WPI 110.08 Useful Safe Life

Use this instruction if there is an issue under RCW 7.72.060(1)(a) relating to the useful safe life of a product. Do not use this instruction if the facts come within the exceptions listed in RCW 7.72.060(1)(b). Use WPI 21.01 (Meaning of Burden of Proof—Preponderance of the Evidence) with this instruction.

Use bracketed material as applicable. Use the bracketed paragraph relating to the presumption if there is evidence that more than twelve years has expired. If the bracketed paragraph relating to the presumption is used, do not use the bracketed sentence in the first paragraph, which puts the burden of proof on the seller to prove that useful safe life had expired.

RCW 7.72.060(1) and (2).

Statute of repose compared to statute of limitation. RCW 7.72.060(1) is a statute of repose, not a statute of limitation. Rice v. Dow Chem. Co., 124 Wn.2d 205, 212, 875 P.2d 1213 (1994). Under RCW 7.72.060, the plaintiff's injury or damage must occur within a set period of time (the “useful safe life” of the product), regardless of how quickly the plaintiff seeks a legal remedy for such harm. Morse v. City of Toppenish, 46 Wn.App. 60, 66, 729 P.2d 638 (1986). This is different from a statute of limitation, which limits how long a plaintiff may wait to pursue a legal remedy, and the plaintiff's diligence and ability to discover the harm or its cause are relevant considerations. Morse, 46 Wn.App. at 66.

The “useful safe life” of a product “begins at the time of delivery of the product and extends for the time during which the product would normally be likely to perform or be stored in a safe manner.” RCW 7.72.060(1)(a); Zenaida-Garcia v. Recovery Sys. Tech., Inc., 128 Wn.App. 256, 115 P.3d 1017 (2005); Martin v. Goodyear Tire & Rubber Co., 114 Wn.App. 823, 61 P.3d 1196 (2003). “Time of delivery” is defined by RCW 7.72.060(1)(a) as “the time of delivery of a product to its first purchaser or lessee who was not engaged in the business of either selling such products or using them as component parts of another product to be sold.”

Pursuant to RCW 7.72.060(2), if harm was caused more than twelve years after the time of delivery, a presumption arises that the harm was caused after the useful safe life of the product had expired. This presumption may be rebutted by a preponderance of evidence.

The statute of repose in the Washington Product Liability Act will not be the same length of time for every product. See Morse, 46 Wn.App. at 66 (plaintiff produced an expert's opinion that useful safe life of a 14-foot Duraflex diving board was in excess of 15 to 16 years of constant use). This rebuttable presumption of 12 years may be different from the approach used in product liability statutes of other states. See Brewer v. Dodson Aviation, 447 F. Supp.2d 1166, 1177 (W.D. Wash. 2006); Martin, 114 Wn.App. at 828.

Choice of law issues. A statute of repose does not fall under RCW 4.18.020 (the statute of limitations borrowing statute). Instead, a statute of repose is classified as substantive law, and will be analyzed as such when a court makes choice-of-law decisions. Rice, 124 Wn.2d at 211–12; Zenaida-Garcia, 128 Wn.App. at 259–66.

Causation. There is continuing debate as to whether the application of this defense requires the defendant to prove that the age of the product was a proximate cause of the injury or damage to the plaintiff. The instruction as drafted does not include such a requirement.

Statutory exceptions. RCW 7.72.060(b) sets forth exceptions to RCW 7.72.060(1)(a). A product seller may be subject to liability for harm caused by a product used beyond its useful safe life, if:

RCW 7.72.060(1)(b).

These exceptions do not lend themselves to a pattern instruction. If there is an issue whether one of the exceptions is applicable, an instruction should be drafted that not only sets forth the useful safe life “defense” but also the exception being raised.

Discovery rule. Because RCW 7.72.060(2) is a statute of repose, not a statute of limitation, it is not affected by the discovery rule. RCW 7.72.060(3) is the statute of limitation applicable to product liability cases and does incorporate a discovery rule. Mayer v. Sto Indus., Inc., 123 Wn.App. 443, 98 P.3d 116 (2004), reversed on other grounds, 156 Wn.2d 677, 132 P.3d 115 (2006). It may be asserted as a defense in addition to the statute of repose.