Sedar v. Knowlton Constr. Co.3/7/1990
HOLMES, J.
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.
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). Generally, the only contracts involved in this context are the ones between the architect and the owner and between the contractor and the owner. 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 hasbeen 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 warni
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