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Over the last week, I’ve looked at some of the dangers inherent in many forms of nail guns.  Today, I want to address what claims can be brought for those injuries.  The obvious claims are those against people or companies other than the manufacturer.  For example, if you’re shot with a nail gun by someone else, you obviously have a negligence claim against that person or that person’s employer. 

But those claims are obvious.  The more challenging claim is the products liability claim against the manufacturer.  In Texas, there are generally three ways to file a product liability claim:  (1) a manufacturing defect claim; (2) a marketing defect claim; and (3) a design defect claim.  A manufacturing claim is based on an imperfection in a product that deviates from the product’s intended design.  The classic example is a chair that was designed safely but is unstable because one of the legs was not fastened to the chair properly.  There will be some nail gun cases based on this argument, but frankly, most nail guns are built exactly according to specifications.

Marketing defect claims are based on the warnings and instruction that are provided with the product.  These claims naturally change from  manufacturer to manufacturer.

The most interesting claim, in my opinion, is the design defect claim.  This claim is based on the argument that the nail gun was made according to its design, but that the design itself is dangerous.  Well, how do you decide that?  In Texas, a jury is asked to decide whether a product has a design defect by answering the following question:

Was there a design defect in the nail gun at the time it left the possession of the defendant that was a producing cause of the injury in question?

A “design defect” is a condition of the product that renders it unreasonably dangerous as designed, taking into consideration the utility of the product and the risk involved in its use. For a design defect to exist there must have been a safer alternative design.

“Safer alternative design” means a product design other than the one actually used that in reasonable probability —

(1) would have prevented or significantly reduced the risk of the injury in question without substantially impairing the product’s utility and (2) was economically and technologically feasible at the time the product left the control of the defendant by the application of existing or reasonably achievable scientific knowledge.

Answer “yes” or “no”   _______________________

Most other states have similar claims based on similar elements.

In this case, the plaintiff would argue that designing that contact designed nail guns are unreasonably safe and defective now that the technology exists for sequential guns.  Defendants would argue that contact nail guns aren’t unreasonably safe and that changing it to a sequential gun would substantially impair the nail gun’s utility.

Frankly, the cases have been mixed.  There are numerous verdicts around the country finding that nail guns are defective.  On the other hand, there are numerous verdicts finding that there are no defects.

Probably the most publicized plaintiff’s verdict was a $3.4 million verdict on behalf of a man who had a nail embedded in his brain while using a contact trip gun. 

This is my last in my series of nail gun posts, but you can find more information on nail gun lawsuits throughout Injuryboard, including the following:

    Injuryboard national desk

    Des Moines personal injury lawyer Steve Lombardi

     Lansing personal injury lawyer David Mittleman

    Milwaukee personal injury lawyer David Lowe    

    Chicago personal injury lawyer Barry Doyle

If you have a nail gun claim near one of these guys, feel free to call them.  They’re all guys that I’ve been lucky enough to spend a little time with and get to know, and I suspect they’ll take care of you should you need their services. 



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