This Court assumes the familiarity of the reader with the facts of the case as set forth in the District Court Order and Opinion granting summary judgment. Based upon those facts, we conclude that the Appellant did not assume the risk because there was no evidence of actual, subjective knowledge on behalf of Ms. Rolfsen.
Furthermore, in applying the statute of repose, the lower court did not sufficiently analyze the proper factors. As set forth below, we have applied the Berry evidentiary factors to shape our determination regarding the “useful safe life” of the toy. Berry v. Walker Brewing, Inc., 816 F. Supp. 2d 1126 (14th Cir. 1988). Based upon our application, there are genuine issues of material fact regarding…show more content… IV. STATUTE OF REPOSE
The typical “statute of repose” enacted in many jurisdictions provides an absolute time limit on claims and causes of action. Ohiowa’s statute differs from the typical statute of repose in that it does not act to absolutely bar an action, but rather establishes a separate affirmative defense which can be rebutted. We look to the Berry factors, which are probative in determining whether a product’s useful safe life has expired, and include:
1. The level of wear and tear to which the product had been subjected;
2. The effect of deterioration from natural causes, and from climate and other conditions under which the product was used or stored;
3. The normal practices of the user, similar users and the product seller with respect to the circumstances, frequency and purposes of the product's use, and with respect to repairs, renewals and replacements;
4. Any representations, instructions or warnings made by the product seller concerning proper maintenance, storage and use of the product or the expected useful safe life of the product;
