Bielski v. Alfred Saliba Corp.

• Decision Date: 16 October 2013
• Docket Number: Civil Action No. 1:12cv1049–MHT.
• Citation: 984 F.Supp.2d 1170
• Parties: Kathryn BIELSKI, Plaintiff, v. ALFRED SALIBA CORPORATION, Defendant.
• Court: U.S. District Court — Middle District of Alabama

984 F.Supp.2d 1170

Kathryn BIELSKI, Plaintiff,

v.ALFRED SALIBA CORPORATION, Defendant.

Civil Action No. 1:12cv1049–MHT.

United States District Court,

M.D. Alabama,

Southern Division.

Oct. 16, 2013.

Recognized as Unconstitutional

Code 1975, § 6–5–218.

Lanny S. Vines, Lanny Vines & Associates, Birmingham, AL, Rufus Randolph Smith, Jr., Rufus R. Smith, Jr. & Associates, Dothan, AL, for Plaintiff.

Harry Preston Hall, II, Farmer, Price, Hornsby & Weatherford, Dothan, AL, Herman Warren Cobb, Jr., Leon Augustus Boyd V, Cobb Boyd White & Cobb, Dothan, AL, for Defendant.

OPINION AND ORDER

MYRON H. THOMPSON, District Judge.

Plaintiff Kathryn Bielski fell from the attic of a house she was renting, landing on the concrete floor of her garage. She brought this suit against defendant Alfred Saliba Corporation, the company which built the house. She claims that her fall was the result of the company's negligent and wanton lack of care in constructing the attic. Jurisdiction is properly invoked pursuant to 28 U.S.C. § 1332 (diversity).

This case is now before the court on Alfred Saliba Corporation's motion for summary judgment. For the reasons discussed below, the motion will be denied.

I. LEGAL STANDARD

“A party may move for summary judgment, identifying each claim or defense—or the part of each claim or defense—on which summary judgment is sought. The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(a). The court must view the admissible evidence in the light most favorable to the non-moving party and draw all reasonable inferences in favor of that party. Matsushita Elec. Indus. Co. Ltd. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 89 L.Ed.2d 538 (1986).

II. BACKGROUND

In 2003, Alfred Saliba Corporation built a house in Dothan, Alabama. The city issued all required permits and a certificate of occupancy for the home. A family purchased the home and lived there for three years, after which they rented the home to others. Bielski began renting the house, along with her then-fiancé, in August 2010.

The house has an attic space above the garage. At the time of construction, the applicable building codes required that there be some form of access to the attic. To satisfy this requirement, Alfred Saliba Corporation installed “disappearing stairs,” a pull-down ladder, which led from the garage to the attic. Speigner Dep. (Doc. No. 25–9) at 117:1.

In much of the attic, the flooring consists of merely a system of wood trusses. The Sheetrock ceiling for the rooms below the attic is nailed to the bottom of the trusses. Sheetrock is not constructed to bear weight and it is not safe to step on it. Immediately to the right of the ladder into the attic, the company had attached “OSB sheathing,” plywood-like boards on which a person can safely stand. Bodo Dep. (Doc. No. 25–7) at 75:19–76:12. The plans for the home called for the builders to install three pieces of these plywood-like boards in the attic “if space available.” Speigner Dep. (Doc. No. 39–1) at 117:1–2. There were only two pieces of these plywood-like boards actually installed in the attic, covering an area of 64 square feet. There is a height difference between the plywood-like boards and the Sheetrock, but there is no barrier or marking at the edge of the board.

On the ladder to the attic, there is a warning label that says in large, highlighted print “BEWARE OF OVERHEAD HAZARDS.” Cornelius Kugler Dep. (Doc. No. 25–3), Dep. Ex. 7. The label also has a diagram of a stick figure falling through the ceiling, and says in smaller print:

“Do not stand, sit, or store materials on the ceiling or insulation covering the ceiling. You can fall through the ceiling even though it looks solid! Only the wooden joists can support weight.”

Id.

On the morning of December 3, 2010, Bielski went to the attic to retrieve coats that had been placed in storage there. She had never been in an attic before that morning. Standing on the plywood-like boards, she took “a small step” off the boards and onto the Sheetrock ceiling in order to reach the coats. Bielski Dep. (Doc. No. 25–6) at 30:9–10. The Sheetrock collapsed under Bielski's weight, and she fell to the concrete floor of the garage below.

Bielski claims that the fall paralyzed her from the waist down and caused a brain injury leading to memory loss. These injuries have allegedly interfered with her day-to-day life and caused her significant emotional distress.

Bielski filed this lawsuit on November 30, 2012.

III. DISCUSSION

Alfred Saliba Corporation presents four arguments for summary judgment. First, the company argues that Bielski's claims are barred by a statute of repose on claims relating to home construction. Second, the company argues that it could not have been negligent because a homebuilder has no duties to any individual with whom it is not in privity. Third, the company argues that, even if it was somehow negligent in building the attic, Bielski was contributorily negligent. Finally, the company argues generally that Bielski does not show sufficient evidence for the wantonness claim to reach the jury. ¹

1. Statute of Repose

Alfred Saliba Corporation argues that Bielski's claims are barred by 1975 Ala.Code § 6–5–218, which established a seven year statute of repose for claims against a builder for construction on real property. (The house was built in 2003, and this suit was not brought until eight years later, in 2011.) However, as Bielski argues and the company does not dispute, § 6–5–218 was ruled unconstitutional by the Alabama Supreme Court 30 years ago. Jackson v. McDowell–Wellman Engineering Corp., 435 So.2d 725 (Ala.1983).

Admittedly, Alabama has a new statute of repose for construction of real property: 1975 Ala.Code § 6–5–221. While Alfred Saliba Corporation does not rely on this statute, the statute would not benefit the company anyway.

At the time of Bielski's fall, § 6–5–221 set a 13–year statute of repose. 1994 Ala. Laws Act 94–138 (H.B.341). The statute was amended, effective September 1, 2011, to shorten the statute of repose to seven years. 2011 Ala. Laws Act 2011–519 (S.B.59). Bielski brought suit in November 2011. Thus, the question becomes whether the statute of repose at the time that the claim accrued or at the time that suit was filed would be applicable. Although the Alabama courts do not seem to have squarely addressed the issue, their caselaw makes clear that the statute of repose at the time the claim accrued, not the time that suit was brought, would apply.

With regard to the retroactive application of statutes, Alabama law differentiates between substantive statutes and remedial statutes. For substantive statutes, “retrospective application of a statute is generally not favored, absent an express statutory provision or clear legislative intent” to the contrary. Jones v. Casey, 445 So.2d 873, 875 (Ala.1983). Remedial statutes, however, do apply retroactively by default, since they “impair no contract or vested right, and do not disturb past transactions, but preserve and enforce the right and heal defects in existing laws prescribing remedies.” Id. (quoting Dickson v. Ala. Mach. and Supply Co., 18 Ala.App. 164, 165, 89 So. 843 (1921)). Statutes of limitations are remedial statutes under Alabama law, and as a result, they apply retroactively. Street v. City of Anniston, 381 So.2d 26, 29 (Ala.1980). That is, in general, the court applies the statute of limitations in effect when suit is brought, not when a claim accrued.

In order to determine whether the rule for retroactive application of statutes of limitations should apply to statutes of repose, it is necessary to understand the difference between the two. Statutes of limitations “govern how long a claimant can bring an action after one has accrued; [statutes of repose] govern whether an action can be brought regardless of whether it has accrued. It is possible for an action to be barred by a statute of repose before it ever accrues, effectively preventing a cause of action from ever arising.” 4 Charles Alan Wright, Arthur R. Miller & Mary Kay Kane, Federal Practice & Procedure § 1056 at 89 n. 3 (3d Ed. Supp.2013)

The Alabama Supreme Court emphasized this difference while discussing a predecessor to the current statute of repose for construction of real property. The court held that “the seven-year provision is a limitation in form only; in substance and effect, it is a grant of immunity—the abolition of a substantive right.” Bagby Elevator & Elec. Co., Inc. v. McBride, 292 Ala. 191, 291 So.2d 306, 311 (1974). Since statutes of repose such as § 6–5–221 are substantive and not remedial law, they apply only prospectively—to claims which accrue after the effective date of the statute.

Bielski's claim accrued in 2010, when the applicable statute of repose was 13 years. She brought suit well within the 13–year time limit. Therefore, she is not barred by the statute of repose in § 6–5–221.

2. Caveat Emptor

Alfred Saliba Corporation argues that it could not have breached a duty to Bielski because homebuilders owe a duty to only the first buyer of a house, not to any subsequent buyer or resident. This argument misstates Alabama law.

The company cites a line of cases in which subsequent owners of homes sued homebuilders for negligence based on the damage to their homes: Whatley v. Reese, 875 So.2d 274 (Ala.2003), Wooldridge v. Rowe, 477 So.2d 296 (Ala.1985), and Wells v. Clowers Const. Co., 476 So.2d 105 (Ala.1985). In each of these cases, the Alabama Supreme Court upheld a caveat emptor policy. Homeowners can recover from the initial builder for property damage only if they are in privity with the builder.

Unfortunately for the company, the Alabama Supreme Court established a different rule for contractors' liability for personal injury of third parties. “While the rule of caveat emptor is still a...