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Radke v. H. C. Davis Sons' Mfg. Co.

Supreme Court of Nebraska
Jul 10, 1992
486 N.W.2d 204 (Neb. 1992)


No. S-89-1473.

Filed July 10, 1992.

Constitution Law: Limitations of Actions: Products Liability: Due Process: Equal Protection. Nebraska's 10-year statute of repose for products liability actions found in Neb. Rev. Stat. § 25-224(2) (Reissue 1989) does not violate the Due Process Clause, the Equal Protection Clause, or the open courts provision of the Nebraska or U.S. Constitutions.

Appeal from the District Court for Lancaster County: EARL J. WITTHOFF, Judge. Affirmed.

William A. Wieland, of The Healey Wieland Law Firm, and, on brief, Anne E. Winner, of Bruckner, O'Gara, Keating, Sievers Hendry, P.C., for appellant.

Mark R. Scherer and Waldine H. Olson, of Schmid, Mooney Frederick, P.C., for appellee H. C. Davis Sons' Manufacturing Co.


This is a civil suit in which the plaintiff-appellant, Terry R. Radke, seeks damages for injuries allegedly sustained when he fell into a mixing machine designed and manufactured by the defendant-appellee H. C. Davis Sons' Manufacturing Co., Inc. (H. C. Davis). The Board of Regents of the University of Nebraska is also a named defendant, though its only interest is in subrogation for workers' compensation benefits paid by the university to the plaintiff. See Neb. Rev. Stat. § 48-118 (Reissue 1988).

The plaintiff's negligence and strict liability theories of recovery are both premised upon H. C. Davis' failure to equip the mixer in question with certain safety features which would allegedly have prevented the accident. H. C. Davis filed a motion for summary judgment which the trial court sustained based upon Nebraska's 10-year statute of repose for products liability actions. See Neb. Rev. Stat. § 25-224(2) (Reissue 1989). This appeal followed.


On November 20, 1984, during the course of his employment in a work-study program at the University of Nebraska at Lincoln, the plaintiff fell into a "Davis Precision Mix Batch Mixer, Model No. S-20," designed and manufactured by H. C. Davis. The plaintiff became so entangled in the shaft and agitator paddles that use of an acetylene torch was required to extricate him.

The university purchased two model S-20 mixing machines from H. C. Davis in 1966, which machines were delivered on June 8 and 21, respectively. There is no record of H. C. Davis selling the university any other mixers than the two sold in 1966. From this evidence H. C. Davis concludes, and the plaintiff does not contest the conclusion, that the mixer involved in the November 20, 1984, accident is one of the two sold to the university in 1966.


Section 25-224(2) provides:

Notwithstanding subsection (1) of this section or any other statutory provision to the contrary, any product liability action, except one governed by section 2-725, Uniform Commercial Code or by subsection (5) of this section, shall be commenced within ten years after the date when the product which allegedly caused the personal injury, death, or damage was first sold or leased for use or consumption.

The plaintiff does not contest the fact that this case involves a "product liability action," see Neb. Rev. Stat. § 25-21,180 (Reissue 1989), nor that the period of repose began to run in June 1966, see Witherspoon v. Sides Constr. Co., 219 Neb. 117, 362 N.W.2d 35 (1985) (statute of repose applicable to an allegedly defective product begins to run when possession of the product is first relinquished for ultimate use or consumption, not when it is placed into the stream of commerce by the manufacturer). Instead, the plaintiff bases his appeal solely on the alleged unconstitutionality of 25-224(2).

The plaintiff argues that 25-224(2) violates the Due Process and Equal Protection Clauses of the Nebraska and U.S. Constitutions, Neb. Const. art. I, 3, and art. III, 18, and U.S. Const. amend. XIV, as well as the open courts provision of the Nebraska Constitution, Neb. Const. art. I, 13. Recently, this court considered and rejected the same arguments.

In Spilker v. City of Lincoln, 238 Neb. 188, 469 N.W.2d 546 (1991), the court reasoned that

"[t]he immunity afforded by a statute of repose is a right which is as valuable to a defendant as the right to recover on a judgment is to a plaintiff; the two are but different sides of the same coin. . . . These are substantive rights recognized by Nebraska law and protected by its Constitution."

Id. at 191, 469 N.W.2d at 548, quoting Givens v. Anchor Packing, 237 Neb. 565, 466 N.W.2d 771 (1991). Because "the Legislature is free to create and abolish rights so long as no vested right is disturbed," and the plaintiffs failed to show that the 10-year repose period is either unreasonable or arbitrary, we upheld the constitutionality of 25-224(2) in that case. Spilker, 238 Neb. at 192, 469 N.W.2d at 548. Today, we adhere to our previous decision.

Summary judgment is proper when the evidence in the record discloses that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. West Neb. Gen. Hosp. v. Farmers Ins. Exch., 239 Neb. 281 475 N.W.2d 901 (1991). Having resolved the legal issues adversely to the plaintiff, and in the absence of any dispute as to the expiration of the 10-year period in 1976, we affirm the trial court's action sustaining H. C. Davis' motion for summary judgment.


Summaries of

Radke v. H. C. Davis Sons' Mfg. Co.

Supreme Court of Nebraska
Jul 10, 1992
486 N.W.2d 204 (Neb. 1992)
Case details for

Radke v. H. C. Davis Sons' Mfg. Co.

Case Details


Court:Supreme Court of Nebraska

Date published: Jul 10, 1992


486 N.W.2d 204 (Neb. 1992)
486 N.W.2d 204

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