Statute of Limitations for Product Liability

In Virginia, product liability suits brought under the theories of strict liability or negligence must be filed within two years after the cause of action occurred. Va. Code § 8.01-243(A). Under Virginia law, unlike in most states, a "right of action" does not occur until an injury is sustained, and not when the resulting damage is discovered. Va. Code § 8.01-230. An injury is deemed to occur, and the two year statute of limitations period begins to run, whenever any injury, however slight, is caused by the negligent act. Large v. Bucyrus-Erie Co., 524 F. Supp. 285 (1981). An injury need not occur contemporaneously with a negligent act, but may arise at some later point. St. George v. Pariser, 253 Va. 329, 484 S.E.2d 888 (1997). If you do not file a lawsuit within this time, you cannot sue.

If the lawsuit is based on contract law, as in the case of a breach of warranty, you must file it within five years after the cause of action occurred. Va. Code § 8.01-246. Similar to strict liability and negligence cases, a "right of action" here does not occur and the statute of limitations does not begin to run until the plaintif is injured by a breach of contract. International Surplus Lines Ins. Co. v. Marsh & McLennan, Inc., 838 F.2d 124 (1988). If you do not file a lawsuit within this time, you cannot sue.

In addition to typical statutes of limitations, state legislatures have also enacted special statutes of limitations for certain types of actions to put outside time limits on certain types of lawsuits. These are referred to as statutes of repose. Statutes of repose typically place an outside limit (usually 10, 15 or 20 years) on certain types of lawsuits, regardless of when the injury is discovered. In Virginia, injured victims cannot file a medical malpractice action against a health care provider, in cases arising out of a foreign objects having no therapeutic or diagnostic purpose being left in a patient's body, more than one year after the object is discovered or reasonably should have been discovered. Va. Code § 8.01-243. However, this does not extend the limitations period beyond ten years from the date the cause of action accrues.

In addition, no action to recover for injury arising out of a defective or unsafe improvement to real property may be brought after five years from the performance of services and construction. Va. Code § 8.01-250. The purpose of this statute of repose is to extinguish the rights of a plaintiff after a certain period of time to avoid stale claims and unlimited liability against potential defendants. School Bd. v. United States Gypsum Co., 234 Va. 32, 360 S.E.2d 325 (1987).


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