DEMAND FOR SETTLEMENT - PRODUCTS LIABILITY

STATE OF NORTH CAROLINA

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

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 North Carolina products liability law, including the North Carolina Products Liability Act, N.C. Gen. Stat. Chapter 99B.

I. NORTH CAROLINA PRODUCTS LIABILITY LEGAL FRAMEWORK

A. Governing Law

North Carolina products liability claims are governed by the North Carolina Products Liability Act, N.C. Gen. Stat. Sections 99B-1 to 99B-11, and supplementary common law. North Carolina recognizes claims based on negligence, breach of warranty, and strict liability for manufacturing defects.

Important: North Carolina does not recognize strict liability for design defects. Smith v. Fiber Controls Corp., 300 N.C. 669, 268 S.E.2d 504 (1980). Design defect claims must be based on negligence.

B. Statute of Limitations

Under N.C. Gen. Stat. Section 1-52(16), the statute of limitations for products liability claims is three (3) years from the date of injury. This claim arises from an incident that occurred on [Date], and therefore the limitations period expires on [Expiration Date].

C. Statute of Repose

Under N.C. Gen. Stat. Section 1-50(a)(6), a six (6) year statute of repose applies to products liability claims. The claim must be brought within six years from the date of initial purchase for use or consumption. However, this repose period does not apply if:
- The manufacturer or seller expressly warranted the product for a longer period
- The defendant made fraudulent misrepresentations or willfully concealed defects

For products incorporated into improvements to real property, a twelve (12) year repose period applies.

D. Theories of Liability Under North Carolina Law

North Carolina recognizes the following theories of products liability:

1. Strict Liability (Manufacturing Defects Only):

North Carolina recognizes strict liability only for manufacturing defects. A manufacturing defect exists when the specific product departs from its intended design, making it more dangerous than expected. Nicholson v. American Safety Utility Corp., 124 N.C. App. 59, 476 S.E.2d 672 (1996).

2. Negligence (Design Defects and Failure to Warn):

For design defect claims, North Carolina requires proof of negligence. Smith v. Fiber Controls Corp., 300 N.C. 669 (1980). The plaintiff must prove:
- The defendant owed a duty of care
- The defendant breached that duty
- The breach was the proximate cause of injury
- The plaintiff suffered damages

Design Defect Analysis:

North Carolina uses a reasonableness standard for design defects. The jury considers whether the manufacturer exercised reasonable care in designing the product. Relevant factors include:
- The usefulness and desirability of the product
- The availability of safer substitute products
- The likelihood and severity of injury
- The obviousness of the danger
- The manufacturer's ability to eliminate the danger without impairing usefulness
- The user's ability to avoid danger through exercise of care

3. Failure to Warn:

A manufacturer has a duty to warn of known dangers associated with normal use and reasonably foreseeable misuse. The warning must be adequate to inform the user of the nature and extent of the danger. Westinghouse Elec. Corp. v. Nutt, 107 N.C. App. 361, 420 S.E.2d 477 (1992).

4. Breach of Warranty:

North Carolina recognizes claims for:
- Breach of express warranty (N.C. Gen. Stat. Section 25-2-313)
- Breach of implied warranty of merchantability (N.C. Gen. Stat. Section 25-2-314)
- Breach of implied warranty of fitness for a particular purpose (N.C. Gen. Stat. Section 25-2-315)

E. Contributory Negligence - CRITICAL

North Carolina is one of only four states that follows pure contributory negligence. Under N.C. Gen. Stat. Section 99B-4, any contributory negligence by the plaintiff that is a proximate cause of the injury completely bars recovery.

However, contributory negligence does not bar recovery in products liability cases based on:
- Breach of express warranty
- Intentional wrongdoing by the defendant
- Gross negligence by the defendant (allows punitive damages)

Our client bears absolutely no responsibility for this incident. Our client was using the product in its intended manner, following all instructions and warnings, and exercising reasonable care at all times.

F. Punitive Damages

Punitive damages are available in North Carolina under N.C. Gen. Stat. Section 1D-15 where the plaintiff proves by clear and convincing evidence that the defendant is liable for compensatory damages and that:
- Fraud
- Malice
- Willful or wanton conduct

was present and related to the injury.

Punitive Damages Cap: Under N.C. Gen. Stat. Section 1D-25, punitive damages are capped at the greater of three times the compensatory damages or $250,000. No cap applies in cases of driving while impaired or specific intentional conduct.

II. PRESERVATION OF EVIDENCE - CRITICAL NOTICE

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
- Design documents, specifications, and engineering drawings
- Manufacturing records and quality control data
- Testing data and safety assessments
- All versions of warnings, labels, and instructions
- Marketing and advertising materials

Regulatory and Compliance:
- Communications with CPSC, FDA, or other regulatory agencies
- Recall notices and service bulletins
- Adverse event reports and consumer complaints

Claims History:
- Prior claims and lawsuits involving this product
- Prior complaints regarding similar defects

North Carolina courts recognize spoliation sanctions and may impose adverse inference instructions or other penalties for destruction of evidence.

III. THE DEFECTIVE PRODUCT

A. Product Identification

B. Chain of Distribution

The following entities are in the chain of distribution and may bear liability under North Carolina law:

IV. THE DEFECT

A. Nature of Defect

[MANUFACTURING DEFECT / DESIGN DEFECT / FAILURE TO WARN - Select applicable]

[Detailed description of the defect]:

The [Product Name] is defective because [describe specific defect].

For Manufacturing Defect (Strict Liability):

The specific product that injured our client departed from the manufacturer's intended design and specifications. [Describe how the product deviated from design]

For Design Defect (Negligence Required):

The defendant failed to exercise reasonable care in designing this product. The design created unreasonable risks that could have been avoided through reasonable alternative design. [Describe design flaw and safer alternative]

For Failure to Warn (Negligence Required):

The defendant knew or should have known of the danger associated with [describe danger] but failed to provide adequate warnings to users. [Describe inadequate warning]

B. Alternative Safer Design

A feasible alternative design existed at the time of manufacture:

[Describe the alternative safer design that would have prevented injury]

This alternative design was:
- Technologically feasible
- Economically feasible
- Used by competitors or in subsequent models
- Would have prevented our client's injury

V. THE INCIDENT

A. How the Injury Occurred

On [Date], at approximately [Time], our client was [describe activity]:

[Detailed narrative of the incident]

B. Intended and Proper Use

Critical for Contributory Negligence Analysis:

Our client was using the product:
- Exactly as intended by the manufacturer
- In accordance with all provided instructions
- With reasonable care and attention
- Without any modification or misuse
- [Additional evidence of proper use]

There is no contributory negligence that would bar recovery in this case.

C. Causation

The defect in the [Product Name] was the direct and proximate cause of our client's injuries. The defect was the sole cause of the incident.

VI. PRIOR KNOWLEDGE OF DEFECT

[If applicable - supports punitive damages claim]

Your company knew or should have known of this defect prior to our client's injury:

• [Number] prior complaints regarding this defect
• [Number] prior injuries caused by this defect
• [Recall or service bulletin information]
• [Regulatory correspondence]
• Internal documents acknowledging the defect

This prior knowledge, combined with continued sale of the defective product, constitutes willful or wanton conduct supporting punitive damages under N.C. Gen. Stat. Section 1D-15.

VII. INJURIES AND DAMAGES

A. Injuries Sustained

As a direct and proximate result of the defective product, our client sustained the following injuries:

• [Injury 1]
• [Injury 2]
• [Injury 3]
• [Permanent conditions, if any]

B. Medical Treatment

Emergency Treatment:
- Date: [Date]
- Facility: [Hospital Name]
- Treatment: [Description]

Surgical Treatment:
- Date(s): [Dates]
- Procedures: [Description]

Ongoing Treatment:
- [Current treatment needs]

C. Damages Summary

D. Punitive Damages

[If applicable:]

Your company's conduct demonstrates willful and wanton disregard for consumer safety, warranting punitive damages under N.C. Gen. Stat. Section 1D-15. We reserve the right to seek punitive damages up to the statutory cap.

VIII. SETTLEMENT DEMAND

A. Demand Amount

Based upon the clear liability under North Carolina products liability law, the severity of our client's injuries, the absence of any contributory negligence, and the substantial damages incurred, we hereby demand:

$[DEMAND AMOUNT]

B. Time for Response

This demand will remain open for forty-five (45) days from the date of this letter, expiring on [Expiration Date].

IX. DOCUMENTATION ENCLOSED

• Medical records and bills
• Photographs of the defective product
• Photographs of injuries
• Employment and wage records
• Expert reports (if available)
• Recall notices or safety bulletins (if applicable)
• [Other relevant documentation]

X. CONCLUSION

This case involves a defective product that caused serious injuries to an innocent consumer using the product exactly as intended. Our client exercised reasonable care at all times, and there is no contributory negligence to bar or reduce recovery.

We urge you to evaluate this claim seriously and respond with a reasonable settlement offer. If this matter cannot be resolved, we are prepared to file suit in the General Court of Justice, Superior Court Division, State of North Carolina, and pursue this matter through trial.

Respectfully submitted,

[FIRM NAME]

By: _________________________________
[Attorney Name]
North Carolina State Bar No. [Number]
Attorney for [Client Name]

ENCLOSURES: As noted above

cc: [Client Name]
[Co-Counsel, if any]
File

NORTH CAROLINA PRODUCTS LIABILITY PRACTICE NOTES

• CRITICAL - Contributory Negligence: North Carolina is one of only four jurisdictions that bars recovery for ANY contributory negligence. Document carefully that plaintiff used product properly.

• No Strict Liability for Design Defects: Design defect claims require proof of negligence. Smith v. Fiber Controls Corp., 300 N.C. 669 (1980).

• Strict Liability Limited to Manufacturing Defects: Only manufacturing defects support strict liability claims.

• Statute of Repose: Six-year repose from initial purchase for use or consumption. N.C. Gen. Stat. Section 1-50(a)(6).

• Punitive Damages: Require clear and convincing evidence of fraud, malice, or willful/wanton conduct. Capped at greater of 3x compensatory or $250,000.

• Joint and Several Liability: Abolished in North Carolina. Each defendant pays only their proportionate share. N.C. Gen. Stat. Section 1B-1.

• Rule 9(j) Affidavit: Medical malpractice cases require certification; products liability cases do not.

• Venue: County where cause of action arose or where defendant resides. N.C. Gen. Stat. Section 1-82.

• Jury Demand: Must be demanded in pleadings. N.C.R. Civ. P. 38(b).