1, 1979. This, however, was not the legislature's intention.
The statute on its face applies "to any cause of action
accruing on or after January 1, 1979, involving any product which
was in or entered into the stream of commerce prior to, on, or
after January 1, 1979." Ill.Rev.Stat. ch. 83, § 22.2(g) (emphasis
added). The Illinois legislature clearly and explicitly
distinguished between the accrual of the cause of action and the
entry of the product into the stream of commerce in establishing
the statute's applicability. As to the accrual of the cause of
action, the statute is prospective; as to the entry of the
product into the stream of commerce, the statute is retroactive.
The cases plaintiffs cite to support their position on
prospective application are inapposite. The cited cases deal with
the application of a newly-enacted statute to pre-existing causes
of action. On January 1, 1979, the effective date of the Statute
of Repose, plaintiffs did not have a cause of action.
Plaintiffs then cite Board of Education v. Blodgett, 155 Ill. 441,
40 N.E. 1025 (1895), which held that the right to raise the
statute of limitations as a defense to a cause of action, once
the statute has run, is a vested right that cannot be taken away
by legislation. From this holding, the plaintiffs argue that it
necessarily follows that a statute can never bar a cause of
action before it accrues. This is a non-sequitur. That the
legislature cannot "legislate away" a vested right is not
relevant to the legislature's power to limit manufacturers'
potential liability in causes of action based on strict tort
liability which accrue after the effective date of the statute.
Finally, plaintiffs argue that the Statute of Repose is invalid
because it is a "special law." They characterize it as a special
law in two ways; first, because it applies only to strict tort
liability actions and not to claims based on negligence or
contract, and secondly, because it does not apply to actions by
state or federal regulatory agencies.
The distinction between strict tort liability actions on the
one hand, and negligence and contract claims on the other, is
reasonably based. Strict liability is a "no-fault,"
non-bargained-for liability that raises policy questions not at
issue in actions for negligence or breach of contract. The state
legislature may choose to treat these different actions in
A fair reading of the statute reveals that it does not exclude
all actions by state or federal regulatory agencies. The statute
states only that actions brought by state or federal regulatory
agencies pursuant to statute are not "product liability actions"
within the meaning of the statute. It does not appear, as
plaintiffs argue, that "the State of Illinois (or even the State
of Alaska) could file an action under strict tort liability in
Illinois courts but not an Illinois citizen." Plaintiffs' Motion
to Strike at 12 (emphasis added). The action by the state would
have to be "pursuant to statute;" otherwise the state would be
subject to the same limitations as any individual. The reason for
the exception is clearly to prevent the limitations of this
statute from interfering with other state or federal regulatory
schemes, as in the area of pollution control, for example.
The challenged statute, as its name indicates, is not truly a
statute of limitations. Statutes of limitations extinguish, after
a period of time, the right to prosecute an accrued cause of
action. This statute, by way of contrast, limits a manufacturer's
potential liability by limiting the time during which a cause of
action can arise. As plaintiffs contend, the statute serves to
bar causes of action before they accrue.
One remaining issue (which plaintiffs did not address) is
whether the state legislature has the power to limit by statute
a judicially created right.[fn**] It seems clear that the legislature
does have such power. By way of analogy, Illinois courts have
acknowledged that the state legislature could abolish the
commonlaw right of dower, in any case where that right is
presently inchoate. Classen v. Heath, 389 Ill. 183, 187,
58 N.E.2d 889 (1945). Plaintiffs' "right" to bring a strict
liability cause of action was inchoate at best, and probably only
a "mere possibility" at the time the legislature passed the
Statute of Repose. This court will not interfere with the state
legislature's decision to restrict or abolish that cause of
action, so long as the state's action is not arbitrary or lacking
any rational connection to a legitimate state interest. The
challenged statute is neither.
Accordingly, plaintiffs' motion to strike the first affirmative
defense to Counts I and II is denied.