DEMAND FOR SETTLEMENT - PRODUCTS LIABILITY
STATE OF ILLINOIS
[FIRM NAME]
Attorneys at Law
[Street Address]
[City, Illinois ZIP]
Telephone: [Phone]
Facsimile: [Fax]
Email: [Email]
Licensed in the State of Illinois
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 Illinois law.
I. ILLINOIS-SPECIFIC LEGAL FRAMEWORK
A. Governing Law
Illinois products liability law is governed by common law principles derived from Section 402A of the Restatement (Second) of Torts, as adopted in Suvada v. White Motor Co., 32 Ill. 2d 612, 210 N.E.2d 182 (1965). Illinois has also incorporated aspects of the Restatement (Third) of Torts: Products Liability, particularly in design defect cases. See Mikolajczyk v. Ford Motor Co., 231 Ill. 2d 516, 901 N.E.2d 329 (2008).
B. Statute of Limitations
Under 735 ILCS 5/13-202, 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].
Discovery Rule: Illinois applies the discovery rule, which tolls the limitations period until the plaintiff knows or reasonably should know of the injury and its cause. Nolan v. Johns-Manville Asbestos, 85 Ill. 2d 161 (1981).
C. Statute of Repose
Illinois has a twelve (12) year statute of repose for products liability claims. 735 ILCS 5/13-213(b). No action based on strict liability may be commenced more than twelve years after the date of first sale, lease, or delivery of the product to its first user, consumer, or other non-seller.
Exception: The statute of repose does not apply to actions based on negligence or breach of warranty. 735 ILCS 5/13-213(c).
The subject product was first sold on [Date], and this action is timely.
D. Theories of Liability Recognized
Illinois recognizes the following theories of products liability:
1. Strict Liability: Under Suvada v. White Motor Co., 32 Ill. 2d 612 (1965), manufacturers and sellers are strictly liable for defective products that are unreasonably dangerous.
2. Negligence: Illinois permits recovery for negligent design, manufacture, testing, and failure to warn.
3. Breach of Warranty: Express and implied warranties under 810 ILCS 5/2-313, 5/2-314, and 5/2-315 (Illinois UCC) provide additional grounds for recovery.
E. Design Defect Standard
Illinois applies a dual standard for design defect cases:
1. Consumer Expectation Test: A product is defective if it fails to perform as safely as an ordinary consumer would expect when used in an intended or reasonably foreseeable manner. Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247, 864 N.E.2d 249 (2007).
2. Risk-Utility Test: The risk-utility test applies when the consumer expectation test is inadequate, typically in complex product cases. Under Mikolajczyk v. Ford Motor Co., 231 Ill. 2d 516 (2008), the plaintiff must prove:
- The product's design was a cause of the injury;
- The product was unreasonably dangerous due to a feasible alternative design that would have prevented the injury.
The plaintiff may proceed under either theory.
F. Comparative Fault
Illinois follows a modified comparative negligence rule. 735 ILCS 5/2-1116. A plaintiff may recover if their fault is not more than 50% of the total fault of all persons whose fault proximately caused the injury. If the plaintiff is more than 50% at fault, recovery is barred.
Note: Contributory fault is generally not a defense in strict liability cases, but misuse may be considered if it was unforeseeable.
Our client bears no responsibility for this incident.
G. Joint and Several Liability
Illinois has modified joint and several liability. 735 ILCS 5/2-1117. A defendant who is less than 25% at fault is severally liable only for their proportionate share of damages. A defendant who is 25% or more at fault is jointly and severally liable for all economic damages, but severally liable for non-economic damages.
H. Punitive Damages
Illinois allows punitive damages upon proof that the defendant's conduct was:
- Willful and wanton; or
- Fraudulent; or
- Evidenced an utter indifference to or conscious disregard for the safety of others.
Loitz v. Remington Arms Co., 138 Ill. 2d 404, 563 N.E.2d 397 (1990).
No statutory cap on punitive damages exists in Illinois (the cap in the 2005 tort reform legislation was struck down). Constitutional due process limits apply.
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
Illinois recognizes independent tort claims for spoliation of evidence. Boyd v. Travelers Ins. Co., 166 Ill. 2d 188, 652 N.E.2d 267 (1995). Destruction or alteration of evidence may result in sanctions, adverse inferences, and separate liability.
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. Calles v. Scripto-Tokai Corp., 224 Ill. 2d 247 (2007).
Under the Risk-Utility Test: A feasible alternative design existed that would have prevented the injury without substantially impairing the product's utility. Mikolajczyk v. Ford Motor Co., 231 Ill. 2d 516 (2008).
[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 Illinois common law established in Suvada v. White Motor Co., 32 Ill. 2d 612 (1965), 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 (810 ILCS 5/2-313): Your company warranted that [describe warranty], which was breached.
Implied Warranty of Merchantability (810 ILCS 5/2-314): 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 willful and wanton conduct or utter indifference to safety warranting punitive damages under Illinois law.
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 [County] County, Illinois, and pursue this matter through trial.
Note: If suit is filed, plaintiff will be required to file an affidavit and written report of a qualified expert pursuant to 735 ILCS 5/2-623 (Certificate of Merit requirement for product liability cases).
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. Illinois has a robust body of products liability law, and recent verdicts in Cook County and other Illinois venues have been substantial. We urge you to evaluate this claim seriously and respond with a fair settlement offer.
Respectfully submitted,
[FIRM NAME]
By: _________________________________
[Attorney Name]
Illinois ARDC No. [Number]
Attorney for [Client Name]
ENCLOSURES: As noted above
cc: [Client Name]
File
ILLINOIS PRODUCTS LIABILITY PRACTICE NOTES
-
Dual Design Defect Test: Illinois permits proof under either consumer expectation or risk-utility test. Mikolajczyk v. Ford Motor Co., 231 Ill. 2d 516 (2008).
-
Certificate of Merit: Products liability cases require affidavit and expert report within 90 days of filing. 735 ILCS 5/2-623.
-
12-Year Statute of Repose: Applies only to strict liability claims; negligence and warranty claims not barred. 735 ILCS 5/13-213.
-
Modified Comparative Negligence: Plaintiff barred if more than 50% at fault. 735 ILCS 5/2-1116.
-
Joint and Several Threshold: 25% fault threshold for joint and several liability on economic damages. 735 ILCS 5/2-1117.
-
No Punitive Damages Cap: Illinois has no cap on punitive damages (2005 cap struck down).
-
Spoliation Tort: Illinois recognizes independent cause of action for negligent spoliation. Boyd v. Travelers Ins. Co., 166 Ill. 2d 188 (1995).
-
Innocent Seller Defense: Limited protection for non-manufacturing sellers under 735 ILCS 5/2-621.
-
Venue: County where cause of action arose or where defendant resides. 735 ILCS 5/2-101.
This template must be customized for each case and verified against current Illinois law. Products liability law is complex and requires careful analysis of all applicable theories and defenses.