1:18-cv-01347-MGL Date Filed 05/16/18 Entry Number 1 Page 1 of 9

IN THE UNITED STATES DISTRICT COURT

FOR THE DISTRICT OF SOUTH CAROLINA
AIKEN DIVISION

Barbara Matthews, as personal

representative for the estate of Ashlynn 1:18-cv-01347-MGL
C/A No. ______________
Nicole Overton,

Plaintiff,

v. COMPLAINT
(jury trial demanded)
Nissan Motor Co., Ltd., Nissan North
America, Inc.; & Nissan Technical Center
North America, Inc.,

Defendants.

FACTS COMMON TO ALL THEORIES OF LIABILITY

Plaintiff would respectfully show that:

1. She is the grandmother of Ashlynn Nicole Overton and duly appointed

personal representative of the Estate of Ashlynn Nicole Overton and is a resident of Aiken

County, South Carolina. Plaintiff’s decedent, Ashlynn Nicole Overton was a resident of

Aiken County, South Carolina at the time of her death. The Estate of Ashlynn Nicole

Overton is under probate in Aiken County, South Carolina.

2. Defendant Nissan Motor Co., Ltd. (“NML”) is a foreign Japanese

corporation. At all materials times NML and is a foreign Japanese corporation doing

business in this state, and in Aiken County, South Carolina. NML is a manufacturer of

automobiles sold in the United States, and in Aiken County, South Carolina, including the

Nissan Versa that is the subject of this action. NML may be served by registered mail

with the Summons and Complaint pursuant to Article 10(a) to The Convention on The

Service Abroad of Judicial or Extrajudicial Documents in Civil or Commercial Matters,

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commonly referred to as The Hague Convention, at Nissan Motor Co., Ltd., 17-1, Ginza

6-chome, Chuo-ku, Tokyo, 104-8023, Japan.

3. Defendant Nissan North America, Inc. (“NNA”) is a corporation organized

and existing under the laws of the State of California and does business in this state.

NNA is the American subsidiary of Defendant NML. NNA was and is engaged in the

business of manufacturing, designing, testing, inspecting, distributing and/or selling motor

vehicles in the United States and in Aiken County, South Carolina. NNA may be served

with the Summons and Complaint through its registered agent: Corporation Service

Company, 1703 Laurel Street, Columbia, SC 29201.

4. Defendant Nissan Technical Center North America, Inc. (“NTCNA”) is a

corporation organized and existing under the laws of the State of Delaware and does

business in this state. NTCNA was and is engaged in the business of manufacturing,

designing, testing, inspecting, distributing and/or selling motor vehicles in the United

States and in Aiken County, South Carolina. NTCNA may be served with the Summons

and Complaint through its registered agent: Corporation Service Company, 251 Little

Falls Drive, Wilmington, DE 19808. The Nissan entities are collectively referred to as

“Nissan”.

5. This claim is brought under S.C. Code 15-51-10, et seq., for the benefit of

the statutory beneficiaries of Ashlynn Nicole Overton, and S.C. Code §15-5-90, et seq.,

for the benefit of her estate.

6. Plaintiff’s grandmother, Barbara Matthews, purchased the 2016 Nissan

Versa for the use of Ashlynn Nicole Overton, VIN Number 3N1CN7AP5GL884293.

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7. The vehicle was purchased by Plaintiff from Correct Connect Automotive,

North Augusta, South Carolina.

8. The vehicle described above was in substantially the same condition at the

time of the subject crash as it was when it left the possession and control of Defendants.

9. On July 31, 2017, Ashlynn Nicole Overton was driving the above-described

vehicle north on Highway 25 in Aiken County, South Carolina. She had two passengers

in the vehicle with her, Carlee Jennings and Karli Blackwell.

10. A vehicle driven by Stephanie McCluggage was also driving north on

Highway 25 at the same time and place. Ms. McCluggage then swerved into the lane

that Ms. Overton was driving in and struck the front passenger bumper of Ms. Overton’s

vehicle.

11. Ms. Overton’s vehicle then struck the curb and rolled over coming to final

rest in the southbound lane. The restraint system was insufficient in Ms. Overton’s vehicle

and did not sufficiently restrain and otherwise protect Ashlynn Nicole Overton.

12. As a result of the actions of the Defendants as set forth herein, Ashlynn

Nicole Overton suffered damages in the nature of:

a. conscious pain and suffering;

b. mental anguish and emotional distress;

c. permanent disfigurement and disability;

d. medical expenses;

e. lost income and loss of earning capacity;

f. impairment of health and bodily efficiency; and

g. loss of enjoyment of life.

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JURISDICTION

13. This Court has subject matter jurisdiction over this action under 28 U.S.C.

§ 1332 because the matter in controversy exceeds $75,000, exclusive of interest and

costs, and is a civil action in which the parties are citizens of different states.

14. This Court has specific personal jurisdiction over NML, NNA and NTCNA

because they have purposefully availed themselves of the privilege of conducting

activities in South Carolina, and Plaintiff’s damages arise out of or relate to those

activities. These Defendants purposefully placed their vehicles into the stream of

commerce within South Carolina and throughout the United States, and placed Nissan

vehicles into the stream of commerce with the awareness that the Versa was being

marketed in South Carolina.

15. NML, NNA and NTCNA are each a manufacturer, distributor, importer and

provider of passenger vehicles, technical services, dealership support, financial services,

regulatory liaison services, legal services, product warranty and recall services, and/or

promotional services in support of Nissan’s strategic plan to increase sales in all of the

United States, including South Carolina.

16. NML, NNA and NTCNA each design, manufacture, service, finance,

promote, export, provide warranty support, perform recall obligations, and/or assure

compliance with regulatory standards, laws and regulations for their vehicles, including

those sold in the United States.

17. NML, NNA and NTCNA recognize that the market for their product, Nissan

passenger vehicles, is global. They acknowledge and calculate that this global market

includes the United States and each State in the United States. They are also aware and

intend that their product will be used in the United States and each State in the United

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States. They are aware and intend that their product will be used extensively in each

State and know that the vehicles will become involved in traffic accidents in each State.

They are aware of the importance of automobile design to the potential for injury and that

defects in their vehicles can and will result in injuries. They promote and advertise their

commitment to safety to potential customers in the United States, including South

Carolina.

18. Federal Motor Vehicle Safety Standards (FMVSS’s) create safety standards

that are applicable to Nissan vehicles and apply to Nissan vehicles in each and every

State. As part of its specific plan to increase global sales with a specific focus on the

United States, Nissan attempted to produce vehicles that comply with FMVSS’s.

19. NML and NNA make all final decisions on recalling defective vehicles in the

United States, including South Carolina, and are the agents communicating recalls and

Tread Act decisions to the United States regulatory bodies.

20. NML and NNA maintain websites for the purpose of promoting and selling

vehicles to customers in the United States, and every State therein, including South

Carolina.

21. NML and NNA allocated to existing dealerships the right to promote and

advertise Nissan passenger vehicles to South Carolina residents and in South Carolina

media.

22. Maintaining jurisdiction over NML, NNA and NTCNA does not work a

constitutionally prohibited hardship or a denial of due process.

VENUE

23. Venue is proper in this District under 28 U.S.C. § 1391 because a

substantial part of the events or omissions giving rise to Plaintiff’s claims occurred in this

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District. Plaintiff resides in this District and the vehicle was purchased in this District for

use in this District. NML and NNA has marketed, advertised, sold, and leased vehicles

within this District.

SURVIVAL ACTION: S.C. CODE § 15-5-90

24. Ashlynn Nicole Overton, during the course of the subject crash, suffered

injury and damages caused by the actionable conduct of defendants, including but not

limited to conscious pain and suffering; mental and emotional distress; and actual and

consequential damages.

25. The causes of action for Ashlynn Nicole Overton’s injuries and damages

survive her death and pass to her estate.

WRONGFUL DEATH ACTION: S.C. CODE § 15-51-20

26. As a direct and proximate result of Defendants’ conduct, Ashlynn Nicole

Overton met her untimely death.

27. Plaintiff and the statutory beneficiaries of decedent’s estate have

experienced great mental anguish, suffering, grief, sorrow, bereavement, and loss of

society, advice, companionship, consortium, comfort, protection, and pecuniary benefit

from the loss of decedent.

28. Under the South Carolina Wrongful Death Act, Plaintiff is entitled to

judgment against Defendants for an award of actual damages in an amount to be

determined by the trier of fact and for any additional relief the court deems just and proper.

FOR A FIRST THEORY OF LIABILITY

(Strict Liability)

29. The Nissan Versa purchased by Plaintiff for the use of her granddaughter,

Ashlynn Nicole Overton, and the component parts, including the side curtain air bags,

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utilized for the manufacture of the vehicle were designed, manufactured, assembled,

tested, distributed, sold and leased by the Defendants in a defective condition

unreasonably dangerous to persons using it for its foreseeable and intended purposes.

30. The Nissan Versa was in substantially the same condition at the time of the

accident as it was when it left the exclusive possession and control of the Defendants.

31. As a direct and proximate result of the Defendants’ strict liability, the Plaintiff

has been injured and damaged as set forth above.

FOR A SECOND THEORY OF LIABILITY

(Breach of Express Warranty)

32. At one time or various times, Defendants expressly represented through

advertising that said Nissan Versa was safe for use, fit for the purpose intended, and of

merchantable quality by warranting that said the Versa was a safe and effective means

of transportation.

33. The said Versa did not conform to the affirmation made by the Defendants

and upon which Plaintiff relied.

34. As a direct and proximate result of the Defendants’ breach of express

warranty, the Plaintiff has been injured and damaged as set forth above.

FOR A THIRD THEORY OF LIABILITY

(Breach of Implied Warranties)

35. In manufacturing, labeling, promoting, distributing, leasing and otherwise

placing said Versa into the stream of interstate commerce, the Defendants impliedly

warranted that it was merchantable and fit for the particular purpose for which it was sold.

36. The Versa was in substantially the same condition at the time of the

accident as it was when it left the exclusive control of Defendants.

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37. The Versa was not merchantable or fit for the particular purpose for which

it was sold in that the vehicle was designed or manufactured in such a manner that

rendered it unsafe in a foreseeable accident.

38. As a direct and proximate result of the Defendants’ breach of implied

warranty of merchantability, the Plaintiff has been injured and damaged as set forth

above.

FOR A FOURTH THEORY OF LIABILITY

(Negligence)

39. The Defendants were negligent, careless, reckless, willful, and / or wanton

in:

a. failing to properly design the vehicle;

b. failing to properly assemble the vehicle;

c. failing to properly test the vehicle;

d. placing a defective and unreasonably dangerous product into the

stream of commerce;

e. failing to design the side curtain airbags to prevent occupants from

being ejected in rollover accidents;

f. failing to design the restraint system and airbag systems of the Versa

in a manner to properly restrain and protect its occupants;

g. failing to adequately warn Ashlynn Nicole Overton, other consumers,

or the public in general, about the unsafe and defective condition and

design of the vehicle so that individuals like Ashlynn Nicole Overton

could make informed and prudent decisions regarding traveling or

riding in such vehicles; and

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h. failing to implement safe, technologically feasible, and economically

practical design alternatives which would have mitigated or cured the

design defects noted above.

40. As a direct and proximate result of the Defendants’ negligence,

carelessness and recklessness, the Plaintiff has been injured and damaged as above

stated.

WHEREFORE, the Plaintiff prays for judgment against the Defendants for actual

damages in a sum sufficient to compensate her for her injuries and for punitive damages

in an amount to be ascertained by a jury, for the costs and disbursements of this action,

and for such other and further relief as may appear just and proper.

Respectfully Submitted,

RICHARDSON, PATRICK, WESTBROOK &

BRICKMAN, LLC

s/ Chris Moore _
Chris Moore (FBN 10445)
2700 Middleburg Drive
Suite 220
Columbia, South Carolina 29204
Telephone: (803) 541-7857
Facsimile: (803) 541-9625
E-mail: cmoore@rpwb.com

May 16, 2018 Attorneys for Plaintiff