Olsen v. J.A. Freeman Co.

BISTLINE, Justice,

dissenting:

I must dissent from the holding of the majority in this case on two grounds: First, the majority’s analysis of Olsen’s claim that the statute violates the open courts provision of the Idaho Constitution is unsound; and second, even assuming arguendo that the statute is constitutional, the statutory limitation based on “useful safe life” should not have been applied to Olsen’s claim of failure to warn. Each of these issues will be discussed in turn.

I. THE OPEN COURTS PROVISION

The majority’s analysis of this issue relies heavily on the fact that, unlike statutes *722 of limitation in other states which have been found to violate those states’ open courts provisions, 12 Idaho’s statute merely creates a rebuttable presumption and thus does not absolutely bar plaintiffs’ claims. On the surface this appears to present an attractive argument. However, it is possible to make such an argument only by turning a blind judicial eye to the practical realities present in these cases. This the majority has chosen to do, and in the process it has also chosen to rely on a distinction without a difference in order to foreclose a valid constitutional challenge to the statute.

The majority opinion refers several times to the “rebuttable presumption provision” of I.C. § 6-1403. 13 However, never in this section of the opinion does the majority discuss the language of that theoretically “rebuttable” presumption. If it were to deign to do so, the majority would have to acknowledge that while the statute is cast in terms of a supposed “rebuttable” presumption, in practical application the rebuttal burden on plaintiffs is so heavy that the presumption is rebuttable in name only.

Ordinary rebuttable presumptions should be well understood since the trial bar and bench received the opinion in Bongiovi v. Jamison, 110 Idaho 734, 738 , 718 P.2d 1172, 1176 (1986), where the Court approvingly set forth the text of Idaho Rule of Evidence 301:

Presumptions in general in civil actions and proceedings. — In all civil actions and proceedings not otherwise provided for by statute or by these rules, a presumption imposes on the party against whom it is directed the burden of going forward with evidence to rebut or meet the presumption, but does not shift to such party the burden of proof in the sense of the risk of nonpersuasion, which remains throughout the trial upon the party on whom it was originally cast.

As explained and better worded by Justices Bistline and Donaldson, in their special concurrence in Keenan v. Brooks, 100 Idaho 823, 828 , 606 P.2d 473, 478 (1980), once a presumption arises, “it is the burden of going forward sufficiently to dispel the presumption which shifts — not the burden of persuasion.” 14 In contrast to Bongiovi and Keenan , the “rebuttable” presumption in I.C. § 6-1403(2)(a) is defined as follows:

Length of time product sellers are subject to liability. — (2) Statute of repose,

(a) Generally. In claims that involve harm caused more than ten (10) years after time of delivery, a presumption arises that the harm was caused after the useful safe life had expired. This presumption may only be rebutted by clear and convincing evidence.

(Emphasis added.) In practice, this means that once the manufacturer has produced evidence showing that the product was delivered more than ten years before the plaintiff’s injury, the plaintiff must produce clear and convincing evidence simply to avoid entry of a summary judgment of dismissal and the resulting denial of the opportunity to have a jury be the trier of *723 fact. Such is a daunting prospect for a plaintiff. Also, generally a motion for summary judgment based on a statute of repose would come fairly early in the proceedings, before a great deal of discovery has been done. Yet, in this context the plaintiff must essentially conduct and prevail in a mini-trial on the issue of the “useful safe life” of the product which caused the injury; otherwise the plaintiff cannot avoid being out of court on summary judgment motion.

The imposition of such an onerous requirement on products liability plaintiffs is tantamount to an absolute bar to the claims of those plaintiffs. Since the majority’s reasoning in support of the statute’s constitutionality rests on this demonstrably suspect distinction between “absolute bar” and “rebuttable presumption”, that reasoning is suspect as well. Idaho Code § 6-1403 effectively forecloses a claimant’s cause of action before it truly can be said to have accrued. As such it is a prima facie violation of art. 1, § 18 of the Idaho Constitution.

II. A “USEFUL SAFE LIFE” DEFENSE IS INCONSISTENT WITH A CLAIM FOR FAILURE TO WARN

Even were one to assume, merely for the sake of argument, that the statute of repose at issue here is constitutional, it should not have been applied to dismiss Olsen’s claim for failure to warn. The statute of repose is based on the concept of the “useful safe life” of a product. “Useful safe life” is a very logical defense in the context of those suits which are based on design defect or defective manufacture of a product. Tied as it is to foreseeability, “useful safe life” offers a relatively objective and consistent point at which it is no longer reasonable to hold the manufacturer liable because the safe use of the product after that time was not reasonably foreseeable.

This logic breaks down in two ways when the attempt is made to apply a “useful safe life” defense to a failure to warn claim. First, the duty to warn arises because there is some danger inherent in the use of the product. Restatement (Second) of Torts § 388 (1965). Thus, at least as to the aspect of the product for which a warning should have been made, there is no “useful safe life” at all — the product started out in a dangerous condition, and it was the warning which would have made it “safe” for use. Thus the “useful safe life” of the product cannot expire because it never existed.

The second reason a “useful safe life” defense is inconsistent with a claim for failure to warn has to do with the ongoing nature of the duty to warn. The “useful safe life” of a product, at least as that term is defined in I.C. § 6-1403, begins to run as soon as the product is delivered to its first purchaser, and presumptively expires ten years after that delivery. On the other hand, the duty to warn is an ongoing one, and while it may arise at the time of delivery, it may also arise at a much later time, perhaps even after the presumptive “useful safe life” has expired. See, e.g., Readenour v. Marion Power Shovel, 149 Ariz. 442 , 719 P.2d 1058 (1986). See also Lockwood v. AC & S, Inc., 109 Wash.2d 235 , 744 P.2d 605 (1987); Wooderson v. Ortho Pharmaceutical Corp., 235 Kan. 387 , 681 P.2d 1038 (1984).

The time period established in the “useful safe life” statute of repose is simply inconsistent with the continuing nature of the duty to warn. Thus the statute of repose should not apply at all to a claim asserting that the manufacturer breached its duty to warn. The trial court’s erroneous use of the statute of repose as a predicate for dismissal of Olsen’s claim against Freeman for failure to warn requires therefore that the judgment be reversed and/or vacated, and that the claim be reinstated for further proceedings.

. See, e.g., Berry v. Beech Aircraft Corp., 717 P.2d 670 (Utah 1985); Heath v. Sears, Roebuck & Co., 123 N.H. 512 , 464 A.2d 288 (1983).

. See, e.g., 117 Idaho at 717, 791 P.2d at 1296 ("notwithstanding its rebuttable presumption provision”); 117 Idaho at 718, 791 P.2d at 1297 ("Idaho’s 'rebuttable presumption’ language satisfies constitutional scrutiny ...; and Olsen’s reliance on a New Hampshire case "is misplaced and distinguishable because New Hampshire Statute 507-D:2 contains an absolute bar without the rebuttable presumption provision”); 117 Idaho at 718, 791 P.2d at 1297 (the substantial difference between the Utah statute which was held to be unconstitutional and the Idaho statute is "primarily in the presence of a rebut-table presumption in the Idaho statute and the absence of a rebuttable presumption in the Utah statute”).

.In that same opinion is found the reason for the uncertainty created by McNabb v. Brewster, 75 Idaho 313 , 272 P.2d 298 (1954), namely the citation in McNabb to California authority which interchangeably used burden of proof and burden of producing evidence, although in doing so the California courts were aware that they were not shifting the burden of persuasion. 100 Idaho at 828 , 606 P.2d at 478 .