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Nebraska Supreme Court Advance Sheets

311 Nebraska Reports

AG VALLEY CO-OP v. SERVINSKY ENGR.

Cite as 311 Neb. 665

Ag Valley Cooperative, Non-Stock, a Nebraska 

cooperative corporation, appellant, v. 

Servinsky Engineering, PLLC, a Michigan 

professional limited liability 

company, et al., appellees.

___ N.W.2d ___

Filed June 3, 2022. No. S-20-709.

1. Summary Judgment: Appeal and Error. An appellate court affirms a 

lower court’s grant of summary judgment if the pleadings and admitted 

evidence show that there is no genuine issue as to any material facts or 

as to the ultimate inferences that may be drawn from the facts and that 

the moving party is entitled to judgment as a matter of law. In reviewing 

a summary judgment, an appellate court views the evidence in the light 

most favorable to the party against whom the judgment was granted, and 

gives that party the benefit of all reasonable inferences deducible from 

the evidence.

2. Statutes: Appeal and Error. Statutory interpretation presents a question of law which an appellate court reviews independently of the 

lower court.

3. Limitations of Actions. The determination of which statute of repose 

applies is a question of law.

4. Summary Judgment: Proof. The party moving for summary judgment 

must make a prima facie case by producing enough evidence to show 

that the movant is entitled to judgment if the evidence were uncontroverted at trial. If the party moving for summary judgment makes a prima 

facie case, the burden shifts to the nonmovant to produce evidence 

showing the existence of a material issue of fact that prevents judgment 

as a matter of law.

5. Summary Judgment. Conclusions based on guess, speculation, conjecture, or a choice of possibilities do not create material issues of fact for 

purposes of summary judgment.

Nebraska Supreme Court Online Library

www.nebraska.gov/apps-courts-epub/

07/28/2022 07:07 AM CDT
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6. Limitations of Actions: Contractors and Subcontractors. Claims 

of defective construction brought against builders and contractors are 

governed by the limitations periods set out in Neb. Rev. Stat. § 25-223 

(Reissue 2016), whether the claims are based on theories of contract, 

tort, fraud, or breach of warranty.

7. Statutes. The interpretation of a statute presents a question of law.

8. Statutes: Legislature: Intent. When construing a statute, a court must 

determine and give effect to the purpose and intent of the Legislature 

as ascertained from the entire language of the statute considered in its 

plain, ordinary, and popular sense.

9. Statutes: Courts. A court must reconcile different provisions of the 

statute so they are consistent, harmonious, and sensible.

10. Statutes: Intent. In construing a statute, the court must look at the 

statutory objective to be accomplished, the problem to be remedied, 

or the purpose to be served, and then place on the statute a reasonable 

construction which best achieves the purpose of the statute, rather than 

a construction defeating the statutory purpose.

11. Products Liability: Limitations of Actions. Nebraska’s product liability statute of repose in Neb. Rev. Stat. § 25-224(2)(a) (Reissue 2016) 

contemplates a single state of manufacture for each product and a single 

statute of repose for each product.

12. ____: ____. For purposes of the product liability statute of repose in 

Neb. Rev. Stat. § 25-224(2)(a) (Reissue 2016), it is immaterial where 

the product’s various component parts were manufactured; a claim 

brought against the manufacturer of a component part will be governed 

by the same repose period as applies to the manufacturer of the completed product.

13. Products Liability: Limitations of Actions: Words and Phrases.

Reference to “the product” in Neb. Rev. Stat. § 25-224(2)(a)(i) and (ii) 

(Reissue 2016) means the product that was placed on the market and 

sold to the consumer for use or consumption, and it necessarily includes 

the product’s original component parts.

14. Products Liability: Limitations of Actions. Ordinarily, deciding 

whether a product liability action is barred by the statute of repose 

in Neb. Rev. Stat. § 25-224(2)(a) (Reissue 2016) will not require the 

court to consider the merits of the particular claim at all, because the 

statute of repose operates as a statutory bar independent of the merits of 

the action.

Appeal from the District Court for Lancaster County: Kevin 

R. McManaman, Judge. Affirmed.
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AG VALLEY CO-OP v. SERVINSKY ENGR.

Cite as 311 Neb. 665

John P. Weis and Andrew D. Wurdeman, of Wolfe, Snowden, 

Hurd, Ahl, Sitzmann, Tannehill & Hahn, L.L.P., for appellant.

Terry J. Grennan and Michael R. Faz, of Cassem, Tierney, 

Adams, Gotch & Douglas, for appellee Servinsky Engineering, 

PLLC.

Daniel L. Lindstrom and Elizabeth J. Klingelhoefer, of 

Jacobsen, Orr, Lindstrom & Holbrook, P.C., L.L.O., for appellee Johnson System, Inc.

Brenna Marie Grasz, Gary Nedved, and Christopher Gruber, 

of Keating, O’Gara, Nedved & Peter, P.C., L.L.O., for appellee 

Heartland Building Systems, Inc.

Andre R. Barry, Jennie A. Kuehner, and Kevin J. Schneider, 

of Cline, Williams, Wright, Johnson & Oldfather, L.L.P., for 

appellee Chief Industries, Inc.

Heavican, C.J., Miller-Lerman, Cassel, Stacy, Funke, 

and Freudenberg, JJ., and Weimer, District Judge.

Stacy, J.

This case arises from the 2017 collapse of a premanufactured grain bin that was constructed and put into service in 

2007. In 2018, the owner of the grain bin filed suit against 

multiple defendants, alleging the collapse was due to defects in 

designing, manufacturing, and constructing the grain bin. In a 

series of orders, the district court granted summary judgment 

in favor of the defendants. It dismissed the claim against the 

general contractor as barred by the statute of repose in Neb. 

Rev. Stat. § 25-223 (Reissue 2016). It dismissed the product 

liability claim against the manufacturers as barred by the 

statute of repose in Neb. Rev. Stat. § 25-224(2)(a)(i) (Reissue 

2016). And it dismissed the product liability claim against 
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an engineering firm after finding the firm was not involved in 

the design or manufacturing of the subject grain bin.

The owner of the grain bin appeals, arguing primarily that 

the district court did not apply the correct statutes of repose 

to the various claims. Finding no merit to the assignments of 

error, we affirm.

I. BACKGROUND

1. Parties

Ag Valley Cooperative, Non-Stock (Ag Valley), is a cooperative corporation organized and existing under Nebraska law. It 

is an agricultural producer-owned cooperative engaged in the 

buying, selling, and storing of grain, farm products, and farming inputs.

Chief Industries, Inc. (Chief), is a Delaware corporation 

with its principal place of business in Nebraska. One of its 

divisions, headquartered in Kearney, Nebraska, is engaged in 

the business of designing, manufacturing, and constructing 

metal buildings, including grain bin storage facilities and components thereof.

Heartland Building Systems, Inc. (Heartland), is a Nebraska 

corporation engaged in the business of constructing, designing, 

and installing grain bin systems and components for grain bin 

storage. Heartland is a dealer for Chief.

At all relevant times, Johnson System, Inc. (Johnson), was 

a Michigan corporation engaged in the business of designing, 

manufacturing, and selling grain bin structures and component 

parts. And Servinsky Engineering, PLLC (Servinsky), was a 

company that provided structural engineering consulting services to Johnson.

2. Grain Bin

In late January 2007, Ag Valley contracted with Heartland 

to serve as the general contractor for the construction of a 
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grain storage facility in Edison, Nebraska. The Edison facility included several grain bins, one of which was a “Chief 

Titan ‘Agri-Dome’” model CB50-15, which Heartland ordered 

directly from Chief. For ease of reference, we will refer to the 

subject grain bin as the “Titan model CB50.”

Chief designed and manufactured the primary components 

of the Titan model CB50 at its facility in Kearney, including the curved sidewall panels, the roof structure, and the 

metal stiffeners that ran vertically along the sidewalls to add 

strength. The Titan model CB50 sold to Ag Valley was customized to include specific features for the Edison facility, 

including a feature the parties refer to as a “skid loader door.” 

This door was approximately 7 feet wide and 8 feet tall, and 

it allowed a skid loader to enter the base of the bin to assist 

in emptying residual grain. To accommodate the skid loader 

door, Chief designed and manufactured the Titan model CB50 

using shorter sidewall sheets, and it designed and fabricated 

two base plates to add horizontal strength to the sill of the skid 

loader door.

At Chief’s request, the skid loader door itself was designed 

and manufactured by Johnson, specifically for incorporation into the Titan model CB50 being manufactured for the 

Edison facility. Johnson manufactured the door at its facility in 

Michigan in May and June 2007, and then shipped the component part directly to Chief in Kearney. Chief then shipped the 

entire Titan model CB50, with all of its component parts and 

instructions for assembly and installation, to Heartland’s construction site in Edison.

Heartland’s subcontractors completed installation and construction of the Titan model CB50 on July 4, 2007. During 

construction, the bin was anchored to a concrete foundation, 

and when completed, the bin was 155 feet in diameter and 

could store over 1 million bushels of grain. The following 

exhibit depicts the Edison facility with the Titan model CB50 

and the skid loader door in the foreground:
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Construction on Ag Valley’s Edison facility was completed 

on November 1, 2007, and the Titan model CB50 was placed 

into service. Final payment on the construction project was 

made by Ag Valley to Heartland on November 30. The Titan 

model CB50 was full of grain when it collapsed without warning almost 10 years later, on August 6, 2017.

3. Operative Complaint

On March 20, 2018, Ag Valley filed this lawsuit in the district court for Lancaster County, seeking damages in excess 

of $8 million from multiple defendants allegedly involved in 

designing, manufacturing, and constructing the grain storage 

facility. We summarize the allegations of the operative second 

amended complaint only as relevant to the issues and the parties before us on appeal.

Ag Valley styled its only claim against Heartland as one 

based in contract. The operative complaint alleged that 

Heartland, as the general contractor, “breached its agreement 
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to properly design and construct the grain bin facility in a 

workman like manner” and “failed to provide Ag Valley with 

a properly designed and usable grain bin which would safely 

withstand the loads placed upon it by grain to be stored in the 

facility as contemplated in the agreement.”

Ag Valley asserted product liability claims against Chief, 

Johnson, and Servinsky. The complaint alleged, collectively, 

that each of these defendants was strictly liable in tort as a 

result of designing, manufacturing, and selling a dangerous 

and unsafe product and that each defendant was negligent 

in “incorporating into [the] grain bin facility the skid loader 

door.” More specifically, the complaint alleged:

The grain bin storage system was unreasonably dangerous for its intended use and failed to work as safely as an 

ordinary consumer would expect when used in a manner 

intended by the manufacturer or reasonably foreseeable 

by the manufacturer. The Defendants placed the grain 

bin storage system on the market when they knew, or in 

the exercise of reasonable care, should have known the 

grain bin storage system was defective, unreasonably 

dangerous, and unsafe. The skid loader drive door system 

incorporated into the grain bin storage facility was defective when the [Titan model CB50] left the possession of 

. . . Chief . . . .

The complaint alleged the specific defects which “caused or 

contributed to the failure” of the Titan model CB50 included (1) 

the skid loader door system and its component parts that were 

insufficient to withstand normal operational forces created by 

storing grain in the bin and (2) the doorframe and the “flexible 

grain bin walls [that] were not properly designed to withstand 

normal operational forces.” The complaint also alleged Chief, 

Johnson, and Servinsky were negligent in “utilizing a skid 

loader door assembly that was not compatible with the grain 

bin wall” and that had not been adequately tested.

At different points in the litigation, Servinsky, Heartland, 

Chief, and Johnson all moved for summary judgment.
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4. Summary Judgment to Servinsky

Servinsky moved for summary judgment on the merits of the 

product liability claim, asserting that it had “no involvement 

in the project which is the subject matter of [the] Complaint 

and, therefore . . . no duty to the plaintiff.” The district court 

granted Servinsky’s motion, finding the evidence was undisputed that Servinsky neither “designed, [nor] manufactured any 

component[] parts or assisted in any manner with regard to the 

site specific” Titan model CB50 that collapsed.

5. Summary Judgment to Heartland

Heartland’s motion for summary judgment asserted that Ag 

Valley’s claim against Heartland was barred by the 10-year 

statute of repose set out in § 25-223, which provides in relevant part:

In no event may any action be commenced to recover 

damages for an alleged breach of warranty on improvements to real property or deficiency in the design, planning, supervision, or observation of construction, or construction of an improvement to real property more than 

ten years beyond the time of the act giving rise to the 

cause of action.

The district court agreed that Ag Valley’s claim against 

Heartland was governed by § 25-223, and it determined the 

10-year repose period commenced running in November 2007. 

Because Ag Valley’s lawsuit was filed more than 10 years later, 

the court concluded the claim against Heartland was barred 

by the statute of repose, and it granted summary judgment in 

Heartland’s favor.

6. Summary Judgment to 

Chief and Johnson

At separate times, Chief and Johnson each moved for summary judgment, arguing the product liability claims against 

them were barred by the 10-year statute of repose in § 25-224, 

which provides in pertinent part:
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(2)(a) Notwithstanding subsection (1) of this section or 

any other statutory provision to the contrary, any product 

liability action . . . shall be commenced as follows:

(i) For products manufactured in Nebraska, within ten 

years after the date the product which allegedly caused 

the personal injury, death, or damage was first sold or 

leased for use or consumption; or

(ii) For products manufactured outside Nebraska, 

within the time allowed by the applicable statute of 

repose, if any, of the state or country where the product 

was manufactured, but in no event less than ten years. If 

the state or country where the product was manufactured 

does not have an applicable statute of repose, then the 

only limitation upon the commencement of an action for 

product liability shall be as set forth in subsection (1) of 

this section.

Chief moved for summary judgment before Johnson did, and 

Chief’s motion was taken up first. In opposing Chief’s motion, 

Ag Valley offered the affidavit of its expert, Chris Wortmann, 

a licensed physical engineer who inspected the grain bin after 

the collapse. Wortmann’s affidavit set out his opinion on the 

cause of the bin collapse. Summarized, Wortmann’s testimony 

identified several deficiencies in how Johnson designed and 

manufactured the skid loader door assembly, and he identified several deficiencies in how Chief incorporated the door 

system into the grain bin, including how the doorframe was 

attached to the metal sheets of the bin system. Ultimately, it 

was Wortmann’s opinion that “[i]f the skid loader door system 

had not been installed, [the] grain bin would not have sustained 

a catastrophic failure.”

Ag Valley relied on Wortmann’s opinions to argue that 

for purposes of the repose period in § 25-224, the “product 

which allegedly caused the personal injury, death, or damage” 1

was the skid loader door, not the Titan model CB50 system. 

And, because the skid loader door had been manufactured 

1 § 25-224(2)(a)(i).
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by Johnson in Michigan, Ag Valley argued that Michigan’s 

statute of repose should be applied to the product liability 

claim, rather than Nebraska’s.

In separate orders, the court granted summary judgment in 

favor of Chief and Johnson. In both orders, the district court 

examined the product liability allegations in Ag Valley’s complaint—and the evidence adduced—and determined “the product” for purposes of applying § 25-224 was the Titan model 

CB50 system, and not just the skid loader door incorporated 

therein. The court found the Titan model CB50 system was 

manufactured by Chief in Nebraska, and it applied the 10-year 

repose period set out in § 25-224(2)(a)(i). It found the Titan 

model CB50 system was first sold to Ag Valley for use no 

later than November 1, 2007 (the date the grain facility was 

placed into service), and concluded that because the product 

liability claims against Chief and Johnson were filed more than 

10 years after that date, the claims were barred by the statute 

of repose.

In its summary judgment order as to Chief, the district court 

also made an alternative finding that even if the relevant product for purposes of the statute of repose was considered to be 

just the skid loader door, the applicable Michigan statute of 

repose still barred Ag Valley’s claim. Because this opinion does 

not ultimately address the court’s alternative finding, we do not 

elaborate on the court’s alternative reasoning.

7. Other Parties Dismissed

During the course of the litigation, all other named defendants were dismissed. As such, when the court entered summary 

judgment in favor of Johnson on September 1, 2020, that order 

had the effect of resolving all remaining claims and issues 

before the district court. Ag Valley filed this timely appeal, 

which we moved to our docket on our own motion.

II. ASSIGNMENTS OF ERROR

Ag Valley assigns, consolidated and restated, that the 

district court erred by (1) granting summary judgment to 
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Servinsky when there was a genuine issue of material fact 

regarding the extent of Servinsky’s involvement in designing the skid loader door; (2) applying the statute of repose in 

§ 25-223, rather than § 25-224, to Ag Valley’s claim against 

Heartland; and (3) resolving a disputed question of material 

fact on summary judgment “by deciding as a matter of law 

what the relevant product was for purposes of” the statute of 

repose in § 25-224(2)(a).

III. STANDARD OF REVIEW

[1] An appellate court affirms a lower court’s grant of summary judgment if the pleadings and admitted evidence show 

that there is no genuine issue as to any material facts or as 

to the ultimate inferences that may be drawn from the facts 

and that the moving party is entitled to judgment as a matter of law. 2 In reviewing a summary judgment, an appellate 

court views the evidence in the light most favorable to the 

party against whom the judgment was granted, and gives that 

party the benefit of all reasonable inferences deducible from 

the evidence. 3

[2] Statutory interpretation presents a question of law 

which an appellate court reviews independently of the lower 

court. 4

[3] The determination of which statute of repose applies is a 

question of law. 5

2 Bohling v. Bohling, 309 Neb. 625, 962 N.W.2d 224 (2021).

3 Id.

4 Porter v. Knife River, Inc., 310 Neb. 946, 970 N.W.2d 104 (2022). See 

Moore v. Nebraska Acct. & Disclosure Comm., 310 Neb. 302, 965 N.W.2d 

564 (2021).

5 See, Hike v. State, 297 Neb. 212, 899 N.W.2d 614 (2017); Spilker v. City 

of Lincoln, 238 Neb. 188, 469 N.W.2d 546 (1991). See, also, Ehrenfelt 

v. Janssen Pharmaceuticals, Inc., 737 Fed. Appx. 262 (6th Cir. 2018) 

(holding which statute of repose applies is discrete, purely legal issue 

based on principles of statutory interpretation).
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IV. ANALYSIS

1. Claim Against Servinsky 

Properly Dismissed

Ag Valley’s operative complaint alleged identical theories 

of strict liability and negligence against Servinsky, Chief, and 

Johnson. In moving for summary judgment, Servinsky asserted 

that it had no involvement in designing or manufacturing either 

the Titan model CB50 system or the skid loader door incorporated into that system and that therefore, it was entitled to 

judgment as a matter of law.

[4] The party moving for summary judgment must make a 

prima facie case by producing enough evidence to show that 

the movant is entitled to judgment if the evidence were uncontroverted at trial. 6 If the party moving for summary judgment 

makes a prima facie case, the burden shifts to the nonmovant 

to produce evidence showing the existence of a material issue 

of fact that prevents judgment as a matter of law. 7

In support of summary judgment, Servinsky offered the 

affidavit of its owner, who stated that Servinsky had a consulting agreement with Johnson “based on a project by project 

retention,” but that Johnson never asked Servinsky to provide engineering services for the construction project at the 

Edison facility. Servinsky’s owner specifically averred that 

Servinsky “did not either design or manufacture[] component 

parts or assist in any manner with regard to the site specific [Titan model CB50] which was constructed in Edison, 

Nebraska.” As support for the statement that Servinsky did 

not provide engineering services regarding the subject door, 

the owner’s affidavit pointed out that Johnson’s project drawings of the subject skid loader door, dated May 15, 2007, 

“were not prepared, approved or stamped for construction by 

Servinsky nor any other structural engineer for the site specific project.” This evidence, if uncontroverted, was sufficient 

6 Dondlinger v. Nelson, 305 Neb. 894, 942 N.W.2d 772 (2020).

7 Id.
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to make out a prima facie case entitling Servinsky to judgment as a matter of law on the product liability claims alleged 

by Ag Valley.

In an effort to create a genuine issue of material fact regarding Servinsky’s involvement in the design of the subject skid 

loader door, Ag Valley offered the affidavit of the former 

owner of Johnson, who averred that “for many years, beginning in the early 1990s” Servinsky provided “professional 

engineering services” to Johnson for the development of its 

“product lines.” The affidavit stated generally that Johnson 

utilized Servinsky’s engineering services in 2007, but did not 

say for which project. The affidavit also stated generally that 

Servinsky had calculated stress loads for “skid loader doors 

and for other [Johnson] products.” But the affidavit did not 

include facts which controverted Servinsky’s evidence that it 

provided no engineering services for the “site specific” skid 

loader door, or for any other component part of the Titan model 

CB50 installed at the Edison facility. On appeal, Ag Valley 

cites us to portions of deposition testimony given by Johnson’s 

former owner, but that deposition was not offered or received 

into evidence in opposition to Servinsky’s motion for summary 

judgment, and thus, it has no bearing on the correctness of the 

court’s summary judgment ruling.

On the evidence adduced, the district court found there was 

no genuine factual dispute that “Servinsky did not design, manufacture component parts[,] or assist in any manner with regard 

to the site specific 155′ diameter tank which . . . is the subject 

matter of this case.” Servinsky’s motion for summary judgment was therefore granted, and the claims against Servinsky 

were dismissed.

On appeal, Ag Valley contends this was error, arguing there 

was a factual dispute over the extent of Servinsky’s involvement with the design of the skid loader door which should 

have precluded summary judgment. Ag Valley points to evidence that Servinsky’s engineering services included calculating stress loads for Johnson products and component parts 
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and to evidence that Servinsky provided engineering services 

to Johnson during the same calendar year the subject skid 

loader door was manufactured. From this evidence, Ag Valley 

suggests it is reasonable to infer that Servinsky may have 

been “responsible for any number of design decisions, including possibilities such as the underlying door design, or the 

specifications of materials,” 8 and that Servinsky “could have 

designed the skid loader door system that was manufactured 

and sold” by Johnson. 9

[5] Conclusions based on guess, speculation, conjecture, or 

a choice of possibilities do not create material issues of fact 

for purposes of summary judgment. 10 Even viewed in the light 

most favorable to Ag Valley and giving Ag Valley the benefit 

of all reasonable inferences deducible from the evidence, 11 the 

general statements in the affidavit offered by Ag Valley suggesting Servinsky “could have designed” the skid loader door 

system at issue amount to sheer speculation and do not create 

a genuine issue of fact. In other words, Servinsky’s evidence 

that it had no involvement in the design or manufacturing of 

the skid loader door or any other component part of the Titan 

model CB50 sold to Ag Valley stands uncontroverted. On this 

record, the district court correctly concluded that Servinsky 

was entitled to summary judgment as a matter of law on 

Ag Valley’s product liability claim. 12

2. Claim Against Heartland Barred by 

Statute of Repose in § 25-223

Heartland was the general contractor for the Edison grain 

facility construction project, including installation of the 

8 Brief for appellant at 37-38.

9 Id. at 38.

10 Bohling, supra note 2; Dondlinger, supra note 6.

11 See Bohling, supra note 2.

12 Accord Marksmeier v. McGregor Corp., 272 Neb. 401, 722 N.W.2d 65 

(2006).
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Titan model CB50 system. It is undisputed that Heartland 

completed construction on the Edison facility on November 1, 

2007, and that Ag Valley issued final payment on the project 

on November 30. The Titan model CB50 collapsed on August 

6, 2017, and Ag Valley filed suit on March 20, 2018. The 

district court applied the 10-year statute of repose set out in 

§ 25-223 and concluded Ag Valley’s claim against Heartland 

was barred.

On appeal, Ag Valley generally concedes that if the district 

court was correct in applying the 10-year statute of repose in 

§ 25-223, which governs builders and contractors, its claim 

against Heartland is barred. But Ag Valley argues the district 

court should have applied the product liability statute of repose 

in § 25-224. We disagree.

Section 25-224 applies to “all product liability actions,” and 

Neb. Rev. Stat § 25-21,180 (Reissue 2016) defines a product 

liability action as

any action brought against a manufacturer, seller, or 

lessor of a product, regardless of the substantive legal 

theory or theories upon which the action is brought, for 

or on account of personal injury, death, or property damage caused by or resulting from the manufacture, construction, design, formulation, installation, preparation, 

assembly, testing, packaging, or labeling of any product, 

or the failure to warn or protect against a danger or hazard in the use, misuse, or intended use of any product, or 

the failure to provide proper instructions for the use of 

any product.

(Emphasis supplied.)

[6] Because the repose provisions in § 25-224 apply to 

“product liability actions,” they necessarily apply to claims 

against manufacturers, sellers, and lessors of products. 13

13 See, also, § 25-224(5) (providing that no product liability action alleging 

strict liability in tort may be filed against seller “unless such seller is also 

the manufacturer of such product or the manufacturer of the part thereof 

claimed to be defective”).
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Heartland was not the manufacturer, seller, or lessor of the 

Titan grain bin; it was the general contractor responsible for 

installing and constructing the Titan model CB50 system. As 

against Heartland, Ag Valley’s only claim was that Heartland 

“breached its agreement to properly design and construct the 

grain bin facility in a workman like manner.” When claims 

of defective construction are brought against contractors and 

builders, we have consistently applied the limitations periods 

set out in § 25-223, whether the claims were based on theories 

of contract, tort, fraud, or breach of warranty. 14 We find no 

error in the district court’s application of § 25-223 to the claim 

alleged against Heartland.

3. Product Liability Claims Against Chief 

and Johnson Barred by Statute 

of Repose in § 25-224

Ag Valley styled its identical claims against Chief and 

Johnson as “product liability” claims, and neither Chief nor 

Johnson dispute Ag Valley’s characterization of the Titan 

model CB50 system as a product, rather than an improvement to realty. For purposes of our statute of repose analysis, 

we accept this characterization. 15 We have generally applied 

the statute of repose in § 25-224(2)(a) to product liability 

claims, even when the product was used in constructing 

14 See, e.g., McCaulley v. C L Enters., 309 Neb. 141, 959 N.W.2d 225 

(2021); Fuelberth v. Heartland Heating & Air Conditioning, 307 Neb. 

1002, 951 N.W.2d 758 (2020); Adams v. Manchester Park, 291 Neb. 978, 

871 N.W.2d 215 (2015); Andres v. McNeil Co., 270 Neb. 733, 707 N.W.2d 

777 (2005); Witherspoon v. Sides Constr. Co., 219 Neb. 117, 362 N.W.2d 

35 (1985).

15 See Kubik v. Kubik, 268 Neb. 337, 683 N.W.2d 330 (2004) (noting 

appellate court generally disposes of case on theory presented in district court).
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improvements to realty. 16 And while we are aware of authority elsewhere which supports applying the statute of repose 

for improvements to real property when a product liability 

claim is brought against the manufacturer of a prefabricated 

building which becomes an improvement to realty, 17 no party 

has urged the adoption of similar reasoning in Nebraska. 

We therefore leave for another day consideration of the 

circumstances, if any, under which the builder’s statute of 

repose in § 25-223 may apply to a claim against the manufacturer of an allegedly defective premanufactured building 

16 See, Farber v. Lok-N-Logs, Inc., 270 Neb. 356, 701 N.W.2d 368 (2005) 

(applying § 25-224 to product liability claim against manufacturers of 

chemical wood preservatives and treated logs used in construction of 

barracks); Murphy v. Spelts-Schultz Lumber Co., 240 Neb. 275, 481 

N.W.2d 422 (1992) (applying § 25-224 to product liability claim against 

designer/manufacturer/seller of allegedly defective roof trusses used to 

construct home); Witherspoon, supra note 14 (holding § 25-224 applied to 

product liability claim against manufacturer/supplier of allegedly defective 

pipe used in home construction). But see Smith v. Butler Manuf. Co., 230 

Neb. 734, 433 N.W.2d 493 (1988) (applying statute of repose in § 25-223, 

rather than § 25-224, to claims of negligent design brought against 

manufacturer of prefabricated hog confinement building).

17 See, Theunissen v. GSI Group, 109 F. Supp. 2d 505 (N.D. Miss. 2000) 

(holding that product liability claim against designer and manufacturer of 

grain bin structure and component parts was subject to construction statute 

of repose because grain bin was improvement to real property); Two 

Denver Highlands v. Stanley Structures, 12 P.3d 819 (Colo. App. 2000) 

(applying construction statute of repose, not product liability statute of 

repose, to claim against manufacturer of allegedly defective product used 

in design and construction of improvement to real property); Bellemare 

v. Gateway Builders, Inc., 420 N.W.2d 733 (N.D. 1988) (finding 10,000 

bushel grain bin anchored to cement slab was improvement to real property, 

not product, for purposes of statute of repose); Craftsman Builder’s Supply 

v. Butler Mfg., 974 P.2d 1194 (Utah 1999) (applying builder’s statute of 

repose, not product liability statute of repose, to product liability claim 

against manufacturer of prefabricated metal building which collapsed 

15 years after it was installed). But see Sonnier v. Chisholm-Ryder Co., 

Inc., 909 S.W.2d 475 (Tex. 1995) (holding builder’s statute of repose not 

intended to grant repose to manufacturers of products annexed to realty).
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that, once installed, is annexed to and becomes an improvement to realty. 18

The parties agree that Ag Valley’s product liability claims 

against Chief and Johnson should be governed by the statute 

of repose in § 25-224. But they cannot agree how to define 

“the product” at issue for purposes of that statute. Before summarizing the parties’ arguments, we review the relevant statutory scheme.

(a) § 25-224

In 1978, the Legislature amended § 25-224 to enact a 

10-year statute of repose in product liability actions. 19 As 

originally enacted, subsection (2) of that statute provided in 

relevant part that “any product liability action [with an exception not relevant here] shall be commenced within ten years 

after the date when the product which allegedly caused the 

personal injury, death, or damage was first sold or leased 

for consumption.” 20

We have said that the Legislature, by enacting the repose 

provisions in § 25-224(2), has decided as a matter of policy 

that “in the absence of [a] legislative exception, a product liability defendant should not be subjected to liability 

10 years after the product was first sold or leased for use 

or consumption.” 21 We have noted the statute of repose in 

§ 25-224(2) operates “‘as a statutory bar independent of 

the action (or inaction) of the litigants—often before those 

litigants can even be identified.’” 22 Once the repose period 

18 See, generally, 122 A.L.R.5th 1 (2004); 4 American Law of Products 

Liability 3d § 47:95 (2020).

19 See 1978 Neb. Laws, L.B. 489, codified as § 25-224(2)(a) (Cum. Supp. 

1978).

20 § 25-224(2) (Cum. Supp. 1978).

21 Farber, supra note 16, 270 Neb. at 367, 701 N.W.2d at 377.

22 Id., quoting Nesladek v. Ford Motor Co., 46 F.3d 734 (8th Cir. 1995).
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in § 25-224(2) has lapsed, the manufacturer of the product 

acquires “a substantive right protected by statute.” 23 Indeed, 

the “effect of the 10-year statute of repose in § 25-224(2) can 

be to prevent what might otherwise be a cause of action from 

ever arising.” 24

The “triggering language” 25 under § 25-224(2)(a) requires 

the court to determine when the product was “first sold or 

leased for use or consumption.” We have said this occurs when 

possession of the product is first surrendered or relinquished to 

the consumer for use, not when the product is placed into the 

stream of commerce. 26

In 2001, the Legislature amended the repose provisions in 

§ 25-224(2) to distinguish between “products manufactured in 

Nebraska” and “products manufactured outside Nebraska.” 27

Under the amended statute, products manufactured in Nebraska 

are still subject to a 10-year statute of repose which begins 

to run on the date “the product which allegedly caused the 

personal injury, death, or damage was first sold or leased for 

use or consumption.” 28 But for products manufactured outside 

Nebraska, the court must determine if the state or country of 

manufacture has an applicable statute of repose; if it does, that 

repose period applies unless it is shorter than 10 years. 29 And 

if the state or country where the product was manufactured 

has no applicable statute of repose, then there is no repose 

period under § 25-224(2)(a)(ii); in that event, the only time 

23 Id. at 366, 701 N.W.2d at 376.

24 Id. See Gillam v. Firestone Tire & Rubber Co., 241 Neb. 414, 489 N.W.2d 

289 (1992).

25 Farber, supra note 16, 270 Neb. at 362, 701 N.W.2d at 374.

26 See Farber, supra note 16; Witherspoon, supra note 14.

27 2001 Neb. Laws, L.B. 489, § 1.

28 § 25-224(2)(a)(i) (Reissue 2016).

29 See § 25-224(2)(a)(ii).
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limit applicable to the plaintiff’s action will be the 4-year statute of limitations set out in § 25-224(1). 30

(b) Summary of Parties’ Arguments

In this appeal, the parties agree that the skid loader door is a 

component part of the Titan model CB50 system that was sold 

to Ag Valley, and not a stand-alone product sold to Ag Valley. 

They also agree that Chief manufactured the Titan model CB50 

system in Nebraska and that Johnson manufactured the skid 

loader door in Michigan. But the parties do not agree whether, 

for purposes of applying the statute of repose, “the product” 

under consideration is the Titan model CB50 system with all 

its component parts or the skid loader door individually. They 

describe this as a dispute over “the relevant product” 31 for purposes of § 25-224(2). And they generally approach the issue 

as one to be resolved based on the pleadings and the evidence 

of causation.

Chief and Johnson contend the relevant product is the entire 

Titan model CB50 system. They point out that Ag Valley’s 

operative complaint, and its expert witness, describe defects 

not just involving the skid loader door, but also involving 

how that component part was incorporated into the rest of the 

product. Because the Titan model CB50 system was manufactured in Nebraska, Chief and Johnson argue this product 

liability action is governed by the 10-year repose period in 

§ 25-224(2)(a)(i), which began to run on the date the product 

was first sold for use or consumption. Because Ag Valley 

paid for and began using the Titan model CB50 system in 

November 2007, they contend the 10-year repose period had 

expired by the time Ag Valley filed its product liability action 

in March 2018.

30 Id.

31 See, brief for appellant at 14; brief for appellee Chief at 15; brief for 

appellee Johnson at 23.
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Seeking to avoid Nebraska’s 10-year repose period, 

Ag Valley contends the relevant product is not the entire Titan 

model CB50 system, but just the skid loader door which was 

manufactured in Michigan. Ag Valley argues that its pleadings 

and its evidence show that the skid loader door is the defective 

condition that proximately caused the bin to collapse, and it 

argues that both Chief and Johnson were responsible for this 

defective condition. Ag Valley argues that Michigan has not 

enacted a specific product liability statute of repose, so the 

only time limit on commencing this product liability claim is 

the 4-year statute of limitations which commenced running on 

the date the damage occurred. 32 Because Ag Valley’s March 

2018 complaint was filed within 4 years after the grain bin 

collapse, Ag Valley argues that its product liability action was 

timely filed.

The district court generally agreed with Chief and Johnson, 

and it held that for purposes of the product liability statute of repose in § 25-224(2)(a), the relevant product is the 

entire Titan model CB50 system, including all its component 

parts. Ag Valley assigns this as error, arguing that when the 

court determined the relevant product was the grain bin as 

a whole, it improperly decided a disputed question of fact. 

We disagree.

[7] Although the parties and the district court generally 

approached identifying the relevant product as a matter to be 

determined from the pleadings and the evidence on causation, 

we view it instead as a matter of statutory construction. The 

parties’ disagreement turns on the meaning of “the product” 

as that term is used in § 25-224(2)(a)(i) and (ii). And thus, 

the interpretation of a statute presents a question of law, not a 

question of fact. 33

32 See § 25-224(2)(a)(ii).

33 See Whittle v. State, 309 Neb. 695, 962 N.W.2d 339 (2021) (statutory 

interpretation question of law).
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(c) Meaning of “[T]he [P]roduct”

Both subsections (a)(i) and (a)(ii) of § 25-224(2) refer to 

“the product” without expressly defining the term. We have 

applied the § 25-224(2) repose period in many cases over the 

past 40 years, and our opinions often describe “the product” at 

issue, without explaining how we identified it. 34 Until this case, 

identifying the product for purposes of § 25-224(2) was simply 

not a matter of controversy. In this appeal, the parties’ competing definitions of “the product” present us with a question of 

statutory interpretation.

[8-10] When construing a statute, a court must determine 

and give effect to the purpose and intent of the Legislature as 

ascertained from the entire language of the statute considered 

in its plain, ordinary, and popular sense. 35 A court must reconcile different provisions of the statute so they are consistent, 

harmonious, and sensible. 36 And in construing a statute, the 

court must look at the statutory objective to be accomplished, 

the problem to be remedied, or the purpose to be served, and 

then place on the statute a reasonable construction which 

34 See, e.g., Marksmeier, supra note 12, 272 Neb. at 406, 722 N.W.2d at 

68 (describing product at issue as “T-shirt”); Farber, supra note 16, 270 

Neb. at 360, 701 N.W.2d at 372-73 (describing products at issue as “liquid 

penta” and “penta-treated logs”); Divis v. Clarklift of Nebraska, 256 Neb. 

384, 385, 590 N.W.2d 696, 698 (1999) (describing product at issue as 

“forklift”); Radke v. H. C. Davis Sons’ Mfg. Co., 241 Neb. 21, 22, 486 

N.W.2d 204, 205 (1992) (describing product at issue as “‘Davis Precision 

Mix Batch Mixer, Model No. S-20’”); Gillam, supra note 24, 241 Neb. 

at 415, 489 N.W.2d at 291 (describing product at issue as “‘RH5 degree’ 

multipiece wheel” which “consisted of two components”); Spilker, supra 

note 5, 238 Neb. at 190, 469 N.W.2d at 547 (describing product at issue as 

“outdoor switchgear equipment”); Witherspoon, supra note 14, 219 Neb. 

at 118, 362 N.W.2d at 38 (describing product at issue as “pipe supplying 

water to . . . house”).

35 Moore, supra note 4.

36 See id.
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best achieves the purpose of the statute, rather than a construction defeating the statutory purpose. 37

As originally enacted in 1978, the repose provisions in 

§ 25-224(2) provided that any product liability action, except 

one governed by the Uniform Commercial Code, “shall be 

commenced within ten years after the date when the product 

which allegedly caused the personal injury, death, or damage was first sold or leased for use or consumption.” 38 Since 

its amendment in 2001, § 25-224(2)(a) has distinguished 

between products manufactured in Nebraska and products 

manufactured outside Nebraska, but for products manufactured in Nebraska the statute still provides that any product 

liability action shall be commenced “within ten years after 

the date the product which allegedly caused the personal 

injury, death, or damage was first sold or leased for use 

or consumption.” 39

Because Nebraska’s statute of repose has always been triggered not by the nature of the alleged defects or the proximate cause of the alleged injuries, but by when the product 

was first relinquished to the consumer for use, there has never 

been any question that when § 25-224(2) references “the 

product which allegedly caused the personal injury, death, 

or damage,” it is referring to the product that was placed on 

the market and sold or leased to the consumer for use. This 

commonsense understanding of “the product” is consistent 

with our use of the term in prior cases applying the statute 

of repose, 40 and it is consistent with how we have described 

“the product” when reciting the material elements of a product 

liability claim based on an alleged defective condition:

37 McCoy v. Albin, 298 Neb. 297, 903 N.W.2d 902 (2017).

38 § 25-224(2) (Cum. Supp. 1978).

39 § 25-224(2)(a)(i) (Reissue 2016).

40 See cases cited supra note 34.
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In a products liability action based on defect, a plaintiff must prove by a preponderance of the evidence that 

(1) the defendant placed the product on the market for 

use and knew, or in the exercise of reasonable care 

should have known, that the product would be used 

without inspection for defects; (2) the product was in 

a defective condition when it was placed on the market

and left the defendant’s possession; (3) the defect is the 

proximate or a proximately contributing cause of the 

plaintiff’s injury [or damage] sustained while the product was being used in a way and for the general purpose 

for which it was designed and intended; (4) the defect, 

if existent, rendered the product unreasonably dangerous and unsafe for its intended use; and (5) the plaintiff’s damages were a direct and proximate result of the 

alleged defect.  41

Construing “the product” as used in § 25-224(2)(a) to mean 

the product that was placed on the market and sold or 

leased for consumer use is also consistent with how the term 

“product” is used elsewhere in Nebraska’s product liability 

statutes. 42

Moreover, when “the product” in § 25-224(2)(a)(i) and 

(ii) is properly understood to refer to the completed product 

that was placed on the market and sold or leased for consumer use, it necessarily includes all of the product’s original 

41 Pitts v. Genie Indus., 302 Neb. 88, 99, 921 N.W.2d 597, 609 (2019) 

(emphasis supplied).

42 See, e.g., § 25-21,180; Neb. Rev. Stat. § 25-21,181 (Reissue 2016); Neb. 

Rev. Stat. § 25-21,182 (Reissue 2016).
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component parts. 43 We see nothing to suggest that when 

the Legislature amended § 25-224(2) in 2001 to distinguish 

between products manufactured in Nebraska and products manufactured outside Nebraska, it intended to change the meaning 

of “the product” for purposes of the statute of repose. The 

senator who introduced the 2001 amendments to § 25-224(2) 

explained that the purpose of the amendments was to

maintain that ten-year limitation for products that are 

manufactured in Nebraska, but . . . apply the statute of 

repose for products manufactured outside of Nebraska 

from the jurisdiction where the products were manufactured. . . . If other states do not care to extend to their 

manufacturers [the protection of] a statute of repose and 

we do, then why should our Nebraska consumers not 

benefit from the application of this concept? Nebraska’s 

manufacturers will not be harmed in the least. There is no 

detriment to them. But our consumers, injured plaintiffs, 

will have the benefit of a broader reach . . . . 44

As such, the legislative intent in amending § 25-224(2) was to 

ensure that Nebraska manufacturers continue to be protected 

by a 10-year repose period when sued in a product liability 

action, but to allow Nebraska consumers to benefit from a 

43 See, e.g., Gillam, supra note 24, 241 Neb. at 415, 489 N.W.2d at 

291 (describing allegedly defective product as “‘RH5 degree’ multipiece 

wheel” and noting product consisted of “two components” manufactured 

by different companies); Spilker, supra note 5, 238 Neb. at 190, 469 

N.W.2d at 547 (describing product as “outdoor switchgear equipment” 

and describing defective condition as instruction book which misidentified 

live high-voltage receptacle as de-energized). Accord Chief Indus. v. Great 

Northern Ins. Co., 268 Neb. 450, 683 N.W.2d 374 (2004) (finding no error 

in district court’s conclusion that component parts manufactured by third 

parties were part of manufacturer’s “product” for purposes of insurance 

coverage in product liability suit following grain bin collapse).

44 Floor Debate, L.B. 489, Judiciary Committee, 97th Leg., 1st Sess. 3844 

(Apr. 3, 2001) (remarks of Senator Kermit Brashear).
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longer repose period, or perhaps no repose period at all, when 

the product was manufactured outside Nebraska.

This legislative intent would be defeated by a construction of 

§ 25-244(2)(a) which focuses on the state where the allegedly 

defective component parts were manufactured, rather than the 

state where the completed product was manufactured. Under 

the statutory construction urged by Ag Valley, a Nebraska 

manufacturer could be deprived of the 10-year statute of repose 

simply by incorporating an allegedly defective component 

part manufactured in another state or country. And arguably, 

under Ag Valley’s construction, a single product placed on the 

market could be subject to several different repose periods, 

depending on where the allegedly defective component parts 

were manufactured.

[11] We have no doubt that when the Legislature amended 

§ 25-224(2) to differentiate between repose periods for “products manufactured in Nebraska” 45 and “products manufactured 

outside Nebraska,” 46 it was fully aware that products manufactured in Nebraska often incorporate component parts manufactured elsewhere. But despite this reality, the plain language 

of § 25-224(2)(a) describes a binary choice: “the product” 

which allegedly caused the injury or damage was either manufactured in Nebraska or it was not. Nebraska’s product liability 

statute of repose in § 25-224(2)(a) thus contemplates a single 

state of manufacture for each product and a single statute of 

repose for each product.

[12] If the Legislature had wanted the focus of Nebraska’s 

statute of repose to turn on where an allegedly defective component part was manufactured, rather than where the completed 

product was manufactured, it could have done so. Instead, 

Nebraska’s product liability statute of repose has always been 

focused on the completed product that was placed on the 

45 § 25-224(2)(a)(i).

46 § 25-224(2)(a)(ii).
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market and sold or leased to the consumer. For purposes of 

Nebraska’s statute of repose, it is immaterial where the product’s various component parts were manufactured; a claim 

brought against the manufacturer of a component part will be 

governed by the same repose period as applies to the manufacturer of the completed product.

[13] To the extent it was not already apparent from the 

plain language of the statute and our prior cases, we expressly 

hold that reference to “the product” in § 25-224(2)(a)(i) and 

(ii) means the product that was placed on the market and sold 

to the consumer for use or consumption, and it necessarily 

includes the product’s original component parts. This construction is consistent with the plain language of the statute, 

serves to harmonize the various statutory provisions governing 

product liability claims, and places on the term a reasonable 

construction which best achieves the purpose of the statute 

of repose.

[14] We therefore reject Ag Valley’s atomistic definition 

of “the product,” which focuses on the individual component part or parts of the product alleged to be defective. We 

also necessarily reject any suggestion that the nature of the 

alleged defect or the proximate cause of the plaintiff’s injury 

or damage can alter the statutory meaning of “the product.” Ordinarily, deciding whether a product liability action 

is barred by the statute of repose will not require the court to 

consider the merits of the particular claim at all, because the 

statute of repose operates as a statutory bar independent of 

the merits of the action. 47 Given the purpose of the product 

liability statute of repose, our cases applying § 25-224(2) have 

generally not required judicial analysis of the alleged defects 

or dangerous conditions, or determination of what proximately 

caused the plaintiff’s injury or damage. Indeed, except where 

it was necessary to decide whether the 10-year repose period 

47 See Farber, supra note 16.
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began to run anew after the manufacturer refurbished the 

product, 48 our cases applying § 25-224(2) to bar a plaintiff’s 

product liability action have not turned on the merits of the 

particular claim at all. 49

We therefore find no merit to Ag Valley’s assignment that 

the district court erred by concluding the relevant product, for 

purposes of applying the statute of repose in § 25-224(2)(a), 

was the Titan model CB50 system, including all its component parts. In this case, the district court correctly identified the relevant product as the Titan model CB50 system. 

That was the product Chief placed on the market and sold to 

Ag Valley for its use at the Edison grain facility, and that is 

the product (including its component parts) which Ag Valley 

alleges had conditions which were unreasonably dangerous 

and defective.

48 See Divis, supra note 34 (holding that for period of repose to begin anew 

after product is refurbished by manufacturer, refurbishment must have 

extended product’s useful life, and refurbishment must have been defective 

and proximately caused plaintiff’s injury or damage).

49 See, Marksmeier, supra note 12 (holding Tennessee’s 10-year statute 

of repose barred product liability claim against manufacturer of T-shirt 

because product was first sold to consumer for use 13 years before plaintiff 

filed action); Farber, supra note 16 (holding § 25-224(2) barred product 

liability action against chemical manufacturers and manufacturer of 

chemically treated logs used at worksite because products were delivered 

for use more than 10 years before suit was filed); Radke, supra note 34

(holding § 25-224(2) barred product liability action against manufacturer 

of commercial mixing machine because product was delivered to consumer 

for use more than 10 years before action was filed); Spilker, supra note 5 

(holding § 25-224(2) barred product liability action against manufacturer 

of outdoor switchgear because consumer took possession of product 22 

years before action was filed); Gillam, supra note 24 (holding § 25-224(2) 

barred product liability claim against manufacturers of wheel assembly 

consisting of two component parts because product was first mounted on 

truck in 1969 and action was not filed until 1987).
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Here, there is no genuine dispute that the Titan model CB50 

system was manufactured in Nebraska. As such, Ag Valley’s 

product liability claim against Chief and Johnson is governed 

by the 10-year repose period in § 25-224(2)(a)(i), and the district court correctly determined the claim is barred. Because 

we affirm the district court’s summary judgment to Chief and 

Johnson under § 25-224(2)(a)(i), we do not reach Ag Valley’s 

assignments of error related to the district court’s alternative 

holding analyzing Michigan law. 50

V. CONCLUSION

Finding no merit to any of the assigned errors, the judgment 

of the district court is affirmed.

Affirmed.

Papik, J., not participating.

50 See In re Adoption of Yasmin S., 308 Neb. 771, 956 N.W.2d 704 (2021) 

(appellate court not obligated to engage in analysis not necessary to 

adjudicate case).