Nitz v. David Nitz, Inc., C9-86-1984
| Decision Date | 07 April 1987 |
| Docket Number | No. C9-86-1984,C9-86-1984 |
| Parties | David NITZ and Karen Nitz, husband and wife, Appellants, v. DAVID NITZ, INC., a Minnesota corporation, Respondent. |
| Court | Minnesota Court of Appeals |
Syllabus by the Court
The trial court correctly ruled that appellants' cause of action, as stated, was barred by the statute of limitations for injuries arising out of construction to improve real property.
Michael A. Stern, Leo G. Stern, Michael A. Trittipo, Fredrikson & Byron, P.A., Minneapolis, for appellants.
Joan S. Morrow, Eric J. Magnuson, Rider, Bennett, Egan & Arundel, Minneapolis, for respondent.
Barry G. Vermeer, Gislason, Dosland, Hunter & Malecki, Minnetonka, for Appellant David Nitz on cross-claim.
Heard, considered and decided by NIERENGARTEN, P.J., and PARKER, and FOLEY, JJ.
In this personal injury action, the trial court ordered summary judgment for respondents on the ground that the suit was barred by the two-year statute of limitations for claims arising out of improvements to real property. Appellants argue on appeal that the two-year statute of limitations is inapplicable because the construction involved was not an improvement to real property. We affirm.
In May 1980 appellants David and Karen Nitz moved into a new home in Orono, Minnesota. The home had been built by respondent David Nitz, Inc., of which David Nitz is the president and sole shareholder. After moving into the new home, Karen Nitz bought a birdfeeder and asked one of respondent's employees to install it for her. The employee hung the feeder on a clothesline which ran through pulleys attached to a tree at one end and to a five-foot long wooden post at the other end. The post was attached to a corner of the Nitzes' outside deck with three nails. The deck was unfinished at the time and had no railing.
On June 30, 1981, Karen Nitz apparently 1 was leaning on the post as she filled the birdfeeder, and the post gave way. Nitz fell 15 feet to the ground below, suffering a burst fracture of the vertebrae and other injuries. As a result, she now suffers from permanent disabilities.
The Nitzes filed a complaint against respondent on May 24, 1984, nearly three years later, alleging that Karen Nitz's injuries were caused by respondent's failure to secure the birdfeeder assembly to the deck adequately. The district court granted respondent's motion for summary judgment, ruling that the suit was barred by the two-year statute of limitations for injuries arising out of improvements to real property. Minn.Stat. Sec. 541.051, subd. 1 (1984). On appeal the Nitzes contend that this section does not apply because the claim did not arise out of an improvement to real property.
Was the Nitzes' action barred by the two-year statute of limitations set forth in Minn.Stat. Sec. 541.051, subd. 1?
Minn.Stat. Sec. 541.051, subd. 1 (1984), provides that "no action by any person in * * * tort * * * to recover damages * * * for bodily injury * * * arising out of the defective and unsafe condition of an improvement to real property * * * shall be brought * * * more than two years after discovery thereof * * *."
The trial court ruled that Sec. 541.051, subd. 1, applied to this claim because the Nitzes' cause of action arose out of the unsafe condition of their residence and deck, which were improvements to real property. The Nitzes argue that their complaint was based only on the construction and design of the birdfeeder assembly, which was not an improvement to real property. The Nitzes' original complaint, however, read:
FIRST CLAIM
* * *
* * *
4. As part of the residence, defendant constructed a bird feeding station on the corner of the outdoor deck. * * *. Such station was negligently and improperly constructed by defendant in that the supporting wooden brace was not adequately secured to the deck.
* * *
* * *
15. The supporting wooden brace of the bird feeder was defective and unreasonably dangerous to plaintiffs and thereby the residence was unsafe for their occupancy, use and enjoyment.
(Emphasis added). 2
The language of the Nitzes' complaint is fatal to their argument. In the first count, the birdfeeder was characterized as "part of the...
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