25-224. Actions on product liability.
(1) All product liability actions, except one governed by subsection (5) of this section, shall be commenced within four years next after the date on which the death, injury, or damage complained of occurs.
(2)(a) Notwithstanding subsection (1) of this section or any other statutory provision to the contrary, any product liability action, except one governed by section 2-725, Uniform Commercial Code or by subsection (5) of this section, shall be commenced as follows:
(i) For products manufactured in Nebraska, within ten years after the date the product which allegedly caused the personal injury, death, or damage was first sold or leased for use or consumption; or
(ii) For products manufactured outside Nebraska, within the time allowed by the applicable statute of repose, if any, of the state or country where the product was manufactured, but in no event less than ten years. If the state or country where the product was manufactured does not have an applicable statute of repose, then the only limitation upon the commencement of an action for product liability shall be as set forth in subsection (1) of this section.
(b) If the changes made to this subsection by Laws 2001, LB 489, are declared invalid or unconstitutional, this subsection as it existed prior to September 1, 2001, shall be deemed in full force and effect and shall apply to all claims in which a final order has not been entered.
(3) The limitations contained in subsection (1), (2), or (5) of this section shall not be applicable to indemnity or contribution actions brought by a manufacturer or seller of a product against a person who is or may be liable to such manufacturer or seller for all or any portion of any judgment rendered against a manufacturer or seller.
(4) Notwithstanding the provisions of subsections (1) and (2) of this section, any cause of action or claim which any person may have on July 22, 1978, may be brought not later than two years following such date.
(5) Any action to recover damages based on injury allegedly resulting from exposure to asbestos composed of chrysotile, amosite, crocidolite, tremolite, anthrophyllite, actinolite, or any combination thereof, shall be commenced within four years after the injured person has been informed of discovery of the injury by competent medical authority and that such injury was caused by exposure to asbestos as described herein, or within four years after the discovery of facts which would reasonably lead to such discovery, whichever is earlier. No action commenced under this subsection based on the doctrine of strict liability in tort shall be commenced or maintained against any seller of a product which is alleged to contain or possess a defective condition unreasonably dangerous to the buyer, user, or consumer unless such seller is also the manufacturer of such product or the manufacturer of the part thereof claimed to be defective. Nothing in this subsection shall be construed to permit an action to be brought based on an injury described in this subsection discovered more than two years prior to August 30, 1981.
Source
Annotations
1. Constitutionality
2. Computation of time
3. Miscellaneous
1. Constitutionality
Subsection (2) of this section is constitutional. Gillam v. Firestone Tire & Rubber Co., 241 Neb. 414, 489 N.W.2d 289 (1992).
Nebraska's products liability 10-year statute of repose does not violate the Due Process or Equal Protection Clauses of the Nebraska or U.S. Constitutions and does not violate the open courts provision of the Nebraska Constitution. Radke v. H.C. Davis Sons' Mfg. Co., 241 Neb. 21, 486 N.W.2d 204 (1992).
The 10-year period of repose contained in this section is constitutional. Spilker v. City of Lincoln, 238 Neb. 188, 469 N.W.2d 546 (1991).
2. Computation of time
Subsection (2) of this section is not tolled by a person's status as a minor pursuant to section 25-213. Budler v. General Motors Corp., 268 Neb. 998, 689 N.W.2d 847 (2004).
Pursuant to subsection (2) of this section, the statute of repose should be recommenced when a product has been refurbished. To determine whether a product has been refurbished, courts must first determine whether the refurbishing resulted in a "new product." To determine whether the product should be considered "new," courts must inquire whether the refurbishing has lengthened the product's useful life beyond what was contemplated when the product was first sold. Second, even if the product is considered "new," the suit will still be time barred unless the refurbishing was defective and proximately caused the injury. Divis v. Clarklift of Nebraska, Inc., 256 Neb. 384, 590 N.W.2d 696 (1999).
The 10-year statute of repose found in subsection (2) of this section begins to run when the product is first relinquished for use or consumption. Where the injury occurs within the 10-year period, and a claimant commences his or her action after the 10 years have passed, an action accrues but is barred. Where the injury occurs outside the 10-year period, no substantive cause of action ever accrues, and a claimant's actions are likewise barred. Gillam v. Firestone Tire & Rubber Co., 241 Neb. 414, 489 N.W.2d 289 (1992).
The 1981 amendment to subsections (2) and (5) of this section cannot be retroactively applied to revive causes of action which had been extinguished by the provisions of the 1978 enactment of subsection (2) of this section. Immunity granted by a completed statutory bar is a vested right which cannot be impaired by a subsequent legislative act. Givens v. Anchor Packing, 237 Neb. 565, 466 N.W.2d 771 (1991).
Time periods for bringing suit are extended by section 25-213. Lawson v. Ford Motor Co., 225 Neb. 725, 408 N.W.2d 256 (1987).
The statute of repose applicable to the manufacturer of an allegedly defective product is contained in this section and begins to run when possession of the product is first relinquished for ultimate use or consumption, not when it is first placed into the stream of commerce by the manufacturer. Witherspoon v. Sides Constr. Co., 219 Neb. 117, 362 N.W.2d 35 (1985).
One who wrongfully conceals a material fact necessary to the accrual of a cause of action against him, and such concealment causes the opposite party to delay the filing of suit, cannot avail himself of the statute of limitations as a defense. MacMillen v. A. H. Robins Co., 217 Neb. 338, 348 N.W.2d 869 (1984).
The 4-year statute of limitations begins to run on the date on which the party who holds the cause of action discovers, or in the exercise of reasonable diligence should have discovered, the existence of the injury or damage. Condon v. A. H. Robins Co., 217 Neb. 60, 349 N.W.2d 622 (1984).
Regarding an infant's cause of action for products liability, section 25-213 tolls the statute of limitations contained in subsection (4) of this section. Macku v. Drackett Products Co., 216 Neb. 176, 343 N.W.2d 58 (1984).
3. Miscellaneous
The effect of the 10-year statute of repose in subsection (2) of this section can be to prevent what might otherwise be a cause of action from ever arising. Farber v. Lok-N-Logs, Inc., 270 Neb. 356, 701 N.W.2d 368 (2005).
The language, "first sold or leased for use or consumption," contained in subsection (2) of this section refers to when a product is first surrendered or relinquished to the individual or entity. Farber v. Lok-N-Logs, Inc., 270 Neb. 356, 701 N.W.2d 368 (2005).
Upon the passage of the 10-year repose period in subsection (2) of this section, the defendant acquires a substantive right protected by statute. Farber v. Lok-N-Logs, Inc., 270 Neb. 356, 701 N.W.2d 368 (2005).
When a party brings a suit which is characterized as a suit in tort alleging negligence in the performance of a contract, the applicable statute of limitations is that which is applied to actions in tort. Thomas v. Countryside of Hastings, 246 Neb. 907, 524 N.W.2d 311 (1994).