DEMAND FOR SETTLEMENT - PRODUCTS LIABILITY
STATE OF SOUTH DAKOTA
[FIRM NAME]
Attorneys at Law
[Street Address]
[City, South Dakota ZIP]
Telephone: [Phone]
Facsimile: [Fax]
Email: [Email]
Licensed in the State of South Dakota
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]
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 South Dakota law.
I. SOUTH DAKOTA PRODUCTS LIABILITY LEGAL FRAMEWORK
A. Theories of Liability
South Dakota recognizes multiple theories of recovery in products liability cases:
1. Strict Liability in Tort
South Dakota adopted Section 402A of the Restatement (Second) of Torts in Engberg v. Ford Motor Co., 87 S.D. 196, 205 N.W.2d 104 (1973). A seller of a product in a defective condition unreasonably dangerous to the user is strictly liable for physical harm caused to the ultimate user or consumer.
2. Negligence
A manufacturer has a duty to exercise reasonable care in the design, manufacture, inspection, and warning of products. Smith v. Smith, 278 N.W.2d 155 (S.D. 1979).
3. Breach of Warranty
South Dakota recognizes claims for breach of express warranty (S.D. Codified Laws Section 57A-2-313), implied warranty of merchantability (Section 57A-2-314), and implied warranty of fitness for a particular purpose (Section 57A-2-315).
B. Statute of Limitations
Under S.D. Codified Laws Section 15-2-12.2, the statute of limitations for products liability actions is three (3) years from the date of injury. The discovery rule may apply where the injury was not immediately discoverable. Alberts v. Giebink, 299 N.W.2d 454 (S.D. 1980).
C. Statute of Repose
South Dakota does not have a statute of repose for products liability claims. Actions may be brought regardless of the age of the product, provided the statute of limitations is satisfied.
D. Design Defect Test
South Dakota applies the consumer expectations test as the primary standard for design defects under Section 402A:
A product is defective if it is "in a condition not contemplated by the ultimate consumer, which will be unreasonably dangerous to him." Engberg v. Ford Motor Co., 87 S.D. 196, 205 N.W.2d 104 (1973).
Courts also consider risk-utility factors in evaluating design defect claims, including the availability of safer alternative designs. Peterson v. Safway Steel Scaffolds Co., 400 N.W.2d 909 (S.D. 1987).
E. Comparative Fault - Slight/Gross Standard
South Dakota has a unique slight-gross comparative negligence system under S.D. Codified Laws Section 20-9-2. A plaintiff may recover only if:
- The plaintiff's negligence was slight in comparison to the defendant's negligence, and
- The defendant's negligence was gross in comparison to the plaintiff's negligence.
If the plaintiff's negligence is more than "slight," recovery is completely barred. This is a more restrictive standard than typical modified comparative negligence.
Application: In products liability cases involving strict liability, comparative fault principles may reduce recovery. Smith v. Smith, 278 N.W.2d 155 (S.D. 1979).
F. Punitive Damages
Under S.D. Codified Laws Section 21-1-4.1, punitive damages require clear and convincing evidence that the defendant acted with:
- Willful, wanton, or malicious conduct; or
- Extraordinary or outrageous conduct
Limitations:
- Punitive damages may not exceed the greater of $500,000 or the amount of compensatory damages awarded
- The state receives 50% of punitive damages awarded
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 documentation
- Testing data and safety assessments
- All versions of warnings, labels, and instructions
Complaints and Claims:
- Prior consumer complaints regarding this product
- Prior claims and lawsuits involving similar defects
- Regulatory correspondence and adverse event reports
Spoliation Warning: South Dakota courts recognize spoliation remedies including adverse inference instructions. ANY DESTRUCTION OR ALTERATION OF EVIDENCE WILL RESULT IN SEVERE CONSEQUENCES.
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] |
| Date of Purchase | [Purchase Date] |
| Retailer/Seller | [Retailer Name and Location] |
| Purchase Price | $[Amount] |
B. Chain of Distribution
The following entities are potentially liable under South Dakota's products liability law:
| Entity | Role |
|---|---|
| [Manufacturer Name] | Manufacturer |
| [Component Supplier] | Component Manufacturer |
| [Distributor Name] | Distributor |
| [Retailer Name] | Retailer/Seller |
IV. THE DEFECT
A. Nature of Defect
[DESIGN DEFECT / MANUFACTURING DEFECT / FAILURE TO WARN - Select applicable]
[Detailed description of the defect, how it rendered the product unreasonably dangerous, and how it failed to meet consumer expectations]
B. Consumer Expectations Analysis
Under South Dakota's consumer expectations test from Engberg v. Ford Motor Co., 87 S.D. 196, 205 N.W.2d 104 (1973), the [Product Name] was defective because:
- An ordinary consumer would not expect [describe the dangerous condition]
- The product failed to perform as safely as an ordinary consumer would expect
- The defect made the product unreasonably dangerous for its intended use
V. THE INCIDENT AND INJURIES
A. How the Injury Occurred
On [Date], at approximately [Time], our client was [describe use of product] when [describe how the defect caused injury].
B. Injuries Sustained
As a direct and proximate result of the defective product, our client sustained:
Physical Injuries:
- [Injury 1]
- [Injury 2]
- [Injury 3]
Medical Treatment:
- [Treatment summary]
Permanent Effects:
- [Describe any permanent conditions]
VI. DAMAGES
A. Economic Damages
| Category | Amount |
|---|---|
| Past Medical Expenses | $[Amount] |
| Future Medical Expenses | $[Amount] |
| Past Lost Wages | $[Amount] |
| Future Lost Earning Capacity | $[Amount] |
| TOTAL ECONOMIC DAMAGES | $[Total] |
B. Non-Economic Damages
Under South Dakota law, our client is entitled to compensation for:
- Physical pain and suffering
- Mental anguish and emotional distress
- Loss of enjoyment of life
- Permanent impairment and disfigurement
C. Punitive Damages
[If applicable:]
Your company's conduct in [describe egregious conduct] constitutes willful, wanton, or malicious behavior warranting punitive damages under S.D. Codified Laws Section 21-1-4.1. We reserve the right to seek punitive damages subject to applicable statutory limits.
D. Summary of Damages
| Category | Amount |
|---|---|
| Total Economic Damages | $[Amount] |
| Total Non-Economic Damages | $[Amount] |
| TOTAL COMPENSATORY DAMAGES | $[Total] |
VII. SETTLEMENT DEMAND
Based upon the clear liability of your company under South Dakota law and the substantial damages our client has sustained, 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].
If this matter cannot be resolved, we are prepared to file suit in the Circuit Court for [County] County, South Dakota, and pursue this matter through trial.
VIII. DOCUMENTATION ENCLOSED
☐ Medical records and bills
☐ Photographs of the defective product
☐ Photographs of injuries
☐ Employment and wage documentation
☐ Product documentation and warnings
☐ Expert reports (if available)
☐ [Other relevant documentation]
IX. CONCLUSION
This case involves a defective product that caused serious injuries to our client. The defect was present when the product left your company's control, and the injuries were entirely preventable.
We urge you to evaluate this claim seriously and respond with a reasonable settlement offer within the time allowed.
Respectfully submitted,
[FIRM NAME]
By: _________________________________
[Attorney Name]
State Bar of South Dakota No. [Number]
Attorney for [Client Name]
ENCLOSURES: As noted above
cc: [Client Name]
[File]
SOUTH DAKOTA PRODUCTS LIABILITY PRACTICE NOTES
☐ Strict Liability Adopted: South Dakota follows Section 402A of the Restatement (Second) of Torts per Engberg v. Ford Motor Co., 87 S.D. 196, 205 N.W.2d 104 (1973).
☐ Consumer Expectations Test: Primary standard for design defects, with risk-utility considerations also applied.
☐ Unique Comparative Fault: South Dakota's slight-gross standard is more restrictive than typical comparative negligence - plaintiff's negligence must be "slight" and defendant's must be "gross."
☐ No Statute of Repose: South Dakota does not limit products liability claims based on product age.
☐ Punitive Damages Cap: Greater of $500,000 or compensatory damages, with 50% going to the state.
☐ Expert Testimony: South Dakota follows Daubert standards for expert testimony. State v. Guthrie, 2001 S.D. 61, 627 N.W.2d 401.
☐ Venue: County where defendant resides or where cause of action arose. S.D. Codified Laws Section 15-5-1.
This template is specific to South Dakota law. Products liability law is complex and varies significantly by jurisdiction. This template must be customized for each case by a licensed South Dakota attorney.