Opinion
No. X07 CV 04 4025177 S
April 17, 2008
MEMORANDUM OF DECISION
On September 1, 2003, the plaintiff, Lori Bagg, alleges that she was climbing a cement stairway leading to a sidewalk on the east side of Riverside Drive (state route 12) in Thompson when a metal handrail at the top of the stairway broke free from its base causing her to fall to the ground below. Several years earlier, the town of Thompson (town), allegedly sought and received state approval to make improvements to the sidewalk, which is within the state right-of-way. The town retained the defendant, Madan Gupta, doing business as GM2 Associates or GM2 Associates, Inc. (GM2), as its project engineer to design and prepare construction plans and to inspect and oversee construction. In improving the sidewalk, Bagg alleges that the elevation of the sidewalk was raised so that the rise of the steps needed to be elevated to meet the sidewalk. Sometime between August through October 27, 1997, the contractor, M M Construction, Inc. (M M), allegedly fixed the steps by pouring concrete over the existing steps and by installing handrails. Bagg alleges that the base of one of the handrail's upper support posts was anchored in a soda can and not adequately imbedded in the concrete stairs such that it gave way when she ascended the stairs, causing her to fall and be injured.
On March 8, 2004, Bagg filed suit claiming personal injuries resulting from the defect against the town and against certain abutting homeowners. On February 2, 2006, the town moved to implead GM2. The motion was granted and, on March 21, 2006, the town filed a third-party complaint against GM2 seeking indemnification. On April 4, 2006, Bagg filed a separate complaint against GM2.
On August 14, 2007, this court granted the town's motion to dismiss. Bagg filed an appeal on August 30, 2007, which remains pending. See Appellate Court, Docket No. AC 29152.
Bagg has withdrawn her complaint against the abutting homeowners.
The town also moved to implead M M. The motion was granted, the town filed a third-party complaint and Bagg filed a complaint against M M. M M filed a motion for summary judgment on March 12, 2007 pursuant to General Statutes § 52-584. Bagg filed a response on October 22, 2007 stating that she did not oppose M M's motion.
On June 1, 2007, GM2 filed a motion for summary judgment arguing that as Bagg's complaint was filed more than eight and one-half years after the stairway was completed, the action is barred by the applicable statute of repose, General Statutes § 52-584a2a. Bagg argues that the stairs were part of a larger project that was not completed until at least mid-1999 and, therefore, her complaint against GM2 was filed timely. This court heard oral argument on the motion on February 14, 2008.
Section 52-584a fully provides: "(a) No action or arbitration, whether in contract, in tort, or otherwise, (1) to recover damages (A) for any deficiency in the design, planning, contract administration, supervision, observation of construction or construction of, or land surveying in connection with, an improvement to real property; (B) for injury to property, real or personal, arising out of any such deficiency; (C) for injury to the person or for wrongful death arising out of any such deficiency, or (2) for contribution or indemnity which is brought as a result of any such claim for damages shall be brought against any architect, professional engineer or land surveyor performing or furnishing the design, planning, supervision, observation of construction or construction ofn or land surveying in connection with, such improvement more than seven years after substantial completion of such improvement.
"(b) Notwithstanding the provisions of subsection (a) of this section, in the case of such an injury to property or the person or such an injury causing wrongful death, which injury occurred during the seventh year after such substantial completion, an action in tort to recover damages for such an injury or wrongful death may be brought within one year after the date on which such injury occurred, irrespective of the date of death, but in no event may such an action be brought more than eight years after the substantial completion of construction of such an improvement. "(c) For purposes of subsections (a) and (b) of this section, an improvement to real property shall be considered substantially complete when (1) it is first used by the owner or tenant thereof or (2) it is first available for use after having been completed in accordance with the contract or agreement covering the improvement, including any agreed changes to the contract or agreement, whichever occurs first.
"(d) The limitation prescribed by this section shall not be asserted by way of defense by any person in actual possession or the control, as owner, tenant or otherwise, of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury or death for which it is proposed to bring action."
"Practice Book § 17-49 provides that summary judgment shall be rendered forthwith if the pleadings, affidavits and any other proof submitted show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. In deciding a motion for summary judgment, the trial court must view the evidence in the light most favorable to the nonmoving party . . . The party moving for summary judgment has the burden of showing the absence of any genuine issue of material fact and that the party is, therefore, entitled to judgment as a matter of law." (Internal quotation marks omitted.) Allen v. Cox, 285 Conn. 603, 609, 942 A.2d 926 (2008). "Summary judgment may be granted where the claim is barred by the statute of limitations . . . as long as there are no material facts concerning the statute of limitations in dispute." (Citation omitted.) Haggerty v. Williams, 84 Conn.App. 675, 678-79, 855 A.2d 264 (2004).
In the present case, the statute of repose in dispute is § 52-584a. "Section 52-584a is a statute of repose in that it sets a fixed limit after which the tortfeasor will not be held liable and in some cases will serve to bar an action before it accrues. The clear mandate of General Statutes [§]52-584a was to create a seven year absolute maximum on actions against architects and engineers, based upon the finite barrier of substantial completion, regardless of the nature of the claim, while leaving any other lesser limitations in effect." (Internal quotation marks omitted.) Zapata v. Burns, 207 Conn. 496, 508, 542 A.2d 700 (1988). This seven-year statute of repose applies to any personal injury arising out of a deficiency in the design, planning, contract administration, supervision, observation of construction or construction of, or land surveying in connection with an improvement to real property. General Statutes § 52-584a(a). Seven years is measured from the time of "substantial completion" of the "improvement to real property." Id.
In the present case, it is undisputed that the seven years to bring suit began when the improvement was complete. GM2 argues that the stairs are the relevant improvement while Bagg asserts that the sidewalk project is the improvement. Therefore, the court begins by examining the definition of "improvement of real property" in § 52-584a.
It is also undisputed that GM2 is within the category of professionals governed by the provisions of § 52-584a.
"When construing a statute, [o]ur fundamental objective is to ascertain and give effect to the apparent intent of the legislature . . . In other words, we seek to determine, in a reasoned manner, the meaning of the statutory language as applied to the facts of [the] case, including the question of whether the language actually does apply . . . In seeking to determine that meaning, General Statutes § 1-2z directs us first to consider the text of the statute itself and its relationship to other statutes. If after examining such text and considering such relationship, the meaning of such text is plain and unambiguous and does not yield absurd or unworkable results, extratextual evidence of the meaning of the statute shall not be considered . . . When a statute is not plain and unambiguous, we also look for interpretive guidance to the legislative history and circumstances surrounding its enactment, to the legislative policy it was designed to implement, and to its relationship to existing legislation and common law principles governing the same general subject matter." (Internal quotation marks omitted.) Esposito v. Simkins Industries, Inc., 286 Conn. 319, 327 (2008).
"The phrase 'improvement to real property' is a phrase that has acquired a particular meaning in the law. Without attempting to define the phrase in all its possible nuances and applications, we have little difficulty in concluding that an 'improvement to real property,' as commonly understood in the law, generally has reference to buildings, but may also include any permanent structure or other development [of the real property in question] . . . Consistent with that understanding, we have defined an improvement to real property as an alteration or development of the property in order to enhance or promote its use for a particular purpose . . . Thus, an 'improvement to real property' as used in § 52-584a ordinarily requires some physical addition to or alteration of the property in question in order to enhance or promote its use for a particular purpose." (Citations omitted; internal quotation marks omitted.) Grigerik v. Sharpe, 247 Conn. 293, 306-07, 721 A.2d 526 (1998); see also Verna v. Commissioner of Revenue Services, 261 Conn. 102, 109, 801 A.2d 769 (2002) ("[o]ur holding in Grigerik reflects a common understanding under the law that the term 'improvement' encompasses buildings and other structures on real property"). Applying the Grigerik definition to the present case, both the stairs and the sidewalk project could be considered "improvements to real property" as they are both permanent structures presumably altered to encourage their use.
See O'Connor v. M.A. Mortenson Co., 424 N.W.2d 92, 94 (Minn.App. 1988) (holding that steel stairway at construction site was improvement to real property); see Collins v. Trinity Industries, Inc., 861 F.2d 1364, 1365 (5th Cir. 1988) (applying Mississippi law and affirming summary judgment holding that caged ladder, which was part of duct system constructed at electrical generating facility, was improvement to real property).
There is a question of fact as to whether the stairs were part of the project. Bagg alleges in her complaint against GM2 that the stairs were indeed part of the project and GM2 did not produce any evidence to counter this assertion. Thus, for purposes of this motion, the court views the facts favorably for Bagg and considers the stairs part of the sidewalk project.
Looking to the legislative history of § 52-584a,
Representative Stecker, in discussing the bill, stated as follows: I think that architects and engineers are in a little bit of a peculiar situation, different than what most professions are in, in that as it now stands as the law now stands, not only are we responsible for a building for our lifetime but our estates are responsible for that building as well. To put it in very simple terms, if a person 60 years from now is going down a [flight of] stairs holding on to a handrail and the handrail fails, even if I'm long gone from this earth, that person would have recourse to sue my wife if she is still alive or my estate for the action I took perhaps 10 years ago. 13 H.R. Proc., Pt. 8, 1969 Sess., p. 3919. Representative O'Neil stated that [t]he big problem that I think we have here with architects is, more than any other area, what happens to them upon retirement when they get out of the business of being an architect and they are no longer busy at their work. Under the present situation, they still must maintain insurance, liability insurance, for the rest of their lives, even though they are no longer practicing. They no longer have architectural income but they still must maintain a liability policy. This bill would allow them after the 7-year period to finally get out from under the burden and drop that policy. This is a great expense and unnecessary expense. From the analysis at the hearings we had, we found no buildings that caused trouble after 7 years. The architect is protected, the public is protected and I think it is time that we remove the very unfair burden that architects and engineers carry as a result of having no statute of limitations whatsoever to protect them. 13 H.R. Proc., Pt. 8, 1969 Sess., p. 3920.
(Internal quotation marks omitted.) R.A. Civitello Co. v. New Haven, 6 Conn.App. 212, 227, 504 A.2d 542 (1986).
From this history, it is clear that the intent of § 52-584a is to protect engineers and architects by barring suit seven years after "substantial completion" of the improvement to real property." See Zapata v. Burns, supra, 207 Conn. 508. Nevertheless, if "improvement to real property" is interpreted to mean each component of a project, then this will surely lead to an unworkable and inefficient result, particularly where more than one deficiency is allegedly created by a defendant who is responsible for the whole project. The focus will change from an understandable limitation period in which to file a claim to a component-by-component review to determine whether each part of the whole, and perhaps even subparts of parts, is an "improvement to real property," whether it is "substantially complete," and whether the action is barred by the statute's time limitation. Consequently, a defendant could be subject to multiple repose periods. It is doubtful that the legislature intended this outcome. See Southern New England Telephone Co. v. Cashman, 283 Conn. 644, 652-53, 931 A.2d 142 (2007) ("[T]he legislature is always presumed to have created a harmonious and consistent body of law . . . Accordingly, [i]n determining the meaning of a statute . . . we look not only at the provision at issue, but also to the broader statutory scheme to ensure the coherency of our construction . . . In applying these principles, we are mindful that the legislature is presumed to have intended a just and rational result . . . When more than one construction [of a statute] is possible, we adopt the one that renders the enactment effective and workable and reject any that might lead to unreasonable or bizarre results." [Citations omitted; internal quotation marks omitted.]).
Other jurisdictions have addressed the issue with varying results. In some cases, courts analyze whether the particular component is an essential or integral part of the improvement in which case the component is found to be an improvement itself. See, e.g., Two Denver Highlands Ltd. Partnership v. Dillingham Construction, N.A., Inc., 932 P.2d 827, 830 (Colo.App. 1996) (action barred by statute of repose because concrete used to build parking garage "essential" part of improvement); Kleist v. Metrick Electric Co., Inc., 212 Ill.App.3d 738, 743, 571 N.E.2d 819, 822 (1991) (action barred by statute of repose as electrical box within electrical system integral part of larger improvement); Hickman v. Carven, 366 Md. 374-75, 784 A.2d 31, 38 (2001) (action not barred by statute of repose because removal of grave markers not improvement and not integral part of grading, developing tract of land); Travelers Ins. Co. v. Guardian Alarm Co., 231 Mich.App. 473, 480, 586 N.W.2d 760, 763 (1998) (action barred by statute of repose because fire alarm system was improvement to real property); see also annot., What Constitutes "Improvement to Real Property" for Purposes of Statute of Repose or Statute of Limitations, 122 A.L.R.5th 1 (2004).
Originally, the American Institute of Architects, among others, endorsed the adoption of a model statute that included the terms "improvement" and "substantial completion." See comment, "Limitation of Action Statutes for Architects and Builders — Blueprints for Non-Action," 18 Cath. U. L. Rev. 361, 365 n. 31 (1968). Consequently, almost every jurisdiction has statutes similar to § 52-584a. See annot., Validity, as to Claim Alleging Design or Building Defects, of Statute Imposing Time Limitations Upon Action Against Architect, Engineer, or Builder for Injury or Death Arising Out of Defective or Unsafe Condition of Improvement to Real Property, 5 A.L.R.6th 497, 516 (2005). These statutes include the terms "improvement to real property" and "substantial completion." See, e.g., Cal.Civ.Proc. Code Ann. § 337.15 (Deering 1991), Ga. Code § 9-3-51 (2007), Haw. Rev. Stat. § 657-8 (1993), Ky.Rev.Stat. Ann. § 413.135 (Michie 2005), Mass. Gen. Laws Ann. ch. 260, § 2B (2004), N.H.Rev.Stat.Ann. § 508:4-b (1997), N.D.Cent. CodeAnn. § 28-01-44 (2006), Ohio Rev.CodeAnn. § 2305.131 (Baldwin 2007 pocket part), S.C. Code § 15-3-640 (Cum.Sup. 2007), Tex.Civ.Prac. Rem. Code Ann. § 16.008 (Vernon 2002), Wis.Stat.Ann. § 893.89 (2006). Some of these statutes cover more than architects, engineers and land surveyors, e.g., contractors and subcontractors.
Nevertheless, even though at least one court has found a particular component to be essential, it still rejected the argument that the relevant inquiry as to the statute of repose was when a portion of project was installed rather than when the whole project was complete. See Standard Fire Ins. Co. v. Kent Associates, 232 Ga.App. 419, 421-22, 501 S.E.2d 858, 860 (1998). Thus, courts have found that the time period of the statute of repose begins when the whole project is completed. See id. (measuring "substantial completion" from time wave pool completed rather than when interlock device installed); Smith v. Showalter, 47 Wash.App. 245, 251, 734 P.2d 928, 931 (1987) (construing improvement to be whole house rather than one room and its electrical wiring); see also Jorgensen v. Debco Construction, LLC, 115 Wash.App. 1002, 2003 Wash.App.LEXIS 40, *11 (2003) (looking to date when sewer system was functional to begin calculating statute of repose as "dewatering activity" was only "component part" of entire sewer installation project); but see Fueston v. Burns McDonnell Engineering Co., Inc., 877 S.W.2d 631, 637 (Mo.App. 1994) (finding that, because all of plaintiffs' claims of defendants' negligence concerned action regarding component, it was relevant "improvement to real property" for purposes of applying statute of repose).
Additionally, at least one court has found "[t]he phrase 'improvement to real property' generally refers to a structure or matter affixed to the realty and not each component part." Patraka v. Armco Steel Co., supra, 495 F.Sup. 1019. Still, in Patraka and other cases, courts frame "improvement to real property" somewhat according to the defendant's responsibilities for the particular project. See, e.g., Patraka v. Armco Steel Co., 495 F.Sup. 1013, 1017-20 (M.D.Pa. 1980) (applying Pennsylvania law and finding that time began running on statute of repose when defendant had completed whole project for which it was responsible, i.e., subbase of highway and paving it); see also Hilliard v. Lummus Co., Inc., 834 F.2d 1352, 1356 (7th Cir. 1987) (finding that appropriate inquiry is whether whole of defendant's work amounts to improvement of real property).
The need to look at the term "improvement to real property" through the lens of the defendant's particular responsibilities on a project is evident in cases involving subcontractors. "[W]here different subcontractors were responsible for the construction of different parts of a larger project, the statute of repose should be applied to each of those individual subcontractors when they have completed their respective improvements." Gordon v. Western Steel Co., 950 S.W.2d 743, 748 (Tex.App. 1997). In Ocean Winds Corp. of Johns Island v. Lane, 347 S.C. 416, 420-21, 556 S.E.2d 377, 380 (2001), the court stated, "The legislature could not have intended that the date upon which a subcontractor . . . becomes free from liability with regard to a particular job hinges upon the diligence of the general contractor and/or developer in completing construction. To so hold would subject the subcontractor to the economic and emotional burdens of litigation and liability for an indefinite period of time." (Internal quotation marks omitted.) Consequently, in cases against subcontractors, courts have determined that statute of repose begins when the subcontractor's work on the particular project is completed. See, e.g., Daidone v. Buterick Bulkheading, 191 N.J. 557, 566, 924 A.2d 1193, 1199 (2007) (holding that if design or construction services relating to improvement of real property were completed before issuance of certificate of occupancy, and designer or contractor has no further work to perform on that construction project, then start date for purposes of statute of repose is date on which designer or contractor has completed their portion of work); Sanchez v. Mica Corp., 107 S.W.3d 13, 32 (Tx.App. 2002) (finding that statute of repose commenced when all of defendant's work on project was completed, not simply when part of work on project was finished).
The rationale of these cases is applicable here. The relevant "improvement of real property" in this case is informed by GM2's scope of responsibility on the project. Indeed, our Supreme Court has stated, "In the ordinary case . . . the seven year statute of limitations begins to run from the date of the substantial completion of the improvement for which the architect or engineer performed the services." (Emphasis added.) Grigerik v. Sharpe, supra, 247 Conn. 307.
In the present case, GM2 was allegedly responsible for oversight and inspection of the whole project. "When a single entity is responsible for the successive phases of a project, it would be unduly burdensome to segregate the completion of various successive projects by that entity, rather than focusing on when that entity finished its work towards the entire project." Gordon v. Western Steel Co., supra, 950 S.W.2d 747. Therefore, this court finds that the relevant improvement in this case is the sidewalk project.
The next inquiry is when the project was substantially complete. "Substantial completion" is defined as "when [the improvement] (1) . . . is first used by the owner or tenant thereof or (2) . . . is first available for use after having been completed in accordance with the contract or agreement covering the improvement, including any agreed changes to the contract or agreement, whichever occurs first." General Statutes § 52-584a(c).
In the present case, neither party has presented evidence as to when the project was first used either by an owner or a tenant or was first available for use. While Bagg argues and presents some evidence to suggest that the project "continued" until mid-1999, she does not indicate when it was first used or first available for use. Therefore, there exists a genuine issue of material fact as to when the project was substantially complete.
Arguably the improvement was never "completed in accordance with the contract or agreement covering the improvement" because any contract, oral or otherwise, likely did not include placing the railing support of the stairs in a soda can. Thus, Bagg could argue that the § 52-584a(c)(2) definition does not apply to this situation. This argument would mean, however, that, the limitation period would not begin to run until someone was injured since the improvement was never constructed in accordance with the contract. Such an interpretation should be rejected as the statute was enacted precisely to end this perpetual liability. See R.A. Civitello Co. v. New Haven, supra, 6 Conn.App. 227.
For the above reasons, the motion for summary judgment is denied.