DEMAND FOR SETTLEMENT - PRODUCTS LIABILITY
STATE OF ARKANSAS
[FIRM NAME]
Attorneys at Law
[Street Address]
[City, Arkansas ZIP]
Telephone: [Phone]
Facsimile: [Fax]
Email: [Email]
Licensed in the State of Arkansas
DATE: [Date]
VIA CERTIFIED MAIL, RETURN RECEIPT REQUESTED
AND FIRST-CLASS MAIL
[General Counsel / Risk Management / Claims Representative]
[Manufacturer / Distributor / Retailer Name]
[Street Address]
[City, State ZIP]
RE: PRODUCTS LIABILITY CLAIM - SETTLEMENT DEMAND
Claimant: [Client Full Name]
Date of Incident: [Date]
Product: [Product Name, Model Number, Serial Number]
Manufacturer: [Manufacturer Name]
Purchase Date/Location: [Date / Retailer Name]
Claim Number: [If assigned]
Dear [Recipient Name]:
This firm represents [Client Name] in connection with serious personal injuries caused by a defective [Product Name] designed, manufactured, distributed, and/or sold by your company. This letter constitutes our formal demand for settlement pursuant to Arkansas law.
I. ARKANSAS-SPECIFIC LEGAL FRAMEWORK
A. Governing Law
Arkansas products liability claims are governed by common law principles and the Arkansas Civil Justice Reform Act. Arkansas adopted strict products liability in Sterner Aero AB v. Page Airmotive, Inc., 499 F.2d 709 (8th Cir. 1974) (applying Arkansas law), following Section 402A of the Restatement (Second) of Torts.
B. Theories of Liability Recognized
Arkansas recognizes the following products liability theories:
1. Strict Products Liability:
Arkansas recognizes strict products liability for defective products that are unreasonably dangerous to the user or consumer. West v. Searle & Co., 305 Ark. 33, 806 S.W.2d 608 (1991).
2. Negligence:
Traditional negligence claims for negligent design, manufacture, testing, and failure to warn. Gibson v. ITT Research Inst., 335 Ark. 573, 984 S.W.2d 774 (1998).
3. Breach of Warranty:
Express and implied warranty claims under Arkansas's version of the UCC, Ark. Code Ann. Sections 4-2-313 through 4-2-315.
C. Statute of Limitations
Under Ark. Code Ann. Section 16-116-103, the statute of limitations for products liability claims is three (3) years from the date of injury or when the injury was or should have been discovered. This claim arises from an injury that occurred on [Date], and therefore the limitations period expires on [Expiration Date].
D. Statute of Repose
Arkansas does not have a general products liability statute of repose. However, for blood and blood products, there is a 5-year repose period under Ark. Code Ann. Section 16-116-104.
E. Comparative Fault
Arkansas follows modified comparative fault under Ark. Code Ann. Section 16-64-122. A plaintiff's recovery is reduced by their percentage of fault, but recovery is completely barred if the plaintiff is 50% or more at fault.
Our client bears no responsibility for this incident: [Describe why]
F. Joint and Several Liability
Arkansas has modified joint and several liability under Ark. Code Ann. Section 16-55-201. Defendants are:
- Jointly and severally liable if the plaintiff's fault is less than the fault of any defendant
- Severally liable only if the plaintiff's fault equals or exceeds that of any individual defendant
- Parties acting in concert remain jointly and severally liable
G. Punitive Damages
Punitive damages are available in Arkansas upon proof that the defendant knew or should have known that their conduct would naturally and probably result in injury. Advocat, Inc. v. Sauer, 353 Ark. 29, 111 S.W.3d 346 (2003).
Caps on Punitive Damages (Ark. Code Ann. Section 16-55-208):
- Greater of 3x compensatory damages or $250,000
- If defendant acted intentionally: Greater of 3x compensatory or $1,000,000
- No cap if defendant acted with specific intent to cause harm
II. PRESERVATION OF EVIDENCE - SPOLIATION WARNING
YOU ARE HEREBY DIRECTED TO IMMEDIATELY PRESERVE ALL EVIDENCE relating to this product and claim, including but not limited to:
Product-Related:
- [ ] The subject product and all component parts
- [ ] All exemplar products of the same make and model
- [ ] Design documents, specifications, and engineering drawings
- [ ] Manufacturing records for the subject product
- [ ] Quality control records and inspection reports
- [ ] Testing data and results (pre-market and post-market)
- [ ] Safety assessments and risk analyses
- [ ] FMEA (Failure Mode and Effects Analysis) documents
- [ ] All versions of owner's manuals, instructions, warnings, and labels
Regulatory and Complaints:
- [ ] Communications with FDA, CPSC, NHTSA, or other regulatory agencies
- [ ] Consumer complaints involving this product
- [ ] Prior claims and lawsuits involving this product
- [ ] Recall notices and service bulletins
Arkansas courts recognize spoliation of evidence as grounds for adverse inference instructions. Goff v. Harold Ives Trucking Co., 342 Ark. 143, 27 S.W.3d 387 (2000). Destruction of evidence may result in severe consequences at trial.
III. THE DEFECTIVE PRODUCT
A. Product Identification
| Product Information | Details |
|---|---|
| Product Name | [Full Product Name] |
| Manufacturer | [Manufacturer Name and Address] |
| Model Number | [Model Number] |
| Serial Number | [Serial Number] |
| Date of Manufacture | [Date, if known] |
| Lot/Batch Number | [If known] |
| Date of Purchase | [Purchase Date] |
| Retailer/Seller | [Retailer Name and Location] |
| Purchase Price | $[Amount] |
B. Chain of Distribution
| Entity | Role | Contact |
|---|---|---|
| [Manufacturer Name] | Manufacturer | [Address] |
| [Component Supplier] | Component Manufacturer | [Address] |
| [Distributor Name] | Distributor | [Address] |
| [Retailer Name] | Retailer/Seller | [Address] |
IV. THE DEFECT
A. Nature of Defect - Design Defect
Arkansas applies both the consumer expectation test and the risk-utility test for design defects.
Consumer Expectation Test: A product is defective in design if it is more dangerous than an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. Stilwell v. Smith & Nephew, Inc., 482 F.3d 1187 (8th Cir. 2007) (applying Arkansas law).
Risk-Utility Test: When consumer expectations alone are insufficient, Arkansas courts balance the risk of harm against the utility of the design.
The [Product Name] contains a design defect in that:
[Detailed description of design defect]
Alternative Safer Design:
A feasible alternative design existed that would have prevented this injury:
[Describe alternative design]
B. Nature of Defect - Manufacturing Defect
A manufacturing defect exists when the specific product departs from its intended design, making it more dangerous than intended.
The product at issue:
[Describe manufacturing defect if applicable]
C. Nature of Defect - Failure to Warn
Under Arkansas law, a manufacturer has a duty to warn of dangers that are known or reasonably foreseeable. A product may be defective due to inadequate instructions or warnings. West v. Searle & Co., 305 Ark. 33, 806 S.W.2d 608 (1991).
The warnings provided were inadequate because:
[Describe warning deficiencies]
V. THE INCIDENT
A. How the Injury Occurred
On [Date], at approximately [Time], our client was [describe what client was doing with the product]:
[Detailed narrative of the incident]
B. Foreseeable Use
Our client was using the product in a manner that was:
- [ ] Intended by the manufacturer
- [ ] Foreseeable by the manufacturer
- [ ] In accordance with provided instructions
C. Comparative Fault Analysis
Our client exercised reasonable care at all times and bears no responsibility for this incident. Under Arkansas law, a plaintiff's recovery is barred only if they are 50% or more at fault. Our client was not at fault in any degree.
VI. LIABILITY ANALYSIS
A. Strict Products Liability
All elements of strict products liability under Arkansas law are satisfied:
-
Defective Condition: The product contained a [design / manufacturing / warning] defect as described above.
-
Unreasonably Dangerous: The product was dangerous beyond the expectations of the ordinary consumer.
-
Defect Existed at Time of Sale: The defect was present when the product left the defendant's control.
-
Causation: The defect was the proximate cause of our client's injuries.
-
Damages: Our client has suffered substantial damages as detailed herein.
B. Negligence
Your company breached its duty of care by:
-
Negligent Design: Designing a product with an unreasonably dangerous characteristic when safer alternatives existed.
-
Negligent Manufacture: Failing to implement adequate quality control procedures.
-
Negligent Failure to Warn: Failing to provide adequate warnings of known dangers.
-
Negligent Testing: Failing to adequately test the product before sale.
C. Breach of Warranty
Express Warranty (Ark. Code Ann. Section 4-2-313):
Your company expressly warranted that [describe warranty]. This warranty was breached.
Implied Warranty of Merchantability (Ark. Code Ann. Section 4-2-314):
The product was not fit for its ordinary purpose due to the defect.
VII. PRIOR KNOWLEDGE OF DEFECT
Evidence of your company's prior knowledge of this defect includes:
- [ ] [Number] prior complaints regarding this defect
- [ ] [Number] prior injuries from this defect
- [ ] Recall or service bulletins issued
- [ ] Internal documents acknowledging the defect
Such prior knowledge supports an award of punitive damages, as it demonstrates that your company knew or should have known that its conduct would naturally and probably result in injury.
VIII. INJURIES AND DAMAGES
A. Injuries Sustained
As a direct and proximate result of the defective product, our client sustained:
Physical Injuries:
- [ ] [Injury 1]
- [ ] [Injury 2]
- [ ] [Injury 3]
Surgeries and Procedures:
- [ ] [Surgery 1]
- [ ] [Surgery 2]
Permanent Conditions:
- [ ] [Permanent condition 1]
- [ ] [Permanent condition 2]
B. Medical Expenses
| Provider | Service | Amount |
|---|---|---|
| [Provider 1] | [Service] | $[Amount] |
| [Provider 2] | [Service] | $[Amount] |
| TOTAL PAST MEDICAL | $[Total] |
Future Medical Expenses: $[Amount]
C. Lost Wages and Earning Capacity
| Category | Amount |
|---|---|
| Past Lost Wages | $[Amount] |
| Future Lost Earning Capacity | $[Amount] |
| TOTAL LOST WAGES | $[Total] |
D. Non-Economic Damages
Arkansas has no cap on non-economic damages for personal injury
- Physical pain and suffering
- Emotional distress
- Disfigurement
- Loss of enjoyment of life
E. Summary of Damages
| Category | Amount |
|---|---|
| Past Medical Expenses | $[Amount] |
| Future Medical Expenses | $[Amount] |
| Past Lost Wages | $[Amount] |
| Future Lost Earning Capacity | $[Amount] |
| TOTAL ECONOMIC DAMAGES | $[Subtotal] |
| Pain and Suffering | $[Amount] |
| Disfigurement | $[Amount] |
| Emotional Distress | $[Amount] |
| Loss of Enjoyment of Life | $[Amount] |
| TOTAL NON-ECONOMIC DAMAGES | $[Subtotal] |
| TOTAL COMPENSATORY DAMAGES | $[Total] |
F. Punitive Damages
Your company's conduct warrants punitive damages under Arkansas law. Your company knew or should have known that its conduct would naturally and probably result in injury, yet continued to market this defective product.
IX. SETTLEMENT DEMAND
Based upon the clear liability of your company under Arkansas law and the severe injuries suffered by our client, we hereby demand:
$[DEMAND AMOUNT]
This demand will remain open for forty-five (45) days from the date of this letter, expiring at 5:00 p.m. Central Time on [Expiration Date].
X. CONCLUSION
This case involves a defective product that caused serious, permanent injuries to our client. Your company is strictly liable under Arkansas products liability law.
If this matter cannot be resolved, we are prepared to file suit in the Circuit Court of [County] County, Arkansas, and to pursue this matter through trial.
Please contact me at your earliest convenience.
Respectfully submitted,
[FIRM NAME]
By: _________________________________
[Attorney Name]
Arkansas Bar ID No. [Number]
Attorney for [Client Name]
ENCLOSURES: [List]
cc: [Client Name]
[File]
ARKANSAS PRODUCTS LIABILITY PRACTICE NOTES
-
[ ] Modified Comparative Fault (49% Bar): Plaintiff's recovery is barred if 50% or more at fault. Carefully evaluate all facts.
-
[ ] No Statute of Repose: Arkansas has no general products liability statute of repose (except for blood products).
-
[ ] Punitive Damages Cap: Greater of 3x compensatory or $250,000 (higher limits for intentional conduct).
-
[ ] Joint and Several Liability: Modified system - depends on relative fault of plaintiff vs. defendants.
-
[ ] Expert Testimony: Required to establish defect and causation in most cases. Ark. R. Evid. 702.
-
[ ] Economic Loss Rule: Arkansas recognizes the economic loss rule - purely economic losses require contract-based claims.
-
[ ] Retailer Liability: Retailers may be strictly liable as part of the chain of distribution.
-
[ ] Venue: Circuit Court in county where injury occurred or where defendant resides or does business.
-
[ ] Successor Liability: Arkansas follows traditional corporate successor liability rules with exceptions for mere continuation and fraud.
Arkansas products liability law is complex. This template must be reviewed and customized by a licensed Arkansas attorney before use.