Daily Development for Tuesday, September 27, 2005
by: Patrick A. Randolph, Jr.
Elmer F. Pierson Professor of Law
UMKC School of Law
Of Counsel: Blackwell Sanders Peper Martin Kansas City, Missouri dirt@umkc.edu

CONSTRUCTION; STATUTE OF REPOSE: Where a proper lawsuit is brought within the ten year construction claim repose period, a previously unknown, though functionally identified, designer or builder may be named after expiration of the period of repose.

Greczyn v. Colgate-Palmolive, 183 N.J. 5, 869 A.2d 866 (2005); March 21, 2005. 

An accident victim sued a "John Doe" designer after slipping and falling on a staircase that had been built nearly nine years before the accident.  A year after New Jersey's construction ten-year statute of repose period had passed, the victim substituted the fictitious name of the staircase designer for its real name.  The designer claimed that the victim could not sue it since it was not named until after the ten-year period had passed.

The Appellate Division disagreed with the designer, holding that despite not calling the designer by its name, the victim's complaint satisfied the requirements of New Jersey law since it fully identified the "persons" being sued by their function, and so long as the victim was diligent in seeking the designer's true name, the victim was permitted to name the designer after the statute of repose period had passed.  Additionally, the suit was permitted since the victim was both injured and filed her suit within the ten-year repose period.  Finally, the Court concluded that only when the elements of well-timed filing and due diligence in seeking a fictitious party's name are met, may this type of suit be brought, thus making finite and restricted the designer's potential exposure to liability.

Comment: This strikes the editor as a sensible and valuable interpretation of this statute, which, after all, extends to builders protection that is not available to many other tortfeasors.  But builder clients should be warned of the possibilities. 

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