IN THE UNITED STATES DISTRICT COURT

FOR THE MIDDLE DISTRICT OF ALABAMA

EASTERN DIVISION

DAVID FINNEY, an individual, )

)

Plaintiff, )

)

vs. ) CIVIL ACTION NO. 3:06-CV-622

)

NISSAN NORTH AMERICA, INC., )

a foreign corporation; TAKATA U.S.A. )

CORPORATION d/b/a TAKATA )

CORPORATION, a foreign corporation; )

TAKATA SEAT BELTS, INC., a foreign )

corporation; TAKATA RESTRAINT )

SYSTEMS, INC., a foreign corporation; )

TAKATA NORTH AMERICAN, INC., a )

foreign corporation; and TAKATA INC., )

a foreign corporation, )

)

Defendants. )

____________________________________)

ANSWER AND DEFENSES OF 

DEFENDANT NISSAN NORTH AMERICA, INC.

TO PLAINTIFF’S FIRST AMENDED COMPLAINT

DEFENDANT NISSAN NORTH AMERICA, INC. (hereinafter “this defendant”) files 

its Answer and Defenses to plaintiff’s First Amended Complaint (“plaintiff’s Complaint”), 

showing the Court as follows:

DEFENSES TO THE COMPLAINT AS A WHOLE

FIRST DEFENSE

Some or all of the allegations in plaintiff’s Complaint fail to state a claim against this 

defendant upon which relief may be granted.

SECOND DEFENSE

Some or all of plaintiff’s claims may be preempted by federal law.

Case 3:06-cv-00622-WKW-SRW Document 39 Filed 12/20/2006 Page 1 of 22
2

ANSWERING THE NUMBERED PARAGRAPHS OF PLAINTIFF’S COMPLAINT

FIRST DEFENSE

ANSWERING THE “PARTIES” SECTION OF PLAINTIFF’S COMPLAINT

1.

This defendant lacks knowledge or information sufficient to form a belief as to the truth 

of the allegations contained in paragraph 1 of plaintiff’s Complaint.

2.

This defendant admits that it is a foreign corporation organized and existing under the 

laws of the State of California, and further admits that it is qualified to and does transact business 

in the State of Alabama. This defendant denies the remaining allegations contained in paragraph 

2 of plaintiff’s Complaint.

3.

This defendant lacks knowledge or information sufficient to form a belief as to the truth 

of the allegations contained in paragraph 3 of plaintiff’s Complaint.

4.

This defendant lacks knowledge or information sufficient to form a belief as to the truth

of the allegations contained in paragraph 4 of plaintiff’s Complaint.

5.

This defendant lacks knowledge or information sufficient to form a belief as to the truth 

of the allegations contained in paragraph 5 of plaintiff’s Complaint.

Case 3:06-cv-00622-WKW-SRW Document 39 Filed 12/20/2006 Page 2 of 22
3

6.

This defendant lacks knowledge or information sufficient to form a belief as to the truth 

of the allegations contained in paragraph 6 of plaintiff’s Complaint.

7.

This defendant lacks knowledge or information sufficient to form a belief as to the truth 

of the allegations contained in paragraph 7 of plaintiff’s Complaint.

8.

This defendant lacks knowledge or information sufficient to form a belief as to the truth 

of the allegations contained in paragraph 8 of plaintiff’s Complaint.

9.

This defendant admits that it distributes to authorized dealerships, including some in the 

State of Alabama, certain Nissan vehicles. This defendant denies any remaining allegations 

contained in paragraph 8 of plaintiff’s Complaint that relate to it. This defendant lacks 

knowledge or information sufficient to form a belief as to the truth of the remaining allegations 

contained in paragraph 8 of plaintiff’s Complaint.

10.

This defendant admits that it distributes to authorized dealerships, including some in the 

State of Alabama, certain Nissan vehicles, including the subject vehicle. This defendant denies 

any remaining allegations contained in paragraph 9 of plaintiff’s Complaint that relate to it. This 

defendant lacks knowledge or information sufficient to form a belief as to the truth of the 

remaining allegations contained in paragraph 9 of plaintiff’s Complaint.

Case 3:06-cv-00622-WKW-SRW Document 39 Filed 12/20/2006 Page 3 of 22
4

11.

This defendant admits that plaintiff’s Complaint uses the collective term “Defendants” to 

include all named defendants. This defendant denies any remaining allegations contained in 

paragraph 10 of plaintiff’s Complaint.

12.

This defendant admits that it distributes to authorized dealerships, including some in the 

State of Alabama, certain Nissan vehicles, including the subject vehicle. This defendant denies 

any remaining allegations contained in paragraph 11 of plaintiff’s Complaint that relate to it. 

This defendant lacks knowledge or information sufficient to form a belief as to the truth of the 

remaining allegations contained in paragraph 11 of plaintiff’s Complaint.

ANSWERING THE “JURISDICTION AND VENUE” SECTION OF PLAINTIFF’S 

COMPLAINT

13.

This defendant admits that the Alabama Uniform Traffic Accident Report indicates that 

the incident giving rise to this lawsuit occurred in Russell County, Alabama, which is in the 

Eastern Division of the Middle District of Alabama. This defendant denies it has committed any 

act or omission which would subject it to the jurisdiction or venue of this Court. This defendant 

denies the remaining allegations contained in paragraph 12 of plaintiff’s Complaint.

14.

This defendant admits that complete diversity exists between plaintiff and defendants. 

This defendant further admits that the amount in controversy exceeds $75,000.00, exclusive of 

interest and costs, but denies that it is liable to plaintiff in any manner of amount. This defendant 

denies any remaining allegations contained in paragraph 13 of plaintiff’s Complaint.

Case 3:06-cv-00622-WKW-SRW Document 39 Filed 12/20/2006 Page 4 of 22
5

15.

This defendant admits that it is qualified to and does transact business in the State of 

Alabama. This defendant denies it has committed any act or omission which would subject it to 

the jurisdiction or venue of this Court. This defendant denies any remaining allegations 

contained in paragraph 14 of plaintiff’s Complaint that relate to it. This defendant lacks 

knowledge or information sufficient to form a belief as to the truth of the remaining allegations 

contained in paragraph 14 of plaintiff’s Complaint.

16.

This defendant lacks knowledge or information sufficient to form a belief as to the truth 

of the allegations contained in paragraph 15 of plaintiff’s Complaint.

ANSWERING THE “FACTUAL ALLEGATIONS” SECTION OF PLAINTIFF’S 

COMPLAINT

17.

This defendant incorporates by reference, as if set forth fully verbatim herein, its answers 

to paragraphs 1 through 15 as its response to paragraph 16.

18.

This defendant admits that it distributes to authorized dealerships, including some in the 

State of Alabama, certain Nissan vehicles. This defendant denies any remaining allegations 

contained in paragraph 17 of plaintiff’s Complaint that relate to it. This defendant lacks 

knowledge or information sufficient to form a belief as to the truth of the remaining allegations 

contained in paragraph 17 of plaintiff’s Complaint.

Case 3:06-cv-00622-WKW-SRW Document 39 Filed 12/20/2006 Page 5 of 22
6

19.

This defendant admits that it distributes to authorized dealerships, including some in the 

State of Alabama, certain Nissan vehicles, including the subject vehicle. This defendant further 

admits that it is qualified to and does transact business in the State of Alabama. This defendant

denies any remaining allegations contained in paragraph 18 of plaintiff’s Complaint that relate to 

it. This defendant lacks knowledge or information sufficient to form a belief as to the truth of 

the remaining allegations contained in paragraph 18 of plaintiff’s Complaint.

20.

This defendant denies the allegations contained in paragraph 19 of plaintiff’s Complaint. 

21.

This defendant denies the allegations contained in paragraph 20 of plaintiff’s Complaint.

22.

This defendant admits that it distributes to authorized dealerships, including some in the 

State of Alabama, certain Nissan vehicles, including the subject vehicle. This defendant denies 

any remaining allegations contained in paragraph 21 of plaintiff’s Complaint.

23.

This defendant denies the allegations contained in paragraph 22 of plaintiff’s Complaint

that relate to it. This defendant lacks knowledge or information sufficient to form a belief as to 

the truth of the remaining allegations contained in paragraph 22 of plaintiff’s Complaint.

24.

This defendant admits that it distributes to authorized dealerships, including some in the 

State of Alabama, certain Nissan vehicles. This defendant denies any remaining allegations 

Case 3:06-cv-00622-WKW-SRW Document 39 Filed 12/20/2006 Page 6 of 22
7

contained in paragraph 23 of plaintiff’s Complaint that relate to it. This defendant lacks 

knowledge or information sufficient to form a belief as to the truth of the remaining allegations 

contained in paragraph 23 of plaintiff’s Complaint. 

25.

This defendant admits that Alabama Uniform Traffic Accident Report indicates that 

plaintiff David Finney was driving a 1992 Nissan Sentra, VIN IN4EB32ACNC771825 on

September 3, 2005. This defendant further admits that it distributes to authorized dealerships, 

including some in the State of Alabama, certain Nissan vehicles, including the subject vehicle. 

This defendant denies any remaining allegations contained in paragraph 24 of plaintiff’s 

Complaint that relate to it. This defendant lacks knowledge or information sufficient to form a 

belief as to the truth of the remaining allegations contained in paragraph 24 of plaintiff’s 

Complaint. 

26.

This defendant admits that the Alabama Uniform Traffic Accident Report indicates 

plaintiff was traveling southbound on Alabama State Road 165 at or near Milepost 24 between 

County Road 24 and Fort Benning Road when he left the roadway onto a concrete driveway, 

then continued off the roadway and into a ditch parallel to the roadway. This defendant lacks 

knowledge or information sufficient to form a belief as to the truth of any remaining allegations 

contained in paragraph 25 of plaintiff’s Complaint.

27.

This defendant lacks knowledge or information sufficient to form a belief as to the truth 

of the allegations contained in paragraph 26 of plaintiff’s Complaint.

Case 3:06-cv-00622-WKW-SRW Document 39 Filed 12/20/2006 Page 7 of 22
8

28.

This defendant denies that it is in any way responsible for the subject accident or for 

plaintiff’s injuries. This defendant lacks knowledge or information sufficient to form a belief as 

to the truth of the remaining allegations contained in paragraph 27 of plaintiff’s Complaint.

ANSWERING COUNT ONE OF PLAINTIFF’S COMPLAINT

(STRICT LIABILITY, DEFECTIVE MANUFACTURE, DESIGN AND 

FAILURE TO WARN)

29.

This defendant incorporates by reference, as if set forth fully verbatim herein, its answers 

to paragraphs 1 through 27 as its response to paragraph 28.

30.

This defendant denies the allegations contained in paragraph 29 of plaintiff’s Complaint

that relate to it. This defendant lacks knowledge or information sufficient to form a belief as to 

the truth of the remaining allegations contained in paragraph 29 of plaintiff’s Complaint.

31.

This defendant is without knowledge or information sufficient to form a belief as to the 

truth of the allegations contained in paragraph 30 of plaintiff’s Complaint.

32.

This defendant denies the allegations contained in of paragraph 31 of plaintiff’s 

Complaint, including subparts (a) through (e), that relate to it. This defendant lacks knowledge 

or information sufficient to form a belief as to the truth of the remaining allegations contained in 

paragraph 31 of plaintiff’s Complaint, including subparts (a) through (e).

Case 3:06-cv-00622-WKW-SRW Document 39 Filed 12/20/2006 Page 8 of 22
9

33.

This defendant denies the allegations of paragraph 32 of plaintiff’s Complaint that relate 

to it. This defendant lacks knowledge or information sufficient to form a belief as to the truth of 

the remaining allegations contained in paragraph 32 of plaintiff’s Complaint.

34.

This defendant admits that it distributes to authorized dealerships, including some in the 

State of Alabama, certain Nissan vehicles, including the subject vehicle. This defendant denies 

that the subject vehicle was defective in any manner when it left its possession, custody, and 

control. This defendant denies the remaining allegations contained in paragraph 33 of plaintiff’s 

Complaint, including subparts (a) through (e).

35.

This defendant denies the allegations contained in paragraph 34 of plaintiff’s Complaint.

36.

This defendant denies the allegations contained in paragraph 35 of plaintiff’s Complaint, 

including subparts (a) through (d), that relate to it. This defendant lacks knowledge or 

information sufficient to form a belief as to the truth of the remaining allegations contained in 

paragraph 35 of plaintiff’s Complaint, including subparts (a) through (d).

37.

This defendant denies the allegations contained in paragraph 36 of plaintiff’s Complaint.

38.

This defendant denies the allegations contained in paragraph 37 of plaintiff’s Complaint.

39.

This defendant denies the allegations contained in paragraph 38 of plaintiff’s Complaint.

Case 3:06-cv-00622-WKW-SRW Document 39 Filed 12/20/2006 Page 9 of 22
10

40.

This defendant denies the allegations contained in paragraph 39 of plaintiff’s Complaint

that relate to it. This defendant lacks knowledge or information sufficient to form a belief as to 

the truth of the remaining allegations contained in paragraph 39 of plaintiff’s Complaint.

41.

This defendant denies the allegations contained in paragraph 40 of plaintiff’s Complaint

that relate to it. This defendant lacks knowledge or information sufficient to form a belief as to 

the truth of the remaining allegations contained in paragraph 40 of plaintiff’s Complaint.

42.

This defendant denies that it is in any way responsible for the subject accident or for 

plaintiff’s injuries. This defendant denies the allegations contained in paragraph 41 of plaintiff’s 

Complaint, including subparts (a) through (p), that relate to it. This defendant lacks knowledge 

or information sufficient to form a belief as to the truth of the remaining allegations contained in 

paragraph 41 of plaintiff’s Complaint, including subparts (a) through (p).

ANSWERING THE “WHEREFORE” PARAGRAPH FOLLOWING 

PARAGRAPH 41 OF PLAINTIFF’S COMPLAINT

This defendant denies the allegations contained in the “Wherefore” paragraph following 

paragraph 41 of plaintiff’s Complaint and the prayer for relief contained therein, and further 

denies that plaintiff is entitled to recover from this defendant in any manner or amount.

ANSWERING COUNT TWO OF PLAINTIFF’S COMPLAINT

(FAILURE TO WARN)

43.

This defendant incorporates by reference, as if set forth fully verbatim herein, its answers 

to paragraphs 1 through 41 as its response to paragraph 42.

Case 3:06-cv-00622-WKW-SRW Document 39 Filed 12/20/2006 Page 10 of 22
11

44.

This defendant denies the allegations contained in paragraph 43 of plaintiff’s Complaint 

that relate to it. This defendant lacks knowledge or information sufficient to form a belief as to 

the truth of the remaining allegations contained in paragraph 43 of plaintiff’s Complaint.

45.

This defendant denies the allegations contained in paragraph 44 of plaintiff’s Complaint

that relate to it. This defendant lacks knowledge or information sufficient to form a belief as to 

the truth of the remaining allegations contained in paragraph 44 of plaintiff’s Complaint.

46.

This defendant lacks knowledge or information sufficient to form a belief as to the truth 

of the allegations contained in paragraph 45 of plaintiff’s Complaint.

47.

This defendant lacks knowledge or information sufficient to form a belief as to the truth 

of the allegations contained in paragraph 46 of plaintiff’s Complaint.

48.

This defendant denies the allegations contained in paragraph 47 of plaintiff’s Complaint

that relate to it. This defendant lacks knowledge or information sufficient to form a belief as to 

the truth of the remaining allegations contained in paragraph 47 of plaintiff’s Complaint.

49.

This defendant denies the allegations contained in paragraph 48 of plaintiff’s Complaint

that relate to it. This defendant lacks knowledge or information sufficient to form a belief as to 

the truth of the remaining allegations contained in paragraph 48 of plaintiff’s Complaint.

Case 3:06-cv-00622-WKW-SRW Document 39 Filed 12/20/2006 Page 11 of 22
12

50.

This defendant denies the allegations contained in paragraph 49 of plaintiff’s Complaint

that relate to it. This defendant lacks knowledge or information sufficient to form a belief as to 

the truth of the remaining allegations contained in paragraph 49 of plaintiff’s Complaint.

51.

This defendant denies the allegations contained in paragraph 50 of plaintiff’s Complaint

that relate to it. This defendant lacks knowledge or information sufficient to form a belief as to 

the truth of the remaining allegations contained in paragraph 50 of plaintiff’s Complaint.

52.

This defendant denies that it is in any way responsible for the subject accident or for 

plaintiff’s injuries. This defendant denies the allegations contained in paragraph 51 of plaintiff’s 

Complaint, including subparts (a) through (p), that relate to it. This defendant lacks knowledge 

or information sufficient to form a belief as to the truth of the remaining allegations contained in 

paragraph 51 of plaintiff’s Complaint, including subparts (a) through (p).

ANSWERING THE “WHEREFORE” PARAGRAPH FOLLOWING 

PARAGRAPH 51 OF PLAINTIFF’S COMPLAINT

This defendant denies the allegations of the “Wherefore” paragraph following paragraph 

51 of plaintiff’s Complaint and the prayer for relief contained therein, and further denies that

plaintiff is entitled to recover from this defendant in any manner or amount.

ANSWERING COUNT THREE OF PLAINTIFF’S COMPLAINT

(BREACH OF WARRANTY OF MERCHANTIBILITY)

Case 3:06-cv-00622-WKW-SRW Document 39 Filed 12/20/2006 Page 12 of 22
13

53.

This defendant incorporates by reference, as if set forth fully verbatim herein, its answers 

to paragraphs 1 through 51 as its response to paragraph 52.

54.

This defendant denies the allegations contained in paragraph 53 of plaintiff’s Complaint

that relate to it. This defendant lacks knowledge or information sufficient to form a belief as to 

the truth of the remaining allegations contained in paragraph 53 of plaintiff’s Complaint.

55.

This defendant denies the allegations contained in paragraph 54 of plaintiff’s Complaint

that relate to it. This defendant lacks knowledge or information sufficient to form a belief as to 

the truth of the remaining allegations contained in paragraph 54 of plaintiff’s Complaint.

56.

This defendant admits that certain express warranties accompany the original sale of 

certain new Nissan vehicles and that certain implied warranties arise as a matter of applicable 

law, but denies those warranties are as stated by plaintiff. This defendant denies the remaining 

allegations contained in paragraph 55 of plaintiff’s Complaint that relate to it. This defendant 

lacks knowledge or information sufficient to form a belief as to the truth of the remaining 

allegations contained in paragraph 55 of plaintiff’s Complaint.

57.

This defendant lacks knowledge or information sufficient to form a belief as to the truth 

of the allegations contained in paragraph 56 of plaintiff’s Complaint.

58.

This defendant denies the allegations contained in paragraph 57 of plaintiff’s Complaint.

Case 3:06-cv-00622-WKW-SRW Document 39 Filed 12/20/2006 Page 13 of 22
14

59.

This defendant denies the allegations in paragraph 58 of plaintiff’s Complaint, including 

subparts (a) through (p), that relate to it. This defendant lacks knowledge or information 

sufficient to form a belief as to the truth of the remaining allegations contained in paragraph 58 

of plaintiff’s Complaint, including subparts (a) through (p)..

ANSWERING THE “WHEREFORE” PARAGRAPH FOLLOWING 

PARAGRAPH 58 OF PLAINTIFF’S COMPLAINT

This defendant denies the allegations of the “Wherefore” paragraph following paragraph 

58 of plaintiff’s Complaint and the prayer for relief contained therein, and further denies that

plaintiff is entitled to recover from this defendant in any manner or amount.

ANSWERING COUNT FOUR OF PLAINTIFF’S COMPLAINT

(NEGLIGENCE)

60.

This defendant incorporates by reference, as if set forth fully verbatim herein, its answers 

to paragraphs 1 through 58 as its response to paragraph 59.

61.

This defendant denies the allegations contained in paragraph 60 of plaintiff’s Complaint

that relate to it. This defendant lacks knowledge or information sufficient to form a belief as to 

the truth of the remaining allegations contained in paragraph 60 of plaintiff’s Complaint.

62.

This defendant admits that certain duties as arise as a matter of law, but denies those 

duties are as stated by plaintiff. This defendant denies the remaining allegations in paragraph 61 

of plaintiff’s Complaint that relate to it. This defendant lacks knowledge or information 

Case 3:06-cv-00622-WKW-SRW Document 39 Filed 12/20/2006 Page 14 of 22
15

sufficient to form a belief as to the truth of the remaining allegations contained in paragraph 61 

of plaintiff’s Complaint.

63.

This defendant denies the allegations in paragraph 62 of plaintiff’s Complaint, including 

subparts (a) through (e), that relate to it. This defendant lacks knowledge or information 

sufficient to form a belief as to the truth of the remaining allegations contained in paragraph 62 

of plaintiff’s Complaint, including subparts (a) through (e).

64.

This defendant denies the allegations in paragraph 63 of plaintiff’s Complaint that relate 

to it. This defendant lacks knowledge or information sufficient to form a belief as to the truth of 

the remaining allegations contained in paragraph 63 of plaintiff’s Complaint.

65.

This defendant denies the allegations in paragraph 64 of plaintiff’s Complaint, including 

subparts (a) through (p), that relate to it. This defendant lacks knowledge or information 

sufficient to form a belief as to the truth of the remaining allegations contained in paragraph 64 

of plaintiff’s Complaint, including subparts (a) through (p).

ANSWERING THE “WHEREFORE” PARAGRAPH FOLLOWING 

PARAGRAPH 64 OF PLAINTIFF’S COMPLAINT

This defendant denies the allegations of the “Wherefore” paragraph following paragraph 

64 of plaintiff’s Complaint and the prayer for relief contained therein, and further denies that

plaintiff is entitled to recover from this defendant in any manner or amount.

ANSWERING COUNT FIVE OF PLAINTIFF’S COMPLAINT

(WANTONNESS)

Case 3:06-cv-00622-WKW-SRW Document 39 Filed 12/20/2006 Page 15 of 22
16

66.

This defendant incorporates by reference, as if set forth fully verbatim herein, its answers 

to paragraphs 1 through 64 as its response to paragraph 65.

67.

This defendant denies the allegations in paragraph 66 of plaintiff’s Complaint that relate 

to it. This defendant lacks knowledge or information sufficient to form a belief as to the truth of 

the remaining allegations contained in paragraph 66 of plaintiff’s Complaint.

68.

This defendant admits that certain duties arise as a matter of law, but denies those duties 

are as stated by plaintiff. This defendant denies the remaining allegations in paragraph 67 of

plaintiff’s Complaint that relate to it. This defendant lacks knowledge or information sufficient

to form a belief as to the truth of the remaining allegations contained in paragraph 67 of 

plaintiff’s Complaint.

69.

This defendant denies the allegations in paragraph 68 of plaintiff’s Complaint, including 

subparts (a) through (e), that relate to it. This defendant lacks knowledge or information 

sufficient to form a belief as to the truth of the remaining allegations contained in paragraph 68 

of plaintiff’s Complaint. including subparts (a) through (e).

70.

This defendant denies the allegations in paragraph 69 of plaintiff’s Complaint that relate 

to it. This defendant lacks knowledge or information sufficient to form a belief as to the truth of 

the remaining allegations contained in paragraph 69 of plaintiff’s Complaint.

Case 3:06-cv-00622-WKW-SRW Document 39 Filed 12/20/2006 Page 16 of 22
17

71.

This defendant denies that it is in any way responsible for the subject accident or for 

plaintiff’s injuries. This defendant denies the allegations contained in paragraph 70 of plaintiff’s 

Complaint, including subparts (a) through (p), that relate to it. This defendant lacks knowledge 

or information sufficient to form a belief as to the truth of the remaining allegations contained in 

paragraph 70 of plaintiff’s Complaint.

ANSWERING THE “WHEREFORE” PARAGRAPH FOLLOWING 

PARAGRAPH 70 OF PLAINTIFF’S COMPLAINT

This defendant denies the allegations of the “Wherefore” paragraph following paragraph 

70 of plaintiff’s Complaint and the prayer for relief contained therein, and further denies that

plaintiff is entitled to recover from this defendant in any manner or amount.

SECOND DEFENSE

This defendant states that the sole proximate cause of the injuries and damages alleged in 

the Complaint was the actions, non-actions, or negligence of plaintiff or a person or persons 

other than this defendant for whose actions, non-actions, or negligence, this defendant is in no 

way liable. Plaintiff, therefore, is not entitled to recover from this defendant.

THIRD DEFENSE

This defendant states that the sole proximate cause of the injuries and damages alleged in 

the Complaint was the combination of actions, non-actions, or negligence of plaintiff and the 

actions, non-actions, or negligence of a person or persons other than this defendant, for whose 

actions, non-actions, or negligence this defendant is in no way liable. Plaintiff therefore, is not 

entitled to recover from this defendant.

Case 3:06-cv-00622-WKW-SRW Document 39 Filed 12/20/2006 Page 17 of 22
18

FOURTH DEFENSE

This defendant states that the injuries and damages alleged in the Complaint were caused 

by at least one intervening, superseding action for which this defendant is in no way liable. 

Plaintiff, therefore, is not entitled to recover from this defendant.

FIFTH DEFENSE

This defendant states that plaintiff may have failed to exercise ordinary care for his own 

safety. Plaintiff, therefore, is not entitled to recover from this defendant in this action.

SIXTH DEFENSE

The subject 1992 Nissan Sentra was not in the same condition at the time of the accident 

as it was when it left GM’s possession, custody and control, and the change in condition caused 

or substantially contributed to plaintiff’s alleged injuries and plaintiff’s alleged damages. 

Plaintiff, therefore, is not entitled to recover from this defendant in this action.

SEVENTH DEFENSE

The injuries and damages alleged by plaintiff may have been the proximate consequence 

of the misuse and/or abuse of the product for which this defendant is not responsible. Plaintiff, 

therefore, is not entitled to recover from this defendant in this action.

EIGHTH DEFENSE

This defendant states that plaintiff may have assumed the risks of his alleged injuries. 

Plaintiff, therefore, is not entitled to recover from this defendant in this action.

NINTH DEFENSE

In the event any of the injuries and damages alleged in the Complaint were caused, in 

whole or in part, by the negligent conduct of plaintiff, then the amount of damages otherwise 

recoverable by plaintiff should be extinguished or reduced in the proportion that the negligent 

Case 3:06-cv-00622-WKW-SRW Document 39 Filed 12/20/2006 Page 18 of 22
19

conduct attributable to plaintiff bears to the negligent conduct that caused the said injuries and 

damages. This defendant thus invokes the doctrines of comparative and/or contributory 

negligence in the defense of this action. Since this action was commenced only recently, this 

defendant does not presently possess all of the relevant facts concerning the negligent conduct, if 

any, of plaintiff.

TENTH DEFENSE

In the event any of the injuries to plaintiff were caused, in whole or in part, by the 

negligent conduct of third parties, or another defendant, then the amount of damages recoverable 

by plaintiff should be apportioned among this defendant, if at all, and such third parties, or 

another defendant, in accordance with their respective degrees of fault. Since this action was 

commenced only recently, this defendant does not presently possess all relevant facts concerning 

the negligent conduct, if any, of third parties, including without limitation any of the named 

defendants other than this defendant.

ELEVENTH DEFENSE

This defendant denies that the subject 1992 Nissan Sentra was defective or unreasonably 

dangerous and this defendant demands strict proof of any claim to the contrary.

TWELFTH DEFENSE

This defendant specifically denies liability under the Alabama Extended Manufacturer’s 

Liability Doctrine and this defendant demands strict proof of any claim to the contrary.

THIRTEENTH DEFENSE

Plaintiff’s claims for the recovery of punitive damages are in contravention of this 

defendant’s rights under each of the following constitutional provisions: (a) the Commerce 

Clause of Article I, Section 8 of the United States Constitution; (b) the Contracts Clause of 

Case 3:06-cv-00622-WKW-SRW Document 39 Filed 12/20/2006 Page 19 of 22
20

Article I, Section 10 of the United States Constitution; (c) the Excessive Fines Clause of the 

Eighth Amendment to the United States Constitution; (d) the Due Process Clause of the 

Fourteenth Amendment to the United States Constitution; (e) the Equal Protection Clause of the 

Fourteenth Amendment to the United States Constitution; (f) the federal constitutional 

prohibition against vague and over broad laws; (g) the Excessive Fines Clause of Article I, 

Section 15 of the Alabama Constitution; (h) the Ex Post Facto Clause of Article I, Section 22 of 

the Alabama Constitution; (i) the Contracts Clause of Article I, Section 22 of the Alabama 

Constitution; and (j) the Due Process Clause of Article I, Section 6 and/or 13 of the Alabama 

Constitution, on the following separate and several grounds:

1. The procedures fail to provide specific standards for 

determining whether an award of punitive damages is 

justified.

2. The procedures fail to provide specific standards for 

determining the amount of the award of punitive damages.

3. The procedures permit the imposition of an excessive fine 

in contravention of constitutional prohibitions.

4. The procedures permit the imposition of a fine that is 

criminal in nature without requiring a burden of proof 

commensurate with that in a 

criminal case.

5. The procedures permit multiple awards of punitive 

damages for the same alleged act.

6. The procedures fail to provide a clear and consistent 

appellate standard of review of an award of punitive 

damages.

7. The procedures permit the admission of evidence relative to 

punitive damages in the same proceedings during which 

liability and compensatory damages are determined.

Case 3:06-cv-00622-WKW-SRW Document 39 Filed 12/20/2006 Page 20 of 22
21

8. The procedures may result in the award of joint and several 

judgments against multiple defendants for different acts of 

wrongdoing.

9. The procedures fail to provide means for assessment of 

apportionment of punitive damages separately and 

severally against alleged joint tortfeasors.

FOURTEENTH DEFENSE

This defendant states that it is not indebted or liable to plaintiff in any manner or amount.

FIFTEENTH DEFENSE

This defendant reserves the right to plead additional affirmative defenses as they become 

known in the course of discovery.

WHEREFORE, having fully answered plaintiff’s Complaint, this defendant prays that the 

Complaint be dismissed with prejudice; that judgment be rendered in favor of this defendant; that 

plaintiff be assessed with all costs of this action; and that this defendant have such other and 

further relief as the Court deems just and proper.

This 20th day of December, 2006.

KING & SPALDING LLP

s/ Robert B. Friedman

Robert C. Khayat, Jr.

Alabama Bar No. ASB-9156-T73R

Andrew T. Bayman

Admitted pro hac vice

Robert B. Friedman

Admitted pro hac vice

1180 Peachtree Street 

Atlanta, Georgia 30309

(404) 572-4600

Attorneys for Defendant

NISSAN NORTH AMERICA, INC.

Case 3:06-cv-00622-WKW-SRW Document 39 Filed 12/20/2006 Page 21 of 22
22

CERTIFICATE OF SERVICE

THIS IS TO CERTIFY that I have this date served a true and correct copy of the 

foregoing ANSWER AND DEFENSES OF DEFENDANT NISSAN NORTH AMERICA, 

INC. TO PLAINTIFF’S FIRST AMENDED COMPLAINT with the Clerk using the 

CM/ECF system, which will automatically send email notification of such filing to the following 

attorneys of record:

K. Stephen Jackson

Joseph L. Tucker

Joel L. DiLorenzo

Jackson & Tucker, P.C.

Black Diamond Building

22229 First Avenue North

Birmingham, Alabama 35203

Walter B. Calton 

Calton & Rutland LLC 

PO Box 696 

Eufaula, AL 36027-0696

Charles Andrew Stewart, III

Angela Raines Rogers 

Bradley Arant Rose & White, LLP 

PO Box 1469 

401 Adams Avenue 

Montgomery, AL 36102-1469

This 20th day of December, 2006.

s/ Robert B. Friedman

Robert B. Friedman

Case 3:06-cv-00622-WKW-SRW Document 39 Filed 12/20/2006 Page 22 of 22