Sedar v. Knowlton Const. Co.

• Decision Date: 07 March 1990
• Docket Number: No. 88-1569,88-1569
• Citation: 551 N.E.2d 938,49 Ohio St.3d 193
• Parties: , 59 Ed. Law Rep. 179 SEDAR, Appellant, v. KNOWLTON CONSTRUCTION COMPANY, n.k.a. Arga Company, et al., Appellees.
• Court: Ohio Supreme Court

Page 193

49 Ohio St.3d 193

551 N.E.2d 938, 59 Ed. Law Rep. 179

SEDAR, Appellant, v. KNOWLTON CONSTRUCTION COMPANY, n.k.a. Arga Company, et al., Appellees.

No. 88-1569.

Supreme Court of Ohio.

Submitted Oct. 25, 1989.

Decided March 7, 1990.

Syllabus by the Court

The ten-year statute of repose contained within R.C. 2305.131 does not violate the due process or right-to-a-remedy provisions of Section 16, Article I of the Ohio Constitution, nor does it violate the equal protection guarantees of Section 2, Article I of the Ohio Constitution or the Fourteenth Amendment to the United States Constitution, as applied to bar assertion of a negligence cause of action by a third person against architects or builders, which arose over eighteen years after the architects' and builders' services had been performed.

Appellant, Michael R. Sedar, was a nineteen-year-old student at Kent State University when, on September 11, 1985, he was severely injured by passing his right hand and arm through a panel of wire-reinforced glass in one of the doors of his dormitory, Clark Hall. Clark Hall had been designed between 1961 and 1963 by appellee Larson & Nassau, architectural engineers (formerly known as Fulton, DelaMotte, Larson & Nassau). Appellee Knowlton Construction Company (now known as Arga Company) of Bellefontaine, Ohio, was the general contractor throughout the construction of Clark Hall, which construction was completed by December 31, 1966.

On April 8, 1987, appellant filed this action, alleging that appellees had been negligent and careless in the design and/or construction of Clark Hall including the door containing the glass panel on which he was injured. Appellees moved for summary judgment on the basis that appellant's claim was barred by the ten-year statute of repose provided in R.C. 2305.131. On November 18, 1987, the trial court granted summary judgment in favor of appellees.

The court of appeals affirmed, upholding the constitutionality of R.C. 2305.131.

This cause is now before this court upon the allowance of a motion to certify the record.

Dworken & Bernstein Co., L.P.A., Painesville, and Patrick J. Perotti, Cleveland, for appellant.

Taft, Stettinius & Hollister, James M. Hall, Jr. and Mark A. Ferguson, Columbus, for appellee Knowlton Const. Co.

McNeal, Schick, Archibald & Biro Co., L.P.A., Fredric E. Kramer and Richard R. Kuepper, Cleveland, for appellee Larson & Nassau.

Keith McNamara, Columbus, urging affirmance for amicus curiae, Ohio Bldg. Chapter, AGC.

Arter & Hadden, Curtiss L. Isler and Irene C. Keyse-Walker, Cleveland, urging affirmance for amicus curiae, Otis Elevator Co. and Montgomery Elevator Co.

Means, Bichimer, Burkholder & Baker Co., L.P.A., Robert G. Stafford and Amy J. Girvin, Columbus, urging affirmance for amici curiae, Ohio Assn. of Consulting Engineers, American Consulting Engineers Council, Nat. Society of Professional Engineers, Ohio Society of Professional Engineers, American Institute of Architects and Architects Society of Ohio.

Millisor & Nobil Co., L.P.A., and Roger L. Sabo, Columbus, urging affirmance for amicus curiae, Ohio Contractors Assn.

Kaufman & Cumberland, Frank J. Cumberland, Kelly Dowling Stimpson, David P. Lodwick and Thomas L. Feher, Cleveland, urging reversal for amicus curiae, King James South Danford Square Condominium Unit Owners Assn., Inc.

Casper & Casper and Michael R. Thomas, Middletown, urging reversal for amicus curiae, Ohio Academy of Trial Lawyers.

HOLMES, Justice.

We are asked in this case to decide whether R.C. 2305.131 may constitutionally prevent the accrual of actions sounding in tort against architects, construction contractors and others who perform services related to the design and construction of improvements to real property, where such action arises more than ten years following the completion of such services. For the reasons which follow, and as applied to bar the claims of appellant herein, we answer such query in the affirmative.

I

R.C. 2305.131 provides:

"No action to recover damages for any injury to property, real or personal, 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 contribution or indemnity for damages sustained as a result of said injury, shall be brought against any person performing services for or furnishing the design, planning, supervision of construction, or construction of such improvement to real property, more than ten years after the performance or furnishing of such services and construction. This limitation does not apply to actions against 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 or damage for which the action is brought."

This ten-year statute of repose applies to architects, construction contractors and others who supply services in the design, planning, supervision of construction or construction of buildings and other improvements to real property. Unlike a true statute of limitations, which limits the time in which a plaintiff may bring suit after the cause of action accrues, a statute of repose, such as R.C. 2305.131, potentially bars a plaintiff's suit before the cause of action arises. Comment, The Constitutionality of Statutes of Repose: Federalism Reigns (1985), 38 Vand.L.Rev. 627, 629; Hartford Fire Ins. Co. v. Lawrence, Dykes, Goodenberger, Bower & Clancy (C.A. 6, 1984), 740 F.2d 1362, 1367; Hardy v. VerMeulen (1987), 32 Ohio St.3d 45, 46, 512 N.E.2d 626, 627, fn. 2.

Construction statutes of repose, such as R.C. 2305.131, were enacted by several states in the late 1950s and early 1960s in response to the expansion of common-law liability of architects and builders to third parties who lacked "privity of contract." Hartford Fire Ins. Co., supra, at 1368; Kocisko v. Charles Shutrump & Sons Co. (1986), 21 Ohio St.3d 98, 101, 21 OBR 392, 394, 488 N.E.2d 171, 174 (Wright, J., dissenting). ¹ Generally, the only contracts involved in this context are the ones between the architect and the owner and between the contractor and the owner. ² At early common law, courts strictly applied the doctrine of privity of contract and denied recovery to a third party who, after a structure had been completed and accepted by an owner, sought recovery from the architect or builder involved for injuries allegedly sustained as a result of a defective or unsafe condition of such structure. Annotation (1979), 93 A.L.R.3d 1242, 1245-1246; Winterbottom v. Wright (1842), 10 M & W 109, 152 Eng.Reprint 402.

"The general rule of law, subject to certain exceptions not now material to note, is that, after the contractor has turned over the work and it has been accepted by the owner, the contractor incurs no further liability to third persons by reason of the condition of the work, but the responsibility for maintaining it and protecting third persons against danger therefrom, or the use of it in a defective condition, or failing to give notice or warning of dangers to be apprehended from its existence, is then shifted to the owner. This rule of law does not seem to be disputed; in fact, counsel for both parties cite and rely in part on the same cases. * * * " (Citations omitted.) Williams v. Edward Gillen Dock, Dredge & Constr. Co. (C.A. 6, 1919), 258 F. 591, 594.

In Ohio, the law of privity was even more stringent, limiting liability to those in actual control or possession of premises, be they owners or lessees of the owner. See Burdick v. Cheadle (1875), 26 Ohio St. 393; Berkowitz v. Winston (1934), 128 Ohio St. 611, 1 O.O. 269, 193 N.E. 343, paragraph two of the syllabus ("[l]iability in tort is an incident to occupation or control * * * ").

Nationally, the fall of the privity doctrine began generally with the landmark decision in MacPherson v. Buick Motor Co. (1916), 217 N.Y. 382, 111 N.E. 1050, and specifically with respect to the construction industry in Inman v. Binghamton Housing Auth. (1957), 3 N.Y.2d 137, 164 N.Y.S.2d 699, 143 N.E.2d 895, which held that privity of contract was no longer required for an injured party to recover for negligent architectural design. Id. at 144, 164 N.Y.S.2d at 703-704, 143 N.E.2d at 899. Although many jurisdictions which had judicially considered the issue abolished the privity doctrine in negligence actions against an architect, see Note, The Crumbling Tower of Architectural Immunity, supra, at 221, this court has not had occasion to consider the continued validity of the privity doctrine with respect to third persons who are injured due to an allegedly defective or unsafe building design or construction. Indeed, when R.C. 2305.131 was enacted in 1963, the strict privity doctrine remained intact in Ohio. Accordingly, in Insurance Co. of North America v. Bonnie Built Homes (1980), 64 Ohio St.2d 269, 18 O.O.3d 458, 416 N.E.2d 623, this court held as syllabus law that "[p]rivity of contract is a necessary element of an action brought by an owner of a real-property structure against the builder-vendor of the structure for damages proximately caused by unworkmanlike construction." See, also, Velotta v. Leo Petronzio Landscaping, Inc. (1982), 69 Ohio St.2d 376, 23 O.O.3d 346, 433 N.E.2d 147.

It was not until 1983 that this court, in McMillan v. Brune-Harpenau-Torbeck Builders, Inc. (1983), 8 Ohio St.3d 3, 8 OBR 73, 455 N.E.2d 1276, at syllabus, overruled Bonnie Built Homes, supra, holding: "Privity of contract is not a necessary element of an action in negligence brought by a vendee of real property against the builder-vendor." However, as stated, this court has not had occasion to recognize a similar cause of action against builders or architects brought by third parties other than vendees. Although R.C. 2305.131, as enacted, does encompass such actions, we express no specific opinion concerning such issue, as...