Broome v. Truluck, 20605

Citation270 S.C. 227,241 S.E.2d 739
Decision Date13 February 1978
Docket NumberNo. 20605,20605
CourtUnited States State Supreme Court of South Carolina
PartiesEdna O. BROOME, Appellant, v. John H. TRULUCK, and North American Door Company, Inc., of which John H. Truluck is, Respondents.

Murdaugh, Peters, Parker & Eltzroth, Hampton, for appellant.

Young, Clement & Rivers, Charleston, for respondents.

LEWIS, Chief Justice:

This action was commenced on June 26, 1975 to recover for injuries sustained by appellant, when she caught her foot on a raised threshold and fell as she was proceeding through a door at one of the entrances to the garage of Walterboro Motor Sales Company in Walterboro, South Carolina, on July 10, 1973. The premises of Walterboro Motor Sales Company were renovated in 1962 and the door in question was installed at that time, with installation substantially completed in December 1962. Appellant brought this action against the manufacturer of the door and respondent, the architect, who designed the building, alleging negligence in the design and manufacture of the door.

This appeal is from an order of the lower court granting respondent's motion for summary judgment on the ground that the present action is barred by Section 15-3-640 of the 1976 Code of Laws, which provides that any action brought to recover damages for any deficiency in the design of any improvement in real estate against the person furnishing the design must be brought within ten (10) years after substantial Appellant contends that Section 15-3-640 is unconstitutional because it violates: (1) Article 3, Section 17 of the South Carolina Constitution in that the title does not sufficiently identify the subject of the Act; (2) Article 1, Section 9 of the South Carolina Constitution which provides that every person shall have a speedy remedy in the courts for wrongs sustained; and (3) the equal protection and due process clauses of the State (Article 1, Section 3) and Federal (Fourteenth Amendment) Constitutions.

completion of the improvement. Appellant concedes here, as she did in the lower court, that if Section 15-3-640 is constitutional, this action is barred, because the improvement designed by respondent, which allegedly caused appellant's injury in 1973, was substantially completed in December 1962, more than ten years after the improvement. The issues in this appeal relate solely to the constitutionality of the foregoing statute.

We need consider only the third ground of appellant's attack upon the constitutionality of the statute, since it, in our opinion, clearly violates the constitutional guaranty of equal protection of the law.

The statute in question (Section 15-3-640) is as follows:

All actions to recover damages for any deficiency in the design, planning, supervision, observation of construction, construction of, or land surveying in connection with, an improvement to real property, for injury to property, real or personal, arising out of any deficiency, or for injury to the person or for a wrongful death arising out of any 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 ten years after substantial completion of such improvement.

It is apparent from the descriptive terms used that the sole object, purpose and scope of the foregoing statute was to grant to architects, engineers, and contractors in the real estate construction industry immunity from suit for their torts after the lapse of ten years from the date of the substantial completion of the improvement causing injury or damage.

While the General Assembly has the power in passing legislation to make a classification of its citizens, the constitutional guaranty of equal protection of the law requires that all members of a class be treated alike under similar circumstances and conditions, and that any classification cannot be arbitrary but must bear a reasonable relation to the legislative purpose sought to be effected. Gasque, Inc. v. Nates, 191 S.C. 271, 2 S.E.2d 36.

The question then is whether there is a sound basis for regarding architects, engineers, and contractors engaged in the improvement of real property as a distinct and separate class for the purpose of granting immunity from suit after the lapse of ten (10) years. Certainly, such classification must fall if the benefits (immunity) granted to them is denied to others similarly situated. The latter result clearly follows when we consider that architects, engineers, and contractors are not the only persons whose negligence in the improvement of real property may cause damage or injury to others. Neither the owners nor the manufacturers of components that go into the construction of the building are protected. In fact, the owner is specifically excluded from the protection of the statute. Section 15-3-670, 1976 Code of Laws. Only architects, engineers, and contractors are singled out for preferential treatment. While it is broadly stated that a vital distinction exists between architects, engineers, and contractors on the one hand, and owners and manufacturers, on the other, such vital distinction is no where pointed out such as to justify granting immunity to one group and not to the other. No rational basis appears for making such distinction. Skinner v. Anderson, 38 Ill.2d 455, 231 N.E.2d 588; Fujioka v. Kam, 55 Haw. 7, 514 P.2d 568.

The Illinois Supreme Court considered a similar statute to the present one, but containing That the statute benefits all architects and construction contractors is significant only if the benefits conferred upon them are not denied others similarly situated.

a four (4) year limitation period. The court pointed out:

In discussing the discriminatory effect of the statute upon others similarly situated, the court in Skinner soundly reasoned:

More important is the fact that of all those whose negligence in connection with the construction of an improvement to real estate might result in damage to property or injury to person more than four years after construction is completed, the statute singles out the architect and the contractor, and grants them immunity. It is not at all inconceivable that the owner or person in control of such an improvement might be held liable for damage or injury that results from a defective condition for which the architect or contractor is in fact responsible. Not only is the owner or person in control given no immunity; the statute takes away his action for indemnity against the architect or contractor.

Green v. Zimmerman, S.C., 238 S.E.2d 323, Smith's Advance Sheet October 22, 1977, is inapplicable. In Green the statute involved was based upon a reasonable classification to accomplish valid legislative purposes.

The judgment of the lower court is accordingly reversed and the cause remanded for further proceedings.

NESS and RHODES, JJ., concur.

GREGORY, J., concurs in result.

LITTLEJOHN, J., dissents.

GREGORY, Justice (concurring in result):

I, too, would reverse, but on a ground not relied on in the majority opinion.

Article III, Section 17, Constitution of the State of South Carolina, 1895, provides:

Every Act or resolution having the force of law shall relate to but one subject, and that shall be expressed in the title.

The purpose of this provision "is to prevent the General Assembly from being misled into the passage of bills containing provisions not indicated in their titles, and to apprise the people of the subject of proposed legislation and thus give them opportunity to be heard if they so desire. Accordingly, while it is to be construed with great liberality so as not to embarrass or obstruct needed legislation, liberality of construction should not be extended to such a point as to foster the abuses which its provisions are designed to prevent." Colonial Life & Accident Insurance Co. v. S. C. Tax Commission, 233 S.C. 129, 103 S.E.2d 908 (1958).

Sections 15-3-630 through 15-3-670, 1976 Code of Laws of South Carolina, were enacted as Act No. 1071 of the 1970 Acts of the General Assembly. The title to Act No. 1071 reads as follows:

An Act To Amend The Code of Laws Of South Carolina, 1962, By Adding Sections 10-151 Through 10-155, So As To Provide A Limitation For The Bringing Of Actions In Contract Or Tort Malpractice, Error Or Mistake Against Architects, Professional Engineers And Contractors.

Although Act No. 1071 relates to but one subject, that subject is not expressed in its title. The most cursory reading of Act No. 1071 (Sections 15-3-630 through 15-3-670) reveals the Act does not provide a statute of limitations as its title purports, but instead operates to bar a cause of action before it accrues. This distinction is material.

I would reverse on the ground the questioned statutes were enacted in violation of Article III, Section 17 and do not reach the other grounds asserted by appellant for reversal.

LITTLEJOHN, Justice (dissenting):

I respectfully dissent and would affirm the lower court. In my view the order of Judge George F. Coleman properly disposes of all of the issues submitted to this Court, and I am of the view that his order should be printed as our directive. Inasmuch as a

majority of the Court takes a contrary view and reverse that order, I will not direct that it be printed in its entirety, but will quote that part of the order which deals with the due process issue used as a basis for the reversal. It follows:

ORDER OF JUDGE COLEMAN

The plaintiff states that the Act is unconstitutional as being in violation of Article 1, Section 3 of the South Carolina Constitution:

"The privileges and immunities of citizens of this State and of the United States under this Constitution shall not be abridged, nor shall any person be deprived of life, liberty, or property without due process of law, nor shall any person be denied the equal protection of the laws."

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