U-Haul Co. of Western Georgia v. Abreu & Robeson, Inc.

• Decision Date: 29 April 1981
• Docket Number: No. 36960,U-HAUL,36960
• Citation: 247 Ga. 565,277 S.E.2d 497
• Court: Georgia Supreme Court
• Parties: COMPANY OF WESTERN GEORGIA v. ABREU & ROBESON, INCORPORATED et al.

Page 497

277 S.E.2d 497

247 Ga. 565

U-HAUL COMPANY OF WESTERN GEORGIA v. ABREU & ROBESON, INCORPORATED et al.

No. 36960.

Supreme Court of Georgia.

April 29, 1981.

George H. Connell, Jr., Atlanta, for U-Haul Co. of Western georgia.

Jeffrey R. Nickerson, Patricia Cunningham, James P. Groton, Robert B. Ansley, Jr. and J. Ben Shapiro, Jr., Peter R. Weisz, Stokes & Shapiro, Atlanta, for Abreu & Robeson, Inc., et al.

CLARKE, Justice.

This is a suit for damages in which the plaintiff alleges its warehouse to have been damaged as the result of negligent design. The first portion of the building was constructed in 1949 and floors were added in 1954. U-Haul Company of Western Georgia (hereinafter "U-Haul") purchased the building in 1976 and took possession at that time. When severe cracking of the building was noticed in 1979, the building was evacuated and a complete refurbishing took place. U-Haul then sued Stevens and Wilkinson, Architects, Engineers and Planners, Inc. (hereinafter "Stevens") and Abreu & Robeson, Inc. (hereinafter "Abreu") alleging the damage to the building was the result of their joint and several negligence in the design of the structure and the improvement. The design work for the 1949 structure was performed by Stevens and the 1954 work was designed by Abreu.

In their answers, each defendant firm raised the defense of the statute of limitations and then jointly filed a motion for summary judgment contending that U-Haul's claim was barred by either Code Ann. § 3-1001 (four years for damage to realty) or Code Ann. § 3-1006 which prohibits damage suits against architects for negligent design after eight years from substantial completion of the improvement. It is undisputed that substantial completion occurred in 1949 and 1954.

Using Code Ann. § 3-1006 as the basis, the trial court granted summary judgment to Stevens and Abreu. U-Haul appealed contending the application of Code Ann. § 3-1006, Ga.L. 1968, p. 127, to prior negligent acts was an impermissible retroactive application of the law. The Court of Appeals affirmed the trial court, holding that since the cause of action did not accrue or vest until 1979, at the time of discovery of the defects, the application of Code Ann. § 3-1006 was not retrospective. U-Haul Company of Western Georgia v. Abreu & Robeson, Inc., 156 Ga.App. 72, 274 S.E.2d 26 (1980). We granted certiorari and find the defendants were entitled to summary judgment on the ground the claims are barred by Code Ann. § 3-1001.

The Court of Appeals relied on the cases of Hunt v. Star Photo Finishing Co., 115 Ga.App. 1, 153 S.E.2d 602 (1967), and Welding Products of Georgia v. S. D. Mullins Company, Inc., 127 Ga.App. 474, 193 S.E.2d 881 (1972), in determining that the cause of action arose in 1979. We find that those holdings do not control this factual situation.

An action for damage to real property must be brought within four years after the cause of action accrues. Code Ann. § 3-1001. A cause of action in negligence accrues and the statute of limitation begins to run when there is a negligent act coupled with a proximately resulting injury. Wellston v. Hodges, 114 Ga.App. 424, 151 S.E.2d 481 (1966), held that in a suit by the owners of a building, the legal injury resulting from negligent design occurred at the time of the construction, since the building itself was damaged at that time. Therefore, the cause of action accrued and the statute of limitation began to run from construction. The court held a suit brought more than four years after construction when the roof collapsed was barred by the statute of limitation. The court applied the test set forth in Mobley v. Murray County, 178 Ga. 388(1), 173 S.E. 680 (1933), that "when the question is raised as to whether an action is barred by a statute of limitations, the time best to determine when the cause of action accrued is to ascertain the time when the plaintiff could first have maintained his action to a successful result." In this case, we are presented with the question of when the cause of action accrues as to the subsequent owner of the building.

Hunt, supra, established the right of a person who has no relationship with the designer or builder to recover in tort when damage is suffered as a result of negligent design or construction, where the defective structure was inherently dangerous or imminently dangerous to third persons. The plaintiff was a tenant in the defective building whose personal property was damaged when the roof collapsed. The collapse occurred more than four years after construction. The court held that since the tenant suffered no actual damage or legal injury until collapse, the cause of action accrued then and was not barred by Code Ann. § 3-1002 which provides a four year limitation for...