Statute of Repose: Reasonable Limitation or Improper Cost Shifting Onto Accident Victims?
Tort reform and complaints by professionals over an overly litigious society are often thought to be recent developments. However, the desire to limit liability for work performed has a long history in the United States. Starting the 1950s, the builders’ and architects’ lobby campaigned for limits on liability for injuries caused by improvements to real property if a certain number of years had elapsed. Architects, builders and engineers argued that it was unfair to be at risk of facing a lawsuit over work which had been performed many years ago and that was no longer under their control. Since the 1950s, twenty-four states, including Pennsylvania and New Jersey, have adopted Statutes of Repose. Under Pennsylvania law and regardless of when the injury occurred, the statute of repose is an absolute bar to suits brought after 12 years have elapsed following the completion of the construction.
How Does a Court Analyze Whether the Statute of Repose Applies?
For a Statute of Repose to apply, the improvement must be either a “fixture” or an “improvement to real property”. In determining whether a particular item qualifies as a fixture, Pennsylvania courts undertake a fact-intensive analysis guided by four factors. These factors are:
- How is the object attached or affixed to the property?
- For how long has the object been attached?
- Is the object an essential element in the use of the property?
- Does conduct of the parties indicate an intent to permanently attach the object?
Based on the above factors, courts in Pennsylvania have found that diving blocks were not an improvement to the property because they could be easily unscrewed and removed, this capability was widely advertised and the removal caused no damage to the pool. In another case, a large door opening machine, approximately 30 feet long, 16 feet high and 8 feet wide, installed in a steel plant in the 1950s was also found to not be a fixture. The court stated that because there were several of the same machines in the plant, any one of them could be removed and the plant would still be operational. Therefore the particular machine was not an essential element in the use of the property, the Statute of Repose was inapplicable and the Pennsylvania Supreme Court permitted the personal injury suit to proceed.
Additionally, the Pennsylvania Supreme Court has determined that suppliers of component parts are not protected by the statute of repose because they are not involved in the “design planning, supervision, construction or observation of the construction of an improvement to real property itself.” McConnaughey v. Building Components, Inc., 637 A. 2d. 1331, 1334 (Pa. 1994). While McConaughey ostensibly restricted the scope of who could seek protection under the statute, it may leave open a window to expand the protection to cover component suppliers. The cited language seems to imply that if a parts supplier were to observe the construction, they may then be able to invoke the statute’s protections.
Boon to Contractors, Engineers and Architects at the Expense of Pennsylvanians?
Courts in a number of jurisdictions have accepted as fact a statistic that claims that over 99% of construction defect claims are brought within 10 years of the date of construction. Based on this statistic, a number of state statutes of repose have survived Constitutional challenges. However, it is unclear if this statistic truly is reliable and accurate. Should this claim be inaccurate the claims of hundreds of thousands, if not millions, of Pennsylvanians and Americans have been wrongly barred thus improperly shifting the costs from builders and professionals onto everyday people who have suffered a serious or catastrophic injury? In any case, a shield for liability probably discourages the types of extensive testing and quality assurance that would likely otherwise become part of the building and design process. Therefore, if you have suffered an injury, it is essential that you do not delay in seeking an attorney. Call The Reiff Law Firm today at (215) 246-9000 or contact us online today.