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Homestake Enterprises Inc. v. Oliver9/23/1991
building professionals only for claims of injury arising from defects in the improvement they create, rather than to supplant the applicability of the general limitation statute for all injuries caused by their negligent conduct.
Id. at 611.
I believe that Irwin was correctly decided and that a "defect in the improvement" causing the injury and resulting from a "deficiency in the design, planning, supervision, inspection, construction, or observation of construction" of the improvement is essential to trigger the running of the limitations period of section 13-80-127. In Irwin there was no allegation that the injury to the home resulted from a defect in the improvement that was the subject of the construction project. In the present case, in contrast, a sprinkler system that was being constructed improperly sprayed water on a sidewalk in freezing weather. As the majority holds, "the trial court could properly find that the complaint in fact relied on an implicit allegation that the sprinkler system was defective . . . ." Maj. op. at 3. As a result, section 13-80-127 was correctly held by the trial court to bar the plaintiff's claim for slipping and falling on the icy sidewalk.
As Irwin and the present case illustrate, the application of section 13-80-127 necessarily is very fact specific. It cannot be doubted, however, that there is a range of activities by contractors and others engaged in pursuits leading to the construction of an improvement to real property that, while susceptible of causing injury to persons or property if negligently conducted, do not stem from a "defect in the improvement" within the meaning of section 13-80-127. I think it misleading, therefore, to describe and emphasize the scope of the statutory protections as comprehensive.
I concur in the judgment of the court.
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