Howell v. Burk

Decision Date19 July 1977
Docket NumberNo. 2801,2801
Citation90 N.M. 688,1977 NMCA 77,568 P.2d 214
PartiesCalvin HOWELL, as Next Friend of Patrick Howell, a minor, Plaintiff-Appellant, and City of Albuquerque, Cross-Claimant Defendant-Appellant, v. W. E. BURK, Jr., PPG Industries, Inc., and Universal Constructors, Inc., Defendants-Appellees.
CourtCourt of Appeals of New Mexico
Stephen F. Lawless, McCulloch, Grisham & Lawless, P. A., Albuquerque, for plaintiff-appellant Howell

WOOD, Chief Judge.

These appeals involve the constitutionality of § 23-1-26, N.M.S.A.1953 (Supp.1975) and the applicability of that statute to the contentions in this case. We discuss: (1) title of the act; (2) special legislation and equal protection; (3) due process; and (4) application of the statute to the contentions of the parties.

The terminal building of the Albuquerque Airport was substantially completed on November 12, 1965. Patrick Howell, seven years of age, collided with a glass door or window on the observation deck of the building while walking between sections of the observation deck. The incident occurred on January 1, 1976. Suit for damages based on personal injuries was filed on July 14, 1976. The defendants are the City of Albuquerque, owner of the building; Universal (Universal Constructors, Inc.), the contractor who built the observation deck; Burk, the architect who designed the observation deck; and PPG (PPG Industries, Inc.) who manufactured and sold the glass, and, from the showing in this record, also installed the glass.

Albuquerque cross-claimed against Universal, Burk and PPG. Universal cross-claimed against Albuquerque and PPG. Burk cross-claimed against Albuquerque. PPG did not cross-claim.

All defendants, except Albuquerque, moved for summary judgment on the complaint and the cross-claims. The trial court's rulings on these motions are the basis for these appeals, all of which are interlocutory. The trial court ruled that § 23-1-26, supra, was constitutional. The trial court granted some, but not all, of the motions for summary judgment, applying the ten-year limitation period of § 23-1-26, supra.

Section 23-1-26, supra, reads:

"Construction projects Limitation on actions for defective or unsafe conditions. No action to recover damages for any injury to property, real or personal, or for injury to the person, or for bodily injury or wrongful death, arising out of the defective or unsafe condition of a physical improvement to real property, nor any action for contribution or indemnity for damages so sustained, against any person performing or furnishing the construction or the design, planning, supervision, inspection or administration of construction of such improvement to real property, and on account of such activity, shall be brought after ten (10) years from the date of substantial completion of such improvement; provided this limitation shall not apply to any action based on a contract, warranty or guarantee which contains express terms inconsistent herewith. The date of substantial completion shall mean the date when construction is sufficiently completed so that the owner can occupy or use the improvement for the purpose for which it was intended, or the date on which the owner does so occupy or use the improvement, or the date established by the contractor as the date of substantial completion, whichever date occurs last."

Title of the Act

N.M.Const., Art. IV, § 16 states in part:

"The subject of every bill shall be clearly expressed in its title, and no bill embracing more than one subject shall be passed except general appropriation bills and bills for the codification or revision of the laws; but if any subject is embraced in any act which is not expressed in its title, only so much of the act as is not so expressed shall be void."

Plaintiff contends that the subject of § 23-1-26, supra, was not clearly expressed in the title. The title reads:


The legal test is whether the title fairly gives reasonable notice of the subject matter of the statute. Martinez v. Jaramillo, 86 N.M. 506, 525 P.2d 866 (1974); Bureau of Revenue v. Dale F. Bellamah Corporation, 82 N.M. 13, 474 P.2d 499 (1970).

Plaintiff asserts that reasonable notice of the subject matter is not given in the title. Section 23-1-26, supra, states that no action shall be brought after ten years from the date of substantial completion. By its terms, the statute provides that after the specified time has elapsed there is no cause of action. Rosenberg v. Town of North Bergen, 61 N.J. 190, 293 A.2d 662 (1972). Plaintiff asserts that a no action statute is not a statute of limitations. Because the title refers to "limitation on actions", the contention is that the title fails to give reasonable notice of the subject matter. Bagby Elevator and Electric Company, Inc. v. McBride, 292 Ala. 191, 291 So.2d 306 (1974) so held. Bagby does not state New Mexico law.

"Subject" in N.M.Const., Art. IV, § 16 is to be given a broad and extended meaning so as to authorize the Legislature to include in one act all matters having a logical or natural connection. State v. Romero, 86 N.M. 99, 519 P.2d 1180 (Ct.App.1974). The no action provision in § 23-1-26, supra, literally is a limitation on actions that may be brought. The reference in the title to "limitation on actions" logically and naturally connects with the no action provision of the statute. The title provides reasonable notice of the subject matter and does not violate N.M.Const., Art. IV, § 16.

Special Legislation and Equal Protection

N.M.Const. Art. IV, § 24 pertains to special legislation. Special laws are prohibited in the areas of special immunity and limitations on actions. This constitutional ban on special legislation does not prohibit legislation classifying the subjects or objects of legislation; almost every matter of public concern is divisible; such division is necessary to methodical legislation. State v. Atchison, Topeka & Santa Fe Ry. Co., 20 N.M. 562, 151 P. 305 (1915).

The question of special legislation involves the classification made by the Legislature. "If a statute is general in its application to a particular class of persons or things and to all of the class within like circumstances, it is a general law." On the other hand, if the statute applies to less than a class of persons, it is special legislation. City of Raton v. Sproule, 78 N.M. 138, 429 P.2d 336 (1967).

Whether the classification in § 23-1-26, supra, is general or special involves the question of equal protection. Gruschus v. Bureau of Revenue, 74 N.M. 775, 399 P.2d 105 (1965) states:

"Equal protection does not prohibit classification for legislative purposes, provided that there is a rational and natural basis therefor, that it is based on a substantial difference between those to whom it does and those to whom it does not apply, and that it is so framed as to embrace equally all who may be in like circumstances and situations."

Thus, if there is no violation of equal protection in this case, § 23-1-26, supra, is not special legislation. See Davy v. McNeill, 31 N.M. 7, 240 P. 482 (1925) where the two concepts are discussed jointly.

To answer the equal protection question we must consider the purpose of the statute. McGeehan v. Bunch, 88 N.M. 308, 540 P.2d 238 (1975).

The "no action" of § 23-1-26, supra, applies to actions "arising out of the defective or unsafe condition of a physical improvement to real property . . . ." It applies to actions "against any person performing or furnishing the construction or the design, planning, supervision, inspection or administration of construction of such improvement to real property, and on account of such activity . . . ." A general, but shorthand expression is that these statutory provisions refer to construction projects and builders. For convenience, we use this shorthand expression in the remainder of this first point.

The purpose of "no action" ten years after substantial completion of the construction project has a historical basis. The limited liability of the builder after the construction project has been completed and accepted by the owner was stated in Wood v. Sloan, 20 N.M. 127, 148 P. 507, L.R.A.1915E 766 (1915). In recent years, however, the liability of the builder has been expanded by judicial decision. This expansion appears in Tipton v. Clower, 67 N.M. 388, 356 P.2d 46 (1960); Baker v. Fryar, 77 N.M. 257, 421 P.2d 784 (1966); Steinberg v. Coda Roberson Construction Co., 79 N.M. 123, 440 P.2d 798 (1968).

When did the builder become exposed to this expanded liability? The exposure came when the cause of action accrued. Section 23-1-1, N.M.S.A.1953. Generally, the cause of action does not accrue until injury occurs. Peralta v. Martinez, N.M., 564 P.2d 194 (Ct.App.1977). Since injury could occur years after the construction project had been completed, the builder was exposed to liability years after the action or event alleged to be the basis for requiring him to pay damages.

This increased exposure resulted from judicial decisions. Section 23-1-26, supra, is the legislative response. The Comment in XVIII Catholic U.L.Rev. 361 (1968-69), Limitation of Action Statutes for Architects and Builders Blueprints for Non-action, states at 383-84:

"The legislative solution to these problems evidences a skepticism that the normal judicial process . . ....

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