DEMAND FOR SETTLEMENT - PRODUCTS LIABILITY

STATE OF COLORADO

[FIRM NAME]
Attorneys at Law
[Street Address]
[City, Colorado ZIP]
Telephone: [Phone]
Facsimile: [Fax]
Email: [Email]
Licensed in the State of Colorado

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 Colorado law.

I. COLORADO-SPECIFIC LEGAL FRAMEWORK

A. Governing Law - Colorado Products Liability Act

Colorado products liability claims are governed by the Colorado Products Liability Act (CPLA), codified at C.R.S. Title 13, Article 21, and common law principles derived from Hiigel v. General Motors Corp., 544 P.2d 983 (Colo. 1975), which adopted Section 402A of the Restatement (Second) of Torts.

Key Elements for Strict Liability:
1. The defendant was engaged in the business of selling the product;
2. The product was defective when it left the defendant's control;
3. The defect made the product unreasonably dangerous;
4. The defect was the proximate cause of the plaintiff's injuries; and
5. The plaintiff suffered damages.

See Union Supply Co. v. Pust, 583 P.2d 276 (Colo. 1978).

B. Theories of Liability Recognized

Colorado recognizes the following products liability theories:

1. Strict Liability:
Under Colorado law, manufacturers and sellers are strictly liable for injuries caused by defective products. Hiigel v. General Motors Corp., 544 P.2d 983 (Colo. 1975).

2. Negligence:
Traditional negligence claims for negligent design, manufacture, inspection, or failure to warn. Smith v. United States Gypsum Co., 612 P.2d 251 (Colo. App. 1980).

3. Breach of Warranty:
Express and implied warranty claims under Colorado's UCC, C.R.S. Sections 4-2-313 through 4-2-315. Privity is not required for personal injury claims. Perlmutter v. Beth David Hospital, 308 N.Y. 100 (1954) (adopted in Colorado).

C. Statute of Limitations

Under C.R.S. Section 13-80-106, the statute of limitations for products liability claims is two (2) years from the date of injury or discovery of the injury. This claim arises from an injury that occurred on [Date], and therefore the limitations period expires on [Expiration Date].

D. Statute of Repose

Colorado does not have a general products liability statute of repose. However, specific statutes of repose apply to certain product categories, including construction-related claims under C.R.S. Section 13-80-104.

E. Comparative Fault

COLORADO FOLLOWS MODIFIED COMPARATIVE FAULT.

Under C.R.S. Section 13-21-111, a plaintiff's recovery is reduced by their percentage of fault. Recovery is completely barred if the plaintiff is 50% or more at fault.

• Comparative fault is an affirmative defense that must be pleaded and proven by the defendant
• The factfinder determines the percentage of fault attributable to each party
• Foreseeable product misuse may reduce but not bar recovery if plaintiff is less than 50% at fault

Our client was not comparatively negligent: [Describe why client bears no or minimal fault]

F. Joint and Several Liability

Colorado has abolished joint and several liability except for specific circumstances. Under C.R.S. Section 13-21-111.5, each defendant is generally responsible only for their proportionate share of damages.

Exceptions: Joint and several liability still applies when:
- Defendants acted in concert
- One defendant was acting as agent of another
- Defendant's fault is greater than plaintiff's fault (for that defendant only)

G. Punitive Damages

Punitive damages are available in Colorado under C.R.S. Section 13-21-102 when the defendant's conduct constitutes fraud, malice, or willful and wanton conduct.

Requirements for Punitive Damages:
- Must be specifically prayed for in the complaint
- Initially capped at actual damages amount
- May be increased to 3x actual damages upon showing of continuing pattern of willful and wanton conduct

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

Colorado courts impose sanctions for spoliation of evidence. Aloi v. Union Pacific R.R. Corp., 129 P.3d 999 (Colo. 2006). Destruction of evidence may result in adverse inferences and other sanctions at trial.

III. THE DEFECTIVE PRODUCT

A. Product Identification

B. Chain of Distribution

IV. THE DEFECT

A. Nature of Defect - Design Defect

Under Colorado law, a design defect exists when the product, as designed, is unreasonably dangerous for its intended use. Colorado applies the risk-utility test (also known as the Wade-Keeton factors) for design defects. Camacho v. Honda Motor Co., 741 P.2d 1240 (Colo. 1987).

Factors Considered:
1. The usefulness and desirability of the product
2. The safety aspects of the product
3. The availability of a substitute product meeting the same need
4. The manufacturer's ability to eliminate the unsafe character without impairing usefulness or making it too expensive
5. The user's ability to avoid danger by exercising care
6. The user's anticipated awareness of inherent dangers
7. The feasibility of spreading the loss

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 departed 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 Colorado law, a manufacturer has a duty to warn of known dangers that are not obvious to the ordinary user. Union Supply Co. v. Pust, 583 P.2d 276 (Colo. 1978).

Learned Intermediary Doctrine: Colorado recognizes this doctrine for prescription drugs and medical devices. Plummer v. Lederle Laboratories, 819 F.2d 349 (2d Cir. 1987) (applied in Colorado).

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. No Comparative Negligence

Our client exercised reasonable care at all times. Even if comparative fault is alleged, our client's conduct was less than 50% at fault, and therefore recovery is not barred under C.R.S. Section 13-21-111.

VI. LIABILITY ANALYSIS

A. Strict Liability

All elements of Colorado strict liability are satisfied:

1. Defective Condition: The product contained a [design / manufacturing / warning] defect as described above.

2. Unreasonably Dangerous: Applying the risk-utility analysis of Camacho, the product's dangers outweighed its benefits.

3. Defect Existed When Product Left Defendant's Control: The defect was present at the time of sale.

4. Causation: The defect was the proximate cause of our client's injuries.

5. Damages: Our client has suffered substantial damages as detailed herein.

B. Negligence

Your company breached its duty of care by:

1. Negligent Design: Designing a product with an unreasonably dangerous characteristic when safer alternatives existed.

2. Negligent Manufacture: Failing to implement adequate quality control procedures.

3. Negligent Failure to Warn: Failing to provide adequate warnings of known dangers.

C. Breach of Warranty

Express Warranty (C.R.S. Section 4-2-313):
Your company expressly warranted that [describe warranty]. This warranty was breached.

Implied Warranty of Merchantability (C.R.S. 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 under C.R.S. Section 13-21-102.

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

Future Medical Expenses: $[Amount]

C. Lost Wages and Earning Capacity

D. Non-Economic Damages

• Physical pain and suffering
• Emotional distress
• Disfigurement
• Loss of enjoyment of life
• Inconvenience

E. Summary of Damages

F. Punitive Damages

Your company's conduct warrants punitive damages under C.R.S. Section 13-21-102. Your company knew of the defect and engaged in willful and wanton conduct by failing to correct it.

IX. SETTLEMENT DEMAND

Based upon the clear liability of your company under Colorado 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. Mountain Time on [Expiration Date].

X. CONCLUSION

This case involves a defective product that caused serious injuries to our client. Your company is strictly liable under Colorado law. Our client was not comparatively negligent, or was less than 50% at fault, thus preserving the right to full recovery.

If this matter cannot be resolved, we are prepared to file suit in the District Court of [County] County, Colorado, and to pursue this matter through trial.

Please contact me at your earliest convenience.

Respectfully submitted,

[FIRM NAME]

By: _________________________________
[Attorney Name]
Colorado Attorney Registration No. [Number]
Attorney for [Client Name]

ENCLOSURES: [List]

cc: [Client Name]
[File]

COLORADO PRODUCTS LIABILITY PRACTICE NOTES

• [ ] Comparative Fault: Colorado is a modified comparative fault state - plaintiff recovery barred if 50% or more at fault. Carefully evaluate all facts.

• [ ] Certificate of Review: For professional negligence claims, a certificate of review may be required under C.R.S. Section 13-20-602. Verify if applicable.

• [ ] Expert Testimony: Required to establish defect and causation in most cases. Colorado follows Daubert standard for expert admissibility.

• [ ] Punitive Damages Pleading: Must be specifically pleaded in the complaint; cannot be added by amendment without court permission under C.R.S. Section 13-21-102.

• [ ] Venue: District Court of county where defendant resides, does business, or where cause of action arose. C.R.C.P. 98.

• [ ] Economic Loss Rule: Colorado recognizes the economic loss rule - purely economic losses without physical injury generally not recoverable in tort. Town of Alma v. AZCO Constr., Inc., 10 P.3d 1256 (Colo. 2000).

• [ ] Innocent Seller Defense: Sellers may avoid strict liability if they are merely conduits and did not contribute to the defect. C.R.S. Section 13-21-402.

• [ ] Seat Belt Defense: Evidence of non-use of seat belts may be admissible to reduce damages. C.R.S. Section 42-4-237.

Colorado products liability law is complex. This template must be reviewed and customized by a licensed Colorado attorney before use.