Bellemare v. Gateway Builders, Inc., 870122

Citation420 N.W.2d 733
Decision Date07 March 1988
Docket NumberNo. 870122,870122
PartiesDaniel BELLEMARE, Plaintiff and Appellant, v. GATEWAY BUILDERS, INC. and Anton Rutten, Defendants and Appellees, and Farm Builders, Inc., and Butler Manufacturing Company, Defendants. Civ.
CourtUnited States State Supreme Court of North Dakota

Colleen J. Saande of Dosland, Dosland, Nordhougen, Lillehaug, & Johnson, P.A., Moorhead, Minn., for plaintiff and appellant.

Leo F.J. Wilking of Nilles, Hansen & Davies, Ltd., Fargo, and John M. Colosimo of Greenberg, Colosimo & Patchin, Virginia, Minn., for defendants and appellees.


Daniel Bellemare appeals from district court summary judgments dismissing his complaints against Gateway Builders, Inc. (Gateway), and Anton Rutten. We affirm.

In 1979, Bellemare leased Rutten's farmland on a crop-share basis. On October 29, 1979, Bellemare was injured when he fell from a ladder attached to a Butler grain bin on the premises. The bin had been sold to Rutten and erected by Gateway in 1967. Bellemare sued Gateway, Rutten, and others not involved in this appeal, alleging breach of warranty, negligence and strict liability against the corporate defendants, and negligent maintenance of the grain bin and ladder in a defective condition against Rutten.

The trial court denied Rutten's motion for summary judgment. This court was presented with a certified question concerning the duty of care owed by a lessor to a lessee, which we declined to answer. Bellemare v. Gateway Builders, Inc., 399 N.W.2d 308 (N.D.1987). Upon remand, the trial court granted Gateway's and Rutten's motions for summary judgment and judgments of dismissal were entered. Bellemare has raised the following issues on appeal:

"1. Whether the N.D.C.C. Sec. 28-01-44 statute of limitation for personal injury actions arising out of deficient improvements to real property violates the North Dakota Constitution.

"2. Whether the traditional common law standards rendering landlords virtually immune from premises liability are outdated and to be superseded by the single standard that all landowners owe a duty of reasonable care to protect lawful visitors."

1. Section 28-01-44, N.D.C.C.

The trial court granted Gateway's motion for summary judgment on the grounds that there was no genuine issue as to any material fact and that Gateway was entitled to judgment as a matter of law under Sec. 28-01-44, N.D.C.C., which provides:

"28-01-44. Limitation of action--Person submitting plans for improvements to real estate.--1. No action, whether in contract, oral or written, sealed or unsealed; in tort or otherwise, to recover damages:

"a. For any deficiency in the design, planning, supervision or observation of construction or construction of an improvement to real property;

"b. For injury to property, real or personal, arising out of any such deficiency; or

"c. 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 or observation of construction, or construction of such an improvement more than ten years after substantial completion of such an improvement.

"2. Notwithstanding the provisions of subsection 1, in the case of such an injury to property or the person or such an injury causing wrongful death, which injury occurred during the tenth year after such substantial completion, an action in tort to recover damages for such an injury or wrongful death may be brought within two years after the date on which such injury occurred, irrespective of the date of death, but in no event may such an action be brought more than twelve years after the substantial completion of construction of such an improvement.

"Nothing in this section shall be construed as extending the period prescribed by the laws of this state for the bringing of any action.

"3. The limitation prescribed by this section shall not be asserted by way of defense by any person in actual possession or the control, as owner, tenant, or otherwise, of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury or death for which it is proposed to bring an action.

"4. As used in this section, the term 'person' shall mean an individual, corporation, partnership, business trust, unincorporated organization, association, or joint stock company."

Bellemare argues: (a) that, even if Sec. 28-01-44 is constitutional, summary judgment was inappropriate because a question of fact exists as to whether the grain bin is an improvement to real property or a product; (b) that Sec. 28-01-44 violates Art. I, Sec. 21, N.D.Const., because it unconstitutionally classifies potential plaintiffs and potential defendants; and (c) that Sec. 28-01-44 is a special law in violation of Art. IV, Secs. 43 and 44, N.D.Const.

a. Improvement or product

Relying on Robertson Companies, Inc. v. Kenner, 311 N.W.2d 194 (N.D.1981), Bellemare asserts that Rutten's grain bin is a "good" under Article II of the Uniform Commercial Code, Ch. 41-02, N.D.C.C., and is not an improvement to real property subject to Sec. 28-01-44, N.D.C.C. The instant case, however, does not involve a question as to whether there was a sale of goods or a rendition of services and Robertson, supra, is inapposite.

In enacting Sec. 28-01-44, N.D.C.C., the Legislature did not define the term "improvement to real property." Bellemare asserts that fixture law should be relied upon to define that term and argues that the "manner of annexing the bin to the foundation creates a question of fact as to whether the bin is a fixture or a product." Section 47-01-05, N.D.C.C., provides:

"47-01-05. 'Fixtures' defined.--A thing is deemed to be affixed to land when it is attached to it by roots, as in the case of trees, vines, or shrubs, or imbedded in it, as in the case of walls, or permanently resting upon it, as in the case of buildings, or permanently attached to what is thus permanent, as by means of cement, plaster, nails, bolts, or screws."

This court held, in Syllabus p 1, Strobel v. Northwest G. F. Mut. Ins. Co., 152 N.W.2d 794 (N.D.1967):

"In determining whether a building, which has been purchased and moved on to land of the purchaser, becomes a fixture under Section 47-01-05, N.D.C.C., the court will look to the intention of the purchaser, the manner in which the building is annexed, and its adaptation to the use of the realty."

While also not directly applicable, another statute, Sec. 35-27-01(3), N.D.C.C., dealing with mechanics' liens, might also be helpful in determining what is included within the scope of the statute:

"3. 'Improvement' means any building, structure, erection, construction, alteration, repair, removal, demolition, excavation, landscaping, or any part thereof, existing, built, erected, improved, placed, made, or done on real estate for its permanent benefit."

Pursuant to Sec. 1-02-02, N.D.C.C., "[w]ords used in any statute are to be understood in their ordinary sense, unless a contrary intention plainly appears." Webster's New World Dictionary (2d College Ed. 1980) defines "improvement" as " ... 3. a change or addition to land or real property, as a sewer, fence, etc., to make it more valuable."

In our view, it is unnecessary to define the term "improvement to real property" because only one conclusion--that the grain bin involved here is an improvement to real property--can reasonably be drawn from the facts presented to the trial court. The bin is a 10,000-bushel bin anchored to a cement slab by bolts. It was erected on-site in 1967. In erecting the bin, "[t]hey put the roof together first and they'd raise the roof and as they'd raise the roof they'd put the bands on the bottom until they had the 10,000-bushel." The bin is a drying bin with a perforated floor nine inches above the cement slab upon which the bin rests. The bin is part of a grain-handling system which also consists of two additional 10,000-bushel bins, a 3,500-bushel overhead bin, two hopper bins, and a leg. Since the bin was erected in 1967, Rutten had never moved it or removed any of the anchors. Bellemare has not presented any facts indicating that Rutten intended the bin's placement to be anything other than permanent. While it is possible to move the bin from its cement foundation by removing the anchors, under the circumstances presented we are not persuaded that the "manner of annexing the bin to the foundation creates a question of fact as to whether the bin is a fixture or a product."

b. Art. I, Sec. 21, N.D.Const.

Article I, Sec. 21, N.D.Const., provides:

"No special privileges or immunities shall ever be granted which may not be altered, revoked or repealed by the legislative assembly; nor shall any citizen or class of citizens be granted privileges or immunities which upon the same terms shall not be granted to all citizens."

Relying on Hanson v. Williams County, 389 N.W.2d 319 (N.D.1986), Bellemare asserts that Sec. 28-01-44, N.D.C.C., violates Art. I, Sec. 21, N.D.Const., because persons injured by an improvement to real property within 10 years of the improvement's substantial completion may bring an action against any person performing or furnishing the design, planning, supervision or observation of construction, or construction of the improvement, while a person injured more than 10 years after an improvement's substantial completion may not bring an action.

"[T]he right to recover for personal injuries is an important substantive right" for which the appropriate standard by which to review limiting legislation "is the intermediate standard or the close correspondence test." Hanson v. Williams County, supra, 389 N.W.2d at 325. That intermediate standard of review requires a "close correspondence between statutory classification and legislative goals." Hanson, supra, 389 N.W.2d at 323, quoting Arneson v. Olson, 270 N.W.2d 125, 133 (N.D.1978). Because the statute of repose contained in ...

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