Brude v. Breen
2017 SD 46
| S.D. | 2017Background
- Yellow Jacket Irrigation (Breen) built landscaping with retaining walls and a fire pit at the Jamison residence in September 2005; some stonework was repaired in 2007.
- Jamisons asked Yellow Jacket to fix and enlarge the fire-pit/retaining wall area in either 2011 or 2013; parties dispute the exact year and scope.
- On October 7, 2014, Suzanne Brude fell when a capstone dislodged from the retaining wall and was injured; she sued Breen in November 2015.
- Yellow Jacket moved for summary judgment asserting SDCL 15-2A-3 (ten-year statute of repose for improvements to real property) barred the claim because substantial completion occurred in 2005.
- The circuit court granted summary judgment; the Supreme Court of South Dakota reversed, holding disputed facts prevented application of the repose if the 2011/2013 work restarted the ten-year period or the injury arose from that later work.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether the ten-year statute of repose (SDCL 15-2A-3) bars Brude's claim | Brude: the 2011/2013 work was an "improvement to real property" (or, at least, her injury arose from that later work), so the repose restarted and suit is timely | Yellow Jacket: the 2011/2013 work was only repairs, not a new improvement, so substantial completion was 2005 and the claim is time-barred | Reversed summary judgment: triable issues exist because (1) the 2011/2013 work may have been an improvement that restarts the repose, and (2) even if repair, the injury may have arisen from the later work, so SDCL 15-2A-3 does not necessarily bar the claim |
Key Cases Cited
- CTS Corp. v. Waldburger, 134 S. Ct. 2175 (U.S. 2014) (statutes of repose are measured from the last culpable act but statutory language can set a different trigger)
- Peter v. Sprinkmann Sons Corp., 860 N.W.2d 308 (Wis. Ct. App. 2015) (distinguishing permanent improvements from daily repairs for statute-of-repose purposes)
- Hartford Fire Ins. Co. v. Westinghouse Elec. Corp., 450 N.W.2d 183 (Minn. Ct. App. 1990) (replacement/repair held ordinary repair, not subject to repose for improvements)
- Schott v. Halloran Constr. Co., 982 N.E.2d 965 (Ill. App. Ct. 2013) (repair to some portions of a retaining wall did not restart the statute of repose where plaintiff’s injury arose from original portion built earlier)