Rosenberg v. Falling Water, Inc.
289 Ga. 57
| Ga. | 2011Background
- In Rosenberg v. Falling Water, Inc., the Court of Appeals affirmed summary judgment in favor of Falling Water on Rosenberg's construction-defect and fraud claims.
- Falling Water obtained a building permit on May 5, 1994 and the city issued a certificate of occupancy on July 12, 1994.
- Title to the property was transferred to the Nowickis on July 14, 1994, then to the Bayalas, and Rosenberg purchased the home on March 28, 2002.
- Rosenberg learned about the house from a real estate agent with no known statements about construction quality, and he did not inquire about or contact Falling Water before purchase.
- In August 2005, Rosenberg’s neighbors began siding removal; the back deck collapsed when he stepped onto it, causing serious injuries.
- Rosenberg sued on May 25, 2006, asserting negligent construction and fraudulent concealment; Falling Water asserted an eight-year statute of repose under OCGA § 9-3-51(a).
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Whether equitable estoppel can bar the repose defense. | Rosenberg argues fraud precludes repose. | Falling Water contends no accrual during repose; estoppel not available. | Equitable estoppel cannot bar repose when injury occurs post-repose |
| Did Rosenberg have a timely accrual under the repose statute for personal injury? | Injury occurred within the chain of negligent acts and concealment, tolling accrual. | Injury to person occurred after repose; no accrual during period. | Injury occurred after the repose period; no timely accrual |
| Can fraudulent concealment toll or otherwise extend the statute of repose in this case? | Fraud by concealing defects could invoke equitable estoppel. | Fraud cannot revive a right that never accrued during repose. | Fraud cannot create accrual within repose; estoppel not available |
| Should the case be remanded to determine if estoppel exists given evidence of concealment? | There may be fact questions on concealment tied to equitable estoppel. | No valid basis to apply estoppel because no timely accrual occurred. | Remand unnecessary; majority held estoppel not applicable |
Key Cases Cited
- Esener v. Kinsey, 240 Ga.App. 21 (1999) (fraud concealment of negligence tolls limitations)
- Hill v. Fordham, 186 Ga.App. 354 (1988) (equitable estoppel in medical-repose context; dicta)
- Craven v. Lowndes County Hosp. Auth., 263 Ga. 657 (1993) (equitable estoppel for concealed malpractice)
- Wright v. Robinson, 262 Ga. 844 (1993) (statute of repose is unyielding barrier)
- Simmons v. Sonyika, 279 Ga. 378 (2005) (repose accrual principles for injury timing)
- U-Haul Co. of W. Ga. v. Abreu & Robeson, Inc., 247 Ga. 565 (1981) (injury from negligent design accrues at time of construction)
- Colormatch Exteriors, Inc. v. Hickey, 275 Ga. 249 (2002) (accrual rule for construction-damage claims; exception when seller-retained ownership)