Gorton v. Mashburn

Gorton v. Mashburn
1999 OK 100
995 P.2d 1114
70 OBJ 3759
Case Number: 90358
Decided: 12/13/1999
Mandate Issued: 01/21/2000
Supreme Court of Oklahoma

JOHN H. GORTON and JUDY GORTON, Plaintiffs/Appellants,
v.
J. W. MASHBURN, d/b/a PENN BROOKE OFFICE PARK, Defendant/Appellee

CERTIORARI TO THE COURT OF CIVIL APPEALS, DIVISION IV;
APPEAL FROM THE DISTRICT COURT OF OKLAHOMA COUNTY;
Honorable Carolyn R. Ricks, Judge.

¶ 0 The Gortons sued Mashburn [owner] for injuries related to a slip-and-fall accident occurring on a bridge located on the owner's property. They premised their tort claim on theories of negligent construction and [995 P.2d 1115] negligent maintenance. Mashburn sought to avoid liability by assertion of the ten-year statute of repose which bars untimely claims for construction and design defects. The trial court gave owner summary judgment, ruling that the Gorton's claim was time barred. The Gortons appealed; the Court of Civil Appeals reversed. Upon certiorari earlier granted,

THE COURT OF CIVIL APPEALS' OPINION IS VACATED; AND
THE DISTRICT COURT'S JUDGMENT IS AFFIRMED.

Gary B. Homsey and Jeffrey Reese Atkins of Gary B. Homsey & Associates, Oklahoma City, Oklahoma, for Appellants,

Robert W. Hayden of Speck, Easter & Hayden, Oklahoma City, Oklahoma for the Appellee.

LAVENDER, J.

¶ 1 The present cause's resolution requires delineation of the ambit of protection afforded to property owners by

I
FACTS AND PROCEDURAL HISTORY

¶ 2 John Gorton [appellant

¶ 3 On March 27, 1996 Gorton was crossing one of the wooden bridges during a rain storm. He slipped and fell injuring himself and for this he seeks damages from Mashburn. Gorton's petition asserts negligence in the manner of the bridge's construction because its design did not comply with Oklahoma City's BOCA Basic Building Code (effective when the bridge was built in 1981). Appellant also seeks to impose liability upon the building's owner under a theory of negligent maintenance.

¶ 4 Mashburn sought summary judgment arguing that since the bridge was built more than ten years before Gorton brought his claim and had not been altered in the interim, the appellant's claim was barred by § 109's terms - i.e, the ten year statute of repose for causes of actions based upon design or construction defects.

¶ 5 The trial court entered summary judgment for Mashburn ruling that any personal injury claim arising out of the bridge's design or construction is barred when more than ten years have elapsed since completion of the improvement's construction. The Court of Civil Appeals [COCA] reversed the trial court's summary judgment in owner's favor and remanded the cause, holding that while the terms of § 109 bar any action related to the design or construction of the bridge, the owner is under an ongoing duty to maintain the bridges on its property in a safe and sanitary condition in accordance with the building code in effect when the bridge was first constructed. The COCA then remanded the case because of unresolved questions of material fact concerning owner's liability for negligence in the maintenance of its property. Certiorari was sought and granted.

II

THE LEGAL EFFECT OF

¶ 6 Resolution of the present cause requires statement of the obvious: Maintenance is not the same as nor synonymous with design and construction. Maintenance is best characterized as after-care or upkeep.6 Although a builder, designer or owner's negligence in either stage - (1) design and construction or (2) maintenance - of a property's development and management may be actionable when it results in another's wrongful injury, claims based upon design or construction defects can only be prosecuted during the ten-year period which follows substantial completion of the improvement allegedly causing the harm.7

¶ 7 The parties do not contest the applicability of

¶ 8

¶ 9 Although Gorton phrases the alleged building code violation in terms of "negligent maintenance," his claim in essence charges Mashburn with responsibility for failure to build the allegedly defective bridge in compliance with building code standards applicable when the bridge was first constructed. To sustain Gorton's theory of recovery the Court would have to exclude "owners" from the protective ambit of § 109. The suggested construction of the statute of repose's language - i.e., to deny owners the statutorily-declared immunity for design and construction defects more than ten years old when negligence per se is asserted - would affront the Legislature's declared intent. This the Court will not do. The statute of repose -

¶ 10 We are mindful that design and construction - although addressed in the same building code as the maintenance requirement relied upon by Gorton - are not coterminous with upkeep. Today's pronouncement does not exonerate an owner from having to safely maintain his property as required by the BOCA Basic Building Code. Rather its effect is to require that the owner's standard of conduct in the maintenance of improvements on his/her property which are more than ten years old is to be determined by common law.

III
SUMMARY JUDGMENT WAS APPROPRIATE UNDER
THE RECORD PRESENTED ON APPEAL

¶ 11 Summary adjudication affords a method for terminating a case when all that remain are questions of law.

IV
SUMMARY

¶ 12 Review of the present case's record reveals that Gorton's claim (regardless of how nominated) is founded upon factual allegations related to the design and construction of the bridge, the situs of his accident. Where this is so, the terms of § 109 (the ten-year statute of repose) prevent such actions from arising. Oklahoma's statutes and extant jurisprudence do not recognize a legal right to sue for design and construction defects more than ten years old. Gorton's attempt to circumvent the statute of repose's effect by asserting a negligent maintenance claim based upon violation of statutory design and construction standards is not persuasive. This is not to say an owner has no duty to the invited public to safely maintain common areas; he/she does. That duty, however, is defined by the common law

¶ 13 Upon certiorari earlier granted,

THE COURT OF CIVIL APPEALS' OPINION IS VACATED; AND THE DISTRICT COURT'S JUDGMENT IS AFFIRMED.

¶14 SUMMERS, C.J., HARGRAVE, V.C.J., HODGES, LAVENDER and BOUDREAU, JJ., concur.

¶15 KAUGER, J., concurs in result.

¶16 OPALA, J., concurs in part; dissents in part.

¶17 WATT, J., dissents.

FOOTNOTES

1The terms of 12 O.S.1991 § 109 provide:

"No action in tort to recover damages

(I) for any deficiency in the design, planning, supervision or observation of construction or construction of an improvement to real property,

(ii) for injury to property, real or personal, arising out of any such deficiency, or

(Iii) for injury to the person or for wrongful death arising out of any such deficiency,

shall be brought against any person owning, leasing, or in possession of such an improvement or performing or furnishing the design, planning, supervision or observation of construction or construction of such an improvement more than ten (10) years after substantial completion of such an improvement."

2For a history of statutes of repose for design and construction defects see Wayne J. Martorelli, State Statutes of Repose and Government Claims for Latent Defects in Design and Construction, 25 Pub. Cont. L.J. 199 (Winter 1996).

3Judy Gorton -- whose claim is derivative of John Gorton's [her husband] injury - is for loss of consortium. John Gorton is the only person involved in the slip-and-fall accident.

4For the distinction between a statute of limitation and a statute of repose see Neer v. State ex rel. Okla. Tax Com'n, 1999 OK 41, 982 P.2d 1071, 1078, where the Court observed:

"A statute of limitation extinguishes a remedy for an existing right by penalizing a party who sleeps on that right. A statute of repose sets an outer chronological time boundary beyond which no cause of action may arise for conduct that would otherwise have been actionable.

* * *

In essence, a statue of limitation is a procedural device and does not start to run until a cause of action accrues, i.e, at that point in time a plaintiff can successfully prove the elements of his/her claim. A statute of repose, in contrast, begins to run from a date certain, regardless of when a plaintiff may be able to bring a cause of action to successful conclusion." [Emphasis added.][Citations omitted.]

5The constitutionality of 12 O.S.1991 § 109 as it relates to negligence claims (other than wrongful death) based upon design and construction defects was upheld in St. Paul Fire & Marine Ins. Co. v. Getty Oil Co., 1989 OK 139 782 P.2d 915.

6See Black's Law Dictionary 953 (6th ed. 1990) which defines "maintenance" as follows:

"The upkeep or preservation of condition of property, including cost of ordinary repairs necessary and proper from time to time for that purpose."

7For the pertinent terms of 12 O.S.1991 § 109, see supra note 1.

8For the examples of the common-law duty of care owed by a landlord to a tenant for common areas, see Krokowski v. Henderson Nat'l. Corp., 1996 OK 57, 917 P.2d 8, 11; Jackson v. Land, 1964 OK 102, 391 P.2d 904 syl. 2.

9For the difference between negligence per se and general negligence, see Real Estate Marketing, Inc. v. Franz, 885 S.W.2d 921, 926-927 (Kent. 1994).

10See supra note 1 for the pertinent language of § 109.

11Today's pronouncement renders unnecessary the trial court finding that a plaintiff has satisfied the three prong test for application of negligence per se [see Boyles v. Oklahoma Natural Gas Co., 1980 OK 163, 619 P.2d 613, 618] for after ten years have expired from the substantial completion of the improvement, no cause of action may arise based upon design and construction defects in the same.

12For comparable analysis, see Boyum v. Main Entree, Inc., 535 N.W.2d 389 (Minn.Ct.App. 1995; cert. denied Sept. 28, 1995).

13Shamblin v. Beasley, 1998 OK 88, 967 P.2d 1200, 1207.

14See Jack Graves' affidavit, filed as an attachment to "Plaintiffs Brief In Response To Defendant's Motion For Summary Judgment" below.

15See Buck v. Del City Apartments, Inc., 1967 OK 81, 431 P.2d 360, 365-66, where the Court defined a landlord's duty to invitees. See also Brown v. Alliance Real Estate Group, 1999 OK 7, 976 P.2d 1043, 1044; Krokowski, supra note 8 at 11.

16See supra note 4.