Our Client v Nissan

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Our Client v Nissan

Our Client v Nissan. Confidential settlement for claimed suspension defect, rollover, and roof crush of an Xterra SUV.

This products liability action involved allegations of design defects in a 2002 Nissan Xterra 4WD sports utility vehicle that allegedly caused a rollover, roof crush, and resulting quadriplegia. Plaintiffs’ contended that our client (at age 39), a former marathon runner, triathlete and bodybuilder, was driving on Interstate 5 with his family when rubber tire road debris struck the parking brake cable on the Xterra, activating the right rear parking brake and causing a loss of control. Plaintiffs’ contended that the roof of the Xterra buckled over our client’s head in the rollover, causing a C5-6 compression/flexion fracture and subluxation, spinal cord damage, and permanent paralysis.

Plaintiffs’ contended that the parking brake cable on the 2002 Nissan Xterra was routed in front of the rear axle rather than behind it for protection from road debris, like other vehicles and other Xterra model years. Discovery revealed that the 2000 and 2001 model year Xterra had the parking brake cable above and behind the rear axle, entering the brake near the top of the right rear wheel’s backing plate, up and away from the roadway. Nissan changed its location starting in model year 2002 resulting in the cable entering the brake backing plate below and in front of the axle, in close proximity to the leaf spring suspension and the roadway surface.

Defendants’ disputed that the accident happened as alleged, disputed the allegations of design defect, contended that the evidence proved that plaintiff’s neck injury was sustained when he dove into the roof during the roll sequence, and contended that the facts proved that the sole cause of the rollover was Rob Rose’s negligent driving.

Plaintiffs’ Allegations:

Plaintiffs alleged that the SUV was defective in design under the ordinary consumer expectation test and the risk/benefit test of Barker v Lull Engineering (1978) 20 Cal.3d 413.

As to the consumer expectation test, plaintiffs’ alleged that an ordinary consumer would not expect a sudden isolated brake application at freeway speeds, which was caused in this case because the parking brake cable was positioned where it was exposed to road debris which struck the unguarded cable and caused the right rear brake to apply. Further, plaintiffs alleged that an ordinary consumer would not expect the degree of roof intrusion during a rollover as occurred in this case.

As to the risk/benefit test, plaintiffs alleged that the risk of danger due to positioning the park brake cable close to the road surface and within inches of a large gap in the leaf spring suspension outweighed any benefits of this design. In fact, discovery revealed that during the first two years of the Xterra’s existence, the park brake cable was routed above and behind the rear axle, thus protected by its location. Starting in the 2002 model year the cable was re-routed to its allegedly hazardous location, which was done during a re-design to a foot pedal from a hand activated park brake system, which change resulted in the elimination of certain component parts and a savings to Nissan of $45 per vehicle, according to plaintiffs’ interpretation of Nissan documents.

Plaintiffs further alleged that the risk of not offering Electronic Stability Control outweighed any benefits of not having it.

Defendants’ Allegations:

Defendants alleged that our client was the sole cause of the rollover due to negligent inattention and handling, that the vehicle was not defective in design because it met all Federal Motor Vehicle Safety Standards, and there had never been a similar loss of control due to the park brake cable sustaining damage from road debris.

Finally, defendants’ contended that plaintiffs’ neck injury was due to him diving into the roof during the roll sequence and not due to the roof crush.

Result: Plaintiff demanded $20 million, and the other plaintiff demanded $4 million. The parties have agreed to an amicable resolution of the case that is satisfactory to the Plaintiffs and satisfactory to Nissan.

Jeffrey R. Smith

Jeffrey R. Smith

Managing Partner

Robert B. Waldsmith

Robert J. Waldsmith

Partner, 1999

William B. Smith

William B. Smith

Partner, 1978

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