DEMAND FOR SETTLEMENT - PRODUCTS LIABILITY
STATE OF NEBRASKA
[FIRM NAME]
Attorneys at Law
[Street Address]
[City, Nebraska ZIP]
Telephone: [Phone]
Facsimile: [Fax]
Email: [Email]
Licensed in the State of Nebraska
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 Nebraska law.
I. NEBRASKA-SPECIFIC LEGAL FRAMEWORK
A. Nebraska Product Liability Act
Nebraska products liability claims are governed by the Nebraska Product Liability Act, Neb. Rev. Stat. Sections 25-21,180 to 25-21,182. This statute provides the framework for products liability claims in Nebraska.
B. Products Liability Theories Recognized
Under Nebraska law, a plaintiff may recover based on the following theories:
1. Strict Liability (Restatement (Second) of Torts Section 402A)
Nebraska adopted strict products liability in Kohler v. Ford Motor Co., 187 Neb. 428, 191 N.W.2d 601 (1971). Under Nebraska law, a seller of a product in a defective condition unreasonably dangerous to the user is liable for physical harm caused by the defect.
2. Negligence
Traditional negligence claims are available for design defects, manufacturing defects, and failure to warn. Freeman v. Hoffman-La Roche, Inc., 260 Neb. 552, 618 N.W.2d 827 (2000).
3. Breach of Warranty
Express and implied warranties under the Nebraska Uniform Commercial Code (Neb. Rev. Stat. Sections 2-313 through 2-315) provide additional bases for recovery.
C. Design Defect Standard
Nebraska applies a consumer expectation test for design defect claims. Under Kohler, a product is defective if it is "dangerous to an extent beyond that which would be contemplated by the ordinary consumer who purchases it, with the ordinary knowledge common to the community as to its characteristics."
Nebraska courts have also recognized that risk-utility factors may be considered in appropriate cases. Kudlacek v. Fiat S.p.A., 244 Neb. 822, 509 N.W.2d 603 (1994).
D. Statute of Limitations
Under Neb. Rev. Stat. Section 25-224, the statute of limitations for products liability claims is four (4) years from the date the cause of action accrues.
The discovery rule applies: the cause of action accrues when the plaintiff knew or should have known of the injury and its cause.
This claim arises from an incident that occurred on [Date], and therefore the limitations period expires on [Expiration Date].
E. Statute of Repose
Under Neb. Rev. Stat. Section 25-21,182, Nebraska has a ten (10) year statute of repose. No products liability claim may be brought more than ten years after the date the product was first sold for use or consumption.
Exceptions: The statute of repose does not apply if:
- The manufacturer expressly warranted the product for a longer period
- The manufacturer fraudulently concealed the defect
F. Comparative Negligence
Nebraska follows modified comparative fault under Neb. Rev. Stat. Section 25-21,185.09. A plaintiff's recovery is reduced by their percentage of fault, and recovery is barred if the plaintiff is 50% or more at fault.
Our client bears no responsibility for this incident. Our client:
- Used the product for its intended purpose
- Followed all instructions and warnings
- Acted as a reasonable consumer would
G. Punitive Damages
Nebraska generally does not allow punitive damages. The Nebraska Constitution (Art. VII, Section 5) and Nebraska case law prohibit punitive damages in most civil actions. Abel v. Conover, 170 Neb. 926, 104 N.W.2d 684 (1960).
Punitive damages are only available where specifically authorized by statute.
H. Seller Liability
Under Neb. Rev. Stat. Section 25-21,181, a seller (other than the manufacturer) is not liable in a products liability action unless:
- The seller made express warranties about the product
- The seller exercised substantial control over design, testing, or manufacturing
- The seller altered or modified the product
- The manufacturer is insolvent, has dissolved, or is not subject to jurisdiction
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 and quality control documents
- Testing data and safety assessments
- FMEA (Failure Mode and Effects Analysis) documents
- Owner's manuals, instructions, 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 correspondence (CPSC, FDA, NHTSA)
- Recall notices and service bulletins
Nebraska courts recognize spoliation sanctions. Ladd v. Omaha Pub. Power Dist., 223 Neb. 436, 390 N.W.2d 520 (1986). Destruction of evidence may result in adverse inferences 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] |
Statute of Repose Verification: The product was first sold on [Date], which is within the ten-year statute of repose period.
B. Chain of Distribution
The following entities are in the chain of distribution and may bear liability under Nebraska law:
| Entity | Role |
|---|---|
| [Manufacturer Name] | Manufacturer |
| [Component Supplier] | Component Manufacturer |
| [Distributor Name] | Distributor |
| [Retailer Name] | Retailer/Seller |
C. Product Description
[Describe the product, its intended use, and relevant safety considerations]
IV. THE DEFECT
A. Nature of Defect
[SELECT AND CUSTOMIZE APPLICABLE THEORY:]
DESIGN DEFECT:
The [Product Name] contains a design defect that renders it unreasonably dangerous under Nebraska's consumer expectation test. The product was more dangerous than an ordinary consumer would expect when using it in its intended manner.
[Detailed description of design defect]
A feasible alternative design existed that would have prevented the injury:
[Describe alternative design]
MANUFACTURING DEFECT:
The specific [Product Name] involved departed from its intended design due to a manufacturing defect:
[Detailed description of manufacturing defect]
FAILURE TO WARN:
The manufacturer failed to provide adequate warnings regarding known risks:
[Describe inadequate warnings and what adequate warnings should have stated]
V. THE INCIDENT
A. How the Injury Occurred
On [Date], at approximately [Time], our client was using the [Product Name] for its intended purpose when [describe what happened].
[Detailed narrative of the incident]
B. Foreseeable Use
Our client was using the product:
- For its intended purpose
- In accordance with provided instructions
- In a manner consistent with product marketing
- As a reasonable consumer would
C. Causation
The defect was the direct and proximate cause of our client's injuries. The injuries would not have occurred but for the defect.
VI. LIABILITY ANALYSIS
A. Strict Liability
Under Kohler v. Ford Motor Co., 187 Neb. 428 (1971), your company is strictly liable because:
- The product was in a defective condition when it left your control
- The defect made the product unreasonably dangerous
- The defect caused our client's injuries
- Our client suffered damages
B. Negligence
Your company was negligent in:
- Designing a product with an unreasonable risk of harm
- Failing to adequately test the product
- Failing to provide adequate warnings
- Failing to implement adequate quality control
C. Breach of Warranty
The product breached:
- Express Warranty: [Describe any express warranties]
- Implied Warranty of Merchantability: Neb. Rev. Stat. Section 2-314
- Implied Warranty of Fitness: Neb. Rev. Stat. Section 2-315
D. Comparative Fault
Our client exercised all reasonable care and bears no percentage of fault for this incident. Under Neb. Rev. Stat. Section 25-21,185.09, your company cannot establish comparative fault.
VII. INJURIES AND DAMAGES
A. Physical Injuries
As a direct and proximate result of the defective product, our client sustained:
[List specific injuries with diagnoses]
B. Medical Treatment
Emergency Treatment:
- Date: [Date]
- Facility: [Hospital Name]
- Treatment: [Description]
Subsequent Treatment:
[Detail all treatment received]
C. Medical Expenses
| Provider | Service | Amount |
|---|---|---|
| [Provider] | [Service] | $[Amount] |
| TOTAL PAST MEDICAL | $[Total] |
Future Medical Expenses: $[Amount]
D. Lost Wages
| Category | Amount |
|---|---|
| Past Lost Wages | $[Amount] |
| Future Lost Earning Capacity | $[Amount] |
| TOTAL | $[Total] |
E. Non-Economic Damages
[Describe pain and suffering, emotional distress, loss of enjoyment of life]
Nebraska does not cap non-economic compensatory damages.
F. Summary of Damages
| Category | Amount |
|---|---|
| Past Medical Expenses | $[Amount] |
| Future Medical Expenses | $[Amount] |
| Past Lost Wages | $[Amount] |
| Future Lost Earnings | $[Amount] |
| TOTAL ECONOMIC DAMAGES | $[Subtotal] |
| Pain and Suffering | $[Amount] |
| Emotional Distress | $[Amount] |
| Loss of Enjoyment of Life | $[Amount] |
| TOTAL NON-ECONOMIC | $[Subtotal] |
| TOTAL COMPENSATORY DAMAGES | $[Total] |
VIII. SETTLEMENT DEMAND
Based upon the clear liability and substantial damages, we hereby demand:
$[DEMAND AMOUNT]
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 product and defect
- Photographs of injuries
- Employment and wage documentation
- Expert reports (if available)
- Product documentation and warnings
- [Other relevant documentation]
X. CONCLUSION
This case involves a defective product that caused serious injuries to our client. Liability is clear under the Nebraska Product Liability Act, and damages are substantial. We urge you to evaluate this claim seriously and respond with a fair settlement offer.
If this matter cannot be resolved, we are prepared to file suit in the District Court of [County], Nebraska, and pursue this matter through trial.
Please contact me at your earliest convenience.
Respectfully submitted,
[FIRM NAME]
By: _________________________________
[Attorney Name]
Nebraska Bar No. [Number]
Attorney for [Client Name]
ENCLOSURES: As noted above
cc: [Client Name]
File
NEBRASKA-SPECIFIC PRACTICE NOTES
Four-Year Statute of Limitations: Nebraska has a longer limitations period than most states.
Ten-Year Statute of Repose: Critical to verify product was first sold within ten years. Document date of original sale.
Comparative Negligence: 50% bar rule - plaintiff cannot recover if 50% or more at fault.
No Punitive Damages: Nebraska constitutionally prohibits punitive damages in most cases. Do not include punitive damage claims unless specifically authorized by statute.
Seller Liability Limitations: Non-manufacturer sellers have significant protections under Neb. Rev. Stat. Section 25-21,181.
Consumer Expectation Test: Primary test for design defects, with risk-utility factors also considered.
Expert Testimony: Required to establish defect and causation in most cases.
Conservative Jurisdiction: Nebraska juries tend to be conservative; set realistic damage expectations.