Will Ohio Adopt a Statute of Repose?

Kegler Brown Construction Newsletter

A statute of repose is designed to protect contractors and design professionals from legal liability long after a building is substantially complete. In this way, contractors and design professionals are not subjected to open ended liability and the tremendous costs associated with preserving records for an extensive period of time. It is also difficult to disprove claims once the memories of those involved in the original construction have faded, witnesses die or move, or where the documents have disappeared.

Therefore, most states have a statute of repose to protect against these stale claims that are asserted many years or decades after a building is constructed.

Unfortunately for the construction industry in Ohio, the Ohio Supreme Court has twice found the Ohio statute of repose (Ohio Revised Code §2305.131) unconstitutional. Brennaman v. R.M. I. Co. (1994), 70 Ohio St.3d 460.

The construction industry is now clamoring for a new statute of repose that may have a greater chance of constitutionality, particularly in view of the new additions to the Ohio Supreme Court. We will have to wait and see whether the current General Assembly enacts a new statute of repose and, if so, whether that statute is upheld. Until then, contractors and design professionals are advised to keep their records for an indefinite period of time in an effort to protect themselves against claims that could be asserted years or decades later.