Carter v. Hartenstein

Decision Date22 June 1970
Docket NumberNo. 5--5315,5--5315
PartiesMrs. Marion E. CARTER, Individually and as Administratrix of the Estate of Steven Ira Carter, Deceased, Appellant, v. R. E. HARTENSTEIN, d/b/a Hartenstein Elevator Company, et al., Appellees.
CourtArkansas Supreme Court

Teague, Bramhall & Davis, Little Rock, for appellant.

John M. Lofton, Jr., Wright, Lindsey & Jennings, Rose, Barron, Nash, Williamson, Carroll & Clay, Little Rock, for appellees.

Smith, Williams, Friday & Bowen, by Joe D. Bell, Moses, McClellan, Arnold, Owen & McDermott, by Charles W. Baker, Little Rock, amicus curiae.

ROY PENIX, Special Chief Justice.

Steven Ira Carter, a 14 year old newspaper boy, was crushed to death February 8, 1968, while attempting to use an elevator installed in the Justice Building on the State Capitol Grounds in Little Rock. The youth's mother, Mrs. Marion E. Carter, as administratrix, brought this suit under the wrongful death act against R. E. Hartenstein, d/b/a Hartenstein Elevator Company, who manufactured and installed the elevator, alleging liability because of the manner in which the elevator had been constructed and installed.

Hartenstein answered and brought in as third-party defendants, Erhart, Eichenbaum, Rauch & Blass, the architects who designed the Justice Building, and D. A. Harmon, d/b/a Harmon Construction Company, the contractor who built the elevator shaft. Mrs. Carter amended her complaint and pleaded over against the architects and the contractor.

All defendants raised as their defense Ark.Stat.Ann. § 37--237 thru 37--244 (Repl.1962) which is Act 42 of the General Assembly of 1967. The pertinent statute is § 37--238:

'Personal injury or wrongful death--Four-year limitation.--No action in tort or contract (whether oral or written, sealed or unsealed) to recover damages for personal injury or wrongful death caused by any deficiency in the design, planning, supervision or observation of construction or the construction and repairing of any improvement to real property shall be brought against any person performing or furnishing the design, planning, supervision or observation of construction or the construction and repair of such improvement more than four (4) years after substantial completion of same.'

The parties stipulated that the Justice Building was substantially completed in the year 1958. Thereafter, the defendants all moved for a summary judgment. The Circuit Court granted summary judgment, finding that the cause of action was barred by § 37--238.

The sole issue before this court is the constitutionality of § 37--237 et seq. (Act.42). The appellant contends the statute violates the Arkansas Constitution, Article 2, Sections 1o and 18; Article 5, Section 25; and Amendment 14, as well as the United States Constitution, Amendment 14, Section 1.

Appellant asserts the statute violates due process; is discriminatory, contravenes equal protection of the laws, and is local and special legislation.

The question raised is whether the legislature was arbitrary or capricious in granting this immunity from suit four years after substantial completion of construction to those enumerated in the statute without giving such protection to others such as materialmen and owners, whom appellant claims belong to the same class as those exempted.

This Statute, whether it be one of 'vested right' and a means of remedy and recovery, or whether it be characterized as a 'statute of limitations', is largely a question of semantics and manipulation of legal theory. The true issue is whether it is fair and reasonable and an appropriate action by the General Assembly of the State of Arkansas, or whether it impinges and frustrates basic rights guaranteed constitutionally. The court cannot--and it should not try to--make legislative policy in a case like this, but only protect essential and basic rights when they are infringed.

This Act only cuts off action after four years. But, even then, if an accident or injury occurs before the expiration of that four year period, it may still be brought within an additional 12 months against those furnishing the design, planning, supervision or observation of construction, or the construction and repairing of any improvement to real property. All of the defendants in this action are within this definition. However, it does not include owners of buildings or materialmen who are not otherwise involved.* Such materialmen and the owners of buildings or structures who are in sole control of premises after completion of the work are not similarly situated with the defendants in this case. They are not in the same class with those described in the act. Particularly is this true after construction is substantially completed and accepted by the owners. Part of acceptance is to accept some future...

To continue reading

Request your trial
73 cases
  • PRESIDENT AND DIRECTORS, ETC. v. Madden
    • United States
    • U.S. District Court — District of Maryland
    • September 24, 1980
    ...constitutes the proximate cause of the injury or damage for which the action is brought. N.J.S.A. 2A:14-1.1 29 Carter v. Hartenstein, 455 S.W.2d 918, 920 (Ark. 1970), appeal dismissed for want of a substantial federal question, 401 U.S. 901, 91 S.Ct. 868, 27 L.Ed.2d 800 (1971); Fujioka v. K......
  • Blaske v. Smith & Entzeroth, Inc., Nos. 73588
    • United States
    • Missouri Supreme Court
    • December 17, 1991
    ...years); Ark.Stat. § 16-56-112 (1987) (five years), constitutionality of predecessor, Ark.Stat. § 37-238, upheld in Carter v. Hartenstein, 248 Ark. 1172, 455 S.W.2d 918 (1970); Cal.Civ.Proc.Code § 337.15 (1982) (ten years), constitutionality upheld in Barnhouse v. City of Pinole, 133 Cal.App......
  • Hartford Fire Ins. Co. v. Lawrence, Dykes, Goodenberger, Bower & Clancy
    • United States
    • U.S. Court of Appeals — Sixth Circuit
    • July 31, 1984
    ...twice been dismissed by the Supreme Court on the grounds that no substantial federal question was presented. See Carter v. Hartenstein, 248 Ark. 1172, 455 S.W.2d 918 (1970), appeal dismissed, 401 U.S. 901, 91 S.Ct. 868, 27 L.Ed.2d 800 (1971); Ellerbe v. Otis Elevator Co., 618 S.W.2d 870 (Te......
  • Kenyon v. Hammer
    • United States
    • Arizona Supreme Court
    • September 19, 1984
    ...been brought--indeed, before the victim was conceived. This result has been permitted in some states. See, e.g., Carter v. Hartenstein, 248 Ark. 1172, 455 S.W.2d 918 (1970), appeal dismissed for want of a substantial federal question, 401 U.S. 901, 91 S.Ct. 868, 27 L.Ed.2d 800 (1971) (wrong......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT