McMacken v. State

McMACKEN, Plaintiff Robin Appellant, Dakota, Defendant,

STATE of South

Fritzel, Kroeger, Berg, Griffin & archi

tects, Appellees. Defendants and

No. 13349. South Dakota.

Argued Oct. 1981. May

Decided 28, 1982. Granted June

Rehearing

Michael Evans, L. Luce of Davenport, Smith, Falls, Hurwitz & Sioux appellees Fritzel, Kroeger, Berg; Griffin & Carleton Hoy Evans, R. Davenport, Hurwitz & Smith, Falls, on Sioux brief. MORGAN,Justice. appeal,

In this appellant seeks to have us hold SDCL 15-2-9 unconstitutional.1 The Dakota designates South Code SDCL 15- 2-9 as a “Limitation of action for deficien- cies in building.” construction of Essential- statute; ly, (1) precludes any legal ac- injuries tion for proximately caused by defi- ciency in design, planning or construction of an improvement to property brought against designer, planner or constructor years more than six after substantial com- pletion construction, (2) of such makes this defense unavailable to the owner and, possession, actual inju- where an ry occurs in the year, permits sixth an ac- tion within year one after the date the occurred, injury event, but in no more than seven after substantial completion.2 Appellant, Robin (McMacken), McMacken was a student at University of South Vermillion, Dakota in residing at Norton Hall, a university dormitory. During her residency, she personal sustained serious in- juries as a result of a fall down a stairwell dormitory. suit, brought alleg- She ing that the stairwell railing was deficiently designed and constructed height because its provide was insufficient to her adequate protection. sought damages She from the State, as owner dormitory, and from (architects) architectural firm who de- Driscoll, Helen Vermillion, signed the structure. plaintiff appellant. dormitory The substantially was complet- Stanley Siegel E. Siegel, Barnett & ined occurred on or about Schütz, Aberdeen, for amicus curiae September with suit commenced Ass’n; Dakota Trial Lawyers’ September David R. on 1980. Architects moved Vrooman, Falls, Sioux Terry N. Pren- to dismiss because McMacken’saction was dergast of Boyce, Murphy, McDowell & not commenced within six years of Norton Greenfield, Falls, Sioux on brief. Hall’s completion, required by as SDCL 15- here, purposes 1. For our originally pro- SDCL 15-2-9 must 2. As enacted in the statute conjunction read in eleven-year with periods. SDCL 15-2-10 vided for ten and through 12 periods inclusive. were shortened to their current duration. very 2—9. both McMácken and Although persuasive, Some are while others are resisted, are, however, granted merely conclusory. the trial court archi- We State left Later, with a per- tects’ motion. the trial court entered number of well-written and arguments pro suasive and con on most of judgment conformity final with SDCL today. issues we face 15-6-54(b). appealed, and we affirm. McMacken challenges Since 15-2-9, constitutionality of SDCL she bears type, usually

Statutes of this referred to the proving beyond burden of a reasonable Statutes,” as “Builders’ have been enacted doubt that the statute violates a federal or jurisdictions. in a large Appar- number of provision. state constitutional A strong ently, spawned by these statutes were the presumption in favor of the constitutionali potential extension of liability to the archi- ty of the statute exists and is rebutted profession tectural and construction indus- when appears clearly, palpably plain try caused privity removal of the ly provision statute violates the some contract as a defense to tort claims. of the Dakota Constitution. Matter South chattels, As in the case aof seller of the Boundaries, etc., of Certain Territorial Elec. exceptions generally tended to swallow 65, (S.D.1979). 281 N.W.2d On such chal up rule, prevailing until the analogy lenges, we legisla are unconcerned with the of McPherson v. Company, Buick Motor 15-2-9, tive wisdom behind we since persuasive was finally accepted. and was limit our review to the statute’s constitu It is now the almost universal rule that tionality. McDonald v. Bd. of Yank- School the contractor is liable to all those who ton, etc., (S.D.1976). 246 N.W.2d may forseeably injured be by the struc- assails three con ture, not when he fails to disclose (1) grounds: equal protection stitutional dangerous him, conditions known to but immunities; (2) special privileges also when the work is negligently done. process; denial of due a defective applies not only doing to contractors relationship subject. between its title and work, original but also to those who make repairs, parts, super- or install as well as equal We first examine McMaeken’s vising engineers. architects and There essence, protection argument. In she con may liability negligent design as tends 15-2-9 that SDCL violates her well negligent as for construction. equal protection by arbitrarily of the law Torts, ed., Prosser on 4th at 680-682. § singling portion out one of the class of Many courts have considered numerous con- building potentially liable de stitutional challenges to statutes like SDCL granting immunity fects and them in con 15-2-9 and reached diverse results.3 A re- equal protection travention of the clause of view of these cases demonstrates that Fourteenth Amendment United Ill, lines of attack and decisions are varied. Constitution4 and Art. States § synopses life, any deprive any person liberty We 3. refer the reader to the of the state or law, Phillips property, process deny various results that we have found v. due nor without Builders, Inc., (Wyo.1980), any person jurisdiction equal ABC 611 P.2d 821 within its (1979). protection and Annot. 93 A.L.R.3d 1242 See also of the laws.” Erdal, O’Brien v. Hazelet & 410 Mich. prohibited enacting Legislature is from 5.“The (1980); Wagner, N.W.2d 336 Anderson v. following any private special laws in the (Miss.1981); Jessup So.2d 320 ciates, Harmon v. Asso cases: Inc., (Tenn.1981). 619 S.W.2d 522 Moreover, although separate vary statutes individual, wording, Granting insignificant. association or to an distinctions are Phillips, supra, corporation any special privilege, or exclusive at 824. immunity or franchise whatever. 4. “No state shall make or enforce law abridge privileges general which shall immuni- law can be all other cases where States, ties applicable special of citizens of the United nor shall law shall be enacted.” no The Illinois Court in and Art. South Dakota Skinner found the § Constitution. To resolve McMacken’s chal statute unconstitutional under the article of lenge, compare reasoning we of Skinner prohibiting Illinois Constitution the leg- Anderson, 38 Ill.2d 231 N.E.2d 588 enacting special islature from local or laws Storage, with that of Freezer Inc. v. in a vein similar to Dakota Constitu- Co., 476 Pa. Armstrong Cork 382 A.2d tion, Ill, expressed Art. but that court Both considered cases statutes opinion no on the other constitutional issues Freezer Storage similar to SDCL 15-2-9. noted, raised. The court statute, upheld the while Skinner invalida arbitrary quality the statute ted it. clearly appears when we consider that Anderson, ibid.,

The case of architects are Skinner and contractors cases, one of the only persons negligence earliest oft-cited whose in the con- opinions invalidating similar statutes. building improve- struction of a or other There, the Illinois Court declared damage ment cause to property or that, negligence “of all those whose in con- If, injury persons. for example, to four nection with the construction of an im- years building completed after a is provement might to real estate result in cornice should fall because the adhesive damage property injury or to person defective, used was the manufacturer of more than four after construction is granted immunity. adhesive is no completed, singles the statute out the archi- And, so it is with all others who furnish contractor, tect grants and the and them materials constructing used in the im- Anderson, immunity.” v. Skinner 231 provement. But if the cornice fell be- N.E.2d at 591. The court conceded that the design cause of or defective construction prohibit constitution legislative does not for which an architect or contractor was classification, but noted that the classifica- responsible, immunity granted. is reasonably tion must be related to the legis- Anderson, Skinner v. 231 N.E.2d at 591. lative purpose. argument impelling is as in not operates ‘That the statute uniformly Dakota, our legislature, by inasmuch as en- upon all of a class members created as 15-2-12.1, actment of granted has the beneficiaries the act is not the sole suppliers component parts materials test applied, to be but in order to avoid improvements period a similar the constitutional inhibition ... it must liability. basis, appear also is a that there sound in The Skinner court also discussed the dif- reason and for principle, regarding the ference in the classification accorded class of as a sepa- individuals distinct and Illinois statute to owners and architects: rate class purpose particu- for the It is not at all inconceivable that legislation.’ lar owner person in control of such an Id., 591, Phillips Browne, at quoting from v. improvement might be held liable for 450, 453, 270 Ill. (1915). N.E. damage results from a This court applied similar two- defective condition for which the archi- prong equal protection classification test tect responsible. or contractor in fact (1) cases: up Whether the statute sets arbi only Not is the owner or control trary among classifications various persons given immunity; no statute takes subject it, whether there is a away indemnity against his action for rational relationship between the classifica architect or contractor. tion legislative legitimate pur some Id., at 591. pose. Woliman, Morrill v. N.W.2d (S.D.1978); Corporation City Square Aberdeen v. Kallas Millwork Meid inger, Company, S.D. 233 N.W.2d 331 D 66 Wis.2d N.W.2d equally passed granting any belong corpora- 6. “No law all shall be citi- citizens or zen, corporation, privileges class of citizens or tions”. upon or immunities the same terms shall Court, adjust manifestly It rational time the Wisconsin statute un- holding periods liability performed the Wisconsin builders’ for acts constitutional, question raised the in this according scope to the substantive there are real dif- manner: “Whether liability scope liability involved. The distinguish the favored class— ferences to significant- of the class of builders differs persons perform who and furnish the those ly from that of the class of owners. supervision of design, planning, construc- First, to whom the class of build- tion, improvements or construction of may larger ers be liable is than the class classes, property from other such as may to which owners be liable. Land- materialmen, ignored by who are stat- owners be liable to others who come ute, occupants and owners and who are Builders, however, may their land. onto specifically excepted.” In Pacific Indemni- be liable both to the landowners and to Inc., ty Thompson-Yaeger, Co. Second, others who use the land. a build- (Minn.1977), N.W.2d the Minnesota er may be liable for construction defects Court, noting after ten fifteen contract, legal under various theories — courts that ruled on the had constitutionali- warranty, negligence, perhaps strict ty upheld of the builders’ statute had their liability liability in tort. Landowner statutes, adopt chose to Skinner on the ba- defects, hand, typically such on the other granted sis that the statute immunity from Third, lies in tort .... landowners suit to a certain class of defendants without ordinarily liability by taking can avoid a reasonable basis for the classification. adequate care of their land and struc- Although by regulating tures and the number and both McMacken and the above type persons entering cases raise appealing arguments, we find the land and responses regulating entry. in the case of the conditions of The Freezer Stor- Co., age, Inc. v. Armstrong prod- Cork 476 Pa. builder has no such control over his persuasive. A.2d 715 more relinquishing uct after it to the landown- Perhaps if Freezer Storage liability had been availa- er. Landowner’s is con- also Courts, ble to the by myriad Wisconsin and Minnesota trolled of common law they would not have been as limiting liability adamant rules to such classes as a reasonable trespassers,” basis did not exist for the “undiscovered “mere licen- any classification. so of these sees” and forth.... For Legislature might rationally reasons the As to the distinction between builders lia- conclude that builders should remain said, suppliers, Pennsylvania only years ble for their mistakes for Suppliers, typically produce who items construction, they complete after but that thousands, easily high can maintain a landowner should remain liable for in- quality-control standards in the con- juries long on his land for as as he caused trolled environment of the A factory. possession. is in builder, hand, pre-test the other can Ibid., concluded at 718-19. Justice Roberts his designs only and construction in limit- Court, Pennsylvania 12-year for the “the ways ed use follow- —actual liability, limitation on builder’s whether ing construction their only real test. not, wise or rests on distinctions which Further, every building unique and far builders, suppli exist in the world in which complex any more than component of its operate.” Freezer ers and landowners Stor parts... . legislature rationally The can Co., age, Armstrong 382 A.2d Inc. v. Cork conclude that the conditions which under v. Hazeiet Er at 720. also O’Brien & See builders sufficiently work are difficult 336; dal, Jessup 299 N.W.2d at Harmon v. that limitations placed should be on their Associates, Inc., 619 at 525. S.W.2d liabilities, but not on the liabilities suppliers. Doud, Morey v. 354 U.S. The case of Id., Likewise, (1957), A.2d at 719. cited as to 77 S.Ct. L.Ed.2d owners, Miiiwork, distinction supra, between builders and seems to be the Kailas Supreme United Court decision re- those who must be States affected to lied on those courts that held produce have build- the desired result and whether case, ers’ statutes unconstitutional. In that reasonably pro- the statute will tend to Court, the United after re- States talking duce the desired result. We are iterating the law that a settled classifica- about the rational connection between tion that has some reasonable basis does not legislative legislative means and the equal protection offend the clause of the ends, any policy wisdom of social Amendment, Fourteenth struck down as embodied in those ends. required unreasonable a statute state selling money licensure of firm orders sympathize . . . We with who those except compa- in the state certain named unjust, find the statute but we are bound nies, including Express Company. American judicial (a great to exercise restraint deal singling companies out of one or more case) of it in this and not substitute our competitors from its patently opprobri- is so judgment and wisdom for that of the hardly necessary point ous that it seems legislature. case, out the distinction from the instant Ibid., 229 N.W.2d at 92-93. Accordingly, involves all builders. case, argues strongly we find the unpersuasive Doud case author- unjust that it is grant and unfair to immu- ity in deciding the issue before us. nity against her claim. On well-reasoned Burke, In Behrns v. S.D. authority jurisdictions from other and the (1975), provi N.W.2d 86 we noted that the decisions, authority clear of our own we VI, sions of Art. 18 of the South Dakota § must conclude that we lack further discre- stringent ap Constitution demand a more tion to review legislative judgment. plication of the classification test than the must, therefore, uphold We SDCL 15-9-2 equal protection clause of the Fourteenth against the assertion that violates Art. Amendment to the United Constitu States Ill, 23 and Art. 18 of § the South tion. After an exhaustive review of Brown Dakota the equal protec- Constitution and Merlo, 855, 106 Cal.Rptr. Cal.3d tion clause of the Fourteenth Amendment P.2d 212 a California case that had to the United States Constitution. guest challenges, started trend of the Behrns following perti Court made the argument We next examine McMacken’s nent observations: that the statute is unconstitutional under process the due

We are clause of the Fourteenth agree guest inclined to that the statute Any is unreasonable.. .. Amendment to the United law States Constitu- VI, person injure allows one tion and another Art. 27 and 208 of §§ . .. escape liability and Constitution, unreasonable. Dakota because it bars fact, unreasonable be too kind an an action before it has accrued. Under expression. case, facts in this 15-2-9 barred SDCL however, right McMacken’s to sue on her of

Again, cause this cannot be the is- action a full sue nine before the cause of before us... . What the California that, court is action arose. McMacken saying guest urges is that the unlike limitations, a policy, agree. unreasonable social and we traditional statute of which cause, What right constitutional examination affords her a her requires try result, is whether the classification bears 15-2-9 bars right. a rea- This she statutory pur- argues, sonable relation to the attempt is an to extin- unlawful pose encompasses the class guish rights arbitrarily. Wilson See v. Is- —whether person life, deprived liberty open, every 7. “No shall be of “All or 8. courts shall be and man for property process right injury property, person without due of law. The an reputation, law, done him in his remedy by of abridged to work shall not be denied or shall have due course of membership right justice, on account of or non- and administered with- membership union, organ- delay.” labor or labor out denial or ization.” against process on a eminger, 46 L.Ed. due attack relied 185 U.S. S.Ct. provision provided constitutional which “Nothing could be more unrea open; “all courts be man certainly every of con shall sonable or more violative lands, goods, an done his him in prohibitions rights stitutional than to bar reputation remedy by shall have prior lapse action because of the of time of law.” The Pennsylvania due course accrual, they their when could not have points, several cogent Court made to which been Lamb v. River exercised.” Powder we subscribe: Co., (8th Live Stock F. Cir. “has a 1904). one vested in the con- [N]o body tinued existence of an immutable early overturning An case a builders’ negligence practical law .... re- [T]he process statute on a denial due is the sult [contrary] of a conclusion would Kentucky Supreme decision Court in stagnation of the law in the face Hall, Saylor (Ky.1973). S.W.2d changing conditions.” societal ... court, commenting That on the fact the builders’ been upheld statute had upon would encroach states, observed, number other Legislature’s ability guide develop- have concluded that our sister states [W]e legisla- law ment of the if we invalidated . . . their have construed state constitu- by tion simply because the rule enacted be equivalent tions to to the federal Con- rejects the Legislature some cause of ac- legislative stitution so far as power to currently preferred by tion the courts. existing abolish common-law rights ac- To do would be to place so certain rules Therefore, tion is concerned. these state of the “common law” and certain non- jurisdictions experience no difficulty in constitutional decisions of courts above validating compulsory workmen’s com- except all change constitutional pensation laws guest-pas- and automobile amendment. Such a result would offend senger statutes. our notion of the checks balances Id., at The Kentucky Court then went between various govern- branches of point out Kentucky that the Constitu- ment, flexibility required prohibited tion legislative branch from healthy growth of the law. abolishing rights common-law of action for Storage, Freezer Inc. Armstrong Cork personal injuries or death caused anoth- Co., 382 at A.2d 720-721. er’s negligence. proc applied This court due The Florida Court relied on the provisions of Art. 2 of ess the South Saylor decision and concluded that Flori- statute, guest Dakota Constitution to the da, as in Kentucky, unique restriction guest a cause action by barred imposed by their guarantee constitutional driv compensation against without his host of a right of access courts makes it er absent willful and wanton misconduct. that repose” irrelevant this “statute of Burke, 6,n. In Behrns v. 229 N.W.2d at 88 process valid under state or federal due said, this court protection or equal clauses. Overland process, Due Hotel since West Coast Co., Sirmons, Const. Inc. v. 369 572 So.2d 1937, Parrish, 379, Company v. 300 U.S. (Fla.1979). A reading close of Overland 578, 703, has, 57 S.Ct. 81 L.Ed. in the indicates that there was no additional con- courts, federal ceased be a tool provision stitutional Kentucky as judicial legis- justifying interference with case, but rather a line of authority court lative creation and dissolution of substan- prohibited that had legislators abolish- from rights. tive has sus- long ago court ing common-law supply- remedies without reasoning tained statutes with bottomed ing alternative remedies. process-procedural the substantive due In response these, arguments like process due dichotomy. Citing v. Street Pennsylvania Storage 1914, 523, Court in Freezer Co., also Elevator 34 Farmers’ S.D. upheld Pennsylvania builders’ statute N.W. 429[.] Street, rights, new or the of old ones making a warehouse

In a statute abolition law, evidence of attain a receipt grain recognized by conclusive the common Likewise, against the ele- grain object. that as we ownership permissible legislative against process a due upheld abrogation vator was a statutory conclude that the argument that Responding to the attack. does cause of action before it has accrued judicial prevented the de- provision such a rights under Art. not violate McMacken’s therefore, and, ownership termination of VI, 2 and 20 of the Dakota Con- South §§ this court determined process, violated due process clause of the stitution or the due actually dealt with a sub- that the statute Fourteenth Amendment of the United grain— of the right ownership stantive States Constitution. — was, therefore, proper leg- a matter of ar Finally, we examine McMacken’s opposed to a rule of evi- policy islative as pro gument the statute violates the dence, Here, leg- matter. procedural a Ill, scription of Art. 21 of the South § rule, islature declared a substantive which mandates that Dakota Constitution abeyance of a cause of action six “no law shall embrace more than one sub completion improve- after substantial of an expressed in its title.” ject, which shall be property, proper ment to matter of con urges 15-2-9 legislative policy. subject, its title tains more than one Behrns, also said that court subjects. fails to cover both Art. South Dakota Constitution 20, recently application of We reviewed the Dakota this constitutional article wrongs ‘for such guarantee “... is a Ass’n., State, etc., etc. v. 280 N.W.2d recognized by as law of the land are There, (S.D.1979). we reiterated the hold- open the courts shall be and afford a ” ing Morgan, v. of this court in State S.D. Kidd, 1949, 73 remedy.’ Simons v. S.D. 32, 48 N.W. 314 where we noted 41, guest 38 N.W.2d 883. The (1) to: purpose provision of the was injuries by guest declares that suffered one bill several di- prevent combining into negligence because of a host’s are not “ which have no common ba- verse measures by ‘wrongs recognized by caused as are ” perhaps, separate inability their except, sis the law of the land.’ to receive a favorable vote on their own Ibid., right “Where no of action is at 88. merits; prevent the unintentional however, exists, given, remedy under or no unknowing passage provisions inserted in statute, either some the common law or intimation; gives no a bill of which the title provisions those create none.” constitutional (3) fairly public of matters apprise Kidd, 883, Simons v. 38 N.W.2d S.D. in the various bills and which are contained (1949). Conversely, where a cause of deception public prevent fraud or implied action is or exists at common law legis- being as to matters considered abrogation, plaintiff without statutory lature. 280 N.W.2d at 665. litigate has a and the courts will Scott, remedy. Moberg fashion a v. 38 S.D. provision creates two mandates. The (1917); 161 N.W. Swanson than is that no law shall embrace more first Ball, (1940); 67 S.D. 290 N.W. subject, subject being defined as one Helgeland, Hoekstra S.D. for which the public private concern N.W.2d 669 enacted, provisions of the Act law is and all subject, directly must relate to the same up A statute was guest Connecticut connection, for- and not be have a natural by in held the United States subject in the title.9 Silver, eign to the as stated Silver v. S.Ct. U.S. subject is that the grounds that the The second mandate L.Ed. 221 on the title. Dako- expressed creation of shall be in the constitution does not forbid the purpose. general Statutes subject 82 C.J.S. 9. The matter to which it its aim or of an act is the relates, object, speaking, p. properly is 358. while the Ass’n., State, etc., of argu ta 280 N.W.2d at What then McMacken’s etc. that its to appears ment what on face be a traditional statute of limitations is in fact a the of discus purpose For this First, abrogation? statute of too em much must, sion, we necessity, of examine the phasis placed is on “traditional.” Nowhere enactment, namely, original statutory in chapter the on limitations does the word Chapter 117 of Laws of 1966. the Session appear. traditional importantly, More the it, the to What Code Commission done very chapter first the provides, section of amendment, pertinent the 1978 is not only “Civil actions can be commenced with ques look to the discussion. We first periods in the prescribed in this title after tion of whether the statute in fact embraces the cause shall of action have accrued ex than subject. more one Boiled down to its essentials, cept special where In cases a different limi original provided the statute that ” injuries prescribed where tation is by were caused deficient statute. SDCL or design legal (Emphasis added.) Thus, construction action to re 15-2-1. we are damages brought years cover more than ten legislature informed inmay, spe that the after completion substantial of con the cases, cial prescribe a limitation different struction does not exist. a period than after of the cause action shall It us the appears have accrued. law argues that on the one hand it question special in embodies such a case. is a during traditional statute of limitations years (a statute), the first procedural ten conjunction The must be in statute read other, on years while the after ten it be- with other of It statutes limitation. does comes a her abrograting statute common- six-year not create newa statute of limita- rights law (a statute). substantive What personal tions as to a cause of action for statute, subject public then is the the of the injuries accruing prior expiration to the of private concern for it which was enact- year the completion. sixth after The three- ed? We hold it the limitation on the year personal inju- of limitations for right to damages commence an action for in ries, 15-2-14, applicable, is still so specified provisions class of cases. All of as, abrogation far it not limited the clearly subject. enactment relate provisions cause of statute. A of action original relating The title “An Act years accrues within first three limitation on time commencing civil ac- completion after substantial must be com- for damages arising tions from construction three-year menced within the A statute. improvements real property,” recites cause action that accrues the fourth subject terms, general in rather as it years and fifth must be commenced before may do. question The central is: Does the abrogation provision attachment of the put title of a germane notice accruing and a cause action in the sixth subject in body of a statute? “When year year must within be commenced one be, general, title is it may as all accrual and no event later than seven put interested are upon inquiry any- as to completion. from substantial thing in body ger- of the act which is Having appel- all aspects examined subject expressed[.]” mane to the Metro- challenge, we conclude lant’s constitutional politan Casualty Basford, Ins. Co. v. 31 S.D. decision of the trial court should be 149, 161, 139 N.W. affirmed. instant expresses subject title

statute, a limitation on time of commencing civil actions. The limitation contained WOLLMAN, J., FOSHEIM, J., C. in the statute is arising the class of cases concur. from the improvements construction of n HENDERSON, JJ., not, dissent. property. DUNN Very properly does any manner, refer period to when the DUNN, (dissenting). Justice run, limitations length shall nor the period of limitations. I dissent.

140 jurisdiction person within its deny any is not 15-2-9 convinced SDCL

I am of the laws.” South equal protection of limita- the limitations. Statutes a statute of VI, plaintiff provides: a art. 2 theory the proceed § tion Dakota Constitution life, rights liberty in try deprived his opportunity person “No shall be has a full process time limits. of law.” within certain without due property the courts or VI, recovery allowing without 20 all art. statute bars Dakota Constitution § an ac- any open, for the commencement be provides: time “All courts shall tion, six follow- action accrues if the done him in his every man for an No action building. of a ing completion the reputation, shall have property, person or remedy the situation. can plaintiff law, a right remedy by due course of denial or de justice, administered without Thus, denied the plaintiff the has been Here, legislation question in shuts lay.” rights in the pursue her opportunity full injury; of an door for redress the courtroom statute, and this runs afoul of courts remedy by a due keep open not it does provisions state federal constitutional privilege to Appellant’s course of law. remedy every person right giving wrong being abridged; bring suit for a art. wrongs in the courts. U.S.Const. (dam deprived property of her being she is 1 and art. § S.D.Const. § of law. ages) process without due HENDERSON, (dissenting). who suffers “Every person Justice 21-1-1 states: act or omis from the unlawful detriment is not a statute of question The statute in per may recover from the sion of another limitations; nullification it is a statute of therefor compensation a son fault law: very which soul of tort rends Detri damages. is called money, which injured recoup allowance of an innocent or harm suffered in ment is a loss damages negligent party. Once from cause of action is a property.” A vested again, majority placed a brick property right. United States Standard prevents ever-towering wall California, (S.D. F.Supp. Oil Co. of adequate award for party receiving from an aff’d., (9th 1939). Cal.1937) 107 F.2d 402 Cir. Backhaus, Kephart v. damages. See that all stat properly “It conceded J., (Henderson, (S.D.1981) dis- N.W.2d 473 on the idea proceed of limitation must utes senting). I would thus hold that SDCL opportunity has full afforded party that the pass 15-2-9 constitutional muster as fails courts.” Wilson try him to his in the process. it is of due violative 55, 62, 22 Iseminger, 185 U.S. S.Ct. underlying rationale for Basically, 46 L.Ed. type of statute herein striking down being equal pro denied Appellant is also constitutional man involved is obvious: Writing for this Court tection of the laws. any usurpations manifest preclude dates Territorial Electric in Matter Certain is, redress, plaintiff’s right access Boundaries, (S.D. Etc., 281 N.W.2d to the courts. Battilla v. Allis Chal See 1979), expressed: Justice Fosheim Manufacturing Company, 392 mers So.2d (Fla.1980); Com privileg- Overland Construction special or exclusive grant Sirmons, (Fla. pany, Inc. v. 369 So.2d 572 prohi- is within the private es for benefit Hall, 1979); (Ky. Saylor v. S.W.2d spe- of the constitution. Grants bition Builders, Inc., 1973); Phillips v. ABC privileges, or exclusive even those cial (Wyo.1980). P.2d 821 monopolistic in char- essentially that are not, however, forbidden, acter, where are art. The United States Constitution grant primary purpose of the provides, alia: “No state shall inter public of the interest and promotion which shall any make or enforce law grantees. of the private benefit abridge privileges or immunities of citi- unto States, immunity granted Surely, zens of the nor shall the absolute United at life, private is a benefit liberty professionals state these deprive any person of law, Appellees are expense public. property, process without due nor

141 granted immunity special as a Very class.

recently, in v. American McClanahan Gil [U]sing a limitation to abolish a [statute] (D.Colo. F.Supp. sonite 494 Company, 1334 right altogether only serves to devitalize 1980), law, applying Colorado the United the theory, policies, and the law of District Court for States the District of limitation of actions. “property Colorado declared Colorado am agreement I in total with these observa- improvement” statute unconstitutional be tions. cause, alia, inter the statute created a clas bearing sification no relation reasonable to pose I a question: plaintiff this How can purpose legislation granted prevented bringing be from a cause of ac immunity to certain classes of defendants. passage prior tion due to the to time Appellees, case, in this are a given special accruing? action As stated in Lamb v. shield, however, shield. This cannot with Co., Powder River 132 F. Live Stock 434 stand constitutional attack for it constitutes (8th 1904), Cir. answer query to this is justice equal a barrier to under the law. A cannot, violating not without basic challenge constitutional to a compa statute guarantees. constitutional Death cannot to rable the one under examination here conception, occur without there first being recognized by was the Illinois daylight. nor dusk come without Neither Anderson, in Skinner Ill.2d 38 a expire can cause of action it ac before 231 N.E.2d theory being Appellant slept crues. has not on her architects and contractors should not be rights. Her opportunity for access to the granted special terms, immunity. itsBy stripped. is It has courts been held relegating appellant SDCL 15-2-9 is to an requires opportuni federal constitution this inferior citizenship. class of This is an in at ty granted meaningful a time and wrong. tolerable a meaningful in manner. Boddie v. Con A prohibits statute which party a necticut, 401 U.S. S.Ct. opportunity recoup his damages solely on (1971). which, Legal analyses L.Ed.2d 113 the basis that the at occurred a cer- essence, through go extensive mental point tain subsequent in time the design gymnastics to conclude that the abolition of is, and/or construction of building my opinion, legal right a necessarily not a statute of limitations is not abhorrent but are, rather an unconstitutional abolishment of legitimate legislative objective, my legal right. Comment, quote I from Limi- opinion, efforts to circumvent the strained tation of Action Statutes for Architects types of blatantly nature of these inequitable Non-Action, Blueprints Silver, Builders— laws. See Silver 280 U.S. (footnotes Cath.L.Rev. (1968-1969) (1929); L.Ed. Freezer S.Ct. Stor omitted): Armstrong age, Company, Inc. v. Cork In barring yet actions which have to ac- Pa. 382 A.2d The rationale crue, these unique, statutes are since a unpersuasive these when com cases is proceeds statute of limitations on the the- pared principles they to the constitutional ory exists, that a right action with the negate. defining period pursuit limitation upon Finally, though appel- the burden is judicial redress. For a bar unconstitutionality lant to establish an action which has not accrued anom- 15-2-9, confessedly heavy bur- alous; such merely a statute does not den, Court, it is impossible. We on remedy, limit the but bars the separation great mindful of the doctrine of action from coming ever into existence. powers, duty legis- down owe a strike repugnant lative acts are to the state While ostensibly limitations, statutes of thereby unto our preserve constitution and they function to limit actions in cer- citizenry blessings people a free tain instances, if at all. The form of the closed, through open, limitation of an and not courtroom actions statutes is utilized to abolish a right altogether. door.

Case Details

Case Name: McMacken v. State

Court Name: South Dakota Supreme Court

Date Published: Jun 28, 1982

Citation: 320 N.W.2d 131

Docket Number: 13349

Court Abbreviation: S.D.