By | June 7, 2014

A frequent question that arises with claims involving alleged defective products is what effect, if any, the age of the product has on recovery. It’s a common misconception that simply because a product is “old,” any claim for damages caused by it are barred. However, the extent to which there could be recovery for damages resulting from a defective product depends upon whether the jurisdiction enacted any type of statute of repose for product liability cases and what that statute provides.

Statutes of repose differ from statutes of limitations and these distinctions often provide a source of confusion. The main distinction between statutes of repose and statutes of limitations is the triggering event from which the applicable period of time begins to run. A statute of limitation begins to run from the injury or the act giving rise to the injury (i.e. the date of the fire or flood in the typical subrogation case). A statute of repose begins to run from an event other than the event of an injury giving rise to the cause of action. In some cases, a statute of repose may bar an action before a cause of action even arises.

Most states have enacted statutes of repose related to construction activities (such as construction of real property). Some states have also enacted statutes of repose applicable to product liability claims which generally begin to run when the specific product is first delivered or sold to a consumer. Beyond that, every state that has a statute of repose has different and unique provisions and exceptions to how the statute applies.

A very small number of states have statutes with an absolute bar to asserting a product liability claim after a specific number of years. These statutes provide no exceptions to the rule that after a certain number of years after the product is first sold (the number of years vary), any claim is barred. More commonly are statutes which provide a number of exceptions to the absolute bar on recovery. Examples of exceptions include claims for fraud or misrepresentation. Other states have “rebuttable presumptions” whereby the court will presume that a product over ten years old is not defective until the claimant presents evidence to rebut that presumption. Finally, a few states have no statutes of repose, either because the courts have declared them unconstitutional or because they were never enacted. In those states, no matter how old the product is, the claim is not barred by any statute of repose.

Each state treats claims based on product defects very differently and that treatment is constantly subject to change by the courts. One should not assume that because a claim involves a product older than 10 years, for example, there is a legal bar to that claim. Those states that do have statutes of repose applicable to product defect cases also may have a number of exceptions that may render it inapplicable or trigger beneficial presumptions. If you have a claim involving an older product it is imperative that you review the laws of the specific jurisdiction you are in, including whether an applicable statute of repose applies.

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