DEMAND FOR SETTLEMENT - PRODUCTS LIABILITY

COMMONWEALTH OF KENTUCKY

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

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 Kentucky law.

I. KENTUCKY-SPECIFIC LEGAL FRAMEWORK

A. Governing Law - Kentucky Products Liability Law

Kentucky products liability claims are governed by statutory and common law principles. Kentucky adopted Section 402A of the Restatement (Second) of Torts in Dealers Transport Co. v. Battery Distributing Co., 402 S.W.2d 441 (Ky. 1966).

Key Elements for Strict Liability:
1. The defendant sold or supplied a product in the course of business;
2. The product was in a defective condition unreasonably dangerous;
3. The product reached the user without substantial change;
4. The defect was a substantial factor in causing the plaintiff's injuries; and
5. The plaintiff suffered damages.

See Clark v. Hauck Manufacturing Co., 910 S.W.2d 247 (Ky. 1995).

B. Theories of Liability Recognized

Kentucky recognizes the following products liability theories:

1. Strict Liability:
Under Kentucky law adopting Section 402A, manufacturers and sellers in the chain of distribution are strictly liable for injuries caused by products in a defective condition unreasonably dangerous. Embs v. Pepsi-Cola Bottling Co. of Lexington, 528 S.W.2d 703 (Ky. 1975).

2. Negligence:
Traditional negligence claims for negligent design, manufacture, inspection, or failure to warn. Toyota Motor Corp. v. Gregory, 136 S.W.3d 35 (Ky. 2004).

3. Breach of Warranty:
Express and implied warranty claims under Kentucky's UCC, KRS Sections 355.2-313 through 355.2-315. Privity is not required for personal injury claims. Dealers Transport, 402 S.W.2d at 446.

C. Defect Standards

Kentucky applies the following standards:

Consumer Expectations Test: A product is defective if it is dangerous to an extent beyond that which would be contemplated by the ordinary consumer with ordinary knowledge of the product's characteristics. Clark v. Hauck Manufacturing Co., 910 S.W.2d 247 (Ky. 1995).

Risk-Utility Test: Kentucky also recognizes risk-utility analysis, particularly for design defects. Factors include the gravity of danger, likelihood of danger, availability of safer alternatives, and ability to eliminate danger without impairing usefulness.

D. Statute of Limitations

IMPORTANT - SHORT LIMITATIONS PERIOD:

Under KRS 413.140(1)(a), the statute of limitations for personal injury actions, including products liability, is one (1) year from the date of injury.

For wrongful death claims, KRS 413.180 provides a two (2) year limitations period.

This claim arises from an injury that occurred on [Date], and therefore the limitations period expires on [Expiration Date].

E. Statute of Repose

Kentucky 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 Fault

KENTUCKY FOLLOWS PURE COMPARATIVE FAULT.

Under KRS 411.182, a plaintiff's recovery is reduced by their percentage of fault, but recovery is never completely barred regardless of plaintiff's percentage of fault.

• Fault is apportioned among all parties, including non-parties
• Even if plaintiff is 99% at fault, they may still recover 1% of damages
• Product misuse and failure to discover defects may reduce recovery

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

G. Joint and Several Liability

Kentucky has abolished joint and several liability under KRS 411.182(4). Each defendant is responsible only for their proportionate share of damages based on their percentage of fault.

Exception: Joint and several liability may apply where defendants acted in concert.

H. Punitive Damages

Punitive damages are available in Kentucky under common law and require proof by clear and convincing evidence of:
- Fraud
- Oppression
- Malice
- Gross negligence that indicates a wanton disregard for the rights of others

Williams v. Wilson, 972 S.W.2d 260 (Ky. 1998).

No Statutory Cap: Kentucky does not have a statutory cap on punitive damages, but awards are 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
- [ ] 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

Kentucky courts impose sanctions for spoliation of evidence. Monsanto Co. v. Reed, 950 S.W.2d 201 (Ky. 1997). Destruction of evidence may result in adverse inferences, dismissal, or default judgment.

III. THE DEFECTIVE PRODUCT

A. Product Identification

B. Chain of Distribution

IV. THE DEFECT

A. Nature of Defect - Design Defect

Under Kentucky law, a design defect exists when the product is dangerous beyond the expectations of an ordinary consumer or when the risks of the design outweigh its utility. Clark v. Hauck Manufacturing Co., 910 S.W.2d 247 (Ky. 1995).

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]

Risk-Utility Analysis:
[Apply risk-utility factors]

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. Embs v. Pepsi-Cola Bottling Co. of Lexington, 528 S.W.2d 703 (Ky. 1975).

The product at issue:
[Describe manufacturing defect if applicable]

C. Nature of Defect - Failure to Warn

Under Kentucky law, a manufacturer has a duty to warn of known dangers and dangers that should have been known through reasonable testing. Post v. American Cleaning Equipment Corp., 437 S.W.2d 516 (Ky. 1968).

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: Kentucky recognizes this doctrine for prescription drugs and medical devices. Larkin v. Pfizer, Inc., 153 S.W.3d 758 (Ky. 2004).

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 Fault

Our client exercised reasonable care at all times. Under Kentucky's pure comparative fault system, even if some fault is attributed to our client, recovery is not barred. Our client bears no or minimal fault in this incident.

VI. LIABILITY ANALYSIS

A. Strict Liability Under Section 402A

All elements of Kentucky strict liability are satisfied:

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

2. Unreasonably Dangerous: The product was dangerous beyond the expectations of an ordinary consumer.

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

4. Causation: The defect was a substantial factor in causing 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 (KRS 355.2-313):
Your company expressly warranted that [describe warranty]. This warranty was breached.

Implied Warranty of Merchantability (KRS 355.2-314):
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 gross negligence indicating wanton disregard for the rights of others.

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. Your company knew of the defect and acted with gross negligence indicating wanton disregard for consumer safety.

IX. SETTLEMENT DEMAND

Based upon the clear liability of your company under Kentucky 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 Kentucky law. Under Kentucky's pure comparative fault system, our client is entitled to full recovery reduced only by any percentage of fault attributable to our client, if any.

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

Please contact me at your earliest convenience.

Respectfully submitted,

[FIRM NAME]

By: _________________________________
[Attorney Name]
Kentucky Bar Association No. [Number]
Attorney for [Client Name]

ENCLOSURES: [List]

cc: [Client Name]
[File]

KENTUCKY PRODUCTS LIABILITY PRACTICE NOTES

• [ ] Short Statute of Limitations: Kentucky has only a ONE (1) year statute of limitations for personal injury claims. Act quickly to preserve the claim.

• [ ] Pure Comparative Fault: Kentucky is a pure comparative fault state - plaintiff's recovery is reduced but never barred by their fault percentage.

• [ ] No Joint and Several Liability: Each defendant is responsible only for their proportionate share of damages.

• [ ] Consumer Expectations and Risk-Utility: Kentucky uses both tests for design defects.

• [ ] Expert Testimony: Required to establish defect and causation in most cases. Kentucky follows Daubert standard under KRE 702.

• [ ] Privity Not Required: For personal injury claims, privity of contract is not required for warranty claims.

• [ ] Venue: Circuit Court in county where defendant resides, where cause of action arose, or where plaintiff resides if defendant does business there. KRS 452.450.

• [ ] Economic Loss Rule: Kentucky recognizes the economic loss doctrine - purely economic losses without physical injury are generally not recoverable in tort. Giddings & Lewis, Inc. v. Industrial Risk Insurers, 348 S.W.3d 729 (Ky. 2011).

• [ ] Collateral Source Rule: Kentucky follows the collateral source rule - evidence of collateral benefits generally inadmissible. KRS 411.188.

• [ ] Punitive Damages: No statutory cap, but subject to constitutional due process limitations per BMW of North America, Inc. v. Gore, 517 U.S. 559 (1996).

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