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Jacobo v. City of Albuquerque6/16/2005
rt stressed that "this Statute was not intended to benefit the owner of real property." Id. In addition, the Court observed that because joint and several liability was the law at the time the statute was enacted, "the effect of the Statute when passed was to make landowners potentially responsible for all damages." Id. In our view, our Supreme Court has indicated that the statute was never intended to protect property owners. Moreover, our Supreme Court has observed that the protection provided by the statute of repose "was thought necessary in the wake of judicial decisions exposing those involved in the construction industry to greater liability," when, due to the passage of time since their involvement, the preparation of a reasonable defense might be impossible. Coleman v. United Eng'rs & Constructors, Inc., 118 N.M. 47, 51, 878 P.2d 996, 1000 (1994). Indeed, as our Supreme Court wrote in Coleman, the history of the enactment of statutes like Section 37-1-27 shows that they were specifically designed to protect architects, builders, and those involved in the construction industry from liability arising out of defective improvements to real property many years after they had any connection to the property. See Coleman, 118 N.M. at 51, 878 P.2d at 1000; see generally Jane Massey Draper, Annotation, Validity and Construction, as to Claim Alleging Design Defects, of Statute Imposing Time Limitations upon Action against Architect or Engineer for Injury or Death Arising out of Defective or Unsafe Condition of Improvement to Real Property, 93 A.L.R.3d 1242, 1244-45 (1979) (containing a discussion of "statutes imposing time limitations upon an action against an architect or engineer for injury or death arising out of the defective or unsafe condition of an improvement to real property" (footnotes omitted)) (superseded in part by Martha Ratnoff Fleisher, Annotation, Validity, as to Claim Alleging Design or Building Defects, of Statute Imposing Time Limitations Upon Action Against Architect, Engineer, or Builder for Injury or Death Arising out of Defective or Unsafe Condition of Improvement to Real Property, 2002 A.L.R.5th 21 (2002-05) (not yet released for publication)). This same rationale does not apply to property owners.
Both parties cite to out-of-state cases to argue that an owner who is also a builder either is or is not protected. PNM relies on Wright v. Board of Education, 781 N.E.2d 386 (Ill. App. Ct. 2002), to argue that an owner who is also the builder is protected by the statute of repose. In Wright, the school board (both builder and owner) was deemed protected from an action by a plaintiff who fell when leaving an elementary school. Id. at 387, 393. The Wright court acknowledged that the Illinois appellate courts were split on the construction of the statute, noting that one of its cases had held that "even after the 10-year statutory period, a party who is in a position to correct a design defect loses the protection" of the statute of repose. Id. at 391-92. The Wright court concluded, however, that although the board of education had a duty to maintain as a property owner, that duty was "trumped by the statute of repose . . . because the Board is the owner of the property and the entity that participated in the design and construction of it." Id. at 393. In reaching this conclusion, the court reasoned that the Illinois statute of repose "eliminate consideration of status. . . . protects, on its face, anyone who engages in the enumerated activities." Id. at 392 (internal quotation marks and citations omitted). PNM argues that this Court also adopted an "activity analysis" in Howell, 90 N.M. at 697, 568 P.2d at 223, and thus the resolution of this appeal should be guided by Wright, 781 N.E.2d at
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