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The Ohio Supreme Court dealt a blow to the entire construction industry in this state when it again threw out Ohio's "statute of repose" as unconstitutional. While a "statute of repose" is not a "statute of limitations," it limits the number of lawsuits that can be asserted against design professionals, contractors, subcontractors and the like by preventing lawsuits filed more than a certain number of years after the construction was completed.

While a statute of limitations is generally a shorter period than a statute of repose, because courts in many circumstances have allowed the statute of limitations to commence only when the injured party "knew or should have known" of the defect, this means that a lawsuit could now be asserted 20, 30 or more years after the work was performed.

This created an unenviable problem for the construction industry who was faced with keeping project records almost indefinitely and relying upon recollections and employees that have long since disappeared. This new found open-end liability was a nightmare for those in the construction industry faced with defending claims years after the fact when records, employees and memories have been lost.

In an effort to find a solution that the Ohio Supreme Court might consider constitutional, the Ohio General Assembly in the 1996 Tort Reform Bill (Am. Sub. H.B. 350) instituted a fifteen (15) year statute of repose. This new law became effective on January 27, 1997 but has already been declared unconstitutional by Ohio's Supreme Court. This means that the construction industry is again faced with retaining records indefinitely to defend against potential open-ended liability in that Ohio no longer has a "statute of repose" in place limiting suits on old projects.