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Winnisquam Regional School District v. Levine8/18/2005
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In Henderson Clay Products Inc. v. Edgar Wood Associates, Inc., 122 N.H. 800, 801 (1982), we held that the classification of potential defendants in a prior version of the statute was unconstitutional. The prior version "set up a classification whereby architects and contractors [were] singled out for protection not granted to materialmen or the suppliers of labor." Id. at 801. However, this distinction among potential defendants has been eliminated from the current version of the statute. The current version applies to all participants in the construction industry.
Winnisquam argues that the current version of the statute violates the Equal Protection Clause because it excludes owners and lawful possessors of the property from the protected group of defendants. See RSA 508:4-b, VI. However, the classifications created by the statute are permissible so long as they are "reasonable, not arbitrary, and . . . rest upon some ground of difference having a fair and substantial relation to the object of the legislation in order to satisfy State equal protection guarantees." Carson, 120 N.H. at 932 (quotation omitted). RSA 508:4-b was enacted to protect builders and there are significant differences between builders and owners or occupiers. Because of those differences, it is legitimate to treat builders differently from owners or occupiers.
Such reasonable distinctions include the ability of owners to inspect and maintain; the ability of owners to restrict and control those who come on the property; the ability of owners to insure at a lower rate; and the greater likelihood that an owner who participated in construction activities will have retained records relating to the project, and will be better able to identify natural forces or third parties who might have contributed to an injury . In addition, when an owner both constructs and controls an improvement, it is more difficult for a court to determine when construction activities were actually completed. Cf. 1519-1525 Lakeview Blvd. Condo. Ass'n v. Apt. Sales Corp., 29 P.3d 1249, 1254 (Wash. 2001). Thus it was reasonable for the legislature to have excluded owners and possessors from the protection of RSA 508:4-b. The exclusion, therefore, is directly related to a legitimate legislative objective.
Accordingly, we conclude that the classifications in RSA 508:4-b have a fair and substantial relation to a legitimate State purpose and do not violate principles of equal protection under the New Hampshire Constitution. In light of our decision upholding the constitutionality of RSA 508:4-b, we need not address the remaining arguments because resolution of those issues would have no effect on the outcome of this case. See Dow v. Town of Effingham, 148 N.H. 121, 133 (2002).
Reversed.
BRODERICK, C.J., and DALIANIS and DUGGAN, JJ., concurred.
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