Blaske v. Smith & Entzeroth, Inc., Nos. 73588

Decision Date17 December 1991
Docket Number73612 and 73631,Nos. 73588
PartiesRobert L. BLASKE, Appellant, v. SMITH & ENTZEROTH, INC., et al., Respondents. Heather Nicole CASE, a minor, et al., Appellants, v. SVERDRUP & PARCEL AND ASSOCIATES, INC., et al., Respondents. Robert J. HERTLEIN and Caroline T. Hertlein, Appellants, v. SVERDRUP & PARCEL AND ASSOCIATES, INC., et al., Respondents. Vernon DILLMAN, Appellant, v. The MISSOURI HIGHWAY AND TRANSPORTATION COMMISSION, et al., Respondents.
CourtMissouri Supreme Court

Branson Wood III, Palmyra, Edward L. Dowd, Jr., Robert F. Ritter, M. Jane Matoesian, St. Louis, for appellant.

Kenneth A. Slavens, John P. Palombi, Steven D. Asher, Larry Valentine, Ralph K. Soebbing, Colleen M. Joern, Brent Baldwin, Thomas B. Tobin, Colleen C. Jones, Lawrence B. Grebel, Michael E. Bub, Kenneth Slavens, John P. Palombi, Steven D. Asher, John R. Musgrave, Timothy F. Noelker, Bruce D. Ryder, Gary T. Sacks, Douglas E. Gossow, St. Louis, for respondents.

J. Roger Edgar, James L. Hawkins, St. Louis, for amicus American Institute of Architects, et al.

THOMAS, Judge.

In this case the Court considers the constitutionality of § 516.097, RSMo 1986, a 10 year statute of repose protecting architects, engineers and persons who furnished construction services from liability arising out of a defective or unsafe condition of any improvement to real property. We hold that the statute is constitutional; it is not invalidated by any of the four constitutional challenges; i.e., Equal Protection, Special Legislation, Access to the Courts, and Due Process.

Four cases are consolidated for this appeal. Three of the cases involve two wrongful deaths (Bobbie Jean Case and Sandra Bernice Hertlein) and a claim for personal injuries (Vernon Dillman, Jr.). Each case arose out of automobile accidents that occurred at the Union Boulevard exit ramp of westbound Interstate 70 in the City of St. Louis. The accident in which Bobbie Jean Case and Sandra Bernice Hertlein were killed occurred on November 21, 1989; the accident in which Vernon Dillman, Jr., was injured occurred on March 5, 1989. The parties agree that the construction of the improvements to the real property (the interstate highway and exit ramp) were completed more than 10 years prior to these accidents. 1 Defendant Sverdrup Parcel & Associates provided architectural and engineering services for the design of the exit ramp; defendant Millstone constructed the highway and exit ramp. All parties agree that the protection provided by § 516.097, the statute of repose, includes both of these defendants. 2

The other case involves plaintiff Robert L. Blaske, who was seriously injured when he fell from a platform fourteen feet above the ground, which was a permanent structure designed and built to provide service access to the air handling equipment (air conditioning and ventilating system) for the Student Union Building at Meramec Community College. Plaintiff's petition alleges that the platform was negligently designed, engineered and constructed in that it had no guard rails or hand rails and that the platform "blended-in" with an adjacent, lightweight dropped-ceiling so that the platform was indistinguishable from the dropped-ceiling. Plaintiff also alleged defendants were negligent in designing and placing the air handling unit over the dropped-ceiling rather than over the platform.

It is alleged that defendant SnyderGeneral Corporation (also known as McQuay, Inc.) manufactured the air handling unit. The other defendants are the architects 3 and engineers 4 who designed and engineered the platform and the installation and placement of the air handling unit and the contractors 5 who constructed the platform and installed the air handling unit. All of the parties agree that the construction was completed more than 10 years prior to June 4, 1987, 6 when plaintiff Blaske fell and was injured.

All parties agree that all defendants except defendant SnyderGeneral are within the purview of the statute. Defendant SnyderGeneral claims it is within the purview of the statute because it "manufactured" the air handling unit, which is an improvement to real property for purposes of § 516.097. Plaintiff Blaske claims that defendant SnyderGeneral, as a manufacturer and seller of a pre-built air conditioner, is a materialman and is not protected by the statute, which only protects persons providing architectural, engineering and construction services.

The respective trial courts sustained the motion to dismiss or the motion for summary judgment of each of the defendants on the ground that each is protected by § 516.097. All four cases were consolidated for appeal because the issue of whether § 516.097 is unconstitutional is common to all four cases.

Section 516.097, RSMo, enacted in 1976, effective August 13, 1976, provides as follows:

Tort action against architects, engineers or builders of defective improvement to real property must be brought within ten years of completion of improvement, exceptions.--

1. Any action to recover damages for personal injury, property damage or wrongful death arising out of a defective or unsafe condition of any improvement to real property, including any action for contribution or indemnity for damages sustained on account of the defect or unsafe condition, shall be commenced within ten years of the date on which any such improvement is completed.

2. This section shall only apply to actions against any person whose sole connection with the improvement is performing or furnishing, in whole or in part, the design, planning or construction, including architectural, engineering or construction services, of the improvement.

3. If any action is commenced against any person specified by subsection 2, any such person may, within one year of the date of the filing of such an action, notwithstanding the provisions of subsection 1, commence an action or a third party action for contribution or indemnity for damages sustained or claimed in any action because of personal injury, property damage or wrongful death arising out of a defective or unsafe condition of any improvement to real property.

4. This section shall not apply if:

(1) An action is barred by another provision of law;

(2) A person conceals any defect or deficiency in the design, planning or construction, including architectural, engineering or construction services, in an improvement for real property, if the defect or deficiency so concealed directly results in the defective or unsafe condition for which the action is brought;

(3) The action is brought against any owner or possessor of real estate or improvements thereon.

5. The statute of limitation for buildings completed on August 13, 1976, shall begin to run on August 13, 1976, and shall be for the time specified herein.

Other states enacted similar statutes beginning in the late 1960s. 7 These statutes were enacted in response to case decisions around the country that had done away with the necessity of privity between the plaintiff and the architect, engineer or builder. This had resulted in these parties having potential liability many years after they ceased to be connected in any way with the improvement. 8 Presently, thirty-five states have statutes that impose time limitations upon actions against architects and builders for injuries or deaths caused by defective or unsafe conditions of improvements on real property. 9 Generally these statutes provide for a period of four to twenty years following the substantial completion of an improvement in which action may be brought against design professionals. Thirty-two of these thirty-five states have held these statutes constitutional; 10 the remaining three states have not yet considered this issue. 11 Eleven other jurisdictions have enacted similar statutes, which have been declared unconstitutional. 12

Before discussing each of the four constitutional attacks on the statute, it is appropriate to discuss some general principles that this Court has consistently applied in evaluating the constitutionality of a statute. A statute is presumed to be constitutional and will not be held to be unconstitutional unless it clearly and undoubtedly contravenes the constitution; it should be enforced by the courts unless it plainly and palpably affronts fundamental law embodied in the constitution. Winston v. Reorganized School District R-2, Lawrence County, 636 S.W.2d 324, 327 (Mo. banc 1982). When the constitutionality of a statute is attacked, the burden is upon the party claiming the statute is unconstitutional to prove the statute is unconstitutional. Schnorbus v. Director of Revenue, 790 S.W.2d 241, 243 (Mo. banc 1990).

With respect to the claim that a statutory classification is violative of equal protection, a challenger must prove abuse of legislative discretion beyond a reasonable doubt and, short of that, the statute is valid. Winston, 636 S.W.2d at 327. In particular, plaintiffs claim that this statute denies them equal protection of the laws as required by the fourteenth amendment of the United States Constitution and violates equal protection as set forth in article I, § 2, of the Missouri Constitution.

Analysis of an equal protection claim involves a two step process. The first step is to determine whether the classification burdens a "suspect class" or impinges upon a "fundamental right"; in either event, strict judicial scrutiny is required. If no such right or category is present, then the statute will be upheld and a classification sustained if the classification is rationally related to a legitimate state interest.

Neither a "suspect class" nor a "fundamental right" is at issue in this case. "Fundamental rights" include such things as freedom of speech, freedom of the press, freedom of religion, the right to vote and the right to procreate. State Board of Registration v. Griffin, 651 S.W.2d 475,...

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