Blaske v. Smith & Entzeroth, Inc.

BLASKE, Appellant, L. Robert

v. ENTZEROTH, INC.,

SMITH al., Respondents.

et CASE, minor,

Heather Nicole al., Appellants,

et

v.

SVERDRUP & PARCEL AND INC.,

ASSOCIATES, al., et

Respondents.

Robert J. HERTLEIN Caroline Hertlein, Appellants,

T.

v. PARCEL AND

SVERDRUP &

ASSOCIATES, INC., al., et

Respondents. DILLMAN, Appellant,

Vernon

The MISSOURI HIGHWAY AND COMMISSION, et

TRANSPORTATION

al., Respondents.

Nos. 73612 and 73631. Missouri,

Supreme Court of

En Banc.

Dec. 1991.

Rehearing Denied Feb.

dents that occurred at the Union Boulevard ramp of Interstate in the exit westbound accident in City of St. Louis. The Jean Case and Sandra Bernice Hert- Bobbie on lein were killed occurred November 1989; Dill- the accident in which Vernon Jr., man, injured occurred March parties agree that the construc- III, Palmyra, Branson L. Wood Edward improvements prop- tion of the to the real Dowd, Jr., Ritter, Robert F. M. Matoe- Jane (the highway ramp) erty interstate exit sian, Louis, appellant. St. completed years prior more than 10 were Slavens, Palombi, Kenneth A. John P. Sverdrup these accidents.1 Defendant Par- Asher, Valentine, Larry Ralph D. Steven provided cel & Associates architectural and Soebbing, Joem, K. M. Bald- Colleen Brent engineering design for the services win, Tobin, Jones, Thomas B. Colleen C. ramp; Millstone exit defendant constructed Grebel, Bub, Lawrence B. Michael E. Ken- highway ramp. parties All the and exit Slavens, Palombi, neth John P. Steven D. provided agree protection that the Asher, Musgrave, Timothy John R. F. 516.097, repose, the of includes statute Noelker, Sacks, Ryder, D. Gary Bruce T. of these defendants.2 both Gossow, Douglas Louis, respon- E. St. for plaintiff dents. The other case involves Robert Blaske, seriously injured L. who was when Hawkins, Roger Edgar, J. James St. L. platform he fell from a fourteen feet above Louis, for amicus American of Institute ground, permanent the which was a struc- Architects, et al. designed provide ture and built service (air handling equipment to the air access THOMAS, Judge. conditioning ventilating system) and the for In this case the Court considers the con- Building Student Union at Meramec Com- 516.097, stitutionality of RSMo College. petition alleges munity Plaintiff’s year repose protecting of archi- platform negligently that the was de- tects, engineers persons and furnished who signed, engineered and constructed arising from liability construction services guard hand rails it had no rails or and out of a or defective unsafe condition of platform adjacent, with an the “blended-in” any improvement real property. We lightweight dropped-ceiling plat- so that the constitutional; hold that the statute is it is indistinguishable form was from the by any invalidated four constitu- alleged also de- dropped-ceiling. Plaintiff Protection, challenges; i.e., Equal tional negligent designing were and fendants Legislation, Courts, Special Access to the placing handling the air unit the over and Due Process. plat- over dropped-ceiling rather than the ap- Four cases are consolidated for this form. peal. Three of the cases two involve (Bobbie SnyderGener- wrongful alleged and deaths Jean Case It is that defendant Hertlein) (also Corporation McQuay, Bernice for Sandra and a claim al known (Vernon Dillman, Jr.). Inc.) handling personal injuries manufactured the air unit. the Each case arose out of automobile acci- The other defendants are architects3 highway Highway Transportation 1.The and The Missouri and interstate 2. City St. ramp February Commission and the of Louis are also completed exit before case. accidents; defendants the Dillman Neither years prior to more than 20 protected by to be these defendants claim design Sverdrup defendant & Parcel services party appeal. and is a 516.097 neither Inc., Associates, ramp and for the exit at Union made No further reference will be herein completed in Boulevard and Interstate 70 were defendants. these years prior November more than 30 accidents. Entzeroth, alleged 3. It is that defendant Smith design performed the architecture ser- architects, engineers4 engi- against engi- designed who Tort action platform neered installation improve- neers or builders of defective brought placement handling property must of the air unit and ment to real years completion im- plat- within ten contractors5 who constructed provement, exceptions.— handling form and installed the air unit. agree All the parties that the construc- Any damages recover for action to completed years

tion was more than personal property damage or injury, 1987,6 plaintiff prior to June when wrongful arising out of death a defective injured. Blaske fell and was any improvement or unsafe condition of including property, any for to real action parties agree All that all defendants ex- indemnity damages contribution or cept SnyderGeneral defendant are within on defect or sustained account purview of the statute. Defendant condition, shall be commenced unsafe SnyderGeneral pur- it is claims within years within ten of the date which “manufac- view the statute because it improvement completed. such unit, handling is an tured” air only apply to ac- 2. This section shall purposes to real against con- any person whose sole tions 516.097. Plaintiff Blaske claims improvement perform- nection with SnyderGeneral, defendant as a manufactur- ing furnishing, part, in whole conditioner, pre-built er and of a seller air construction, design, planning includ- protected by is a materialman and architectural, engineering con- ing statute, protects persons which only, services, improvement. of the struction architectural, providing engineering and against any If action is commenced 3. construction services. 2, person by any any specified subsection respective trial courts sustained year of the person may, such within one sum- motion to or the motion for dismiss action, filing such an not- date of the mary judgment of each of the defendants withstanding provisions of subsection ground protected by each on the that 1, party or a commence an action third All cases consolidad 516.097. four were § indemnity for for or action contribution appeal ed for the issue of whether because damages any ac- or claimed sustained 516.097 is unconstitutional is common § personal injury, because of all four cases. damage arising wrongful death out of any a defective or unsafe condition RSMo, 1976, 516.097, Section enacted improvement property. to real 13, 1976, as fol- August provides effective apply if: 4. This section shall lows: lawsuit, platform placement from the then these other defendants vices for concrete and handling likewise to be dismissed. Sever- entitled and of the air unit. installation it is are included because al other defendants alleged defendant William Tao 4. It is alleged they to Smith are successors in interest Associates, Inc., engineered platform Inc., Entzeroth, Entzeroth, & sold & Inc. Smith placement of the air han- the installation and Stone, Marrac- to defendant certain its assets dler unit. Patterson, Inc., July of 1986 cini Micki-Barb, Inc., changed which is its name alleged C. Contract- It is that defendant Rallo 5. alleged is also that Micki- also a defendant. It Inc., Company, platform ing the concrete built Barb, Inc., on corporate its charter forfeited unit; placed the air and installed and handler 1, 1988, January forfei- and at the time of the alleged Rockhill Mechanical is Corporation, defendant Smith, Jr., defendant Eric W. ture defendant I. Elec- Carl Schaeffer defendant Tre- Bertram Robert Entzeroth and defendant Company, Century Electric and defendant tric mayne Board of Di- members of last were handling Company installed the air unit. statutory None rectors and became trustees. Entzeroth, plain- than platform defendants other Smith these Inc., 6. The construction any Building but performed services architectural fell and Student Union tiff Blaske legal by Community College completed defendants virtue Meramec was are included as 1967, However, prior years plain- approximately relationships alleged. if defendant Entzeroth, injury. properly Blaske’s dismissed Smith & tiff (1) by pro- begin August An action barred another to run on specified the time herein. shall be law; vision of Other states enacted similar statutes be- (2) person A conceals defect ginning in These statutes the late 1960s.7 design, planning or con- deficiency response were enacted in to case decisions struction, architectural, including engi- away country that had done around services, neering or in an necessity privity with the between the improvement property, for real if the de- architect, plaintiff engineer and the deficiency directly fect or so concealed parties builder. This had resulted these results in the or unsafe condi- defective having potential liability many years after brought; tion for which the action is any way they ceased to be connected thirty- improvement.8 Presently, with the (3) brought against any The action is impose states have statutes time five possessor im- owner or of real estate or upon against architects limitations actions provements thereon. injuries and builders for or deaths caused 5. The statute of limitation for build- im- by defective or unsafe conditions of ings 13, 1976, completed August shall provements property.9 Generally, on real Comment, Design Catalogue acceptance 7. A Defense for the owner or if no within six work owner, Professional, (1976). occupation possession by 45 U.M.K.C.L.Rev. months of improvement years has ten after the been occu Comment, Limitation of Actions Statutes for owner), pied constitutionality upheld in Bur Blueprints Architects and for Non- Builders— Drainage Gravity master v. District No. Action, (1968). 18 Cath.U.L.Rev. 361 (La.1978); Maine 14- § So.2d 1381 Rev.Stat. (1980) (actions brought against 752-A must be (Supp.1991) (eight § 9. Ariz.Rev.Stat. 12-552 design professionals years malprac four after (1987) (five years); Ark.Stat. 16-56-112 negligence tice or occurs but not more than ten years), constitutionality predecessor. Ark. years completion after substantial of services 37-238, Hartenstein, upheld Stat. in Carter v. provided); Md.Cts. & Jud.Proc.Code 5-108 (1970); 248 Ark. 455 S.W.2d 918 Cal.Civ. (Supp.1991) (twenty years after the date the (ten (1982) years), Proc.Code 337.15 constitu entire first becomes available Pinole, tionality upheld City in Barnhouse v. use, years its intended or ten in an action (1982); Cal.App.3d Cal.Rptr. architects, against professional engineers, or (1987) (six years), Colo.Rev.Stat. 13-80-127 contractors), constitutionality upheld in Whit constitutionality upheld in Yabro v. Ho Hilton ing-Turner Contracting Company Coupard, v. (Colo. 1982); Corporation, tels 655 P.2d 822 340, (1985); 304 Md. 499 A.2d 178 Mass.Gen.L. (1991) (seven Conn.Gen.Stat.Rev. § 52-584a 260, (six (Supp.1991) years § ch. 2B after the years), constitutionality upheld Zapata in v. opening improvement 496, of the Bums, earlier of the (1988); 207 Conn. 542 A.2d 700 Del. completion improve 10, (six use or substantial of the (1974) years), Code tit. 8127 § constitu taking possession occupancy by & of ment tionality upheld in Cheswold Volunteer Fire owner), constitutionality upheld in Klein v. Company Company, v. Lambertson Construction Catalano, 701, (1982); (Del.1984); N.E.2d 386 Mass. 437 514 489 A.2d 413 D.C.Code 12-310 § 600.5839(1) (1987) (six (1989) (ten Mich.Comp.Laws years), constitutionality upheld § years completed occupancy im after time of of Corporation, Britt v. Schindler Elevator 637 use, (D.D.C.1986); provement, acceptance improve F.Supp. of the § 734 Ga.Code 9-3-51 ment, (1982) year (eight years), constitutionality upheld or one after defect is discovered discovered; however, Services, Inc., Company should have been no ac Mullis v. Southern 250 90, (1982); years after the time Ga. 296 S.E.2d 579 Idaho Code 5- tion can be maintained ten § (1990) (six years), constitutionality upheld completed improvement, occupancy 241 of use, Building acceptance improvement), Hospital Corpo consti in Twin Falls Clinic & 19, Erdal, Hamill, tutionality upheld in ration v. (1982); 103 Idaho 644 P.2d 341 O'Brien v. & Hazelet 110, 1, 13-214(b) (1980); para. Minn.Stat. Ill.Rev.Stat. ch. 410 Mich. 299 N.W.2d 336 (ten (ten years), constitutionality upheld (Supp.1991) years), (Supp.1991) constitution § 541.051 Co., City Crystal, Ill.App.3d ality upheld 318 in Cross v. Ainsworth Seed 199 in Calder v. of 910, 927, (Minn.1982); (1990), § N.E.2d but N.W.2d Miss.Code 15-1-^41 145 Ill.Dec. 557 906 838 455, Anderson, (six constitutionality upheld (Supp.1991) years), v. 231 see Skinner 38 Ill.2d Inc., (Miss. Jesco, (1967), predecessor which held a in Reich v. 526 So.2d 550 N.E.2d 588 (ten 1988); (1991) special legislation § Mont.Rev.Code 27-2-208 statute unconstitutional (1968) (twelve constitutionality predecessor, years), Mont. grounds; § Ind.Code 34-4-20-2 93-2619, upheld years), constitutionality upheld in Reeves v. Ille § in Beecher v. Rev.Code 104, White, (Ind.1983); Company, P.2d 647 622 La.Rev.Stat. Electric 170 Mont. 551 447 N.E.2d (ten (1976); (1989) (1991) (ten years reg date of Neb.Rev.Stat. 25-223 § 9:2772 after the § giving istry mortgage acceptance years beyond to the cause office of time of act rise in the

828 ap- ciples consistently has period of four this Court provide these statutes for a years twenty following evaluating constitutionality the substantial of a plied completion ac- of an presumed to con- A statute is be statute. against design may brought profes- be and will not be held to be uncon- stitutional thirty-five Thirty-two these sionals. clearly unless it and undoubted- stitutional states have held these statutes constitu- constitution; it should ly contravenes 10 tional; remaining three states plainly it by the courts unless be enforced yet oth- considered this issue.11 Eleven em- palpably affronts fundamental law jurisdictions stat- er have enacted similar Re- v. Winston in the constitution. bodied utes, which have been declared unconstitu- R-2, organized School District Lawrence tional.12 County, 636 324, (Mo. 327 banc S.W.2d 1982). constitutionality a stat- When discussing each of

Before attacked, upon the statute, burden is ute four attacks on the constitutional claiming general prin- party the statute unconstitu- appropriate discuss some action), Storage Co. v. constitutionality upheld Fruit & Cold Central in Williams Yakima 235, Co., 528, Kingery Company, Plumbing Heating v. 225 Neb. 81 503 Construction & Wash.2d (1987); (1972); 404 Nev.Rev.Stat. 11.204 N.W.2d 32 § 55-2-6a P.2d 108 and W.Va.Code (1991) years), constitutionality (eight upheld in (ten years). (Supp.1991) 750, Corporation, 766 104 Nev. Wise v. Bechtel (1988); N.J.Rev.Stat. 2A:14-1.1 P.2d 1317 (1987) 8, supra. See cited in footnote 10. cases (ten years), constitutionality upheld in 190, Bergen, Rosenberg v. North 61 N.J. Town of Arizona, Virginia. foot- Maine and West See (1990) (1972); 293 A.2d 662 N.M.Stat. 37-1-27 8, supra. note (ten Terry years), constitutionality upheld v. Comm'n, 119, Hwy. 645 New Mexico 98 N.M. Demag Corp., 435 v. Mannesmann 1-50(5) 12. Jackson (1982); N.C.Gen.Stat. § P.2d 1375 (Ala.1983) (holding that the statute (six So.2d 725 upheld years), constitutionality (Supp.1991) open provision); repose Corporation, courts Turner Wedgewood 308 violates v. South Lamb Scales, 419, (1983); Company, 752 P.2d 868 N.D.Cent.Code Inc. v. N.C. 302 S.E.2d Construction (1991) (ten constitutionality years), 1988) (Alaska (finding vio § 28-01-44 that the statute 467 Builders, Gateway upheld in v. Bellemare equal protection classifies de because it lates (N.D.1988); Ohio Rev.Code N.W.2d 733 sign professionals); Overland Construction (1990) (ten constitutionality years), § 2305.131 Sirmons, (Fla. Company, Inc. v. 369 So.2d 572 upheld Construction Com in Sedar v. Knowlton 1979) (stating statute violates access (1990); pany, Ohio N.E.2d 938 St.3d Kam, courts); Fujioka v. 55 Hawaii (1988) (ten years), con tit. Okla.Stat. (1973) (finding equal a violation of P.2d 568 stitutionality upheld in Fire Marine St. Paul Wallace, protection); v. Tabler Getty Company, 782 Company v. Oil Insurance denied, (Ky.1985), 107 S.Ct. cert. 479 U.S. (Okla.1989); 12.115 Ore.Rev.Stat. P.2d 915 (1986) (holding that five 93 L.Ed.2d ('In negli (1988) shall action for no event legislation repose special year violated gent injury person or of another Products, clause); Edgar Clay Inc. Henderson date years from the than ten commenced more Associates, Inc., 122 N.H. 451 A.2d Wood & of."), complained consti of the act omission (1982) respose (holding statute of un 174 Burns, upheld Or. tutionality Josephs v. 260 discriminatory); constitutionally v. Broome 42, 493, (1971); tit. § Pa.Stat. 5536 P.2d 203 491 227, (1978) Tmluck, 241 739 270 S.C. S.E.2d constitutionality (1981) (ten years) predeces equal protec (stating that the statute violates 12, 65.1, sor, upheld § Pa.Stat. tit. Freezer Baltic, (S.D. tion); Daugaard v. 349 N.W.2d 419 Armstrong Company, 476 Storage, Cork Inc. v. 1984) open (finding courts violate 270, (1978); § 9- Pa. A.2d 715 382 R.I.Gen.Laws Daughter, 785 provision); Horton v. Goldminer's (ten (1985) constitutionality upheld years), 1-29 1989) (Utah (holding statute vio P.2d 1087 Planners, Group, Architects Leeper v. Hillier open provision); v. Funk WollinSilo lates courts (R.I.1988); P.A., Ann. Tenn.Code A.2d 543 258 Inc., Wis.2d 435 N.W.2d Equipment, 148 (1980) (four constitutionality years), § 28-3-202 (1989) year (finding statute of that the six Associates, Angus Jessup upheld v. R. in Harmon equal Phillips v. repose protection); and violates (Tenn.1981); Tex.Civ.Prac. 619 S.W.2d 522 Builders, Inc., (Wyo.1980) 611 P.2d 821 ABC (ten (1986) years), con 16.008 and Rem.Code repose open (holding violates the statute stitutionality Aus upheld in Homes v. Suburban courts, protection, special laws equal claus Company, Development tin-Northwest es). York statutes of and New Kansas (Tex.App.1987); Va.Code 8.01-250 S.W.2d 89 specifically they repose, archi are but (five constitutionality (1984) years), upheld in improvements builders tects and Corporation, Snyder 240 Va. Hunt Hess v. appear to do not property. Iowa and Vermont (1990); 4.16.- Wash.Rev.Code 392 S.E.2d (six upheld (1988) constitutionality have similar statutes. years), prove analysis. the statute is unconstitu- In tíonal to nature a “rational basis” Revenue, Schnorbus, v. Schnorbus Director of tional. 790 S.W.2d at we said that (Mo. 1990). equal protec- the standard for review for 790 S.W.2d banc tion claims made under the United States respect With to the claim that a Constitution is “the ‘lenient standard of statutory equal classification is violative of A rationality.’ ... classification will be sus- challenger protection, prove a must abuse any reasonably tained if state of facts can legislative beyond discretion reason Mahoney, justify In be conceived to it.” and, that, able doubt short of the statute is pointed we out that the “rational basis” Winston, valid. 636 S.W.2d at 327. In equal protection only test for “is offended particular, plaintiffs claim that this statute grounds wholly if the classification rests on equal protection denies them of the laws of the state’s irrelevant achievement required by the fourteenth amendment of objective.” Mahoney, 807 S.W.2d at 512. the United States Constitution and violates say: We went on to I, equal protection as set forth in article legislatures presumed State to have 2, of the Missouri Constitution. power acted within their constitutional Analysis equal protection of an that, despite practice, the fact their step process. claim involves two inequality. laws result in some A statu- step first is to determine clas whether the if tory discrimination will not be set aside “suspect sification burdens a class” im reasonably may state of facts be pinges upon right”; in ei “fundamental it_ In justify conceived to this as- event, judicial ther scrutiny strict is re sessment, required “States are not quired. If right category no such is convince the of the correctness of courts present, upheld then the statute will be Rather, legislative judgments. their a classification if sustained the classifica challenging legislative judg- ‘those rationally legitimate related to a legisla- ment the court the must convince state interest. upon facts which the classification is tive reasonably apparently based could not be “suspect Neither a nor a class” governmental by conceivedto true right” “fundamental at issue this case. ” decisionmaker.' rights” things “Fundamental include such speech, as freedom of freedom of the Winston, Id. pointed that “It is we out press, religion, right freedom of to vote province question Court’s] [the right procreate. State Board and the wisdom, desirability poli- economic social Registration Griffin, 651 S.W.2d cy underlying a statute as these are mat- (Mo. 1983). Similarly, 479-480 banc a sus legislature’s determination.” ters for the pect inherently classification is one Winston, 636 S.W.2d at 327. suspect in a constitutional sense. These question of The issues then become a race, upon are classes such as those based legislature es- what classifications did the which, origin, illegitimacy national be 516.097, possible and are there tablish reasons, special cause of historical need rational reasons for those classifications? protection political process con from a arising out defendants in actions Potential majority. Mahoney v. Doer trolled im- or unsafe conditions of of defective Services, Surgical hoff naturally fit provements to real (Mo. 1991). banc categories on their involve- into four based subsequent in construction and Plaintiffs make no claim that either ment the (1) property: persons who right suspect operation a fundamental or a classifica case, design (pri- planning in is. or services tion is and neither furnish Thus, engineers, herein- judicial scrutiny marily is not re architects and strict (2) “designers”); persons per- quired, upheld and after and the statute will be called of the im- rationally forming if actual construction the classification sustained it is the (“builders”); (3) persons who legitimate provement This related to a state interest. products or materials for the supply has often articulated the minimal raw Court (4) pro- (“materialmen”); per- simply, Put the materialman who and 1,000 widgets every day a duces has much owning possessing proper- real sons or the producing perfect chance of the better (“owners ty occupiers”). The first and and architect, product time time than the after builders) (designers categories and second engineer a or builder who undertakes new statute; by and are covered the the third project different on new and different and (materialmen, categories and own- fourth property project project. to This real occupiers) ers and are excluded. job difference in the undertaken and basic deciding distinguish mate- In to between problems by as com- the faced materialmen opposed designers as and rialmen build- designers pared by to those faced and ers, may legislature have considered legislature rational builders affords the a designers improve- and builders including designers basis for and builders unique and property ments to real face protection within the of the statute while No problems every project. different excluding materialmen. identical, and pieces of real estate are two designers and distinction between unique presents problems its and each own compared occupi- as and builders owners thing solutions. There is no such as strik- property ers of the real is even more improvement real mass-produced proper- ing. completed, Once construction ty. Armstrong Storage, In Inc. v. Freezer designers normally and builders cease be Co., 715, 719 476 Pa. 382 A.2d Cork improvement, with the while connected court, (1978), upholding Pennsylvania occupiers control of owners and continue statute, similar to the Missouri during its life. useful stated: Moreover, ownership in instances where or Further, building unique far every and during the life possession changes useful complex component more than of its gen- law property, the real the common uniform-looking in most parts. Even erally protection to former owners affords subdivision, house stands suburban each persons opposed to own- occupiers and as land; may separate plot of each lot on a ing occupying injury. time conditions; slightly different soil liability common seldom results law underground may be near one operators owners or who are for former stream; so forth. and property at time of not connected to the contrast, produce typically is an instance which injury. In materialmen This products large reflects a rationale similar to supply quanti- their common law and i.e., statute, that after ties, reflected in the in terms of which are standardized time, period of models, passage of a reasonable design, and etc. available sizes longer prop- with the persons no associated normally produce do cus- Materialmen injury held for erty liable should products, every improve- tomized whereas condi- or unsafe death caused defective sense, is, in custom- property ment to real property. tions of the Moreover, pro- normally ized. materialmen envi- product their the controlled duce protecting support of the rationale production factory or other ronment designers but not owners and and builders designed pur- specifically for that facility undoubtedly true that the occupiers, it All material- pose. of these factors offer occupiers main- and extent to which owners superior opportunity pretest and problems amen search out property, tain product continually de- improve them, generally operate their correct products and standard- sign. facility responsible Standardized manner in a careful obviously personal afford production largely facilities the extent to which ized dictate high- opportunity wrongful may death be caused injury a better materialmen long range future. than are avail- in the property er control standards quality Moreover, ownership and designers passes, im- time able to the builders increasingly policies become occupancy where neither provements to design construc- important, of con- more while product nor the location the end procedures typically de- tion decisions standardized. struction are importance. certainly crease It is ration- legislature might

al that the conclude that (28) granting any corporation, asso- years liability potential after 10 of de- any special ciation or individual or exclu- signers and builders should be foreclosed right, privilege sive immunity, ... and, thus, responsibility but that the liability potential, occupiers of owners and contemporaneous should continue with (30) general where a law can be made continuing property.

their control of the applicable, general and whether a law jurisdictions13 adopted Several stat applicable could have been made is a 516.097; utes identical similar to judicial question judicially to be deter- majority courts, of these as well as the regard any legislative mined without opinions, better reasoned hold that the in subject. assertion on that architects, engineers clusion of and build prohibition ers excluding within the statute while “local laws” refers to ma- legislative single occupiers particular terialmen and acts that out a owners and rests government on a rational unit of local in a basis and does not violate certain loca- tion, equal protection. particular such city, township Authorities that artic county; 516.097 reasoning purport ulate this same rational does not basis distinction, (superior opportunity prohibi- make such quality so the control against materialmen and “local laws” is not at issue. continued control of the property by occupiers) owners and in “special We have defined a law” as “[a] clude: Yarbro v. Corp., Hilton Hotels 655 law which includes less than all who (Colo.1982); P.2d 822 Burmaster v. Gravi ..., similarly situated but a law is not 2, ty Drainage Dist. No. So.2d special applies given if it to all of a class (La.1978); Cheswold Volunteer Fire v.Co. alike and the classification is made on a Co., (Del. Lambertson Const. 489 A.2d 413 City reasonable basis.” Ross v. Kansas 1984) (involving year a six statute of re Center, Hospital General and Medical pose); Catalona, Klein v. 386 Mass. (Mo. 1980). In 608 S.W.2d banc (1982)(also 437 N.E.2d 514 involving a six County County, State v. Court Greene year repose); statute of and Howell v. (Mo. 1984), we banc Burk, 90 N.M. (Ct.App.1977), 568 P.2d 214 pointed out that: denied, rt. 91 N.M. 569 P.2d 413 ce enough is not to demonstrate consti- [I]t (1977). hold, courts, We as did these invalidity tutional to conclude that repose the statute of forth in set 516.097 scope persons or excepts from its equal protection does not violate the clause would, things excep- which but for the of either the United States Constitution tion, affected. In order to otherwise be the Constitution of Missouri. special find such a statute invalid as a Having equal considered the defendants’ law, members of it must be found that protection arguments, appropriate it is the stated class are omitted “whose rela- next consider prohibit- whether 516.097is tionship subject-matter cannot III, “Special Legislation” ed under article distinguished from that of reason be Constitution, of the Missouri those included.” provides part as follows: as a A claim that a statute invalid passage Section 40. Limitations on incorporates the “special inevitably law” special general of local and laws. argument statute treats some assembly pass any spe- shall not local or differently class than oth- members of the cial law: argument can be suc- ers. Whether upon

cessfully depends the threshold made limits of the constitutes the issue what (6) actions; that the approach is to assume for limitation of civil class. One 8, supra. 13. See cases cited in footnote class, they funda-

legislature the tion in a situation where neither a defines which involved, class, do, right suspect in mental nor a class is entitled to and the i.e., applies. effect, where a rational basis test persons consists of those whom re- in For the reasons discussed above with legislature are to determined be affected equal gard protection, to as as the well by the For ex- a certain manner statute. regarding special herein case, matters discussed ample, present under this 516.097, legislation, we hold that is not designers analysis, consists class special legislation article prohibited under to opposed builders materialmen and III, of the of Missouri. Constitution operators, owners and who are outside approach, Using the statute. this the an- consider 516.- We next whether § inquiry, swer to the first “Are all members “open provision courts” 097 violates the always class of the treated same?” will I, the Missouri Constitution. Article affirmative, in the and the issue provides: legisla- prohibited special this is whether open justice shall be the courts of [t]hat question will turn on the of whether tion person, remedy af- every and certain to legislature for es- had a rational basis person, proper- every injury for to forded tablishing the limits of the class as it did. character, right ty justice and that place designers and Was it rational to sale, administered without denial shall be excluding class while builders within the delay. operators? materialmen and owners and this easy It is all too to assume that (which analysis An is re alternative plaintiff always provision means that a can semantics) ally only is to as different go judgment court and obtain a all tort- potential sume that the class is asserted; obviously does not mean claim might conceivably have liabili feasors who Thus, every major issue this. almost relationship ty as a result their open provision consideration of the courts legisla recognize property and to that the exactly courts is to determine where the members obligated ture is not to treat all right line draw between long the class so as some the same legislature modify the substantive law portion the class characteristic of the some cause of action eliminate restrict provides for its excluded a reasonable basis right litigant to of an individual exclusion. open access to the courts to obtain have remedy applicable under the some available prin analysis leads to the Either substantive law. in our previously discussed ciples we have relatively recent Missouri cases protection analysis of the rational Two equal meaning of this constitu- be demonstrate the legislature distinguishing for the basis In ex designers provision. one tional State rel. Cardinal and builders on the tween Gaertner, Hospital v. These Memorial on the other. Glennon hand materialmen (Mo. 1979),this Court banc opportunity the increased factors include malpractice requirement that a production deemed quality control and mass or her to the materialmen, plaintiff submit his claim planning available to Au- Liability Review Board Professional planning and construc filing malpractice action thority before property, of an pre- unconstitutional to constitute an operators court the fact that owners and right plaintiffs to access on the whereas condition property in control of the remain I, no courts in violation article generally designers and builders hand, in Total other Harrell v. once On the relationship with the further Care, (Mo. essence, banc 781 S.W.2d 58 the Health completed. 1989), that a statute that this Court held article “special legislation” under test malpractice Constitution, claims granted immunity in III, 40, of Missouri Organization Health Maintenance to a principles and considera the same volves determining (HMO) corporation did violate involved in that are tions In these two protec- clause constitution. equal violates the statute whether cases, important Hospital, draws an dis- St Luke’s this Court Strahler v. (Mo. 1986), a statute that creates a 7 banc involved literal tinction between S.W.2d a precedent barring to the use of the courts condition and actual the courts to certain (which such, and, to enforce a valid cause of action open minors violated the open provision) a violates the courts applicable provision. courts The statute simply changes common statute that provided year of limi- that the two by eliminating a law cause of action that malpractice for run tations medical would previously has existed at common law or 10, against beginning age even a minor prior under some statute. though precluded minor from fil- ing the lawsuit of his or her incom- because Glennon, requirement in Cardinal petency age. on deter- based Court plaintiffs comply administra- with the possibility mined that the that the minor procedure by filing tive their claim with the might get to file an adult the lawsuit Liability Professional Review Board Au- minor’s behalf is not sufficient to meet the thority filing malpractice before a medical requirements open provision courts action was held to be an unconstitutional Again, of the Missouri Constitution. this is precedent condition to the use of the legislature courts, unlike the situation where the whereas the statute in Harrell was simply changes legislative the substantive law to elim- a valid exercise of discretion to change previously inate ex- grant the substantive law to immu- a cause of action that nity corporations. to HMO The fact that isted. the net effect of the latter statute was to open provision Insofar as the courts deprive plaintiffs they of a cause of action concerned, legislature totally could would otherwise have been entitled to personal eliminate a cause of action for bring does right not detract from the injury wrongful arising or death im- legislature changes to make in the substan- provements property against a de- situation, leg- tive law. In the builder; signer or the same token the islature fit to any saw eliminate cause of legislature can eliminate such a cause plaintiff might against action a a de- years following action from and after 10 signer personal injuries, builder completion of construction. as the Just wrongful property damage death or in- legislature saw fit Harrell to eliminate years curred more than after construc- any malpractice cause of action for medical Harrell, completed. tion is this Court against corporation, legisla- an HMO stated: ture can likewise eliminate a cause of ac- [including These cases Cardinal Glen- designers begin- against and builders authority non furnish no whatsoever. ] ning years completion after the of a limiting legislature’s authority to project. Section 516.097 does not violate design the framework of the substantive I, 14, of the Missouri article Constitution right simply law. The of access means it not bar the courts to a because does right pursue in the courts the action; rather, person cause of with valid causes of action the substantive law rec- provide that it-modifies the common law to ognizes. there is no such cause action.

Harrell, Speaking 781 S.W.2d at 62. fur- 516.097, Finally, plaintiffs contend that § Harrell, for the ther Court Chief Justice process deprives them of due RSMo pointed legislature Blackmar out that our 10, of the Missouri of law. Article frequently granting has enacted statutes person shall provides: Constitution “No immunity limiting rights or otherwise life, deprived property without recognized. of action that the common law liberty 537.053, process Similarly, due of law.” the four- specifically He referred to § teenth amendment of the United States abrogating shop liability dram RSMo states, 188.130, any “nor shall state Constitution RSMo the so-called deprive any person liberty, “Wrongful barring any Life cause Statute” law_” negligent process of of action for failure to abort. without due clearly point Laughlin Our cases have established that Plaintiffs person property, no (Mo. 1968), has no vested Foregrave, “[a] 432 S.W.2d 308 banc interest, rule of the common law.” wherein this Court considered whether Cases, Employers’ Liability Second malpractice statute of year two medical 169, 175, S.Ct. 56 L.Ed. U.S. [32 begins to run when the limitations that Illinois, (1912)quoting, Munn v. 327] process because injury occurs violates due (1877). The U.S. L.Ed. 77] [24 to afford reasonable time within fails does not the cre “Constitution forbid point bring Plaintiffs action. rights, of new abolition of ation holding Laughlin in in that the out that law, recognized by the common old ones of limitations reason year two statute legislative object," permissible to attain a of not a violation due able therefore Silver, 117, 122 280 U.S. Silver [50 process, acknowledges that a the Court 57, 58, (1929),despite 74 L.Ed. S.Ct. 221] so as to limitation statute can be short be expecta fact settled that “otherwise so, query if unreasonable. Plaintiffs this upset thereby. Usery v. may tions” be than what could more unreasonable 1, Co., Mining 428 U.S. Turner Elkhorn statute, plain cuts off the which 2882, 2892, 49 L.Ed.2d 16 S.Ct. 752] [96 it arises? tiffs’ cause of action before (1976). Employers’ also Arizona See much; it argument proves Plaintiffs’ too 400, Cases, 419-422 Liability U.S. 250 distinguish difference be fails to the basic 555-556, 553, 63 L.Ed. S.Ct. 1058] [39 of a statute tween a statute limitations and Indeed, (1919). limiting liability statutes allows repose. of A statute of limitations relatively commonplace and have con are of then cuts the cause action to accrue and sistently the courts. been enforced off claim if suit is not filed within a Power v. Carolina Environmen- Duke Co. repose period A statute of certain of time. Inc., n. Study Group, 438 U.S. 88 tal altogether action eliminates the cause of 2638 n. 57 L.Ed.2d 595 98 S.Ct. period following time a a of after certain (1978). instance, event; specified the com this opinion largely portion This of our importantly, pletion More of construction. repetitious open of our discussion of before the the cause action eliminated provision of the Missouri Constitu- courts plaintiffs’ plaintiffs’ injury and thus before 14; I, tion, pointed we out article where If of accrues. the constitution cause action I, does not violate article 516.097 that § legislature places on the that a limitation courts to it does not bar the because eliminating potential it a prohibits from action; rath- person a with a valid cause arises, it such a cause of action before er, provide common modifies the law it legislature prohibit provision would In no such cause action. that there is in any law changing I, acknowledged substantive that article Mahoney, we any potential adversely way (the open provision), affects and article courts clause), of I, (the process neither the Unit litigant. It is obvious that due redundant, and nor the Missouri Missouri Constitution ed Constitution States discussion, there, further we held without any such purports to contain Constitution argument process denial of due that the limitation. response the chal- by our was answered open provision. courts on the lenge based concept has been ex This same Mahoney, 807 S.W.2d at by the United form pressed a different Court, has stated Supreme States argue plaintiffs The various prop litigant have vested does not therefore, that a and, vio- is unreasonable of action before right However, in a cause erty none these process. lates due Thus, process violation no due accrues. of sub- any contention arguments present right is eliminat non-property and dealt if this discussed occurs stance otherwise Court, opinion, this portions change the law. in other ed with to the claim prohibited essentially boil down process has not most holding that due unfair, unwise or action, legislature was either stated: causes the abolition of Harrell, both, legislation declared unconstitutional adopting 516.097. to be following say provision had the about similar under some other of the constitu we contentions: Con tion. Eastern Railroad Presidents Freight, v. Noerr-Motor assembly’s authority is general ference 523, 529, 127, 137, 81 5 L.Ed.2d express U.S. S.Ct.

plenary, except constitu- when (1961); provisions intervene. Statutes are Peters v. Board Education tional constitutional; presumed Reorganized to be one claim- District No. 5 School heavy ing has a burden. The County, otherwise St. Charles of (Mo.1974). presump- plaintiff is, has not overcome that point part, The third grant- tion. The statute instance prohibition from the first two [in that flows ing immunity malpractice from medical may propositions. absolutely Courts operates claims to in an area HMOs] legislature’s enactment of a look behind the legislature may com- which the balance guess process by statute to second peting arguments Her reduce interests. legislature arrived its conclu which the suggestion that the statute is un- Navigation Des Moines sion. U.S. v. argument This must be wise or unfair. 510, 544-45, Co., 142 U.S. S.Ct. Railway legislature. addressed to the 308, 317-18, (1892); L.Ed. 1099 Soon Harrell, 703, 710-11, 781 S.W.2d at 63-64. We hold Hing Crowley, 113 U.S. v. (1885); that 516.097 does not violate the due 730, 734-35, 28 L.Ed. 1145 S.Ct. process clause either the United States City State ex rel. Creve Coeur v. Wein Constitution or the Missouri Constitution. stein, (Mo.App.1960). 329 S.W.2d plaintiffs It is understandable that the The reasons for this rule are both obvious disagree of the would with the decision is compelling, not the least of which legislature grant immunity designers to to so, consti that if courts were to do it would years and builders from and after 10 fol- egregious tute a most obvious and violation construction; lowing completion the separation powers. Plaintiffs’ however, say this Court cannot that the allegation legis upon reliance the that this legislature’s decision to do so does not ra- and success lation resulted from concerted legitimate tionally objective. further a state lobbying misplaced and without mer ful is could, to, it. It is not a factor that this Court preface interspersed

As a in, should, points plaintiffs’ passing upon in the at various briefs and at consider argument, plaintiffs vigorously oral assert constitutionality of 516.097. in that the enactment of 516.097 Mis argues that Plaintiff Dillman states, souri, as as in most other came well general 516.097 is in conflict with the as a result of concerted and successful 516.120), (§ of limitations which al interests, lobbying by special and that this personal injury an action for to be lows proves the fact somehow their claim that years. The brought within five obvious are at statute is unconstitutional. There general is statute of limita answer that more-than-adequate least answers to three actually provides that such a cause of tions First, lobbying is an essential this claim. only brought” within five action “can legislative important function in the contemplates years. The statute that

process. If such efforts could or should be only bring of action person may a cause in consid by considered courts as a factor if, fact, of limitations within the statute statute, ering constitutionality of a few person has such a cause of action. that pass constitutional muster. statutes would does not general statute of limitations Second, right petition to citizens ability legislature’s purport to limit the lobbying is one of legislature in the form of con change the substantive law as what guaranteed rights the most fundamental This con cause of action. stitutes a valid speech provision of the first by the free being merit. as without rejected tention is if It indeed be ironic amendment. would proposition briefed the Plaintiff Dillman first the exercise of this fundamental sustaining by erred that trial court right somehow be con amendment should Motion To Dismiss causing resulting plaintiff Millstone’s a factor in sidered completed, likely will still have to be determined had sue the basis Millstone court, by the trial we will indicate our Highway Department accept- the Missouri thinking to factors to be considered in ed, constructing highway. its work distinguishing between a materialman who is Mill- issue not briefed defendant This protection is not entitled stat- abandoned, but, apparently stone and designer is. and a or builder who ute event, the Court need not reach this parties agree that defendant issue. in other states on Decisions courts protection is of 516.- Millstone within the similar statutes are similar issues under holding our the statute are, altogether helpful they because support for the provides constitutional full extent, inconsistent and have not al some granting Millstone’s trial court defendant ways underlying rationale articulated the arriving motion. applied in Defen result. upon Ro SnyderGeneral heavily relies dant One further issue remains which Corporation, darte Carrier only SnyderGeneral. relates to defendant that a de (Tex.Ct.App.1990),which held petition paragraph alleges Plaintiffs but did not in fendant who manufactured SnyderGeneral 2(g) “did that defendant conditioner unit was enti stall heater-air handling unit.” fact manufacture the air protection of the statute because tled Answer, SnyderGeneral defendant its wheth only issue to be considered was Although record allegation. denies this question improve the item was “an er clear, indica in its state course, property.” large Of ment SnyderGeneral are that defendant tions handling affixed to air unit central on-site was never involved construc property is building or the real an plaintiff alleges defen tion since that other However, properly. improvement to real handling equipment. air dants installed the deciding issue also believe that in a we contends that SnyderGeneral Defendant itself with what the court must concern handling the air unit was affixed because “performing or legislature by meant fur estate, qualifies as “im to real an the nishing design, planning or construc ... property” to under 516.- provement real 516.097.2, improvement.” tion ... of the is SnyderGeneral that defendant RSMo 1986. protection of the therefore entitled to the legislature that if had believe the We repose. claims of Plaintiff Blaske statute statute de to include within the intended statute, not ma- that which does cover the that a manu sign production functions terialmen, legisla by not the intended developing pro performs facturer manufacturers of ture to cover off-site handling ducing a as an air product such pre-built air conditioner. generally and sale unit for manufacture SnyderGen- disagree defendant We with used the term public, it would have the entitled to the necessarily eral it is to “construc addition “manufacture” the if it manufactured benefit in Cinnaminson example, For tion.” handling handling unit and the air the air v. Township Education U.S. Board of improvement real estate. We unit is an Company, F.Supp. 855 Gypsum is more to issue and that think there the (D.N.J.1982), holding the statute does by resolved the factual issues not protect a manufacturer of acoustical not pleadings the remain to be deter- containing record on in the asbestos used ceil plaster as matter schools, can be decided Jersey mined before it the court re ings of New Wayne Town SnyderGeneral upon of law whether defendant quotations lied ship Education Strand Cen the statute. Sum- Board of benefit the entitled 296, 302, if tury, may granted N.J.Super. not there mary judgment (1980), point any genuine issue as to material where it was A.2d 74.04(c). ‘was not intended judgment “the statute fact. Rule ed out that and sellers of sustaining Snyder- manufacturers trial court defendant to benefit in the de summary judgment products were uninvolved motion for who General’s improve sign, planning and construction of is- and remanded. Because this reversed design activity fabricating, assembling ments to real estate. Product alone that its enough trigger applicability’ manufacturing building is not materials or a or Cinnaminson, P.Supp. component part incorporated statute.” within the Tovmship dim Wayne property at involved a the construction panel “is, mer used in a school auditorium. improvement performing furnishing, or construction, That court concluded “that if the defendant including ... ... construction ‘merely had sold a stock or shelf item out services, improvement.” 516.- regular inventory of its or fabricated conclude 097.2. We that manufacture product designed specified by as factory production the manufacturer’s engineer electrical or the electrical contrac product gener- site of a standard available project tor for this it is not within ally public that is manufactured ” repose....’ Id. [statute of] furnished for inclusion persons constructing improve- Burk, Howell v. 90 N.M. 568 P.2d ment under circumstances the manu- where injury plaintiff involved to a who col- con- facturer has no substantial on-site glass lided with a door on the observation activity protec- struction is not within the airport considering deck of an terminal. hand, tion of the statute. the other On application repose the statute of to a participation substantial at the construction manufactured, designed, defendant who significant installing site activities in glass, sold and installed the the New Mexi- incorporating product into the real co court stated: “performing constitute would materialman who than does no more [A] construction, including furnishing ... ... supply manufacture or materials does services, ...” and is covered from the benefit statute. The stat- respect under the statute. In this we do ute, however, applies “any person per- distinguish between the manufacture forming furnishing the construction or complete component part, and sale of a _To design ... of construction.” elevator, such as an air conditioner or an the extent that PPG is sued [defendant] component part complete compo- and a of a glass, as manufacturer or seller of the part, nent such a thermostat on an air PPG is not covered the statute and conditioner or a motor on an elevator. See summary judgment favor PPG Corp., Reddix v. Eaton 662 S.W.2d 720 as to these claims was error. To the Dist.1983), (Tex.App. (holding designer extent that is sued as PPG the hoist, an manufacturer of electric which glass, or installer of the PPG is covered part component was a of an outdoor eleva- by summary judg- the statute and the tor, link and the manufacturer of a chain ment its favor was correct. used in the hoist were both materialmen statute). by By same

not covered the the token, a manufacturer of materials used statutory language requires The ac- an construction, the such as a fabricator of [Emphasis tivity analysis. added.] rods, or a lumber mill that reinforcement Howell, 90 N.M. at 568 P.2d at 223. produces plywood from tim- raw x4s token, By the the case re- same ber, substantially who is not involved the “activity analysis” properly quires an to activity, on-site construction is not within SnyderGeneral’s determine defendant sta- protection the of the statute. repose. tus under the statute of However, following products if the fabri factors should be deciding improvement in the a manufac cated and sold for use considered whether for that SnyderGeneral is included to real estate are custom made turer such as opposed being generally to man protection project, of the statute. Such as within the gen or fabricated for sale to the may make one or both of ufactured a manufacturer public, production custom made separate arguments and distinct in eral two away from the con by product it is the at a location support of its claim that covered First, may necessarily struction site will not defeat a manufacturer claim statute. coverage cifically example, design engineer under the statute. For to undertaken a carpenter a and who constructs installs special handling unique air unit to this particularly cabinets custom made sized building would be within the statute. designed building and for a certain bewill undoubtedly courts will need to de- though the covered under statute even details, velop further case case by a carpenter the cabinets in the builds cabinet basis, distinguishing for material- between away shop from the construction site and protection men who not within the of completed then takes the cabinets to architects, engineers the statute and and site and installs them. We However, builders who are. we believe the fabrication, would draw line between guidelines we have are a suffi- described production product manufacturing a starting place cient to make these distinc- generally public happens to be for deciding tions and to aid the trial court constructing used an to SnyderGeneral whether defendant is cover- (which estate treated as will by ed the statute. statute) “construction” under the and the production or construction of a custom These on the limitations inclusion a particularly designed item con- made and of products manufacturer within the stat- project. on- structed for the Substantial fully analysis ute are consistent with our important activity site construction is an equal protection attack on the constitu- coming protection for factor within the tionality of the statute discussed earlier in the statute. opinion. have analysis, In that we possible as a described rational basis The second contention a manufac designers including and builders within SnyderGeneral turer such as defendant excluding protection of the statute while gain protection may make to materialmen, proposition that material- argue performed to opportunity quality men better design, engineering planning or furnished pro- they normally control because mass design engi devices reason of the and product in envi- duce their the controlled neering developing activities its involved factory produc- their or other ronment of product. are of the view that the de We Also, pointed out facility. we product sign engineering and on the efforts design engineering mass-produced handling such as the air unit manufactured likely product superior quality SnyderGeneral, to be defendant which are di planning engineering improve- planning designing rected toward generally product generally public property, as ments to real available to the planning designing vary project project. supports of a This opposed designed product legislative distinguish be- judgment custom intended to meet special particular of a construc one needs tween materialmen on the hand tion, “performing qualify designers improvements do not or fur and builders ..., nishing, design planning ... real estate on the other. [or] including engineering ... architectural [or] interpreta If SnyderGeneral’s Thus, services,....” Sny- if 516.097.2. prevail, the statute were to general furnished to the con derGeneral excluding from materialmen rationale handling project of this an air unit tractors protection of could fail and the statute products speci as regular its line of might equal the statute well violate both engineers by the architects or fied special legislation provi protection and the engineering that defendant project, sions of the Missouri Constitution unless performed in connection SnyderGeneral argument different rational basis were manufacturing the air developing with and accepted developed. is a well canon be It handling part unit to make it available if inter one statutory general line conditioners avail of its of air design pretation of a statute results public type to the is not able being interpre constitutional while another protected by the How activity statute. unconstitutional, be ever, design engineering spe- tation would cause it to and activities interpretation pre they the constitutional do not inhibit the deci- to have intended. v. sumed been Rust sion. — Sullivan, -, U.S. 111 S.Ct. principal opinion appropriately The (1991)(O’Connor,J., 114 L.Ed.2d 233 speaks proper relationship between dissenting) (quoting Edward J. DeBartolo legislative judicial branch and the Corp. Building v. Florida Coast Gulf legislature's take branch. We must Council, 485 Construction Trades U.S. I handiwork as it frames it. consider it 568, 575, 108 S.Ct. 99 L.Ed.2d quite improper for counsel to ask us to do (1988); Burnau, v. State S.W.2d moti- otherwise or to make reference to the (Mo. 1982). banc It will be for the legislature. vation of determine, pursuant trial court to Although plaintiffs’ regarding claim herein, principles if discussed and when the conditioner, precise problems of the air sufficient, record is whether defendant injury, how contributed to SnyderGeneral protection is entitled to un fragmentary, petition I believe that der 516.097. may minimally sufficient to state a judgments trial courts’ are affirmed or, least, may claim at that it be amended respects respect all other than with so that it is sufficient. So I concur SnyderGeneral’s Summary Motion For SnyderGeneral. reversal and remand as to Judgment, which is reversed and remand- I do not believe that the next to last ed. paragraph principal opinion is neces- ROBERTSON, C.J., RENDLEN, holding sary to the and have reservations concur, COVINGTON, BENTON, JJ., about it. concur,

BLACKMAR, J., separate observations, concurs in I With these opinion filed.

HOLSTEIN, J., participating.

BLACKMAR, Judge, concurring.

I principal opinion. concur principal opinion distinguishes State Hosp.

ex rel. Cardinal Glennon Mem. v. Gaertner, (Mo. 1979), 583 S.W.2d 107 banc MAGEE, Hope Appellant, Hospital, and Strahler v. Luke’s St. (Mo. 1986). S.W.2d 7 banc I believe that holdings both of those are infirm. Cardi- BLUE RIDGE PROFESSIONAL BUILD- joined nal I Glennon was decided before CO., INC., Mock, Lawrence D. ING thought I Court. at the time that it Houser, Henry Jacqueline d/b/a unduly circumscribed the discretion of the Company, Westwood Ornamental Iron legislature, imposed only a modest Respondents. delaying procedure. Its force has been considerably weakened Harrell v. Total 73282. No. Care, Inc., (Mo. Health S.W.2d 58 banc Missouri, Supreme Court of 1989), Mahoney Surgical v. Doerhoff En Banc. Services, (Mo. 1991). 807 S.W.2d 503 banc shares in-

Strahler Cardinal Glennon’s Dec.

firmities it was a 4 because to decision

which one member the Court indicated only authority

his concurrence on the Strahler,

Cardinal Glennon. (Robertson, J., concurring). I would holdings, if

reexamine both these an

appropriate agree presented. case were I

Case Details

Case Name: Blaske v. Smith & Entzeroth, Inc.

Court Name: Supreme Court of Missouri

Date Published: Dec 17, 1991

Citation: 821 S.W.2d 822

Docket Number: 73588, 73612 and 73631

Court Abbreviation: Mo.