60-3303. Useful safe life ten-year period of repose; evidence; latent disease exception; reviving certain causes of action.
60-3303
60-3303. Useful safe life ten-year period of repose; evidence; latentdisease exception; reviving certain causes of action.(a) (1) Except as provided in paragraph (2) of this subsection,a product seller shall not be subject to liability in a product liabilityclaim if the product seller proves by a preponderanceof the evidence that the harm was caused after the product's "useful safelife" had expired. "Useful safe life" begins at the time of delivery ofthe product and extends for the time during which the product would normallybe likely to perform or be stored in a safe manner. For the purposes ofthis section, "time of delivery" means the time of delivery of a productto its first purchaser or lessee who was not engaged in the business ofeither selling such products or using them as component parts of anotherproduct to be sold.
Examples of evidence that is especially probative in determining whethera product's useful safe life had expired include:
(A) The amount of wear and tear to which the product had been subject;
(B) the effect of deterioration from natural causes, and from climateand other conditions under which the product was used or stored;
(C) the normal practices of the user, similar users and the product sellerwith respect to the circumstances, frequency and purposes of the product'suse, and with respect to repairs, renewals and replacements;
(D) any representations, instructions or warnings made by the productseller concerning proper maintenance, storage and use of the product orthe expected useful safe life of the product; and
(E) any modification or alteration of the product by a user or third party.
(2) A product seller may be subject to liability for harm caused by aproduct used beyond its useful safe life to the extent that the productseller has expressly warranted the product for a longer period.
(b) (1) In claims that involve harm caused more than 10 years after timeof delivery, a presumption arises that the harm was caused after theuseful safe life had expired. This presumption may only be rebutted byclear and convincing evidence.
(2) (A) If a product seller expressly warrants that its product can beutilized safely for a period longer than 10 years, the period of repose,after which the presumption created in paragraph (1) of this subsectionarises, shall be extended according to that warranty or promise.
(B) The ten-year period of repose established inparagraph (1) of thissubsection does not apply if the product seller intentionally misrepresentsfacts about its product, or fraudulently conceals information about it,and that conduct was a substantial cause of the claimant's harm.
(C) Nothing contained in this subsection shall affect the right of anyperson liable under a product liability claim to seek and obtain indemnityfrom any other person who is responsible for the harm which gave rise tothe product liability claim.
(D) The ten-year period of repose established in paragraph (1) of thissubsection shall not apply if the harm was caused by prolonged exposureto a defective product, or if the injury-causing aspect of the product thatexisted at the time of delivery was not discoverable by a reasonably prudentperson until more than 10 years after the time of delivery, or if the harmcaused within 10 years after the time of delivery, did not manifest itselfuntil after that time.
(c) Except as provided in subsections (d) and (e), nothingcontained in subsections (a) and (b) above shall modify theapplication of K.S.A. 60-513, and amendments thereto.
(d) (1) In a product liability claim against the product seller, theten-yearlimitation, as defined in K.S.A. 60-513, and amendmentsthereto, shall notapply to the time to discover a disease which is latent caused by exposureto a harmful material,in which event the action shall be deemed to have accrued when the diseaseand such disease's cause have been made known to the person or at the pointthe person should have been aware of the disease and such disease's cause.
(2) The term "harmful material" means silicone gel breast implants, whichwere implanted prior to July 1, 1992; any chemical substances commonlyknown as asbestos, dioxins, or polychlorinated biphenyls, whether alone oras part of any product; or any substance which is determined topresent anunreasonable risk of injury to health or the environment by the UnitedStates environmental protection agency pursuant to the federal toxicsubstances control act, 15 U.S.C. § 2601 et seq., or the state ofKansas, and because of such risk is regulated by the state or theenvironmental protection agency.
(e) Upon the effective date of this act through July 1, 1991, theprovisions of this subsection shall revive such causes of action for latentdiseases caused by exposure to a harmful material for: (1) Any person whosecause of action had accrued, as defined in subsection (d) on or after March3, 1987; or (2) any person who had an action pending in any court on March3, 1989, and because of the judicial interpretation of the ten-yearlimitation contained in subsection (b) of K.S.A. 60-513, and amendmentsthereto, as applied to latent disease caused by exposure to a harmfulmaterial the: (A) Action was dismissed; (B) dismissal of the action wasaffirmed; or (C) action was subject to dismissal. The intent of thissubsection is to revive causes of actionfor latent diseases caused by exposure to a harmful material which werebarred by interpretation of K.S.A. 60-513, and amendments thereto, ineffect prior to this enactment.
History: L. 1981, ch. 231, § 3;L. 1990, ch. 211, § 1;L. 1992, ch. 307, § 6; July 1.