A 32 year-old father was killed in an ATV accident in Nebraska. The accident occurred at night and the driver of the ATV had been drinking. The deceased was a passenger on the ATV. The driver "popped a wheelie" with the ATV, hit a tent stake along side of the road and the ATV rolled and killed the passenger.

Under Nebraska law, assumption of the risk is a complete bar to recovery. Cory Whalen argued that the assumption of the risk only applied to risk directly linked to the operation of the ATV and not to the operator's unforeseeable negligence. Cory was able to negotiate a settlement for the family for nearly the policy limits.