Berry By and Through Berry v. Beech Aircraft Corp., I-

CourtSupreme Court of Utah
Citation717 P.2d 670
Docket NumberD,No. 17694,I-,17694
PartiesProd.Liab.Rep. (CCH) P 10,823 Mark BERRY, Eric Berry and Brooke Berry, Minors, By and Through their guardian, ad litem, Lorna J. BERRY, and Lorna J. Berry, individually, Plaintiffs and Appellants, v. BEECH AIRCRAFT CORP., a corporation, Hercules Flyers Inc., a Utah non-profit corporation, the estate of Halbert E. Root, and John Doesefendants and Respondents.
Decision Date31 December 1985

James R. Soper, Salt Lake City, for plaintiffs and appellants.

Colin P. King, Salt Lake City, Richard B. Johnson, Provo, for amicus curiae.

David K. Watkiss, Dave B. Watkiss, Michael T. Heyrend, Tracey H. Fowler, Salt Lake City, for defendants and respondents.

STEWART, Justice:

Lorna J. Berry filed this wrongful death action on behalf of herself and her children for the death of her husband and the father of her children, Alan Berry, who died in an airplane crash. The defendant, Beech Aircraft Corporation, was the manufacturer of the airplane; the defendant, Hercules Flyers, Inc., owned the airplane at the time of the crash; and one of its employees was the pilot of the plane. The action charges Beech with negligence, strict liability, and breach of warranty. The trial court awarded Beech summary judgment on all theories of liability on the ground that section 3 of the Utah Product Liability Act ("Act"), U.C.A., 1953, § 78-15-1, et seq., barred all actions against Beech. Section 3 of the Act, commonly called a statute of repose, provides:

(3) No action shall be brought for the recovery of damages for personal injury death or damage to property more than six years after the date of initial purchase for use or consumption, or ten years after the date of manufacture of a product, where that action is based upon or arises out of, any of the following:

(a) Breach of any implied warranties;

(b) Defects in design, inspection, testing or manufacture;

(c) Failure to warn;

(d) Failure to properly instruct in the use of the product; or

(e) Any other alleged defect or failure of whatsoever kind or nature in relation to a product.

On this appeal, the plaintiffs contend that section 3 is unconstitutional because it violates the following provisions of the Utah Constitution: the Open Courts Clause of Article I, section 11; the Due Process Clause of Article I, section 7; the Equal Protection Provision of Article I, section 24; and the prohibition against abrogation of wrongful death actions in Article XVI, section 5.

The action against Beech Aircraft is based on its having manufactured the airplane which crashed. The plane was some twenty-three years old at the time of the crash and had been owned by Hercules Flyers for approximately nine years. On its face, therefore, section 78-15-3 purports to bar the action against Beech.


Statutes of repose, such as section 3 of the Product Liability Act, are different from statutes of limitations, although to some extent they serve the same ends. See McGovern, The Variety, Policy and Constitutionality of Product Liability Statutes of Repose, 30 Am.U.L.Rev. 579, 582-87 (1981) (discussing the two types of statutes and variations of statutes of repose). A statute of limitations requires a lawsuit to be filed within a specified period of time after a legal right has been violated or the remedy for the wrong committed is deemed waived. A statute of repose bars all actions after a specified period of time has run from the occurrence of some event other than the occurrence of an injury that gives rise to a cause of action. The statute of repose in this case begins to run from the date of first sale, or the date of manufacture, of a product alleged to be defective.

To be constitutional, a statute of limitations must allow a reasonable time for the filing of an action after a cause of action arises. Horn v. Shaffer, 47 Utah 55, 151 P. 555 (1915); Saylor v. Hall, Ky., 497 S.W.2d 218 (1973). In Wilson v. Iseminger, 185 U.S. 55, 62, 22 S.Ct. 573, 575, 46 L.Ed. 804 (1902), the United States Supreme Court stated:

It may be properly conceded that all statutes of limitation must proceed on the idea that the party has full opportunity afforded him to try his right in the courts. A statute could not bar the existing rights of claimants without affording this opportunity; if it should do so, it would not be a statute of limitations, but an unlawful attempt to extinguish rights arbitrarily, whatever might be the purport of its provisions.

Since a statute of repose begins to run from a date unrelated to the date of an injury, it is not designed to allow a reasonable time for the filing of an action once it arises. Therefore, a statute of repose may bar the filing of a lawsuit even though the cause of action did not even arise until after it was barred and even though the injured person was diligent in seeking a judicial remedy. Section 3 of the Utah Product Liability Act bars actions without regard to when an injury occurs and is not designed to provide a reasonable time within which to file a lawsuit. Indeed, a statute of repose may cut off a cause of action even though it is filed within the period allowed by the relevant statute of limitations.

The Utah statute of repose is sweeping and absolute once the statutory period has elapsed. Section 78-15-3 bars all legal actions for death, personal injury, or damage to property caused by a defective product, if the action is filed more than six years after the date of first sale for "use or consumption," or ten years after the date of manufacture. The immunity from suit conferred protects all manufacturers, both domestic and foreign, and all persons in a manufacturer's chain of distribution, from the manufacturer to the last seller. Section 3 is not aimed at abolishing nuisance suits; on the contrary, its purpose, as shown below, is to bar injured plaintiffs' judicial remedies in wholly meritorious cases. The immunity granted is not related to the degree of the manufacturer's culpability in placing a defective product in the stream of commerce. Thus, the immunity is not limited to actions based on strict liability, but extends also to actions based on negligence, gross negligence, recklessness, willful misconduct, and even intentional misconduct, such as a manufacturer's intentional failure to warn of known dangerous defects that could cause widespread injury or death. Indeed, at least one court has held that a similar statute of repose cut off a cause of action even though the manufacturer could have averted the danger by simply warning a consumer or user of the hazard. Dague v. Piper Aircraft Corp., 275 Ind. 520, 418 N.E.2d 207, 212 (1981). Cf. Adams v. General Dynamics Corp., 405 F.Supp. 1020 (N.D.Cal.1975) (where manufacturer failed to give warning of defect that resulted in death of twelve people). Furthermore, neither the inherent dangerousness of the manufacturer's product nor the expected useful life of the product affects the immunity conferred. The immunity protects a manufacturer whether the defective product has an expected useful life of four years or twenty-four years and even though the defect is not detectable by a user so that he is wholly unable to protect himself.


Products liability law evolved because of fundamental changes in the nation's economy. The industrialization of the economy and the development of mass production and nationwide marketing in the nineteenth and twentieth centuries have resulted in widespread injury and death from dangerously defective products. The courts responded by allowing consumers injured by a manufacturer's product to sue the manufacturer, MacPherson v. Buick Motor Co., 217 N.Y. 382, 394, 111 N.E. 1050, 1055 (1916), and by shifting the risk of loss from consumers to manufacturers through development of the legal doctrine of strict liability. See, e.g., Greenman v. Yuba Power Products, Inc., 59 Cal.2d 57, 377 P.2d 897, 27 Cal.Rptr. 697 (1963). That doctrine was premised on the proposition that the cost of injuries caused by defective products which are sold for profit should be considered a cost of doing business to be borne by manufacturers, through insurance if necessary, rather than by the injured individuals, who could not effectively protect themselves by insurance or otherwise. In addition, the effect of strict liability has no doubt been to encourage safer manufacturing practices and product designs, thereby reducing the incidence of death and injury. See Cowan, Some Policy Bases of Products Liability, 17 Stan.L.Rev. 1077, 1086-87 (1965). Thus, the law of strict liability aligned the interest of the individual in being free of harm from defective goods with the public interest generally in encouraging greater safety through making the costs of defective products a charge against profits. See generally Calabresi, Product Liability: Curse or Bulwark of Free Enterprise, 27 Clev.St.L.Rev. 313 (1978).

However, these goals have not been fully achieved. The magnitude of the health and safety problems created by defective products was outlined by the New Hampshire Supreme Court in Heath v. Sears, Roebuck & Co., 123 N.H. 512, 464 A.2d 288, 293 (1983):

[T]he modern experience with consumer products has been one of ever-improving technology and rising standards of living, but also of injury and death:

"Americans--20 million of them--are injured in the home each year from consumer products. Of the total, some 100,000 are permanently disabled and some 30,000 are killed. A significant number could have been spared if more attention had been paid to hazard reduction....

The exposure of consumers to unreasonable consumer product hazards is excessive by any standard of measurement."

Significantly, these figures do not even take into account the hazards to life and limb created by defective products used outside the home, such as automobiles, or by defective products used in industrial and...

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