McMacken v. State, 13349

CourtSupreme Court of South Dakota
Citation320 N.W.2d 131
Docket NumberNo. 13349,13349
PartiesRobin McMACKEN, Plaintiff and Appellant, v. STATE of South Dakota, Defendant, and Fritzel, Kroeger, Griffin & Berg, architects, Defendants and Appellees.
Decision Date28 June 1982

Helen Driscoll, Vermillion, for plaintiff and appellant.

Stanley E. Siegel of Siegel, Barnett & Schutz, Aberdeen, for amicus curiae South Dakota Trial Lawyers' Ass'n; David R. Vrooman, Sioux Falls, and Terry N. Prendergast of Boyce, Murphy, McDowell & Greenfield, Sioux Falls, on brief.

Michael L. Luce of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for appellees Fritzel, Kroeger, Griffin & Berg; Carleton R. Hoy of Davenport, Evans, Hurwitz & Smith, Sioux Falls, on brief.

MORGAN, Justice.

In this appeal, appellant seeks to have us hold SDCL 15-2-9 unconstitutional. 1 The South Dakota Code designates SDCL 15-2-9 as a "Limitation of action for deficiencies in construction of building." Essentially, the statute; (1) precludes any legal action for injuries proximately caused by deficiency in design, planning or construction of an improvement to real property brought against the designer, planner or constructor more than six years after substantial completion of such construction, (2) makes this defense unavailable to the owner or person in actual possession, and, (3) where an injury occurs in the sixth year, permits an action within one year after the date the injury occurred, but in no event, more than seven years after substantial completion. 2

Appellant, Robin McMacken (McMacken), was a student at the University of South Dakota in Vermillion, residing at Norton Hall, a university dormitory. During her residency, she sustained serious personal injuries as a result of a fall down a stairwell in the dormitory. She brought suit, alleging that the stairwell railing was deficiently designed and constructed because its height was insufficient to provide her adequate protection. She sought damages from the State, as owner of the dormitory, and from the architectural firm (architects) who designed the structure.

The dormitory was substantially completed in 1964. The injury occurred on or about September 22, 1979, with suit commenced on September 16, 1980. Architects moved to dismiss because McMacken's action was not commenced within six years of Norton Hall's completion, as required by SDCL 15- 2-9. Although both McMacken and the State resisted, the trial court granted architects' motion. Later, the trial court entered final judgment in conformity with SDCL 15-6-54(b). McMacken appealed, and we affirm.

Statutes of this type, usually referred to as "Builders' Statutes," have been enacted in a large number of jurisdictions. Apparently, these statutes were spawned by the extension of potential liability to the architectural profession and construction industry caused by removal of the privity of contract as a defense to tort claims.

As in the case of a seller of chattels, the exceptions tended generally to swallow up the prevailing rule, until the analogy of McPherson v. Buick Motor Company, was persuasive and was finally accepted. It is now the almost universal rule that the contractor is liable to all those who may forseeably be injured by the structure, not only when he fails to disclose dangerous conditions known to him, but also when the work is negligently done. This applies not only to contractors doing original work, but also to those who make repairs, or install parts, as well as supervising architects and engineers. There may be liability for negligent design as well as for negligent construction.

Prosser on Torts, 4th ed., Sec. 104, at 680-682. Many courts have considered numerous constitutional challenges to statutes like SDCL 15-2-9 and reached diverse results. 3 A review of these cases demonstrates that the lines of attack and decisions are varied. Some are very persuasive, while others are merely conclusory. We are, however, left with a number of well-written and persuasive arguments pro and con on most of the issues we face today.

Since McMacken challenges the constitutionality of SDCL 15-2-9, she bears the burden of proving beyond a reasonable doubt that the statute violates a federal or state constitutional provision. A strong presumption in favor of the constitutionality of the statute exists and is rebutted when it appears clearly, palpably and plainly that the statute violates some provision of the South Dakota Constitution. Matter of Certain Territorial Elec. Boundaries, etc., 281 N.W.2d 65, 69 (S.D.1979). On such challenges, we are unconcerned with the legislative wisdom behind SDCL 15-2-9, since we limit our review to the statute's constitutionality. McDonald v. School Bd. of Yankton, etc., 246 N.W.2d 93, 96 (S.D.1976). McMacken assails the statute on three constitutional grounds: (1) equal protection and special privileges and immunities; (2) denial of due process; and (3) a defective relationship between its title and subject.

We first examine McMacken's equal protection argument. In essence, she contends that SDCL 15-2-9 violates her right to equal protection of the law by arbitrarily singling out one portion of the class of persons potentially liable for building defects and granting them immunity in contravention of the equal protection clause of the Fourteenth Amendment to the United States Constitution 4 and Art. III, Sec. 23 5 and Art. VI, Sec. 18 6 of the South Dakota Constitution. To resolve McMacken's challenge, we compare the reasoning of Skinner v. Anderson, 38 Ill.2d 455, 231 N.E.2d 588 (1967), with that of Freezer Storage, Inc. v. Armstrong Cork Co., 476 Pa. 270, 382 A.2d 715 (1978). Both cases considered statutes similar to SDCL 15-2-9. Freezer Storage upheld the statute, while Skinner invalidated it.

The case of Skinner v. Anderson, ibid., one of the earliest cases, is oft-cited by opinions invalidating similar statutes. There, the Illinois Supreme Court declared 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." Skinner v. Anderson, 231 N.E.2d at 591. The court conceded that the constitution does not prohibit legislative classification, but noted that the classification must be reasonably related to the legislative purpose.

'That the statute operates uniformly upon all members of a class created as the beneficiaries of the act is not the sole test to be applied, but in order to avoid the constitutional inhibition ... it must also appear that there is a sound basis, in reason and principle, for regarding the class of individuals as a distinct and separate class for the purpose of the particular legislation.'

Id., at 591, quoting from Phillips v. Browne, 270 Ill. 450, 453, 110 N.E. 601, 603 (1915).

This court has applied a similar two-prong classification test in equal protection cases: (1) Whether the statute sets up arbitrary classifications among various persons subject to it, and (2) whether there is a rational relationship between the classification and some legitimate legislative purpose. Morrill v. Wollman, 271 N.W.2d 356, 358 (S.D.1978); City of Aberdeen v. Meidinger, 89 S.D. 412, 233 N.W.2d 331 (1975).

The Illinois Court in Skinner found the statute unconstitutional under the article of the Illinois Constitution prohibiting the legislature from enacting local or special laws in a vein similar to South Dakota Constitution, Art. III, Sec. 23, but that court expressed no opinion on the other constitutional issues raised. The court noted,

The arbitrary quality of the statute clearly appears when we consider that architects and contractors are not the only persons whose negligence in the construction of a building or other improvement may cause damage to property or injury to persons. If, for example, four years after a building is completed a cornice should fall because the adhesive used was defective, the manufacturer of the adhesive is granted no immunity. And, so it is with all others who furnish materials used in constructing the improvement. But if the cornice fell because of defective design or construction for which an architect or contractor was responsible, immunity is granted.

Skinner v. Anderson, 231 N.E.2d at 591. This argument is not as impelling in South Dakota, inasmuch as our legislature, by enactment of SDCL 15-2-12.1, has granted suppliers of materials and component parts of the improvements a similar period of liability.

The Skinner court also discussed the difference in the classification accorded by the Illinois statute to owners and architects:

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.

Id., at 591.

In Kallas Millwork Corporation v. Square D Company, 66 Wis.2d 382, 225 N.W.2d 454 458 (1975), the Wisconsin Supreme Court, in holding the Wisconsin builders' statute unconstitutional, raised the question in this manner: "Whether there are any real differences to distinguish the favored class--those persons who perform and furnish the design, planning, supervision of construction, or construction of improvements to real property from other classes, such as materialmen, who are ignored by the statute, and owners and occupants who are specifically excepted." In Pacific Indemnity Co. v. Thompson-Yaeger, Inc., 260 N.W.2d 548, 555 (Minn.1977), the Minnesota Court, after noting that ten of fifteen courts that had ruled on the constitutionality of the builders' statute...

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