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1519-1525 Lakeview Bouldevard Condominium Association v. Apartment Sales Corp.8/14/2000
ses the mark, mainly because it ignores the circumstances of the owner. 'Control' is irrelevant to the 'long tail of liability' that accompanies torts of commission or omission in the construction of durable buildings. In the words of the Supreme Court of Wisconsin:
The reality is that, even without the special interest immunity statute in question here, those in the construction business are not legally liable for injuries that were caused by the errors or omissions of others-those in 'control.' Control, as envisaged by the statute, is a distinction without relevance.
Where no liability exists, passage of time does not create it. Nor is the evil of stale claims a problem unique to contractors; all parties in construction disaster cases face the problem of lost records, faded memories, intervening events, and absent witnesses.
As the Wisconsin court also noted, one effect of the statute is to extinguish an owner's right of contribution against the architect or contractor. The effect in Washington is the same. Contractors are not liable for the acts of owners, so that for them the fear of a 'long tail of liability' for acts of others is unfounded, but the reverse is not true: owners may well have liability to third parties where harm is caused by construction defects revealed after the six-year repose period. Yet the statute extinguishes their rights against the responsible contractors.
Thus, the statute provides repose to negligent contractors in order to protect them from an illusory risk, while offering no protection to those who actually have a risk owners or tenants who had no part in creating the harm but who have potential liability for it. The 'long tail' attaches to an innocent owner, while the statute immunizes the wrongdoers. The net effect is to shift the risk of defects in construction to owners and tenants unless the defect is discovered within six years.
Since owners and tenants have the same reason to fear the long tail of liability the statute purports to address, we see no reasonable basis for a distinction between owners/occupiers of land on the one hand, and architects and contractors on the other. In our view, the statute's discrimination between owners and contractors bears no rational relationship to the purpose of the legislation.
Lakeview thus may well be correct that in its exclusion of owners and tenants, the construction statute of repose violates both the state privileges and immunities clause and the federal equal protection clause. Lakeview is certainly correct that Yakima Fruit offers little analysis in support of its holding to the contrary. But we see no principled basis for distinguishing this case from the holding of Yakima Fruit. The Yakima Fruit court discussed and rejected the Skinner decision. The control argument debated by the parties here was one of the grounds for the Skinner court's decision, and the Skinner court's reasoning was adopted in Funk and other cases cited by Lakeview. While the Yakima Fruit court's discussion of Skinner is most notable for what it omits, brevity is not the test for identifying controlling precedent. We cannot fairly characterize Yakima Fruit as a case that failed to decide the issue before us, and therefore we must follow it.
Lakeview also points to the recent opinion of our Supreme Court holding that the medical malpractice statute of repose violates equal protection principles because '{t}he relationship between the goal of alleviating any medical insurance crisis and the class of persons affected by the eight-year statute of repose is too attenuated to survive rational basis scrutiny.' The DeYoung court found that given the number of claims precluded
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