DEMAND FOR SETTLEMENT - PRODUCTS LIABILITY
STATE OF HAWAII
[FIRM NAME]
Attorneys at Law
[Street Address]
[City, Hawaii ZIP]
Telephone: [Phone]
Facsimile: [Fax]
Email: [Email]
Licensed in the State of Hawaii
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 under Hawaii law.
I. HAWAII-SPECIFIC LEGAL FRAMEWORK
A. Governing Law
Hawaii products liability law is governed by Hawaii Revised Statutes Chapter 663 and common law principles. Hawaii adopted Section 402A of the Restatement (Second) of Torts in Stewart v. Budget Rent-A-Car Corp., 52 Haw. 71, 470 P.2d 240 (1970), and has subsequently adopted portions of the Restatement (Third) of Torts: Products Liability. See Tabieros v. Clark Equipment Co., 85 Haw. 336, 944 P.2d 1279 (1997).
B. Statute of Limitations
Under H.R.S. Section 657-7, the statute of limitations for personal injury claims, including products liability actions, is two (2) years from the date of injury. This incident occurred on [Date], and the limitations period expires on [Expiration Date].
C. Statute of Repose
Hawaii does not have a statute of repose for products liability claims. This allows claims to be brought regardless of when the product was manufactured or first sold, provided the claim is filed within the statute of limitations period.
D. Theories of Liability Recognized
Hawaii recognizes the following theories of products liability:
1. Strict Liability: Under Stewart v. Budget Rent-A-Car Corp., 52 Haw. 71 (1970), manufacturers and sellers are strictly liable for defective products. Hawaii has adopted the Restatement (Third) framework for strict liability. Tabieros v. Clark Equipment Co., 85 Haw. 336 (1997).
2. Negligence: Hawaii permits recovery for negligent design, manufacture, testing, and failure to warn.
3. Breach of Warranty: Express and implied warranties under H.R.S. Chapter 490 (Hawaii UCC Article 2) provide additional grounds for recovery.
E. Design Defect Standard
Hawaii applies a dual standard for design defect cases, incorporating both:
1. Consumer Expectation Test: Whether the product failed to perform as safely as an ordinary consumer would expect. Ontai v. Straub Clinic & Hospital, Inc., 66 Haw. 237, 659 P.2d 734 (1983).
2. Risk-Utility Test: Whether the risk of danger inherent in the design outweighs the benefits of the design. Under the Restatement (Third) framework adopted in Tabieros, the risk-utility test applies when consumer expectations are inadequate to evaluate the design.
The plaintiff may prove a design defect under either test.
F. Comparative Negligence
Hawaii follows a modified comparative negligence rule. H.R.S. Section 663-31. A plaintiff may recover if their negligence is not greater than the combined negligence of all defendants. If the plaintiff is more than 50% at fault (i.e., greater than the combined fault of defendants), recovery is barred. Recovery is reduced by the plaintiff's percentage of fault.
Our client bears no responsibility for this incident.
G. Joint and Several Liability
Hawaii has modified joint and several liability. H.R.S. Section 663-10.9. Joint and several liability applies only to defendants who are found to be 25% or more at fault. Defendants found to be less than 25% at fault are severally liable only for their proportionate share of economic and non-economic damages.
H. Punitive Damages
Hawaii allows punitive damages upon clear and convincing evidence that the defendant acted with:
- Wanton, oppressive, or malicious conduct; or
- Willful or wanton misconduct; or
- Gross negligence indicating a reckless disregard for the rights of others.
Masaki v. General Motors Corp., 71 Haw. 1, 780 P.2d 566 (1989).
No statutory cap on punitive damages exists in Hawaii. The jury has broad discretion, subject to constitutional due process limitations.
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 and similar products
- 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 and instructions
- All versions of warnings and labels
- Marketing and advertising materials
Complaints and Claims:
- Consumer complaints involving this product or similar products
- Prior claims and lawsuits involving this product
- Regulatory communications (FDA, CPSC, NHTSA)
- Recall notices and service bulletins
Hawaii courts recognize the inherent power to impose spoliation sanctions. Destruction or alteration of evidence may result in adverse inference instructions and other sanctions.
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 | Location |
|---|---|---|
| [Manufacturer Name] | Manufacturer | [Address] |
| [Distributor Name] | Distributor | [Address] |
| [Retailer Name] | Retailer/Seller | [Address] |
C. Product Background
[Describe the product, its intended use, and relevant safety considerations]
IV. THE DEFECT
A. Nature of Defect
[SELECT APPLICABLE THEORY:]
DESIGN DEFECT:
The [Product Name] contains a design defect rendering it unreasonably dangerous for its intended and foreseeable uses.
Under the Consumer Expectation Test: The product failed to perform as safely as an ordinary consumer would expect when used in a reasonably foreseeable manner.
Under the Risk-Utility Test: The risks inherent in the design outweigh its benefits, and a reasonable alternative design existed that would have reduced the foreseeable risks of harm.
[Detailed description of design defect]
A feasible alternative design existed:
[Description of alternative design]
MANUFACTURING DEFECT:
The specific [Product Name] involved in this incident departed from its intended design due to a manufacturing defect:
[Description of how this product differs from intended design]
FAILURE TO WARN:
The [Product Name] was defective due to inadequate warnings and instructions. Your company knew or should have known of risks but failed to adequately warn:
[Description of warning deficiencies]
V. THE INCIDENT
On [Date], at approximately [Time], our client was [describe what client was doing with the product]:
[Detailed narrative of the incident]
Our client was using the product:
- For its intended purpose
- In a reasonably foreseeable manner
- In accordance with provided instructions
The defect was the direct and proximate cause of our client's injuries.
VI. LIABILITY ANALYSIS
A. Strict Products Liability
Under Hawaii common law established in Stewart v. Budget Rent-A-Car Corp., 52 Haw. 71 (1970), and refined in Tabieros v. Clark Equipment Co., 85 Haw. 336 (1997), your company is strictly liable because:
- The product was defective when it left your control;
- The defect made the product unreasonably dangerous;
- The defect was the proximate cause of our client's injuries; and
- Our client suffered damages.
B. Negligence
Your company is also liable under negligence theories:
Negligent Design: The product was designed without reasonable care for consumer safety.
Negligent Manufacture: [If applicable] The product was manufactured without adequate quality control.
Negligent Failure to Warn: Your company knew or should have known of dangers but failed to provide adequate warnings.
C. Breach of Warranty
Express Warranty (H.R.S. Section 490:2-313): Your company warranted that [describe warranty], which was breached.
Implied Warranty of Merchantability (H.R.S. Section 490:2-314): The product was not fit for its ordinary purpose.
VII. PRIOR KNOWLEDGE OF DEFECT
Evidence of prior knowledge supports punitive damages claims:
- [Number] prior complaints regarding this defect
- [Number] prior injuries from this defect
- [Prior lawsuits, recalls, or regulatory actions]
- Internal documents acknowledging the defect
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 effects, if any]
B. Medical Treatment
[Describe treatment chronology]
C. Damages Summary
| 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] |
| Disability | $[Amount] |
| Loss of Enjoyment of Life | $[Amount] |
| TOTAL NON-ECONOMIC DAMAGES | $[Subtotal] |
| TOTAL COMPENSATORY DAMAGES | $[Total] |
D. Punitive Damages
Your company's conduct in [describe egregious conduct] constitutes wanton, oppressive, or malicious conduct warranting punitive damages under Hawaii law. Masaki v. General Motors Corp., 71 Haw. 1 (1989).
IX. SETTLEMENT DEMAND
Based upon clear liability and the severe injuries suffered by our client, we hereby demand:
$[DEMAND AMOUNT]
This demand will remain open for [45/60] days from the date of this letter, through and including [Expiration Date].
X. RESPONSE INSTRUCTIONS
Please direct your response to the undersigned. If this matter cannot be resolved, we are prepared to file suit in the Circuit Court of the [First/Second/Third/Fifth] Circuit, State of Hawaii, and pursue this matter through trial.
XI. DOCUMENTATION ENCLOSED
- Medical records and bills
- Product photographs
- Incident photographs
- Employment and wage records
- Expert reports (if available)
- [Other relevant documentation]
XII. CONCLUSION
This defective product caused serious injuries to our client that were entirely preventable. Hawaii law provides robust remedies for products liability claims, and we urge you to evaluate this claim seriously and respond with a fair settlement offer.
Respectfully submitted,
[FIRM NAME]
By: _________________________________
[Attorney Name]
Hawaii Bar No. [Number]
Attorney for [Client Name]
ENCLOSURES: As noted above
cc: [Client Name]
File
HAWAII PRODUCTS LIABILITY PRACTICE NOTES
-
Dual Design Defect Test: Hawaii uses both consumer expectation and risk-utility tests. Plaintiff can prove design defect under either standard. Tabieros v. Clark Equipment Co., 85 Haw. 336 (1997).
-
No Statute of Repose: Hawaii has no statute of repose for products liability claims, allowing claims on older products.
-
Modified Comparative Negligence: Plaintiff may recover if not more negligent than combined fault of defendants. H.R.S. Section 663-31.
-
Joint and Several Liability Threshold: Only defendants 25% or more at fault are jointly and severally liable. H.R.S. Section 663-10.9.
-
No Damage Caps: Hawaii has no statutory caps on compensatory or punitive damages.
-
Punitive Damages Standard: Requires clear and convincing evidence of wanton, oppressive, or malicious conduct. Masaki v. General Motors Corp., 71 Haw. 1 (1989).
-
Venue: Circuit where cause of action arose or where defendant resides. Hawaii Rules of Civil Procedure Rule 3.
-
Arbitration Requirement: Certain tort claims must go through Court Annexed Arbitration Program (CAAP) before trial. H.R.S. Chapter 601.
This template must be customized for each case and verified against current Hawaii law. Products liability law is complex and requires careful analysis of all applicable theories and defenses.