Lead Opinion
In this case the Court considers the constitutionality of § 516.097, RSMo 1986, a 10 year statute of repose protecting architects, engineers and persons who furnished construction services from liability arising out of a defective or unsafe condition of any improvement to real property. We hold that the statute is constitutional; it is not invalidated by any of the four constitutional challenges; i.e., Equal Protection, Special Legislation, Access to the Courts, and Due Process.
Four cases are consolidated for this appeal. Three of the cases involve two wrongful deaths (Bobbie Jean Case and Sandra Bernice Hertlein) and a claim for personal injuries (Vernon Dillman, Jr.). Each case arose out of automobile accidents that occurred at the Union Boulevard exit ramp of westbound Interstate 70 in the City of St. Louis. The accident in which Bobbie Jean Case and Sandra Bernice Hert-lein were killed occurred on November 21, 1989; the accident in which Vernon Dill-man, Jr., was injured occurred on March 5, 1989. The parties agree that the construction of the improvements to the real property (the interstate highway and exit ramp) were completed more than 10 years prior to these accidents.
The other case involves plaintiff Robert L. Blaske, who was seriously injured when he fell from a platform fourteen feet above the ground, which was a permanent structure designed and built to provide service access to the air handling equipment (air conditioning and ventilating system) for the Student Union Building at Meramec Community College. Plaintiff’s petition alleges that the platform was negligently designed, engineered and constructed in that it had no guard rails or hand rails and that the platform “blended-in” with an adjacent, lightweight dropped-ceiling so that the platform was indistinguishable from the dropped-ceiling. Plaintiff also alleged defendants were negligent in designing and placing the air handling unit over the dropped-ceiling rather than over the platform.
It is alleged that defendant SnyderGeneral Corporation (also known as McQuay, Inc.) manufactured the air handling unit. The other defendants are the architects
All parties agree that all defendants except defendant SnyderGeneral are within the purview of the statute. Defendant SnyderGeneral claims it is within the purview of the statute because it “manufactured” the air handling unit, which is an improvement to real property for purposes of § 516.097. Plaintiff Blaske claims that defendant SnyderGeneral, as a manufacturer and seller of a pre-built air conditioner, is a materialman and is not protected by the statute, which only, protects persons providing architectural, engineering and construction services.
The respective trial courts sustained the motion to dismiss or the motion for summary judgment of each of the defendants on the ground that each is protected by § 516.097. All four cases were consolidad ed for appeal because the issue of whether § 516.097 is unconstitutional is common to all four cases.
Section 516.097, RSMo, enacted in 1976, effective August 13, 1976, provides as follows:
Tort action against architects, engineers or builders of defective improvement to real property must be brought within ten years of completion of improvement, exceptions.—
1. Any action to recover damages for personal injury, property damage or wrongful death arising out of a defective or unsafe condition of any improvement to real property, including any action for contribution or indemnity for damages sustained on account of the defect or unsafe condition, shall be commenced within ten years of the date on which any such improvement is completed.
2. This section shall only apply to actions against any person whose sole connection with the improvement is performing or furnishing, in whole or in part, the design, planning or construction, including architectural, engineering or construction services, of the improvement.
3. If any action is commenced against any person specified by subsection 2, any such person may, within one year of the date of the filing of such an action, notwithstanding the provisions of subsection 1, commence an action or a third party action for contribution or indemnity for damages sustained or claimed in any action because of personal injury, property damage or wrongful death arising out of a defective or unsafe condition of any improvement to real property.
4. This section shall not apply if:
*827 (1) An action is barred by another provision of law;
(2) A person conceals any defect or deficiency in the design, planning or construction, including architectural, engineering or construction services, in an improvement for real property, if the defect or deficiency so concealed directly results in the defective or unsafe condition for which the action is brought;
(3) The action is brought against any owner or possessor of real estate or improvements thereon.
5. The statute of limitation for buildings completed on August 13, 1976, shall begin to run on August 13, 1976, and shall be for the time specified herein.
Other states enacted similar statutes beginning in the late 1960s.
Before discussing each of the four constitutional attacks on the statute, it is appropriate to discuss some general principles that this Court has consistently applied in evaluating the constitutionality of a statute. A statute is presumed to be constitutional and will not be held to be unconstitutional unless it clearly and undoubtedly contravenes the constitution; it should be enforced by the courts unless it plainly and palpably affronts fundamental law embodied in the constitution. Winston v. Reorganized School District R-2, Lawrence County,
With respect to the claim that a statutory classification is violative of equal protection, a challenger must prove abuse of legislative discretion beyond a reasonable doubt and, short of that, the statute is valid. Winston,
Analysis of an equal protection claim involves a two step process. The first step is to determine whether the classification burdens a “suspect class” or impinges upon a “fundamental right”; in either event, strict judicial scrutiny is required. If no such right or category is present, then the statute will be upheld and a classification sustained if the classification is rationally related to a legitimate state interest.
Neither a “suspect class” nor a “fundamental right” is at issue in this case. “Fundamental rights” include such things as freedom of speech, freedom of the press, freedom of religion, the right to vote and the right to procreate. State Board of Registration v. Griffin,
Plaintiffs make no claim that either a fundamental right or a suspect classification is present in this case, and neither is. Thus, strict judicial scrutiny is not required, and the statute will be upheld and the classification sustained if it is rationally related to a legitimate state interest. This Court has often articulated the minimal nature of a “rational basis” analysis. In Schnorbus,
State legislatures are presumed to have acted within their constitutional power despite the fact that, in practice, their laws result in some inequality. A statutory discrimination will not be set aside if any state of facts reasonably may be conceived to justify it_ In this assessment, “States are not required to convince the courts of the correctness of their legislative judgments. Rather, ‘those challenging the legislative judgment must convince the court the legislative facts upon which the classification is apparently based could not reasonably be conceived to be true by the governmental decisionmaker.' ”
Id. In Winston, we pointed out that “It is not [the Court’s] province to question the wisdom, social desirability or economic policy underlying a statute as these are matters for the legislature’s determination.” Winston,
The issues then become a question of what classifications did the legislature establish by § 516.097, and are there possible rational reasons for those classifications? Potential defendants in actions arising out of defective or unsafe conditions of improvements to real property fit naturally into four categories based on their involvement in the construction and subsequent operation of the property: (1) persons who furnish planning or design services (primarily architects and engineers, hereinafter called “designers”); (2) persons performing the actual construction of the improvement (“builders”); (3) persons who supply products or raw materials for the
In deciding to distinguish between mate-rialmen as opposed to designers and builders, the legislature may have considered that designers and builders of improvements to real property face unique and different problems in every project. No two pieces of real estate are identical, and each presents its own unique problems and solutions. There is no such thing as a mass-produced improvement to real property. In Freezer Storage, Inc. v. Armstrong Cork Co.,
Further, every building is unique and far more complex than any of its component parts. Even in the most uniform-looking suburban subdivision, each house stands on a separate plot of land; each lot may have slightly different soil conditions; one may be near the underground stream; and so forth.
In contrast, materialmen typically produce and supply their products in large quantities, which are standardized in terms of design, available sizes and models, etc. Materialmen normally do not produce customized products, whereas every improvement to real property is, in a sense, customized. Moreover, materialmen normally produce their product in the controlled environment of the factory or other production facility specifically designed for that purpose. All of these factors offer material-men a superior opportunity to pretest and continually improve their product and design. Standardized products and standardized production facilities obviously afford materialmen a better opportunity for higher quality control standards than are available to the designers or builders of improvements to real property where neither the end product nor the location of construction are standardized.
Put simply, the materialman who produces 1,000 widgets every day has a much better chance of producing the perfect product time after time than the architect, engineer or builder who undertakes a new and different project on new and different real property from project to project. This basic difference in the job undertaken and the problems faced by materialmen as compared to those faced by designers and builders affords the legislature a rational basis for including designers and builders within the protection of the statute while excluding materialmen.
The distinction between designers and builders as compared to owners and occupiers of the real property is even more striking. Once construction is completed, the designers and builders normally cease to be connected with the improvement, while owners and occupiers continue in control of the improvement during its useful life. Moreover, in instances where ownership or possession changes during the useful life of the real property, the common law generally affords protection to former owners and occupiers as opposed to persons owning or occupying at the time of the injury. The common law seldom results in liability for former owners or operators who are not connected to the property at the time of the injury. This is an instance in which the common law reflects a rationale similar to that reflected in the statute, i.e., that after passage of a reasonable period of time, persons no longer associated with the property should not be held liable for injury or death caused by defective or unsafe conditions of the property.
In support of the rationale for protecting designers and builders but not owners and occupiers, it is undoubtedly true that the extent to which owners and occupiers maintain the property, search out problems and correct them, and generally operate the facility in a careful and responsible manner largely dictate the extent to which personal injury or wrongful death may be caused by the property in the long range future. Moreover, as time passes, ownership and occupancy policies become increasingly more important, while design and construction decisions and procedures typically de
Several jurisdictions
Having considered the defendants’ equal protection arguments, it is appropriate to next consider whether § 516.097 is prohibited “Special Legislation” under article III, § 40, of the Missouri Constitution, which provides in part as follows:
Section 40. Limitations on passage of local and special laws. The general assembly shall not pass any local or special law:
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(6) for limitation of civil actions;
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(28) granting to any corporation, association or individual any special or exclusive right, privilege or immunity, ...
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(30) where a general law can be made applicable, and whether a general law could have been made applicable is a judicial question to be judicially determined without regard to any legislative assertion on that subject.
The prohibition of “local laws” refers to legislative acts that single out a particular unit of local government in a certain location, such as a particular city, township or county; § 516.097 does not purport to make any such distinction, so the prohibition against “local laws” is not at issue.
We have defined a “special law” as “[a] law which includes less than all who are similarly situated ..., but a law is not special if it applies to all of a given class alike and the classification is made on a reasonable basis.” Ross v. Kansas City General Hospital and Medical Center,
[I]t is not enough to demonstrate constitutional invalidity to conclude that the statute excepts from its scope persons or things which would, but for the exception, otherwise be affected. In order to find such a statute invalid as a special law, it must be found that members of the stated class are omitted “whose relationship to the subject-matter cannot by reason be distinguished from that of those included.”
A claim that a statute is invalid as a “special law” inevitably incorporates the argument that the statute treats some members of the class differently than others. Whether this argument can be successfully made depends upon the threshold issue of what constitutes the limits of the class. One approach is to assume that the
An alternative analysis (which is really only different in semantics) is to assume that the class is all potential tort-feasors who might conceivably have liability as a result of their relationship to the property and to recognize that the legislature is not obligated to treat all members of the class the same so long as some characteristic of the portion of the class excluded provides a reasonable basis for its exclusion.
Either analysis leads to the principles we have previously discussed in our equal protection analysis of the rational basis for the legislature distinguishing between designers and builders on the one hand and materialmen on the other. These factors include the increased opportunity for quality control and mass production planning available to materialmen, which is not present in the planning and construction of an improvement to real property, and the fact that owners and operators remain in control of the property whereas designers and builders generally have no further relationship with the property once construction is completed. In essence, the test for “special legislation” under article III, § 40, of the Missouri Constitution, involves the same principles and considerations that are involved in determining whether the statute violates equal protection in a situation where neither a fundamental right nor a suspect class is involved, i.e., where a rational basis test applies. For the reasons discussed above with regard to equal protection, as well as the matters discussed herein regarding special legislation, we hold that § 516.097, is not prohibited special legislation under article III, § 40, of the Constitution of Missouri.
We next consider whether § 516.-097 violates the “open courts” provision of the Missouri Constitution. Article I, § 14 provides:
[t]hat the courts of justice shall be open to every person, and certain remedy afforded for every injury to person, property or character, and that right and justice shall be administered without sale, denial or delay.
It is all too easy to assume that this provision means that a plaintiff can always go to court and obtain a judgment on the claim asserted; it obviously does not mean this. Thus, the major issue in almost every consideration of the open courts provision is to determine exactly where the courts draw the line between the right of the legislature to modify the substantive law to eliminate or restrict some cause of action and the right of an individual litigant to have open access to the courts to obtain some remedy available under the applicable substantive law.
Two relatively recent Missouri cases demonstrate the meaning of this constitutional provision. In State ex rel. Cardinal Glennon Memorial Hospital v. Gaertner,
The requirement in Cardinal Glennon, that plaintiffs comply with the administrative procedure by filing their claim with the Professional Liability Review Board Authority before filing a medical malpractice action was held to be an unconstitutional condition precedent to the use of the courts, whereas the statute in Harrell was a valid exercise of legislative discretion to change the substantive law to grant immunity to HMO corporations. The fact that the net effect of the latter statute was to deprive plaintiffs of a cause of action they would otherwise have been entitled to bring does not detract from the right of the legislature to make changes in the substantive law. In the present situation, the legislature saw fit to eliminate any cause of action a plaintiff might have against a designer or builder for personal injuries, wrongful death or property damage incurred more than 10 years after construction is completed. In Harrell, this Court stated:
These cases [including Cardinal Glen-non ] furnish no authority whatsoever. for limiting the legislature’s authority to design the framework of the substantive law. The right of access means simply the right to pursue in the courts the causes of action the substantive law recognizes.
Harrell,
Insofar as the open courts provision is concerned, the legislature could totally eliminate a cause of action for personal injury or wrongful death arising from improvements to real property against a designer or builder; by the same token the legislature can eliminate such a cause of action from and after 10 years following the completion of construction. Just as the legislature saw fit in Harrell to eliminate any cause of action for medical malpractice against an HMO corporation, the legislature can likewise eliminate a cause of action against designers and builders beginning 10 years after the completion of a project. Section 516.097 does not violate article I, § 14, of the Missouri Constitution because it does not bar the courts to a person with a valid cause of action; rather, it-modifies the common law to provide that there is no such cause of action.
Finally, plaintiffs contend that § 516.097, RSMo 1986, deprives them of due process of law. Article 1, § 10, of the Missouri Constitution provides: “No person shall be deprived of life, liberty or property without due process of law.” Similarly, the fourteenth amendment of the United States Constitution states, “nor shall any state deprive any person of liberty, or property without due process of law_”
This same concept has been expressed in a different form by the United States Supreme Court, which has stated that a litigant does not have a vested property right in a cause of action before it accrues. Thus, no due process violation occurs if this non-property right is eliminated by a change in the law. The Court, in holding that due process has not prohibited the abolition of causes of action, stated:
Our cases have clearly established that “[a] person has no property, no vested interest, in any rule of the common law.” Second Employers’ Liability Cases, 223 U.S. 1, 50 [32 S.Ct. 169 , 175,56 L.Ed. 327 ] (1912) quoting, Munn v. Illinois,94 U.S. 113 , 134 [24 L.Ed. 77 ] (1877). The “Constitution does not forbid the creation of new rights, or the abolition of old ones recognized by the common law, to attain a permissible legislative object," Silver v. Silver,280 U.S. 117 , 122 [50 S.Ct. 57 , 58,74 L.Ed. 221 ] (1929), despite the fact that “otherwise settled expectations” may be upset thereby. Usery v. Turner Elkhorn Mining Co.,428 U.S. 1 , 16 [96 S.Ct. 2882 , 2892,49 L.Ed.2d 752 ] (1976). See also Arizona Employers’ Liability Cases,250 U.S. 400 , 419-422 [39 S.Ct. 553 , 555-556,63 L.Ed. 1058 ] (1919). Indeed, statutes limiting liability are relatively commonplace and have consistently been enforced by the courts.
Duke Power Co. v. Carolina Environmental Study Group, Inc.,
This portion of our opinion is largely repetitious of our discussion of the open courts provision of the Missouri Constitution, article I, § 14; where we pointed out that § 516.097 does not violate article I, § 14, because it does not bar the courts to a person with a valid cause of action; rather, it modifies the common law to provide that there is no such cause of action. In Mahoney, we acknowledged that article I, § 14 (the open courts provision), and article I, § 10 (the due process clause), of the Missouri Constitution are redundant, and we held there, without further discussion, that the denial of due process argument was answered by our response to the challenge based on the open courts provision. Mahoney,
The various plaintiffs argue that the statute is unreasonable and, therefore, violates due process. However, none of these arguments present any contention of substance not otherwise discussed and dealt with in other portions of this opinion, and most essentially boil down to the claim that the legislature was either unwise or unfair,
The general assembly’s authority is plenary, except when express constitutional provisions intervene. Statutes are presumed to be constitutional; one claiming otherwise has a heavy burden. The plaintiff has not overcome that presumption. The statute [in this instance granting immunity from medical malpractice claims to HMOs] operates in an area in which the legislature may balance competing interests. Her arguments reduce to the suggestion that the statute is unwise or unfair. This argument must be addressed to the legislature.
Harrell,
As a preface to, and interspersed at various points in, plaintiffs’ briefs and at oral argument, plaintiffs vigorously assert that the enactment of § 516.097 in Missouri, as well as in most other states, came as a result of concerted and successful lobbying by special interests, and that this fact somehow proves their claim that the statute is unconstitutional. There are at least three more-than-adequate answers to this claim. First, lobbying is an essential and important function in the legislative process. If such efforts could or should be considered by courts as a factor in considering the constitutionality of a statute, few statutes would pass constitutional muster. Second, the right of citizens to petition the legislature in the form of lobbying is one of the most fundamental rights guaranteed by the free speech provision of the first amendment. It would indeed be ironic if the exercise of this fundamental first amendment right should somehow be considered a factor in causing the resulting legislation to be declared unconstitutional under some other provision of the constitution. Eastern Railroad Presidents Conference v. Noerr-Motor Freight, Inc.,
Plaintiff Dillman argues that § 516.097 is in conflict with the general statute of limitations (§ 516.120), which allows an action for personal injury to be brought within five years. The obvious answer is that the general statute of limitations actually provides that such a cause of action “can only be brought” within five years. The statute contemplates that a person may only bring a cause of action within the statute of limitations if, in fact, that person has such a cause of action. The general statute of limitations does not purport to limit the legislature’s ability to change the substantive law as to what constitutes a valid cause of action. This contention is rejected as being without merit.
Plaintiff Dillman briefed the proposition that the trial court erred by sustaining plaintiff Millstone’s Motion To Dismiss on
One further issue remains which relates only to defendant SnyderGeneral. Plaintiffs petition alleges in paragraph 2(g) that defendant SnyderGeneral “did in fact manufacture the air handling unit.” In its Answer, defendant SnyderGeneral denies this allegation. Although the record in its present state is not clear, the indications are that defendant SnyderGeneral was never involved in the on-site construction since plaintiff alleges that other defendants installed the air handling equipment. Defendant SnyderGeneral contends that because the air handling unit was affixed to the real estate, it qualifies as an “improvement to real property” under § 516.-097, and that defendant SnyderGeneral is therefore entitled to the protection of the statute of repose. Plaintiff Blaske claims that the statute, which does not cover ma-terialmen, was not intended by the legislature to cover off-site manufacturers of a pre-built air conditioner.
We disagree with defendant SnyderGen-eral that it is necessarily entitled to the benefit of the statute if it manufactured the air handling unit and the air handling unit is an improvement to real estate. We think there is more to the issue and that factual issues not resolved by the present record on the pleadings remain to be determined before it can be decided as a matter of law whether defendant SnyderGeneral is entitled to the benefit of the statute. Summary judgment may not be granted if there is any genuine issue as to any material fact. Rule 74.04(c). The judgment of the trial court sustaining defendant Snyder-General’s motion for summary judgment is reversed and remanded. Because this issue will likely still have to be determined by the trial court, we will indicate our thinking as to factors to be considered in distinguishing between a materialman who is not entitled to the protection of the statute and a designer or builder who is.
Decisions by courts in other states on similar issues under similar statutes are not altogether helpful because they are, to some extent, inconsistent and have not always articulated the underlying rationale applied in arriving at the result. Defendant SnyderGeneral relies heavily upon Rodarte v. Carrier Corporation,
We believe that if the legislature had intended to include within the statute design and production functions that a manufacturer performs in developing and producing a product such as an air handling unit for manufacture and sale generally to the public, it would have used the term “manufacture” in addition to “construction.” For example, in Cinnaminson Township Board of Education v. U.S. Gypsum Company,
Howell v. Burk,
[A] materialman who does no more than manufacture or supply materials does not benefit from the statute. The statute, however, applies to “any person performing or furnishing the construction or the design ... of construction.” _To the extent that PPG [defendant] is sued as manufacturer or seller of the glass, PPG is not covered by the statute and the summary judgment in favor of PPG as to these claims was error. To the extent that PPG is sued as the designer or installer of the glass, PPG is covered by the statute and the summary judgment in its favor was correct.
The statutory language requires an activity analysis. [Emphasis added.]
Howell,
The following factors should be considered in deciding whether a manufacturer such as SnyderGeneral is included within the protection of the statute. Such a manufacturer may make one or both of two separate and distinct arguments in support of its claim that it is covered by the statute. First, a manufacturer may claim that its activity in fabricating, assembling or manufacturing building materials or a component part incorporated within the real property in the construction of the improvement “is, performing or furnishing, ... construction, including ... construction services, of the improvement.” § 516.-097.2. We conclude that manufacture at the manufacturer’s factory or production site of a standard product available generally to the public that is manufactured and furnished for inclusion in the improvement by the persons constructing the improvement under circumstances where the manufacturer has no substantial on-site construction activity is not within the protection of the statute. On the other hand, substantial participation at the construction site in significant activities in installing or incorporating the product into the real property would constitute “performing or furnishing ... construction, including ... construction services, ...” and is covered under the statute. In this respect we do not distinguish between the manufacture and sale of a complete component part, such as an air conditioner or an elevator, and a component part of a complete component part, such as a thermostat on an air conditioner or a motor on an elevator. See Reddix v. Eaton Corp.,
However, if the products fabricated and sold for use in the improvement to real estate are custom made for that project, as opposed to being generally manufactured or fabricated for sale to the general public, production of the custom made product at a location away from the construction site will not necessarily defeat
The second contention a manufacturer such as defendant SnyderGeneral may make to gain the protection of the statute is to argue that it performed or furnished design, planning or engineering devices by reason of the design and engineering activities involved in developing its product. We are of the view that the design efforts and engineering on the product such as the air handling unit manufactured by defendant SnyderGeneral, which are directed toward designing and planning a product generally available to the public as opposed to the planning and designing of a custom designed product intended to meet the special needs of a particular construction, do not qualify as “performing or furnishing, ... the design [or] planning ..., including architectural [or] engineering ... services,....” § 516.097.2. Thus, if Sny-derGeneral furnished to the general contractors of this project an air handling unit from its regular line of products as specified by the architects or engineers of that project, the engineering that defendant SnyderGeneral performed in connection with developing and manufacturing the air handling unit to make it available as a part of its general line of air conditioners available to the public is not the type of design activity protected by the statute. However, design and engineering activities specifically undertaken to design or engineer a special air handling unit unique to this building would be within the statute.
The courts will undoubtedly need to develop further details, on a case by case basis, for distinguishing between material-men who are not within the protection of the statute and architects, engineers and builders who are. However, we believe the guidelines we have described are a sufficient starting place to make these distinctions and to aid the trial court in deciding whether defendant SnyderGeneral is covered by the statute.
These limitations on the inclusion of a manufacturer of products within the statute are fully consistent with our analysis of the equal protection attack on the constitutionality of the statute discussed earlier in this opinion. In that analysis, we have described as a possible rational basis for including designers and builders within the protection of the statute while excluding materialmen, the proposition that material-men have a better opportunity for quality control because they normally mass produce their product in the controlled environment of their factory or other production facility. Also, we pointed out that the design and engineering of a mass-produced product is likely to be of superior quality to the planning and engineering of improvements to real property, which generally vary from project to project. This supports the legislative judgment to distinguish between materialmen on the one hand and designers and builders of improvements to real estate on the other.
If SnyderGeneral’s interpretation of the statute were to prevail, this rationale for excluding materialmen from the protection of the statute could fail and the statute well might violate both equal protection and the special legislation provisions of the Missouri Constitution unless a different rational basis argument were to be developed. It is a well accepted canon of statutory construction that if one interpretation of a statute results in the statute being constitutional while another interpretation would cause it to be unconstitutional,
The trial courts’ judgments are affirmed in all respects other than with respect to SnyderGeneral’s Motion For Summary Judgment, which is reversed and remanded.
Notes
.The construction of the interstate highway and exit ramp was completed before February 1969, more than 20 years prior to the accidents; the design services by defendant Sverdrup & Parcel and Associates, Inc., for the exit ramp at Union Boulevard and Interstate 70 were completed in November 1958, more than 30 years prior to the accidents.
. The Missouri Highway and Transportation Commission and the City of St. Louis are also defendants in the Dillman case. Neither of these defendants claim to be protected by § 516.097 and neither is a party to this appeal. No further reference will be made herein to these defendants.
. It is alleged that defendant Smith & Entzeroth, Inc., performed the architecture and design ser
. It is alleged that defendant William Tao and Associates, Inc., engineered the platform and the installation and placement of the air handler unit.
. It is alleged that defendant C. Rallo Contracting Company, Inc., built the concrete platform and installed and placed the air handler unit; it is alleged that defendant Rockhill Mechanical Corporation, defendant Carl I. Schaeffer Electric Company, and defendant Century Electric Company installed the air handling unit.
. The construction of the platform which plaintiff Blaske fell from and Student Union Building at Meramec Community College was completed in 1967, approximately 20 years prior to plaintiff Blaske’s injury.
. Comment, A Defense Catalogue for the Design Professional, 45 U.M.K.C.L.Rev. 75, 91 (1976).
. Comment, Limitation of Actions Statutes for Architects and Builders — Blueprints for Non-Action, 18 Cath.U.L.Rev. 361 (1968).
. Ariz.Rev.Stat. § 12-552 (Supp.1991) (eight years); Ark.Stat. § 16-56-112 (1987) (five years), constitutionality of predecessor. Ark. Stat. § 37-238, upheld in Carter v. Hartenstein,
. See cases cited in footnote 8, supra.
. Arizona, Maine and West Virginia. See footnote 8, supra.
. Jackson v. Mannesmann Demag Corp.,
. See cases cited in footnote 8, supra.
Concurrence Opinion
concurring.
I concur in the principal opinion.
The principal opinion distinguishes State ex rel. Cardinal Glennon Mem. Hosp. v. Gaertner,
Strahler shares Cardinal Glennon’s infirmities because it was a 4 to 3 decision in which one member of the Court indicated his concurrence only on the authority of Cardinal Glennon. Strahler,
The principal opinion appropriately speaks of the proper relationship between the legislative branch and the judicial branch. We must take the legislature's handiwork as it frames it. I consider it quite improper for counsel to ask us to do otherwise or to make reference to the motivation of the legislature.
Although the plaintiffs’ claim regarding the precise problems of the air conditioner, and how it contributed to the injury, are fragmentary, I believe that the petition may be minimally sufficient to state a claim or, at least, that it may be amended so that it is sufficient. So I concur in the reversal and remand as to SnyderGeneral.
I do not believe that the next to last
paragraph of the principal opinion is necessary to the holding and have reservations about it.
With these observations, I concur,