dissenting. I respectfully dissent from the majority decision that a thirty-day delay in a repair creates a virtually irrebuttable presumption of recovery.
The purpose and spirit of the Lemon Law is to provide á remedy to a consumer who has lost confidence in the operation of his or her new vehicle due to a *335significant or persistent defect that cannot be repaired at all or cannot be repaired in a reasonable number of attempts. Consequently, a Lemon Law claim arises only where the manufacturer is unable to repair a defect that “substantially impairs the use, safety, or value” of the vehicle or alternatively is unable to repair the defect in a reasonable number of attempts. R.C. 1345.72(B). As the majority recognizes, “[t]he Lemon Law recognizes that occasionally new cars do have problems, but if those problems keep happening, or cannot be repaired in a reasonable amount of time, then the consumer did not get what he or she bargained for.”
In this case, the engine was subject to a single repair, which completely corrected the defect. The majority opinion focuses on the thirty-day presumption in R.C. 1345.73(B) and holds that if a vehicle is out of service for a cumulative of thirty days, the owner enjoys a presumption of recovery. I agree with Justice Cook’s dissent to the extent that R.C. 1345.73(B) does not provide a presumption of recovery, but merely a presumption that the manufacturer has undertaken a reasonable number of attempts to repair the vehicle, which is only one element of a Lemon Law claim. However, I also believe that, contrary to the import of the majority’s opinion, the presumption in R.C. 1345.73(B) is rebuttable and in fact has been rebutted in this case.
R.C. 1345.73(B) states that if a vehicle is out of service due to repair for a cumulative total of thirty days or more, then a presumption arises that the manufacturer has had a reasonable number of attempts to repair the defect. The presumption in R.C. 1345.73(B) is essentially an evidentiary tool to aid consumers in proving when a manufacturer has exhausted its reasonable number of attempts to repair the defect for purposes of filing a Lemon Law complaint. However, a presumption may be rebutted. See Evid.R. 301.
It is undisputed that the 4-Runner was unavailable to Royster for more than thirty days. However, the reason for the delay was not an inability by Toyota to promptly diagnose or repair the defect. Rather, the delay was due to the unavailability of the replacement head gasket. But for the delay in receiving the replacement head gasket, the 4-Runner would have been in the shop for less than thirty days and the presumption under R.C. 1345.73(B) would never have arisen. I do not believe that a delay in acquiring a part deprives the consumer of what he or she bargained for, because it does not lessen the consumer’s confidence in the operation of the vehicle. I believe that the presumption set out in R.C. 1345.73(B), that the manufacturer has undertaken a “reasonable number of attempts to repair,” is rebutted where the sole reason for the delay was a back-ordered part. Thus, I believe that Toyota has rebutted the presumption that it had undertaken a reasonable number of attempts to repair Royster’s 4-Runner. *336Therefore, Royster’s complaint would fail because she cannot prove an essential element of the Lemon Law statute.
Kahn & Associates, L.L.C., and Craig A. Kahn, for appellant. Frost & Jacobs, L.L.P., and Jeffrey G. Rupert, for appellee. Betty D. Montgomery, Attorney General, Valerie A. Roller, Assistant Attorney General, and Peter M. Thomas, Assistant Solicitor, urging reversal for amicus curiae Attorney General Betty Montgomery. Young & McDowall and Laura McDowall, urging reversal for amicus curiae Ohio Academy of Trial Lawyers.I do not intend to trivialize losing the use of a vehicle for almost two months. However, Toyota provided Royster a loaner vehicle to use free of charge while the 4-Runner was in the shop.
The majority’s holding distorts the spirit and purpose of the Lemon Law and opens the floodgates for consumers to return new vehicles that are not genuine lemons as envisioned by the Lemon Law to the unjustified financial detriment of auto manufacturers. Accordingly, I respectfully dissent and would affirm the court of appeals’ judgment.