Date: 08-02-2012

Case Style: Clifton Reser v. Bobcat Company

Case Number: CJ-2009-2871

Judge: Tracy Schumacher

Court: District Court, Cleveland County, Oklahoma

Plaintiff's Attorney: Anthony Lorinzo Bonner, Jr., Cary D. Dooley and Jason E. Marshall, Cathcart & Dooley, Oklahoma City, Oklahoma

Defendant's Attorney: Cary E. Hiltgen, Lance Chandler Cook, J. R. Baker, Hiltgen & Brewer, P.C.

Description: COME NOW the Plaintiff, Clifton Reser, and for their cause of action against the Defendant, Bobcat Company, alleges and states as follows:

I.

The Plaintiff, Clifton Reser, resides in Cleveland County, State of Oklahoma.

II.

The Defendant, Bobcat Company, is a corporation doing business in Oklahoma.

III.

That the amount of controversy exceeds Ten Thousand Dollars ($10,000).

IV

That on May 20, 2008, a fire occurred which damaged the property of Clifton Reser. The fire caused extensive damage to the structure and personal property of the Plaintiff.

V.

The fire was directly caused by a defect in a 5250 Bobcat Skid-Steer Loader manufactured by Defendant, Bobcat Company.

VI.

That the 5250 Bobcat Skid-Steer Loader was unsafe, unreasonably dangerous and defective at the time it was designed, manufactured, packaged, distributed, sold andlor placed into the stream of commerce.

VII.

That as a direct and proximate result of the defect in this product, the Plaintiffs sustained a substantial property loss.

VIII.

That as a result of the defect in the product manufactured by Defendant, Bobcat Company, the Plaintiff, Clifton Reser, seeks actual damages against Defendant, Bobcat Company, in an amount in excess of Ten Thousand Dollars ($10,000).

IX.

That as a result of the reckless acts of Defendant, Bobcat Company, the Plaintiff Clifton Reser, seeks punitive damages against Defendant, Bobcat Company, in an amount in excess of Ten Thousand Dollars ($10,000).

WHEREFORE, Plaintiff prays that judgment be entered in their favor and against the Defendant, Bobcat Company for actual and punitive damages in an amount in excess of Ten Thousand Dollars ($10,000), attorneys fees and costs, together with and such other relief as the court may deem just and proper.

ANSWER TO PLAINTIFF’S AMENDED PETITION

COMES NOW the Defendant, Bobcat Company, an unincorporated business unit of Clark Equipment Company, (improperly identified as “Bobcat Company�), (hereinafter “Defendant�) for its Answer to Plaintiffs Amended Petition in the above entitled action, alleges and states as follows:

1. This Defendant is without knowledge or information sufficient to admit or deny the allegations contained in Paragraph 1 of Plaintiffs Amended Petition and therefore denies the same.

2. This Defendant denies the allegations in Paragraph 2 of Plaintiffs Amended Petition, and demands strict proof thereof.

3. This Defendant is without sufficient information to admit or deny the allegations contained in Paragraph 3 of Plaintiffs Amended Petition and therefore denies the same, and demands strict proof thereof.

4. This Defendant is without sufficient information to admit or deny the allegations contained in Paragraph 4 of Plaintiff’s Amended Petition and therefore denies the same, and demands strict proof thereof.

5. This Defendant admits that it assembled the Model S250 using component parts designed and manufactured by both this Defendant and outside vendors, this Defendant denies the remaining allegations in Paragraph 5 of Plaintiff’s Amended Petition, and demands strict proof thereof.

6. This Defendant denies the allegations in Paragraphs 6-9 of Plaintiffs First Cause of Action, Liability of Plaintiffs Amended Petition, and demands strict proof thereof.

7. This Defendant denies the allegations in Paragraphs 10-13 of Plaintiffs Second Cause of Action, Breach of Implied Warranty of Merchantability of Plaintiff’s Amended Petition.

8. This Defendant denies the allegations in Paragraphs 14-16 of Plaintiff’s Third Cause of Action, Breach of Express Warranty of Plaintiffs Amended Petition.

9. This Defendant denies that Plaintiff is entitled to the relief as stated in unnumbered Paragraph 17 of Plaintiff’s Amended Petition.

AFFIRMATIVE DEFENSES

1. Plaintiffs Amended Petition fails to state a claim upon which relief may be granted.

2. Plaintiff was negligent and his contributory/comparative negligence reduces and/or bars his recovery.

3. The damages sustained by the Plaintiff, if any, were results of the expressed prohibitive use of the product by the Plaintiff.

4. The product that Plaintiff claims is defective was being misused at the time of the accident.

5. This Defendant denies that the product in question was in any way defective or hazardous and avers that said product was, in all respects, properly designed, manufactured, distributed, supplied, tested, inspected, and/or sold. This product departed Defendant’s control equipped with all elements necessary to make it safe and contain no elements making it unsafe, and properly equipped with all necessary warnings and instructions for correct and safe use, operation, maintenance, repair, and servicing.

6. Plaintiff has failed to mitigate his damages as required by Oklahoma law.

7. This Defendant alleges that any defect, if any, was caused solely and wholly by the misuse, abuse, alteration, modification, damage, or improper assembly, maintenance, repair, servicing, and/or installation of the product and/or fault of others now unknown.

8. This Defendant provided appropriate product information and warnings to sophisticated purchasers/users.

9. The design of the subject equipment was consistent with “state of the art,� at the time of its design.

1O.The product complied with all applicable codes, standards, or regulations adopted or promulgated by the United States or any agency of the United States or state agency at the time of its sale.

11.The Plaintiffs recovery is barred by the economic loss doctrine.

12.This Defendant provided a limited express written warranty for its equipment that excludes the implied warranty of merchantability and fitness for a particular purpose.

13.This Defendant provided a limited express written warranty for its equipment that excludes liability for consequential or incidental damages.

14. Plaintiff failed to provide timely notice to this Defendant of any warranty claims.

15.This Defendant reserves the right to add other affirmative defenses as they become known in this matter through discovery.

WHEREFORE, premises considered, Bobcat Company, an unincorporated business unit of Clark Equipment Company, prays that the Plaintiff take nothing from his Amended Petition and judgment be entered on behalf of Defendant on all claims and for any and all further relief to which Defendant is entitled to, but not limited to, its costs and reasonable attorney fee.

* * *

Outcome: COMES NOW, the Plaintiff, Clifton Reser, by and through his undersigned counsel in order to dismiss the above case WITH PREJUDICE. Each Party is to pay its own attorneys fees and costs.

Plaintiff's Experts:

Defendant's Experts:

Comments: