Saylor v. Hall

• Decision Date: 02 March 1973
• Citation: 497 S.W.2d 218
• Parties: James SAYLOR, Administrator of the Estate of Jimmy Davis Saylor, Deceased, et al., Appellants, v. E. H. HALL, Appellee.
• Court: United States State Supreme Court — District of Kentucky

Page 218

497 S.W.2d 218

James SAYLOR, Administrator of the Estate of Jimmy Davis Saylor, Deceased, et al., Appellants, v. E. H. HALL, Appellee.

Court of Appeals of Kentucky.

March 2, 1973.

Rehearing Denied May 18, 1973.

Alan T. Slyn, Borowitz, Slyn & Russell, Louisville, for appellants.

Marshall B. Hardy, Jr., Louisville, for appellee.

Charles M. Leibson, Louisville, for American Trial Lawyers Assn.

William Kiel, Louisville, for Fruehauf Corp.

Frank J. Whalen, Jr., Spencer, Whalen & Graham, Washington, D.C., for The American Institute of Architects, National Society of Professional Engineers, Consulting Engineers Council, Associated General Contractors of America, Kentucky Society of Architects, AIA, Kentucky Society of Professional Engineers, Consulting Engineers Council of Kentucky, Kentucky Highway Division, AGC, Greater Lexington Chapter, AGC, AGC of Western Kentucky, and Louisville Chapter, AGC.

Robert A. Metry, Louisville, for Homebuilders Assn. of Kentucky.

John P. Sandidge, Louisville, for Collins Const. Co.

REED, Justice.

Although we have been aided by the excellent and exhaustive briefs filed by various interested groups that have appeared by our permission as amici curiae in this appeal, it now appears that the issue for decision in this case is narrower than the flow of the arguments would indicate. The general problem argued is the constitutionality (state and federal) of two Kentucky statutes that undertake to regulate and control the institution of actions against builders of houses and against those who design, plan, supervise, inspect, or construct improvements to real property. The case before us, however, is a suit by injured third-party tenants alleging actionable negligence against the owners of a house who leased it to them and against the builder of this house whose work of construction had been completed and accepted by the owner. Our consideration of the case has caused us to conclude that the single determinative issue is whether these statutes may be constitutionally applied in this jurisdiction to bar the claim of a plaintiff in the legal posture of the present plaintiffs against a defendant in the legal posture of the defendant builder. For the reasons later discussed, we hold that, under applicable provisions of the Constitution of Kentucky, as judicially construed, these statutes cannot be applied to bar the claims that are the subjects of this action. Our holding, however, is confined to that specific decision. We decline to formulate any rule of constitutionality 'broader than is required by the precise facts to which it is to be applied.' (Per dissent of Mr. Justice Rehnquist in Roe et al. v. Wade, 410 U.S. 113, 93 S.Ct. 705, 35 L.Ed.2d 147 decided January 22, 1973).

The operative facts are: In May 1955, the defendant, E. H. Hall, a builder, completed construction of a house on a lot he owned. Shortly thereafter, he sold the house and lot to the defendants, Thomas and Kathlyn Johnson, who thereafter owned and controlled the property. The house was originally occupied in June 1955, when the improvements had been substantially completed. In July 1969, James Saylor and his wife rented the property from the Johnsons and moved in. The Saylors had two children, Jimmy, then age 6, and Marvin, then age 4. Four months later, while the Saylor children were sitting on the floor watching television, a stone fireplace and mantel located in the room collapsed; Jimmy was crushed to death, and Marvin was severely injured.

In July 1970, within one year of the date of the accident, James Saylor as personal representative of his dead son, Jimmy, and Marvin, through his father, James, as next friend, instituted this lawsuit against the Johnsons and Hall. The suit alleged that Jimmy's death and Marvin's personal injuries were caused by the negligence of Hall, the builder, and by the negligence of the Johnsons who had leased the property to the Saylors. The defendants filed motions for summary judgment. The evidentiary material produced demonstrated that the plaintiffs had evidence that Hall installed the braces on the mantel in a negligent and unworkmanlike manner, and that the Johnsons knew or should have known of the dangerous but hidden condition created, and yet did not correct it or warn the Saylors of its existence. The trial judge did not reach the merits concerning the triability of the lawsuit. He decided the action against Hall, the builder, was barred by limitations because of the provisions of KRS 413.120(14) and KRS 413.135. From this order of dismissal of the builder, the plaintiffs appealed, after meeting the procedural requisites for such action.

In 1964, the General Assembly carved out for different treatment from other actions for personal injuries, those where the claim was against 'the builder of a home or other improvements.' KRS 413.120(14). This statute provides that such an action must be commenced within five years after the cause of action accrues, and (the) 'cause of action shall be deemed to accrue at the time of original occupancy of the improvements which the builder caused to be erected.' Ibid.

The builder's potential liability was again the subject of legislative concern in 1966 when a more expansive statute, KRS 413.135, was enacted. It provided in part that no tort action for personal injuries or for wrongful death arising out of 'deficiency' in construction of any improvement to real property could be brought against the builder after the expiration of five years following the 'substantial completion of such improvement.' Both of these statutes were expressed as parts of the general chapter on limitations of actions.

The plaintiffs argue that the application of these two statutes to bar their claims violates the Constitution of the United States and particularly the Due Process and Equal Protection Clauses of the Fourteenth Amendment. They also assert application of the questioned statutes to their causes of action is prohibited by numerous sections of the Constitution of Kentucky. We find it necessary, however, to consider only the effect of sections 14, 54, and 241 of the Kentucky Constitution as they have been judicially construed.

The defendant points out that substantially similar statutes have been adopted in 31 other states, and have been held valid by each state court of last resort that has considered them except in one instance. The defendant's arguments are: that the legislature may abolish old common-law rights of action or create new ones: that it may enact statutes of 'ultimate repose'; and that it may reasonably and rationally classify legal areas to be protected in order to achieve a permissible legislative objective in the manner provided by the concerned statutes. Nevertheless, the defendant concedes, tacitly if not explicitly, that the Kentucky legislature has no constitutional power to extinguish common-law rights of action for negligence, but counters with the assertion that no such right of action for negligence against a builder existed at the time the questioned statutes were enacted, and, therefore, the legislature was free to act. Here, in our judgment, lies the heart of the issue to be decided. If the defendant is wrong in his assertion of the nonexistence of a right of action for negligence against the builder under the circumstances present when the statutes were passed, then the application of these statutes to the plaintiff's claim is constitutionally impermissible in this state.

Constitutional attacks against substantially similar statutes have failed in Arkansas, Oregon, New Jersey and Washington. In Illinois the state Supreme Court invalidated the same statutory approach with a holding that the statutes violated a provision of that state's constitution in which local or special laws or special or exclusive immunities and franchises were prohibited. Skinner v. Anderson, 38 Ill.2d 455, 231 N.E.2d 588 (1967). The Illinois court in Skinner declared that the classification, which favored construction contractors, architects, and engineers as contrasted with owners of structures and suppliers of construction materials, was invidious because it excluded from its insulation from liability these many other persons similarly situated so far as potential liability for negligence arising out of construction activities was concerned. The New Jersey Supreme Court categorically rejected this reasoning and specifically found the statutory classification reasonable, rational and sufficiently Broad. Rosenberg v. Town of North Bergen, 61 N.J. 190, 293 A.2d 662 (1972).

The arguments advanced by the plaintiffs that the questioned statutes violate the federal constitutional Due Process and Equal Protection Clauses of the Fourteenth Amendment were directly implicated in Carter v. Hartenstein, 248 Ark. 1172, 455 S.W.2d 918 (1970). In that case, however, the Supreme Court of Arkansas upheld the validity of substantially similar statutes; the United States Supreme Court dismissed an appeal from the decision 'for lack of a substantial federal question.' See 401 U.S. 901, 91 S.Ct. 868, 27 L .Ed.2d 800. The same decision was reached in the Oregon case of Joseph v. Burns, Or., 491 P.2d 203 (1971), and in Rosenberg v. Town of North Bergen, supra. The latest expression by a state supreme court also sustains validity of this type of statute in this federal context. See Yakima Fruit v. Central Heating, 81 Wash.2d 528, 503 P .2d 108 (1972).

It seems to us that the decisions of our sister states all are based upon the constitutional construction made by the U.S. Supreme Court in Silver v. Silver, 280 U.S. 117, 50 S.Ct. 57, 74 L.Ed. 221 (1929). There, the Supreme Court held that the federal Constitution did not forbid the creation of new rights or the abolition of old ones recognized by the common law to attain a permissible legislative objective; hence, Congress had the power to abolish 'old (rights) recognized by the common law.' ...