Day on Torts
The statute of repose for defective improvements to real property did not apply where defendants were the property owners of the pipe culvert at issue in the case.
In Clayton v. Dixon, No. M2021-00521-COA-R3-CV (Tenn. Ct. App. Mar. 23, 2023), plaintiff property owner sued defendants, who owned the adjacent property, “for damages allegedly caused by the installation of a pipe culvert.” Plaintiff asserted that the pipe culvert was improperly installed in 2011 and caused flooding on his property.
Plaintiff filed suit in 2019 for negligence, nuisance, and trespass. The parties entered into a settlement agreement whereby defendants installed a larger pipe, but plaintiff refused to dismiss the suit after this pipe installation. Defendants then filed a motion to dismiss as well as a counterclaim seeking specific enforcement of the settlement agreement. The parties then filed cross-motions for summary judgment, with plaintiff arguing that he was entitled to summary judgment because defendants had “violated the codes when they installed the pipe culvert,” and defendants asserting that plaintiff’s claim was barred by the statute of repose. The trial court found that “the statute of repose for defective improvements to real estate barred [plaintiff’s] action” and granted summary judgment to defendants. On appeal, summary judgment was reversed.
Defendants argued on appeal that the trial court correctly granted summary judgment based on the statute of repose for defective improvements to real property. Tenn. Code. Ann. § 28-3-202 states that “all actions to recover damages for any deficiency in the design, planning, supervision, …or construction of an improvement to real property, …[must] be brought…within four (4) years after substantial completion of the improvement.” Because the culvert at issue was installed in 2011 and suit was not filed until 2019, defendants argued that the statute of repose applied.
While the Court of Appeals agreed that plaintiff’s “action falls within the ambit of this statute,” it also agreed with plaintiff that an exception to the statute of repose applied here. Tenn. Code An. § 28-3-205(a) “serves to exclude persons in possession or control of allegedly deficient improvements from the protection of the statute of repose.” (internal citation omitted). “[T]he General Assembly enacted this statute of repose to insulate contractors, architects, engineers, and others from liability for defective construction or design of improvements to realty where the injury happens more than four years after substantial completion of the improvement,” but “[p]roperty owners were expressly excluded” from this statute of repose. (internal citations and quotations omitted). Pursuant to this exception, “[t]he statute of repose may not be asserted by a person in possession or control of the improvement at the time of the alleged deficiency causing the loss.” (internal citation omitted). Because defendants owned the culvert at the time plaintiff alleged the deficient installation caused him injury, they could not rely on the statute of repose, and summary judgment for defendants was reversed.
On appeal, plaintiff asserted that he was entitled to summary judgment on his negligence claim. To prove negligence, a plaintiff must show both cause in fact and proximate cause. (internal citation omitted). In his attempt to establish causation, plaintiff relied on an expert report from a professional engineer. In response, defendants submitted an investigative file from Metro Water Services stormwater division which pointed to new driveaway culverts upstream from plaintiff as possible causes of flooding. Defendants also submitted an affidavit from defendant stating that he used to live on plaintiff’s property and had to consistently clear vegetation and debris from the culvert on plaintiff’s property to prevent clogs. Plaintiff argued that defendants could not show a genuine issue of material fact on causation because they had not submitted any expert testimony, but the Court disagreed. The Court stated that “whether [plaintiff’s] culvert was clogged and, if so, whether the clogging would impede water flow through his property can also be decided based on ordinary knowledge and practical experience,” so expert testimony was not necessarily required. (internal citation omitted). Based on the evidence submitted by both parties, the Court of Appeals found that there were genuine issues of material fact and summary judgment on the negligence claim was not appropriate.
Plaintiff also argued that he could maintain a private right of action under the Water Quality Control Act, which the Court quickly rejected, noting that there is a complaint process within the statute for private citizens to follow. The Court also refused to rule on defendants’ counterclaim for breach of the settlement agreement because resolution of that claim would involve questions of fact. Accordingly, summary judgment for defendants based on the statute of repose and dismissal of the complaint and counterclaim was reversed, and the case was remanded.
While the statute of repose for deficient improvements to real property bars many claims filed beyond the four-year point, this opinion is a reminder that property owners are typically not able to use that statute of repose as a defense.
This opinion was released almost one year after oral arguments in this case.
Note: Chapter 73, Section 13 of Day on Torts: Leading Cases in Tennessee Tort Law has been updated to include this decision.
Day on Torts: Leading Cases in Tennessee Tort Law contains summaries of leading cases on over 500 topics and citations to more than 1500 additional cases. The 500,000+ word book (and two others, Tennessee Law of Civil Trial and Compendium of Tennessee Tort Reform Cases) is available by subscription at www.birddoglaw.com and is continually updated as new decisions and statutes impact Tennessee law. Click on the link to see the book’s Table of Contents.
BirdDog Law also provides Tennessee lawyers with free access to user-friendly versions of the Tennessee rules of evidence and procedure and lots of other free resources, including a database for each of Tennessee’s 95 counties that will help find out information about court clerks, judges, filing fees, local rules, local forms, the presence (or absence) of electronic filing, case filings, and tort trial statistics.