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Greczyn v. Colgate-Palmolive3/21/2005
any concern over endlessly extending the liability of designers and builders into the future are overstated in light of the requirement of diligence in fictitious-party practice. Finally, she urges "substantial compliance" as an alternative ground for reversing the Appellate Division.
Kling Lindquist counters that the plain language of N.J.S.A. 2A:14-1.1 prohibits the importation of the fictitious party practice rules into the statute of repose; that that statute created substantive rights that we are without power to alter; that our long-standing jurisprudence supports the imperviousness of the statute of repose to Greczyn's attack; and that equitable notions such as substantial compliance have no place in a statute of repose analysis.
III.
Through its statute of repose, New Jersey provides protection from liability for architects and builders after a specific time period. N.J.S.A. 2A:14-1.1 provides in relevant part:
No action... to recover damages for any deficiency in the design, planning, surveying, supervision or construction of an improvement to real property... shall be brought against any person performing or furnishing the design, planning, surveying, supervision of construction of such improvement to real property, more than 10 years after the performance or furnishing of such services and construction.
The legislative history of the act is singularly unhelpful. As we observed in Rosenberg v. Town of North Bergen, 61 N.J. 190, 194 (1972), it is "meager and unrevealing." See also O'Connor v. Altus, 67 N.J. 106, 121 (1975) (stating that legislative history is "of little assistance"). We do know this however: the adoption of the discovery rule and the repudiation of the "completed and accepted rule" were two "unrelated developments in the law [that] may well have provided the motivation for [N.J.S.A. 2A:14-1.1]." Rosenberg, supra, 61 N.J. at 194.
The discovery rule provides that the statute of limitations does not start to run until a victim discovers or should have discovered that a wrong has been inflicted. Fernandi v. Strutlly, 35 N.J. 434 (1961). The advent of the discovery rule exposed defendants, including architects and builders, to "potential liability for injuries caused by defective workmanship [that] would last indefinitely, inasmuch as many defects would often not be discovered or give rise to a claim for damages until an injury had in fact occurred." E.A. Williams, 82 N.J. 160, 165 (1980) (citing O'Connor v. Altus, supra, 67 N.J. at 117); Lunch, "Why Statutes of Limitations?" 22 Consulting Engineer, 70, 70-71 (February 1964)).
The "completed and accepted rule" provided that an architect's or a builder's liability for negligent design or construction of a structure "terminated upon the completion of the professional's work and its acceptance by the property owner." Id. at 165-66. We repudiated the "completed and accepted rule" outright in Totten v. Gruzen, 52 N.J. 202 (1968), a year after the enactment of N.J.S.A. 2A:14-1.1. As we have pointed out, the "tendency away from the completed and accepted rule was so clearly established as to make it reasonable to assume that the Legislature took that trend into account in enacting the statute." O'Connor, supra, 67 N.J. at 118 (citing Rosenberg, supra, 61 N.J. at 197 n.2). The demise of the "completed and accepted" rule "left those involved in the design and construction of improvements to real property vulnerable indefinitely to liability for injuries arising from a structure's defect." E.A. Williams, supra, 82 N.J. at 166 (citing O'Connor, supra, 67 N.J. at 117-18; Rosenberg, supra, 61 N.J. at 197-98). N.J.S.A. 2A:14-1.1 was "a legislative response seeking to del
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