City of Minneapolis, Appellant, vs. Architectural Alliance, Respondent.

City of Minneapolis, Appellant, vs. Architectural Alliance, Respondent. A05-1909, Court of Appeals Unpublished, August 15, 2006.

This opinion will be unpublished and

may not be cited except as provided by

Minn. Stat. § 480 A. 08, subd. 3 (2004).

 

STATE OF MINNESOTA

IN COURT OF APPEALS

A05-1909

 

City of Minneapolis,
Appellant,
 
vs.
 
Architectural Alliance,
Respondent.

 

Filed August 15, 2006

Reversed and remanded

Peterson, Judge

 

Hennepin County District Court

File No. 04-002367

 

James M. Strommen, John M. LeFevre, Jr., Sarah J. Sonsalla, Kennedy & Graven, Chartered, 470 U.S. Bank Plaza, 200 South Sixth Street, Minneapolis, MN  55402 (for appellant)

 

Holly J. Newman, Mackall Crounse & Moore, P.L.C., 1400 AT&T Tower, 901 Marquette Avenue, Minneapolis, MN  55402 (for respondent)

 

            Considered and decided by Halbrooks, Presiding Judge; Peterson, Judge; and Minge, Judge.

U N P U B L I S H E D   O P I N I O N

PETERSON, Judge

            In this appeal from a summary judgment, appellant City of Minneapolis argues that the district court erred in concluding that its claims are barred by the statute of limitations.  Because genuine issues of material fact exist regarding whether the injuries discovered in 2000 arose out of a defective and unsafe condition of an improvement to real property, we reverse and remand.

FACTS

            The city entered into a contract with respondent Architectural Alliance, under which Architectural Alliance agreed to provide architectural, mechanical, electrical, plumbing, and special consulting services for the Currie Maintenance Facility.  Knutson Construction Services, Inc.[1] was the contractor on the project.  The facility has a concrete-slab floor with a u-shaped trench drain located in the drive lanes used to enter and exit the facility.  The facility is used primarily as a service garage for heavy-duty public-service and street-maintenance vehicles.

            In June 2003, the city brought this action against Architectural Alliance alleging that deficient design of the Currie Maintenance Facility caused delamination or spalling of the concrete floor and that Architectural Alliance's inspection and approval of a faulty installation of a trench drain has contributed to failures of several of the trench drains since 2002.  Architectural Alliance moved for summary judgment on the ground that the action was barred by Minn. Stat. § 541.051, subd. 1(a), (b) (2004), which requires that actions for damages arising out of the defective and unsafe condition of an improvement to real property be brought within two years of discovery of the injury.

1.         Concrete-floor defect

            The city alleges that defective design work by Architectural Alliance caused spalling or delamination of specified areas of the concrete floor in the Currie facility.  Professional engineer Daniel J. Larson of American Engineering Testing, Inc. (AET) opined that the spalling or delamination of the concrete floor resulted from corrosion of steel reinforcement bars (rebar) within the concrete slab.  The rebar corrosion was caused by chloride ions.  The chloride ions, which come from de-icer salts deposited by vehicles entering the facility, penetrated the concrete and eventually reached the rebar because of inadequate concrete cover.  The structural drawings specified one inch of cover, and the American Concrete Institute recommends a minimum of two inches of cover in a corrosive environment like the Currie facility.  As rebar corrodes, it expands, exerting pressure on the concrete, which eventually causes the concrete to fracture and leads to spalling or delamination.

            Larson stated in an affidavit:

            3.  Our initial report addressed, in part, the problem of substantial delamination or spalling of significant areas of the concrete floor in the Facility.  In our opinion, the cause of the problem was and continues to be the expansion of corroding metal rebar that creates internal pressure within the concrete, causing first narrow and widening cracking, and then later delamination or spalling that is evidenced by pieces of concrete detaching from the surrounding slab above the bar. . . .

 

            . . . .

 

            5.  The reason that observed concrete breakage or chipping in 2000 or 2001 is not the same problem that I describe in paragraph 3 above is that the corrosion process causing the rebar expansion necessary for this spalling would take at least two years after the installation of the concrete floor to occur given the conditions the floor was subjected to.  This conclusion is based on studies performed by AET in numerous contexts and under even more corrosive conditions than existed in the Currie Facility floor.

 

            6.  In my opinion, the rebar corrosion process is likely to continue and will continue to cause further delamination or spalling of the concrete floor that we observed when we were called on-site in early 2003.  Given a 1999 concrete floor installation and City occupancy in 2000, the floor would not have exhibited any visible distress caused by the rebar corrosion as soon as 2000 or 2001.

 

            Chronology

            City employees Gary Hargreaves, William Gauthier, and Steven Kotke observed chipping and cracking in the concrete floor in the spring of 2000.  Hargreaves described the chipping as minor.  Warren Witt, an automotive mechanic for the city, complained in 2000 about the concrete being poor and chipping.  Internal city correspondence from 2000 notes cracks in the floor.

            In June and July 2000, city employees exchanged internal e-mails about the concrete damage.  A June 28, 2000 e-mail from Kotke states, "The crawler hoes appear to be doing excess damage to the new floors and it is getting worse."  A July 20, 2000 e-mail from Cameron Haugland, equipment repair foreman, states:

            It looks like we have a couple of problems:

             . . . .

            B.  Insufficient concrete re-rod and the fiberglass fibers should have been used in the concrete mix.  (We could research the actual mix that was provided by the concrete vendor who supplied the concrete for the floor.)  There are several areas near edges of pours and floor sections that are chipping away.

 

            Kotke testified that he first learned of the spalling concrete in late 2002.  Gauthier testified:

            Q.  So is the 2002 chipping just depicting a more expanded area or is it different in nature than it was in 2000?

 

            A.  2000 it's just little chips they're talking about.  In 2002, they're talking whole areas just coming up.  I mean, they're not talking about little chip holes, they're talking about whole areas, one right after the other and spreading.  In fact, we had to cover areas with plates, that's how big the area got.

 

            Q.  Were you getting chunks of concrete or cement coming up?

 

            A.  Big areas busted up.

 

            Q.  The same areas that you originally observed chipping in?

 

            A.  No, no.

 

            Q.  Different areas?

 

            A.  Yeah, the chipping was like where the seams were or, you know, where two -- you know where you've got a break between two cement slabs and that kind of deal and then -- or where they mounted the plows where you seen something hit, but this here was -- I don't know, it's hard to describe, it's like it's coming from the bottom up.  You get lines in it and then the whole thing just comes away.

 

City employee Rick Mrugala testified that he began seeing impressions in the slab from the rebar beneath the concrete in the fall of 2002.  Hargreaves testified, "Lot of times there will be like a chip, somebody will drop something and chip a little piece of concrete.  You know, it happens.  They got heavy equipment there and there might be a chip in the floor or something, you know."  Hargreaves also testified that he never noticed problems with the concrete floor other than isolated chips before January 2003.

2.         Trench-drain defect

            Larson distinguished damage that occurred to the trench drain in 2000 from damage that occurred in 2002 and later years:

            8.  As to the isolated areas of the trench drain problems which occurred in the late spring of 2000, it is my understanding that these problems were caused by City vehicles.  Heavy tracked vehicles used by the City pivoted over at least two areas of the trench drain system, caught the cast iron metal seat angle and created excessive load on the trench drain and surrounding concrete not specifically contemplated by the trench drain manufacturer, Neenah Foundry, depicted in its literature.  This caused the collapse of the trench drain grate in certain isolated areas that required coverage and repair.  I have seen the June 6, 2000 letter from Architectural Alliance identifying the problem and stating that the City caused the problem through use of these tracked vehicles.

 

            9.  Based on this information and on the fact that the trench drain system was also installed in 1999, i.e., was essentially new in 2000, the type of distress and cause of the isolated collapse in 2000 is necessarily different from what we have observed in the trench drain failures that we have reviewed in 2003, 2004, and 2005.

 

            10.  The current and continuing trench drain failures at the Currie Facility were caused primarily by inadequate anchorage of the trench drain seat angle to the surrounding concrete.  This distress is the result of the weight of vehicles traveling over the trench grate, including rubber tired vehicles.  The rubber tired vehicles used by the City, however, were specifically contemplated by the trench drain manufacturer, Neenah Foundry as depicted in its literature for the trench drain system installed at the Currie Facility.  Adding to the concrete distress is the corrosion of a rebar rod that was installed parallel to the angle iron through an anchor and hole cast integrally with the angle iron.  This rebar provides no additional support to the system, but corrosion has caused the concrete to crack over time similar to that of the concrete floor rebar.

 

            11.  We have found that Knutson's installation of the angle iron did not include the tiebacks required by Neenah Foundry in its literature publications for this type of trench drain system.  The submittals approved by NewMech Companies, Cain Ouse, and Knutson referenced the inclusion of "anchor rod" hole.  "Anchor rod" is commonly known in the industry to be a tieback or similar weight diffusing rod embedded in concrete.

 

            12.  In my opinion, the isolated damage caused by the City's tracked vehicles in 2000 was not the same injury as the extensive trench drain failure the Facility has experienced since late 2002.  It is my understanding that after the 2000 problems, the City ceased turning track vehicles on the trench drain system, and thereby avoided the cause of the 2000 problems, that is, the sharp pull of a track catching on trench drain metal and jarring it loose, including causing cracking of the trench grate.  Thereafter, the vehicle use over the trench drain systems was limited to rubber tired vehicles of varying weight.  The 2000 damage resulted in trench drain breakup from a jarring surface force that may have occurred whether the tiebacks had been installed or not.  Further, the collapse of the trench grates in the 2000 damaged areas was not related to the concrete distress that had developed by 2003.  In 2000, there would have been no corrosion of the parallel rebar that existed and eventually weakened the concrete through its expansion in the years 2002, 2003, and 2004.

 

            Chronology

            In the spring of 2000, Terry Holm, the city's supervisor of construction services, observed damage to trench drains caused by a tracked vehicle.  A June 2, 2000 e-mail from Mrugala to John Edmunds states, "DO WE WANT TO LOOK AT A DIFFERENT FLOOR DRAIN SYSTEM THE ONE WE HAVE IS BREAKING UP?"

            A June 26, 2000 e-mail from Gauthier to Jack Yuzna states,

            I just want to make sure you know that the floor drains are already starting to fall apart.  If you get time take a walk through the shop.

 

            The worst area is by the heavy shop (North area of shop).  ESD explained the needs of this shop area and the equipment that would be driving on floor surfaces.  Whether it's a design issue or product issue, I don't know.  All I know is that drains are deteriorating rapidly.

 

            A July 20, 2000 e-mail from Haugland to Kotke and Gauthier states:

The angle iron that was used to support the trough drain grilles is too small and made of cast iron and as you all know cast is brittle and cracks and breaks easily.  A larger dimension, galvanized, mild steel, angle should have been used.  If you look at the concrete breakage most of it is occurring near the floor drains and the cast angle has a section broken out of it resulting in the concrete breaking away.

 

            A July 25, 2000 e-mail from Gauthier to Edmunds and Gary Criter, facility project manager, notes, "Floor drain system is not holding together.  Cement is sep[a]rating from angle iron and grates are falling into trench area.  Worst area is No[r]th end of shop, heavy equipment is worked on here."

            Criter testified that discussions with Tom Hysell of Architectural Alliance about trench-drain damage led to the conclusion that "the equipment that was in there that caused that flange to bust."  The trench drains were apparently repaired in early 2001, and the record contains no evidence of additional problems with the trench drains in 2001.

            City employee John White testified that in the fall of 2002, he reported a problem with the floor collapsing around the trench drain, explaining that the grates had fallen into the trench.  White testified:

            A.  [The 2000 trench-drain failure] just looked like concrete away from angle iron, you know, like it was broke down and they were trying to figure out -- make a fix so it wouldn't get worse.

 

            Q.  Okay.  And then what did you observe with the area B the later problems with the trench drains?

 

            . . . .

 

            A.  When that was down, it was down, it was collapsed right into the floor, I mean, it just like, whomp, it wasn't at all like the first one.

 

            Q.  What in your mind made it different other than just having the grate fall in?

 

            A.  I tell you what, I couldn't figure it out because the tracked equipment doesn't go in that, you know, we always -- there have been some talk about maybe tracked equipment caused things but no tracked equipment was going into that door 3, it was rubber tired things.

 

            Haugland testified that he understood that the trench-drain damage in 2000 resulted from a tracked vehicle catching or hooking something and breaking it but that the 2002 and later damage was the result of deterioration.

            Mrugala testified that the trench-drain damage in 2002 differed from that in 2000:

            A.  Well, I think when we noticed the first [trench-drain failure in 2002] was actually when the floor grate fell in and from then on it just seemed like that whole trench basically started to fall apart.

 

            Q.  Well, was this any different than the first failure or just worse, just more extensive?

 

            A.  Well, this seemed different because we didn't run any track vehicles out in that area, basically truck traffic out there, and it -- you know, I didn't look at it that close other than the fact that we put a plate over it to protect the area that the grate fell in.  It looked like it was crumbling, you know.  And I don't know why, but it just looked like once it started on the north end of that door number three trench, it seemed like that whole trench in different areas started to give way and the grate started to fall in.  Between the fall of 2002 to now, I mean, like I say, we're up to 20-some odd complaints covering that floor drain.  So when it went, it went pretty fast.

 

            Q.  Well, have you continued to run heavy equipment in there?

 

            A.  We never ran any tracked excavators in that area.  We run trucks, sanders and loaders and things like that in that area.  No track vehicles in there.

 

            . . . .

 

            Q.  So in the area where you're having failures, are these trench drains just dropping down to the bottom of the trench all by themselves?

 

            A.  Well, it seems like the support is breaking loose and whatever side breaks loose first allows the grate to tip in, and of course at that point it falls into the trench, and you know, if we're talking on it, if we notice that it's getting shaky, we plate it before the grate actually falls in.

 

            Based on the conclusions that the relevant injuries to the concrete floor and trench drains were discovered in June 2000, the district court granted summary judgment for Architectural Alliance.[2]  This appeal follows.

D E C I S I O N

            On appeal from a summary judgment, this court examines the record to determine whether any genuine issues of material fact exist and whether the district court erred in applying the law.  State by Cooper v. French, 460 N.W.2d 2, 4 (Minn. 1990).  This court "must view the evidence in the light most favorable to the party against whom judgment was granted."  Fabio v. Bellomo, 504 N.W.2d 758, 761 (Minn. 1993).

            Minn. Stat. § 541.051, subd. 1, (2004) states:

(a) Except where fraud is involved, no action by any person in contract, tort, or otherwise to recover damages for any injury to property, real or personal . . . arising out of the defective and unsafe condition of an improvement to real property . . . shall be brought against any person performing or furnishing the design, planning, supervision, materials, or observation of construction or construction of the improvement to real property or against the owner of the real property more than two years after discovery of the injury . . . .

 

            (b) For purposes of paragraph (a), a cause of action accrues upon discovery of the injury . . . .

 

            The statute's statement that "a cause of action accrues upon discovery of the injury" does not mean that the limitations period begins to run when any injury is discovered.  The limitations period begins to run when an injury is discovered, or with due diligence should have been discovered, and the injury arose out of the defective and unsafe condition of an improvement to real property.  Also, the limitations period begins to run regardless of whether the exact nature of the defect causing the injury is known.  See Dakota v. BWBR Architects, 645 N.W.2d 487, 492 (Minn. App. 2002) (stating that "the statute of limitations begins to run when an actionable injury is discovered or, with due diligence, should have been discovered, regardless of whether the precise nature of the defect causing the injury is known"); Greenbrier Village Condominium Ass'n, Inc. v. Keller Inv., Inc., 409 N.W.2d 519, 524 (Minn. App. 1987) (stating that "the limitation period in section 541.051, subd. 1, begins to run when the plaintiff discovers, or in the exercise of reasonable diligence should have discovered, an injury sufficient to entitle him to maintain a cause of action").  Thus, (a) an injury that does not arise out of a defective and unsafe condition of an improvement to real property does not start the limitations period; (b) to determine whether a cause of action accrues upon the discovery of an injury, and, therefore, whether the limitations period began to run upon discovery of the injury, it is necessary to determine whether the injury arose out of the defective and unsafe condition of an improvement to real property; and (c) if it is ultimately determined that the injury arose out of a defective and unsafe condition, the statute of limitations began to run upon discovery of the injury, even though the cause of the injury was not known at the time of discovery.  When reasonable minds can differ about whether an injury arose out of a defective and unsafe condition, summary judgment is inappropriate because the issue should be left to the trier of fact.  See Lake City Apartments v. Lund-Martin Co., 428 N.W.2d 110, 112 (Minn. App. 1988)(holding that reasonable minds could differ about when the appellant discovered the injury or the condition when appellant repaired minor leaks by installing a pressure valve and no further problems occurred for a period of time), review denied (Minn. Oct. 19, 1988).

The district court concluded with respect to the floor that "[t]he relevant injury is a chipping and cracking concrete slab in the Currie Facility which was discovered by the City no later than June 2000."  To trigger the limitation period, the chipping and cracking discovered by 2000 must be an injury that arose out of a defective and unsafe condition of an improvement to real property.  But the district court did not identify evidence that demonstrated that, as a matter of law, the chipping and cracking arose out of a defective and unsafe condition.  Instead, the district court concluded that "[t]he [city's] expert opines that the early chipping and cracking ‘is not the same problem' as the later corrosion and delamination, yet, offers no opinion why the concrete floor was chipping and cracking in the first instance." 

            In reaching this conclusion, the district court improperly shifted to the city the burden of proving that the chipping and cracking did not trigger the limitation period, rather than requiring Architectural Alliance to prove that the action is barred by the statute of limitations.  The statute of limitations is generally considered an affirmative defense, and the burden of proving every element necessary to establish the statute of limitations is on the party seeking to show that a cause of action has been barred.  Golden v. Lerch Bros., 203 Minn. 211, 220, 281 N.W. 249, 253 (1938). 

            On the claim regarding the concrete floor, city employees testified that only minor cracking and chipping occurred in 2000 and that the damage appeared to have been caused by driving heavy tracked vehicles across the floor and by dropping tools on the floor.  One employee, Gauthier, testified that the spalling and delamination involved large areas of concrete coming up and breaking apart as opposed to the "little chips" that occurred in 2000.  Larson opined that the chipping and cracking in 2000 differed in degree and in type from the spalling or delamination that occurred in 2002.  Larson specifically stated that the spalling would take at least two years after installation of the concrete floor to occur and that the floor would not have shown any visible distress caused by the rebar corrosion in 2000 or 2001.

            The record also contains evidence that the injury in 2000 was more significant than minor chipping or cracking and includes a report by Architectural Alliance's expert, Braun Intertec, which disagrees with Larson regarding the cause of the spalling or delamination.  But on a summary-judgment motion, "a court may not weigh the evidence or make factual determinations."  State ex rel. Hatch v. Allina Health Sys., 679 N.W.2d 400, 406 (Minn. App. 2004) (quotation omitted).  Viewing the evidence in the light most favorable to the city, a genuine issue of material fact exists as to whether the chipping and cracking observed by 2000 arose out of a defective and unsafe condition of an improvement to real property or was caused by activities inside the Currie facility.

            Regarding the trench-drain claim, the record contains evidence that the injury in 2000 resulted from tracked vehicles being driven over the trench drains.  The trench drains were repaired, the city stopped driving tracked vehicles over the trench drains, and the record contains no evidence of additional trench-drain problems in 2001.  Larson opined that the isolated trench-drain problems that occurred in 2000 differed from the failures that occurred in 2002.  Also, city employees testified about how the trench-drain failures in 2002 differed from those in 2000.  This evidence is sufficient to create a genuine issue of material fact as to whether the trench-drain failures that occurred in 2000 arose out of a defective and unsafe condition of an improvement to real property.

            Because genuine issues of material fact exist regarding whether the injuries to the concrete floor and trench drain that occurred in 2000 arose out of a defective and unsafe condition of an improvement to real property, the district court erred in granting summary judgment for Architectural Alliance.

            Reversed and remanded.

[1] The city also brought a claim against Knutson Construction Services, Inc., for faulty construction services.  The city settled its claim against Knutson after this appeal was filed, and this court dismissed Knutson from the appeal.

[2] On the claim regarding the trench drains, the district court initially denied summary judgment based on its conclusion that fact issues existed regarding whether Architectural Alliance was estopped from raising the statute-of-limitations defense.  Summary judgment on that claim was entered after the city waived its estoppel defense.