolving cutterhead, spindle guard, or both. To the Plaintiff, this description meant tha t the Delta Shaper with the spindle guard (Safe Guard II) installed could be safely used as w arranted. This description was made a part of the basis of the bargain and created an express warranty that the product would conform to description and be safe for use in the manner it was being us ed at the time of the accident and occurrence described in this complaint. 23. In purchasing the Delta Shaper, Plaintiff relied upon the skill and judgment of De fendants and upon Defendants express warranty as specified above. 24. As a result of the defects in material and workmanship described above, Defe ndants breached their express warranty that the Delta Shaper was in a marketable condition, safe for use by ultimate users and consumers and in particular the Plaintiff. 25. As a direct and proximate result of the breach of express warranty by Defendants, and each of them, Plaintiff sustained serious and permanent bodily injuries as set forth above. COUNT THREE BREACH OF IMPLIED WARRANTY OF FITNESS 26. All of the averments contained in paragraphs 1 through 25 are incorporated herein be reference as if fully set forth below. 27. Defendants impliedly warranted that the Delta Shaper when used with the spindle guard (Safe Guard II) installed was fit for the purpose for which it was designed, that it was a safe and suitable machine to be used in shaping wood, that the product was equipped with s afety features that would protect the operator's hands at the point of operation from the revolving cutterhead, the spindle guard, or both, and that said product was fit and suitable for that purpose. In reli ance upon Defendants skill and judgment and the implied warranties of fitness for that purpos e, Plaintiff purchased the Delta Shaper as hereinabove described. 28. The Delta Shaper was, in fact, not fit for use for its intended purpose and Defe ndants breached the implied warranties set forth above. 29. As a direct and proximate result of that breach of warranty, Plaintiff sustai ned serious and permanent bodily injuries as set forth above. 30. Defendants' actions constitute a breach of the implied warranty. - 5 - COUNT FOUR IMPLIED WARRANTY OF MERCHANTABILITY 31. All of the averments contained in paragraphs 1 through 30 are incorporated herein be reference as if fully set forth below. 32. Defendants impliedly warranted that the above mentioned Delta Shaper was of merchantable quality, fit, safe, and in proper condition for the ordinary use for which Delta Shapers are designed and used. 33. In reliance upon said warranty of merchantability, Plaintiff purchased the Delt a Shaper as hereinabove described. 34. The Delta Shaper was not of merchantable quality and was unfit, unsafe, and uns uitable for the purpose for which it was intended. 35. As a direct and proximate result of that breach of warranty, Plaintiff sustai ned serious and permanent bodily injuries as set forth above. 36. Defendants' actions constitute a breach of the implied warranty set. COUNT FIVE NEGLIGENCE 37. All of the averments contained in paragraphs 1 through 36 are incorporated herein by reference as if fully set forth below. 38. Defendants were careless and negligent in designing, manufacturing, testing, sel ling and placing into the stream of commerce, the Delta Shaper described in this c omplaint in such defective condition, and in failing to warn potential purchasers and users of the inherently dangerous characteristics of that product. 39. The direct negligent acts of the Defendant was the proximate result of Pl aintiff sustaining serious and permanent bodily injuries as set forth above. COUNT SIX PUNITIVE DAMAGES 40. All of the averments contained in paragraphs 1 through 39 are incorporated herein by reference as if fully set forth below. 41. Defendants had actual knowledge that the purchasers and users of the Delta S haper as described in this complaint and in particular the Plaintiff would be operating those machines in a manner as described in this complaint, and that that operation would create a positive and substantial risk of serious bodily harm for people in the same or similar position as Plaintiff. - 6 - 42. Even though Defendants knew that for persons in the position of Plaintiff the likelihood of harm was great, Defendants failed to provide adequate safeguards, failed to warn or adequately warn of the inherent dangers, and did not warn Plaintiff of the inability of the spindle guard (Safe Guard II) to provide adequate point of operation guarding to prevent the operator hand from coming in contact with the revolving cutterhead and/or revolving spindle guard (Safe Guard II) during the normal operation of the Delta Shaper as purchased by the Plaintiff. 43. The conduct on the part of Defendants was reckless and wanton in that the li kelihood of harm was highly probable and that the resultant foreseeable harm could be devasta ting. Due to this wanton and reckless conduct of Defendants, Plaintiff is entitled to punitive damages. WHEREFORE, Plaintiff demands judgment against Defendants on Counts One, Two, Three, Four and Five for actual damages in an amount to be determined at the trial of this cause and judgment against Defendants on Count Six for punitive damages in an amount to be det ermined at the trial of this cause plus interest and costs. PLAINTIFF REQUESTS TRIAL BY JURY. Respectfully submitted, _______________________________