The opinion of the court was delivered by: Getzendanner, District Judge.
MEMORANDUM OPINION AND ORDER
Plaintiff Jacqueline Kline was severely injured in October,
1979, by a farm combine being used by her husband, plaintiff Roy
Kline. Although the Klines had bought the machine only one week
before the accident, it had been manufactured by defendant J.I.
Case in May, 1940, and sold to its first purchaser on June 14,
Count I of plaintiffs' complaint is based on strict tort
liability. Count II is the husband's claim for loss of
consortium, based on the same theory. Counts III and IV are for
breach of warranty and Counts V and VI are negligence counts.
As affirmative defenses to Counts I and II, defendant alleges
(1) that plaintiffs' cause of action in strict liability is
barred by the Illinois Statute of Repose, Ill.Rev.Stat. ch. 83, §
22.2, (2) assumption of the risk, and (3) misuse of the product.
Plaintiffs have moved to strike defenses (1) and (3). Defendant
concedes that misuse of a product is not, strictly speaking, an
affirmative defense under Illinois law, and that defense shall be
stricken. Plaintiffs' motion to strike the first affirmative
defense, however, is denied.
The Statute of Repose, Ill.Rev.Stat. ch. 83, § 22.2, bars a
cause of action based on strict tort liability if the product was
sold by the manufacturer more than 12 years, or if it was bought
by the initial consumer more than 10 years, prior to the
injury-causing occurrence, whichever period expires earlier. As
the farm combine involved in this case was first purchased by a
consumer more than 10 years prior to Mrs. Kline's injury, the
statute, if valid, will act as a bar to Counts I and II.*fn*
Plaintiffs first attack the statute on the grounds that it is
"misguided" and the result of "an intensive legislative lobby
effort by the insurance industry." Plaintiffs' Motion to Strike
at 3. These allegations, however, provide no justification for
this court to overturn or otherwise modify the statute. "It is
not a function of [a federal district court] to substitute its
judgment for that of the state legislature as to matters within
the realm of the legislature's discretion." Wall & Ochs, Inc. v.
Grasso, 469 F. Supp. 1088, 1092 (D.Conn. 1979).
Plaintiffs next contend that the statute is inequitable because
it bars a cause of action before it arises. That is precisely
what the legislature intended the statute to do, however. In
support of their position, plaintiffs cite a number of Illinois
decisions involving the "discovery rule" in which the courts in
effect extended the statute of limitations in certain
circumstances. These cases are inapplicable to the present case,
especially in light of Anderson v. Wagner, 79 Ill.2d 295, 37
Ill.Dec. 558, 402 N.E.2d 560 (1980), in which the Illinois
Supreme Court upheld the medical malpractice statute of
limitations creating an outer limit of four years within which a
patient may file a medical malpractice claim.
Plaintiffs' next argument is that the Statute of Repose must be
given prospective application only. By "prospective application,"
plaintiffs mean that the statute should be applied to products
manufactured after the statute's effective date, January
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