DEMAND FOR SETTLEMENT - PRODUCTS LIABILITY
STATE OF DELAWARE
[FIRM NAME]
Attorneys at Law
[Street Address]
[City, Delaware ZIP]
Telephone: [Phone]
Facsimile: [Fax]
Email: [Email]
Licensed in the State of Delaware
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 Delaware law.
I. DELAWARE-SPECIFIC LEGAL FRAMEWORK
A. Governing Law - Common Law Strict Liability
Delaware products liability claims are governed by common law strict liability based on Section 402A of the Restatement (Second) of Torts, as adopted in Cline v. Prowler Industries of Maryland, Inc., 418 A.2d 968 (Del. 1980).
Key Elements for Strict Liability:
1. The defendant sold a product in a defective condition;
2. The product was unreasonably dangerous to the user or consumer;
3. The seller is engaged in the business of selling such products;
4. The product reached the user without substantial change in the condition in which it was sold; and
5. The defective condition was a proximate cause of the plaintiff's injuries.
See Cline, 418 A.2d at 970.
B. Theories of Liability Recognized
Delaware recognizes the following products liability theories:
1. Strict Liability:
Under Delaware law adopting Section 402A, manufacturers and sellers are strictly liable for injuries caused by products that are in a defective condition unreasonably dangerous. Martin v. Ryder Truck Rental, Inc., 353 A.2d 581 (Del. 1976).
2. Negligence:
Traditional negligence claims for negligent design, manufacture, inspection, or failure to warn. Blakely v. Continental Motors Corp., 455 A.2d 862 (Del. Super. 1982).
3. Breach of Warranty:
Express and implied warranty claims under Delaware's UCC, 6 Del. C. Sections 2-313 through 2-315. Privity requirements may apply for economic damages.
C. Defect Standards
Delaware applies the following standards for different types of defects:
Design Defects: Delaware applies the consumer expectations test as the primary standard. A product is defective if it fails to meet the safety expectations of the ordinary consumer. Cline, 418 A.2d at 971. Risk-utility analysis may also be applied.
Manufacturing Defects: A product has a manufacturing defect when it departs from its intended design.
Warning Defects: A product is defective for failure to warn if the manufacturer failed to provide adequate warnings of dangers that were known or should have been known.
D. Statute of Limitations
Under 10 Del. C. Section 8119, the statute of limitations for personal injury claims, including products liability, is two (2) years from the date of injury. This claim arises from an injury that occurred on [Date], and therefore the limitations period expires on [Expiration Date].
E. Statute of Repose
Delaware does not have a general products liability statute of repose. Claims may be brought regardless of when the product was manufactured, provided they fall within the statute of limitations.
F. Comparative Negligence
DELAWARE FOLLOWS MODIFIED COMPARATIVE NEGLIGENCE.
Under 10 Del. C. Section 8132, a plaintiff's recovery is reduced by their percentage of fault. Recovery is completely barred if the plaintiff's negligence is greater than the combined negligence of all defendants (greater than 50% rule).
- Comparative negligence is an affirmative defense that must be pleaded and proven
- Product misuse may be considered as comparative negligence if not foreseeable
- Assumption of risk has been merged into comparative negligence analysis
Our client was not comparatively negligent: [Describe why client bears no or minimal fault]
G. Joint and Several Liability
Delaware has modified joint and several liability under 10 Del. C. Section 6803:
- Defendants less than 10% at fault: Several liability only
- Defendants 10% or more at fault: Joint and several liability for economic damages; several liability for non-economic damages
H. Punitive Damages
Punitive damages are available in Delaware upon proof by a preponderance of the evidence that the defendant acted with malice or willful or wanton misconduct.
Caps on Punitive Damages (18 Del. C. Section 6856):
For manufacturers, wholesalers, or retailers that are individuals, sole proprietors, partnerships, or corporations with less than 10 employees:
- Greater of $250,000 or 2x compensatory damages
No cap applies to larger entities.
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
Delaware courts impose sanctions for spoliation of evidence. Triton Construction Co. v. Eastern Shore Electrical Services, Inc., 2009 WL 1387115 (Del. Super. 2009). Destruction of evidence may result in adverse inferences and other sanctions 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
Under Delaware law, a design defect exists when the product, as designed, fails to meet the safety expectations of the ordinary consumer. Cline v. Prowler Industries of Maryland, Inc., 418 A.2d 968 (Del. 1980).
Consumer Expectations Test:
The ordinary consumer would expect that:
[Describe what consumer would expect]
The [Product Name] failed to meet these expectations because:
[Describe how product failed expectations]
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 Delaware law, a manufacturer has a duty to warn of known dangers and dangers that should have been known through reasonable testing. Lacy v. G.D. Searle & Co., 567 A.2d 398 (Del. 1989).
Adequacy of Warnings:
A warning must be:
- Clear and understandable
- Convey the nature and extent of the danger
- Prominently displayed
- Adequate to inform the user how to avoid the danger
Learned Intermediary Doctrine: Delaware recognizes this doctrine for prescription drugs and medical devices. Lacy, 567 A.2d at 401.
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 not greater than 50% at fault, and therefore recovery is not barred under 10 Del. C. Section 8132.
VI. LIABILITY ANALYSIS
A. Strict Liability Under Section 402A
All elements of Delaware strict liability are satisfied:
-
Defective Condition: The product contained a [design / manufacturing / warning] defect as described above.
-
Unreasonably Dangerous: The product failed to meet the safety expectations of an ordinary consumer.
-
Defect Existed When Product Left Defendant's Control: The defect was present at the time of sale.
-
Causation: The defect was a 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.
C. Breach of Warranty
Express Warranty (6 Del. C. Section 2-313):
Your company expressly warranted that [describe warranty]. This warranty was breached.
Implied Warranty of Merchantability (6 Del. C. Section 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 for malice or willful and wanton misconduct.
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
- Physical pain and suffering
- Emotional distress
- Disfigurement
- Loss of enjoyment of life
- Inconvenience
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. Your company knew of the defect and acted with malice or willful and wanton disregard for the safety of consumers.
IX. SETTLEMENT DEMAND
Based upon the clear liability of your company under Delaware 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. Eastern 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 Delaware law. Our client was not comparatively negligent, or was 50% or less at fault, thus preserving the right to full recovery.
If this matter cannot be resolved, we are prepared to file suit in the Superior Court of Delaware, [County] County, and to pursue this matter through trial.
Please contact me at your earliest convenience.
Respectfully submitted,
[FIRM NAME]
By: _________________________________
[Attorney Name]
Delaware Bar ID No. [Number]
Attorney for [Client Name]
ENCLOSURES: [List]
cc: [Client Name]
[File]
DELAWARE PRODUCTS LIABILITY PRACTICE NOTES
-
[ ] Comparative Negligence: Delaware is a modified comparative negligence state - plaintiff recovery barred if greater than 50% at fault. Carefully evaluate all facts.
-
[ ] No Statute of Repose: Delaware does not have a general products liability statute of repose, unlike many other states.
-
[ ] Consumer Expectations Test: Delaware primarily uses the consumer expectations test for design defects, though risk-utility may also be applied.
-
[ ] Expert Testimony: Required to establish defect and causation in most cases. Delaware follows Daubert standard. D.R.E. 702.
-
[ ] Privity for Warranty: Privity may be required for economic loss warranty claims but not for personal injury claims.
-
[ ] Venue: Superior Court in the county where the cause of action arose or where defendant resides. 10 Del. C. Section 541.
-
[ ] Economic Loss Rule: Delaware recognizes the economic loss rule - purely economic losses without physical injury or property damage are generally not recoverable in tort. Danforth v. Acorn Structures, Inc., 608 A.2d 1194 (Del. 1992).
-
[ ] Joint and Several Liability: Modified system based on percentage of fault. Defendants less than 10% at fault are severally liable only.
-
[ ] Small Entity Punitive Cap: Special punitive damage caps apply to small manufacturers, wholesalers, and retailers under 18 Del. C. Section 6856.
Delaware products liability law is complex. This template must be reviewed and customized by a licensed Delaware attorney before use.