Daily Development for Thursday, December 9, 2004
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri firstname.lastname@example.org
CONSTRUCTION LAW; NUISANCE; STATUTE OF REPOSE: Injury caused to owner of land as a consequence of defective landfill on the land is subject to ten year statute of repose, even if problem is caused by continuing development of methane gas resulting from such faulty construction.
Gaggero v. County of San Diego, 2004 WestLaw 2445649 Cal. App. 11/02/04)
Plaintiffs acquired property in 1974 that had been a county landfill closed in 1967. Their predecessor in interest had purchased it from the County on an “as is” basis. In 1985 plaintiff began noticing subsidence on the property. In recent years the subsidence increased to the point of causing severe damage to buildings on the property. Plaintiff alleged that the subsidence was due to pockets of methane gas developing due to improper compaction of the landfill mass when the County operated the landfill, and sued the County for damages. (Sovereign immunity was not an issue in this case.)
The County moved for summary judgment on the basis of the California statute of repose, which states that all actions for damages due to faulty construction must be brought within ten years of the completion of such construction.
The court held that the benefits of the statute are available to a landfill builder or contractor. A landfill is an “improvement” within the meaning of the statute of repose.
This was the new law in the case. But the court went on to reiterate some interesting principles established in prior case law. The statute, of course, is intended to preempt other damage claims bought for negligent construction. Therefore, it applies regardless of the “discovery rule.” It doesn’t matter when the plaintiff identifies the injury - only when the construction was completed.
Further, the date of the completion of construction commences the applicable measuring period, not the date of the sale of the property containing the defective construction, and not even the date that the overall work of improvement is completed. (To be scrupulously correct - the ten year measuring period begins one year after the date of completion. Further, other dates may begin the ten year period. The statute lists several events for when the period commences, “whichever first occurs:” (1) the date of final inspection by a public agency; (2) the date of recording of a notice of completion; (3) the date of use or occupation of the improvement; (4) one year after termination or cessation of work on the improvement.”
For instance, in one precedent case, defendants built and graded a road in a subdivision under construction. The subdivision developer actually commenced selling the lots in the subdivision three years later, but the subsequent claims of parties complaining of defects in the road were barred eleven years after the road was completed, even though they were brought within ten years of the completion of the subdivision itself.
The court also concluded that the fact that the landfill was generating methane gas currently did not give rise to a “continuing nuisance” theory. But “the continuing nature of a nuisance or trespass does not extend the ten year limit . . . .”
Finally, the court held that the fact that the County had set up a methane monitoring station on the land in 1985 did not trigger the exception to the ten year statute relating to “any person in actual possession or the control, as owner , tenant or otherwise, of such an improvement at the time any deficiency in the improvement constitutes the proximate cause” of a cause of action. The court observed that the exception was designed to address the liability of parties whose possession gives them a basis for control of the conditions causing injury. Further, their liability on that score sounds only in tort. Here, the court held that the monitoring activities had nothing to do with the cause of injuries allegedly suffered by the plaintiffs.
Comment 1: The editor found the last little piece, regarding the explanation of the “parties in possession” exception, somewhat dissatisfying. He looks forward to further clarification of the reasoning in subsequent opinions. But, in any event, by the time the County had taken possession, the repose period had run from the time the landfill was completed. Consequently, it would seem inappropriate for the County’s possession to trigger new liability based upon old facts.
Comment 2: For a case in which “repose” was really at issue, and where the court held that a similar statute would not avail, see: Carven v. Hickman, 2000 WL 1868300 (Md. App. 12/22/00), the DIRT DD for 1/18/01. ( A real estate developer does not create an "improvement" to real property within the meaning of the Maryland statute of repose when, in the course of development of a subdivision, including building streets and canals, and installing utilities, the developer removes gravestones marking grave sites without also relocating the remains beneath the stones.) The court held that the building of the roads and canals was an “act of improvement,” but the removing of the gravestone’s wasn’t, in part because the act diminished the value of the land. In comments following the report of the case, the editor strongly disagreed with the court’s narrow interpretation of the concept of “improvement.”
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