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Tort reform bills would limit time to sue

Callaway, Greene county legislators propose similar measures by Brendan Crowley [email protected] | February 5, 2020 at 6:05 a.m. | Updated February 5, 2020 at 6:05 a.m.

The daughter of a man killed when a duck boat sank on Table Rock Lake in 2018 testified she couldn’t have sued the boat’s operators under a tort reform proposal in the Missouri House of Representatives.

Sen. Jeanie Riddle, R-Mokane, and Rep. Curtis Trent, R-Springfield, have proposed similar bills that would limit when someone can sue over an injury caused by a defective or unsafe product. Both bills had committee hearings Tuesday with Riddle’s bill in the Senate Government Reform Committee and Trent’s bill in the House Judiciary Committee.

Jennifer Asher, a fourth-grade teacher in Arnold, whose father, William, died along with 16 other people while riding the vehicle when it sank on July 19, 2018, recalled that night when she tried to get any information about her father, calling and texting him with no response.

A state trooper called her the next morning to tell her that her father died, and since then, she said she’s missed him every day and thought about the moments he will miss, like walking her down the aisle. All she wanted from her lawsuit was to hold the boat’s owner and operator Ripley Entertainment responsible and to find some sort of closure, she said.

John Wilbers, the attorney who represented Asher, said that wouldn’t have been possible under a proposal to impose a “statute of repose” for product liability lawsuits. For years, tort reform advocates have pushed to bring Missouri into the group of states with those statutes. They are a similar concept to statutes of limitation in that they restrict how long someone has to sue or bring charges.

The difference is in the start date. Statutes of limitation set a time period after the harmful act when someone is allowed to sue, while statutes of repose set a time period after a product is manufactured. Riddle and Trent both want to set that limit at 15 years.

Proponents of the bills, including representatives of industry and defense attorneys, said the bill would stop frivolous lawsuits brought well after a product’s useful life. It harms manufacturers and retailers who have to defend themselves against the suits, they argued.

Several states around Missouri — including Kansas, Iowa and Illinois — all have 10-year statutes of repose, which leaves Missouri with a worse business climate compared to its neighbors, said Dana Frese, of the Missouri Organization of Defense lawyers. Democratic representatives questioned Frese’s argument, with Rep. Gina Mitten, D-St. Louis, saying it’s the same argument they hear on every tort reform bill and questioning why they keep having to pass more of them.

David Overfelt, president of the Missouri Retailers Association, testified retailers have been brought into these liability suits when there’s no manufacturer on record, even when there’s no record the retailer sold the product in question.

Since 17 people died on Table Rock Lake, survivors and family members have filed 31 lawsuits against Ripley, with parties settling the final lawsuit in January, according to the Associated Press.

Plaintiffs, including Asher, consistently argued Ripley Entertainment and its employees were negligent in allowing the boats on the lake despite severe thunderstorm and high wind warnings, and they ignored long-standing warnings from the National Transportation Safety Board, which warned the boats weren’t safe without modifications after one sank in Arkansas’ Lake Hamilton in 1999, killing 13 people.

Missouri law gave Asher and others impacted by the deaths the opportunity to hold Ripley accountable, Wilkins said. Under the proposed statutes, they would not have because the boat that sank in Table Rock Lake was built in 1944 for military use in World War II and modified in 1996, putting it well beyond the 15-year limit, Wilkins said.

Several lawmakers questioned if the law would actually have prevented Asher or others from suing Ripley. Rep. Bruce DeGroot, R-Ellisville, said he didn’t question any of the facts of the case, but he doesn’t think the statute of repose would apply in Asher’s case because of the major modifications the boat’s previous owner, Ride the Ducks, made after they were manufactured.

Wilbers said there hadn’t been any modifications to the boats since they added seats in 1996, even after the National Transportation Safety Board said they needed to in order to make the vessels safe on water. With the statute of repose, the court would have said they couldn’t bring a claim because it had been more than 15 years since the boats were last modified, he said.

The bills allow a longer statute of repose if the manufacturer has a written warranty or advertisement that the product has an expected useful life of longer than 15 years. In those cases, the statute of repose would be the expected useful life plus two years.

Garner questioned what that provision would do. Most companies don’t state their product has a useful life of longer than 15 years, but many products are used for longer. Brett Emison, president of the Missouri Association of Trial Attorneys, said products that can actually kill people, like cars, don’t include explicit expiration dates.

In those cases, it would be up to the court to decide what a product’s “useful life” is, Emison said. In prior sessions, similar bills had made it the plaintiff’s responsibility to prove what the product’s useful life is, he said. Sen. Tony Luetkemeyer said he read the bill as making it the defendant’s responsibility, which Emison said would be a slightly better option for plaintiffs.

Riddle’s bill is a bit different from Trent’s: It wouldn’t apply in any case where the manufacturer knowingly concealed a defect or dangerous condition. It also doesn’t affect suits over the negligent service or maintenance of a product.

Missouri already has a statute of repose for defective or unsafe real property improvements, like adding a deck or other home improvements. Under that law, passed in 1976, anyone injured by a defective or dangerous improvement has 10 years from the end of construction to bring a lawsuit against anyone involved in its design, plan or construction.

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