Good v. Christensen
Decision Date | 09 October 1974 |
Docket Number | No. 13659,13659 |
Parties | James E. GOOD and Mary G. Good, Plaintiffs and Appellants, v. Don M. CHRISTENSEN et al., Defendants and Respondents. |
Court | Utah Supreme Court |
Tim Dalton Dunn, Hanson Wadsworth & Russon, Salt Lake City, for Good.
Dean E. Conder, Nielsen, Conder, Hansen & Henriod, Salt Lake City, for Christensen.
Guy R. Burningham, Gustin & Gustin, Salt Lake City, for Hansen.
The plaintiffs appeal from an order dismissing their complaint because of the running of the statute of limitations.
Christensen Construction Company built some carports for the Hansens in 1965. The Hansens sold the realty to the plaintiffs in 1969. In 1973 a heavy snowfall occurred, and the carport fell, causing damages to the plaintiffs.
This complaint was filed more than seven years after the carports were constructed.
Section 78--12--25.5, U.C.A.1953, as amended, was enacted by Chapter 218, Laws of Utah 1967, and so far as material herein reads:
No action to recover damages for any injury to property, real or personal, or for any injury to the person, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for damages sustained on account of such injury, shall be brought against any person performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property more than seven years after the completion of construction.
The limitation imposed by this provision shall not apply to any person in actual possession and control as owner, tenant or otherwise, of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury for which it is proposed to bring an action.
This provision shall not be construed as extending or limiting the periods otherwise prescribed by the laws of this state for the bringing of any action.
The plaintiffs argue that the owner at the time of construction is not affected by the seven-year limitation and may sue within the applicable statute of limitation after injury is occasioned and that this right runs with the land. They rely upon the case of Deschamps v. Camp Dresser & McKee, Inc., 1 which holds that the exception in a statute similar to ours excludes the owner or tenant in possession at the time of construction from the restriction on time to sue.
We do not think the Deschamps case was properly decided.
The owner or person in possession under our statute at first blush might be thought to be within the class of persons whom the seven-year statute protected since he himself may have constructed the building or participated in its design, etc. A landowner or one in possession and control of realty is under a continuing duty to keep the place in repair, and one not the owner or in possession and control would have no cause of action until damage was sustained. On the other hand, an owner does sustain damage as soon as an improper construction is made, and he can bring an action against the contractor for breach of contract or for negligent construction. A failure to perform work on any construction in a good and workmanlike manner affords the owner a cause of...
To continue reading
Request your trial-
Hartford Fire Ins. Co. v. Lawrence, Dykes, Goodenberger, Bower & Clancy
...Formigli Corp., 120 N.J.Super. 493, 295 A.2d 19 (Law Div.1972), aff'd, 124 N.J.Super. 270, 306 A.2d 466 (App.Div.1973); Good v. Christensen, 527 P.2d 223 (Utah 1974).Both these theories, while not based on the reasoning of the Colorado courts would have permitted most suits for damages for ......
-
Zapata v. Burns
...Ellerbe v. Otis Elevator Co., 618 S.W.2d 870 (Tex.1981); Hill v. Forrest & Cotton, Inc., 555 S.W.2d 145 (Tex.1977); Good v. Christensen, 527 P.2d 223 (Utah 1974); Yakima Fruit & Cold Storage Co. v. Central Heating & Plumbing Co., 81 Wash.2d 528, 503 P.2d 108 (1972).11 The plaintiffs merely ......
-
Beecher v. White
...Associates, Inc., (1981) Tenn. 619 S.W.2d 522;Ellerbe v. Otis Elevator Company, (1981) Tex.Civ.App., 618 S.W.2d 870;Good v. Christensen, (1974) Utah, 527 P.2d 223;Yakima Fruit & Cold Storage Co. v. Central Heating & Plumbing Co., (1972) 81 Wash.2d 528, 503 P.2d 108.The following cases have ......
-
Canton Lutheran Church v. SOVIK, MATHRE, ETC.
...Putnam Co., 525 S.W.2d 488 (Tenn.1975); Texas, Hill v. Forrest & Cotton, Inc., 555 S.W.2d 145 (Tex.Civ.App. 1977); Utah, Good v. Christensen, 527 P.2d 223 (Utah 1974); Virginia, Smith v. Allen-Bradley Co., 371 F.Supp. 698 (W.D.Va. 1974); Washington, Yakima Fruit & Cold Storage Co. v. Centra......