Day on Torts
The Western Section of the Tennessee Court of Appeals has held that the construction statute of repose is not tolled for minors. By five years after a home or building is substantially completed, all bets are off. Even if the roof collapses on toddler in a crib, the contractors, architects, etc. are immune from suit.
Plaintiffs sued for injuries to a minor when a sink shattered. The trial court granted Defendants, the general contractor who constructed the building and the plumbing subcontractor who installed the sink, summary judgment based on the statute of repose for improvements to real
property. A statute of repose grants immunity to its beneficiaries because of the mere passage of time from some event. Practically speaking, it means that a person can lose his or her right to receive compensation for negligent acts or events before he or she is even injured,
Tenn. Code Ann. § 28-3-202 et seq. sets out a statute of repose for injuries suffered because of real property improvements:
All actions to recover damages for any deficiency in the design, planning, supervision, observation of construction, or construction of an improvement to real property, for injury to property, real or personal, arising out of any such deficiency, or for injury to the person or for wrongful death arising out of any such deficiency, shall be brought against any person performing or furnishing the design, planning, supervision, observation of construction, construction of, or land surveying in connection with, such an improvement within four (4) years after substantial completion of such an improvement.
Under Tenn. Code Ann. § 28-3-203, the statute of repose is extended for one year from the date of injury for anyone injured during the fourth year after substantial completion.
The Court of Appeals first concluded that the construction statute of repose is not tolled for minority
or legal disability. Based on Calaway v. Schucker, 193 S.W.3d 509, 516 (Tenn. 2006), the Court of Appeals decided that the legal disability tolling statute, Tenn. Code Ann. 28-1- 106, does not apply to statutes of repose. Quoting Penley v. Honda Motor Co., Ltd., 31 S.W.3d 181, 184-85 (Tenn. 2000), the Court of Appeals stated “[i]t appears that when the General Assembly has desired that exceptions apply to a statute of repose . . . the exception is either found with the language of the statute itself, or in another part of the code specifically referencing the particular statute of repose.”
The Court of Appeals next turned to Plaintiffs’ contention that, because Defendants had never secured necessary permits and inspections that would have allowed the City to order any construction defects remedied, the project had not been “substantially completed” as required by the construction statute of repose. Plaintiffs also argued that, at a minimum, Defendants’ failure to obtain permits and inspections created a genuine issue of material fact as to whether the project was substantially completed, precluding summary judgment on the issue. The Court of Appeals rejected this argument as well, finding that evidence that the sink at issue had been in use and no
more work done on it since before the repose period was sufficient.
The case is Christopher J. Etheridge, Selena A. v. YMCA and West Tennessee, No. W2011-00495-COA-R3-CV (Tenn. Ct. App. January 27, 2012).
Statutes of repose represent a public policy with which I disagree. The idea that someone could lose a right to sue for the consequences of the negligence of another simply because the injury did not occur quickly enough after a given event is just plain wrong. This law harmed another of our potential clients this week and we were forced to turn her away on a case that otherwise was of clear merit.