Statute of Repose Found Unconstitutional
Kegler Brown Construction Newsletter February 1, 1995
The Ohio Supreme Court in a surprising decision dealt a blow to the entire construction industry in this state when it threw out Ohio's longtime "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 10 years after the construction was completed.
While a statute of limitations is generally a much shorter period than 10 years, 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 can now be asserted 20, 30 or more years after the work was performed.
This creates an unenviable problem for the construction industry who will now be faced with keeping project records almost indefinitely and relying upon recollections and employees that have long since disappeared. While it is hoped that the General Assembly promptly enacts a statute of repose that will be found constitutional, in the interim those in the construction industry should exercise great caution in keeping and maintaining job records.