2020 Georgia Code
Title 9 - Civil Practice
Chapter 3 - Limitations of Actions
Article 3 - Limitations on Recovery for Deficiencies Connected With Improvements to Realty and Resulting Injuries
§ 9-3-51. Limitations on Recovery for Deficiency in Planning, Supervising, or Constructing Improvement to Realty or for Resulting Injuries to Property or Person

1. No action to recover damages:
   1. For any deficiency in the survey or plat, planning, design, specifications, supervision or observation of construction, or construction of an improvement to real property;
   2. For injury to property, real or personal, arising out of any such deficiency; or
   3. For injury to the person or for wrongful death arising out of any such deficiency

      shall be brought against any person performing or furnishing the survey or plat, design, planning, supervision or observation of construction, or construction of such an improvement more than eight years after substantial completion of such an improvement.

2. Notwithstanding subsection (a) of this Code section, in the case of such an injury to property or the person or such an injury causing wrongful death, which injury occurred during the seventh or eighth year after such substantial completion, an action in tort to recover damages for such an injury or wrongful death may be brought within two years after the date on which such injury occurred, irrespective of the date of death, but in no event may such an action be brought more than ten years after the substantial completion of construction of such an improvement.
3. This Code section shall not apply to actions for breach of contract, including, but not limited to, actions for breach of express contractual warranties.

(Ga. L. 1968, p. 127, §§ 1, 2; Ga. L. 2020, p. 37, § 1/SB 451.)

The 2020 amendment, effective July 1, 2020, added subsection (c). See Editor's notes for applicability.

- Ga. L. 2020, p. 37, § 2/SB 451, not codified by the General Assembly, provides that: "This Act shall apply to causes of action which have accrued on or after January 1, 1968."

- For article discussing architect liability for product design and supervision of construction, and the statute of limitations, see 14 Ga. St. B.J. 164 (1978). For survey article on torts, see 34 Mercer L. Rev. 271 (1982). For annual survey of construction law, see 43 Mercer L. Rev. 141 (1991). For annual survey of construction law, see 62 Mercer L. Rev. 71 (2010). For article, "Construction Law," see 63 Mercer L. Rev. 107 (2011). For note, "The Effect of Georgia's Architectural Statutes of Limitations on Real and Personal Property Claims for Negligent Construction," see 7 Ga. St. U.L. Rev. 137 (1990).

ANALYSIS

• 1. General Consideration

1. General Consideration

Constitutionality.

- Separate classification and treatment of architects, engineers, and contractors by O.C.G.A. § 9-3-51 from owners, tenants, and manufacturers is reasonable and not arbitrary. Mullis v. Southern Co. Servs., 250 Ga. 90, 296 S.E.2d 579 (1982).

O.C.G.A. § 9-3-51 does not violate Ga. Const. 1976, Art. III, Sec. VII, Para. IV (see now Ga. Const. 1983, Art. III, Sec. V, Para. III), in that it definitely relates to and has a natural connection with the main object of the legislation and with what is expressed in the title. Mullis v. Southern Co. Servs., 250 Ga. 90, 296 S.E.2d 579 (1982).

O.C.G.A. § 9-3-51 does not violate Ga. Const. 1983, Art. I, Sec. I, Para. XII, relating to a person's right to self-representation. Nelms v. Georgian Manor Condominium Ass'n, 253 Ga. 410, 321 S.E.2d 330 (1984).

Effect upon § 9-3-30. - O.C.G.A. § 9-3-51 does not establish a new eight-year statute of limitation in place of the four-year statute that applies under O.C.G.A. § 9-3-30. Howard v. McFarland, 237 Ga. App. 483, 515 S.E.2d 629 (1999).

O.C.G.A. § 9-3-30(a) governed homebuyers' claims for negligent construction, breach of warranty, and negligent misrepresentation against homebuilders and a company that manufactured stucco that was used in construction, but whereas the buyers' cause of action against the builders did not begin to run until the buyers purchased the home, the buyers' cause of action against the manufacturer began to run when the home was substantially completed and because that date was more than four years before the buyers' filed suit, the buyers' claim against the manufacturer was barred. Colormatch Exteriors, Inc. v. Hickey, 275 Ga. 249, 569 S.E.2d 495 (2002).

This section was intended to establish an outside time limit which would commence upon substantial completion of an improvement to real property, within which preexisting statutes of limitations would continue to operate. Benning Constr. Co. v. Lakeshore Plaza Enters., Inc., 240 Ga. 426, 241 S.E.2d 184 (1977); Landon v. Williams Bros. Concrete Co., 149 Ga. App. 699, 256 S.E.2d 99 (1979); R.L. Sanders Roofing Co. v. Miller, 153 Ga. App. 225, 264 S.E.2d 731 (1980) (see now O.C.G.A. § 9-3-51).

Construction with § 9-3-30. - O.C.G.A. § 9-3-51 is a statute of ultimate repose and does not extend the four-year limitation period of O.C.G.A. § 9-3-30 covering an action for damages to realty. Armstrong v. Royal Lakes Assocs., 232 Ga. App. 643, 502 S.E.2d 758 (1998).

- This section is applicable only to improvements to real property. Turner v. Marable-Pirkle, Inc., 238 Ga. 517, 233 S.E.2d 773, appeal dismissed, 434 U.S. 808, 98 S. Ct. 38, 54 L. Ed. 2d 65 (1977).

O.C.G.A. § 9-3-51 had no application to a claim that a landowner negligently maintained a grate installed by a contractor on its property. England v. Beers Constr. Co., 224 Ga. App. 44, 479 S.E.2d 420 (1996).

- Statute of limitation in this section cannot be construed to have retroactive application. Jaro, Inc. v. Shields, 123 Ga. App. 391, 181 S.E.2d 110 (1971).

Application of this section to cause of action which had not accrued or vested at time of enactment of section in 1968 is not a retrospective application. U-Haul Co. v. Abreu & Robeson, Inc., 156 Ga. App. 72, 274 S.E.2d 26 (1980), aff'd, 247 Ga. 565, 277 S.E.2d 497 (1981).

Immunity of O.C.G.A. § 9-3-50 et seq., should not be extended to manufacturers. Northbrook Excess & Surplus Ins. Co. v. J.G. Wilson Corp., 250 Ga. 691, 300 S.E.2d 507 (1983).

Defendant was not a mere manufacturer but a designer within the contemplation of O.C.G.A. § 9-3-51 since allegedly defective doors were designed by the defendant's engineering and design department to fit specifications and architectural drawings presented by the owner and since the doors were not only designed by the defendant but were custom designed and made for the plaintiff's use. Northbrook Excess & Surplus Ins. Co. v. J.G. Wilson Corp., 250 Ga. 691, 300 S.E.2d 507 (1983).

Limitation of O.C.G.A. § 9-3-51 applies regardless of when injury occurs or, indeed, whether a cause of action has accrued at all prior to the expiration of the period. Atlanta Gas Light Co. v. City of Atlanta, 160 Ga. App. 396, 287 S.E.2d 229 (1981).

- Tolling of a period of limitation by the discovery rule is confined to cases involving bodily harm. Fort Oglethorpe Assocs. II v. Hails Constr. Co., 196 Ga. App. 663, 396 S.E.2d 585 (1990).

Third-party claim for indemnification is an "action" covered under subsection (a) of O.C.G.A. § 9-3-51, and in view of the fact that the claim was not filed within two years of the date of injury, as required by subsection (b) of O.C.G.A. § 9-3-51, it was not timely filed. Gwinnett Place Assocs. v. Pharr Eng'g, Inc., 215 Ga. App. 53, 449 S.E.2d 889 (1994).

Cited in National Hills Shopping Ctr., Inc. v. Insurance Co. of N. Am., 320 F. Supp. 1146 (S.D. Ga. 1970); Lakeshore Plaza Enters., Inc. v. Benning Constr. Co., 143 Ga. App. 58, 237 S.E.2d 524 (1977); Zimmerman's, Inc. v. McDonough Constr. Co., 240 Ga. 317, 240 S.E.2d 864 (1977); Benning Constr. Co. v. Lakeshore Plaza Enters., Inc., 240 Ga. 426, 241 S.E.2d 184 (1977); Space Leasing Assocs. v. Atlantic Bldg. Sys., 144 Ga. App. 320, 241 S.E.2d 438 (1977); Landon v. Williams Bros. Concrete Co., 149 Ga. App. 699, 256 S.E.2d 99 (1979); Watkins v. Barber-Colman Co., 625 F.2d 714 (5th Cir. 1980); U-Haul Co. v. Abreu & Robeson, Inc., 247 Ga. 565, 277 S.E.2d 497 (1981); Clark v. Singer, 250 Ga. 470, 298 S.E.2d 484 (1983); Lumbermen's Mut. Cas. Co. v. Pattillo Constr. Co., 254 Ga. 461, 330 S.E.2d 344 (1985); Forsyth v. Jim Walter Homes, Inc., 177 Ga. App. 353, 339 S.E.2d 350 (1985); Shaw v. Petersen, 180 Ga. App. 823, 350 S.E.2d 831 (1986).

2. Application

Installation of company-owned gas line not improvement within section.

- Installation of an underground gas line by a utility company for the transmission of natural gas, when the ownership of the line continues in the company, is not such an improvement to real estate as is contemplated by O.C.G.A. § 9-3-51. Atlanta Gas Light Co. v. City of Atlanta, 160 Ga. App. 396, 287 S.E.2d 229 (1981).

Burial of construction debris on an undeveloped lot could not be considered an improvement to real property for purposes of O.C.G.A. § 9-3-51. Armstrong v. Royal Lakes Assocs., 232 Ga. App. 643, 502 S.E.2d 758 (1998).

Power plant's electrical system qualified as an improvement to real property within meaning of O.C.G.A. § 9-3-51 when it consisted of a complex system of buildings and electrical components covering acres and acres of land, and in addition, was essential to the purpose of the realty, i.e., the generation and distribution of electrical power and as a result, clearly enhanced the value of the realty. Mullis v. Southern Co. Servs., 250 Ga. 90, 296 S.E.2d 579 (1982).

Erection of power pole and placing of necessary equipment thereon for transmission of electricity is not such an improvement to real estate as was contemplated by this section. Turner v. Marable-Pirkle, Inc., 238 Ga. 517, 233 S.E.2d 773, appeal dismissed, 434 U.S. 808, 98 S. Ct. 38, 54 L. Ed. 2d 65 (1977).

- Genuine issue of material fact existed, precluding summary judgment, as to whether a scoreboard on the property owner's softball field constituted the improvement to real property necessary to trigger the statute of repose of O.C.G.A. § 9-3-51(a) regarding the advertising agency employee's claim for injuries allegedly sustained when the employee was thrown from the scoreboard due to its defective wiring as the employee changed light bulbs on it. Kull v. Six Flags over Ga. II, L.P., 254 Ga. App. 897, 564 S.E.2d 747 (2002).

- Elevator, specially designed and manufactured for installation in the plaintiff's home and installed there as an integral part of the home pursuant to the defendant's specifications, was an improvement to real property within the contemplation of O.C.G.A. § 9-3-51. Beall v. Inclinator Co., 182 Ga. App. 664, 356 S.E.2d 899 (1987).

- When a defendant contracted to install horizontal expansion joints in the brick veneer of a building, which veneer later collapsed, the work was a structural change in design rather than a repair or restoration of the wall, and constituted an improvement. Because more than eight years had passed between the completion of the improvement and the time the wall collapsed, the trial court properly directed a verdict in the defendant's favor. Broadfoot v. Aaron Rents, Inc., 195 Ga. App. 297, 393 S.E.2d 39 (1990), aff'd in part and rev'd in part, 260 Ga. 836, 401 S.E.2d 257 (1991).

Georgia's eight-year statute of repose for improvements to real property, O.C.G.A. § 9-3-51, barred a claim against an installer of asbestos at a paper mill where a claimant worked because the installation and removal of old insulation constituted an improvement to real property under the realty statute of repose, and the dust and debris associated with the improvement to real property was covered by O.C.G.A. § 9-3-51(a). Toole v. Georgia-Pacific, LLC, Ga. App. , S.E.2d (Jan. 19, 2011).

Tank company's work in converting the storage tank was an improvement to real property within the meaning of the statute of repose, and the trial court did not err in granting summary judgment on that issue because the conversion of the storage tank was a significant undertaking and not a simple repair or addition of component parts; permanent modifications were made to not only the tank itself but additional components were added to the original design in order for the tank to meet its new intended use; and the retooling of the tank was integral to the proper functioning of the appellants' storage system and materially enhanced the value of the realty. Southern States Chemical, Inc. v. Tampa Tank & Welding, Inc., 353 Ga. App. 286, 836 S.E.2d 617 (2019).

- Action for loss of real and personal property in a fire allegedly caused by a fireplace defect was barred because the fireplace was an improvement to real property within the meaning of O.C.G.A. § 9-3-51, and suit was not initiated until after eight years from the date of substantial completion thereof. Hanna v. McWilliams, 213 Ga. App. 648, 446 S.E.2d 741 (1994).

- Because O.C.G.A. § 9-3-51 specifically applies to "deficiencies" in the design or construction of an improvement to real property that causes personal injury or property damage, it follows that, while an improvement that works properly and does not cause any damage arguably "adds value" to the property, it could not be deemed as having a "deficiency"; because it caused no damage, no cause of action would arise from its use, and, therefore, the statute would not apply in such a case. Wilhelm v. Houston County, 310 Ga. App. 506, 713 S.E.2d 660 (2011), cert. denied, No. S11C1745, 2012 Ga. LEXIS 219 (Ga. 2012).

Interlock device that was an integral part of a chlorine circulation system installed in a pool was an improvement to real property for purposes of O.C.G.A. § 9-3-51. Standard Fire Ins. Co. v. Kent & Assocs., 232 Ga. App. 419, 501 S.E.2d 858 (1998).

- Trial court erred in dismissing a contractor's independent suit against several subcontractors for contribution and indemnity. Under O.C.G.A. § 51-12-32, the contractor was not required to suffer a judgment against it in an underlying suit before pursuing its right of contribution, and the contractor needed to protect its rights before expiration of the construction statute of repose, O.C.G.A. § 9-3-51. R. Larry Phillips Constr. Co. v. Muscogee Glass, 302 Ga. App. 611, 691 S.E.2d 372, cert. denied, No. S10C1105, 2010 Ga. LEXIS 568; cert. denied, No. S10C1094, 2010 Ga. LEXIS 587 (Ga. 2010).

- Power company sued a former contractor seeking indemnification under the parties' contracts for litigation expenses the company incurred in a wrongful death suit filed by the estate of the contractor's former employee. The company's suit was not barred by O.C.G.A, § 9-3-51 as the suit did not allege that the contractor's construction was deficient, and the indemnification provisions did not require such a showing. Nat'l Serv. Indus. v. Ga. Power Co., 294 Ga. App. 810, 670 S.E.2d 444 (2008).

- Action against builder of a house based on alleged defective construction of the house was time barred since the homeowner did not acquire title to the house until after the tort and contract statutes of limitation had expired, and the homeowner was not allowed to revive those causes of action; neither the discovery rule nor the continuing tort theory applied to actions involving only damage to real property, and since all representations allegedly made by the builder took place after the statutes of limitation had expired, equitable estoppel did not toll the running. Bauer v. Weeks, 267 Ga. App. 617, 600 S.E.2d 700 (2004).

According to a purchaser, the acts of a county, the county health department, and builders that resulted in the problems the purchaser experienced were not just related to the "construction of an improvement to real property," the improvements were essential to such construction and occurred prior to the substantial completion of the improvement; accordingly, any cause of action for damage to real property that resulted from the deficiencies in such construction was subject to the eight-year statute of repose in O.C.G.A. § 9-3-51. Wilhelm v. Houston County, 310 Ga. App. 506, 713 S.E.2d 660 (2011), cert. denied, No. S11C1745, 2012 Ga. LEXIS 219 (Ga. 2012).

Purchaser's claims against a county, the county health department, and builders were barred by the statute of repose, O.C.G.A. § 9-3-51, because the purchaser's house and the septic system were completed before the purchaser moved in, but the purchaser did not file suit for damages allegedly resulting from construction defects in the septic system and/or the development of the property until more than nine years later. Wilhelm v. Houston County, 310 Ga. App. 506, 713 S.E.2d 660 (2011), cert. denied, No. S11C1745, 2012 Ga. LEXIS 219 (Ga. 2012).

Trial court erred in denying a developer's motion for summary judgment on the homeowners' claim for negligent construction because the developer presented testimony that the sale of the last townhouse closed on December 8, 2004, and that on the date of closing, construction of the townhouses was substantially complete; thus, O.C.G.A. § 9-3-51, the statute of repose, barred any action filed after December 8, 2012, and the homeowners filed the homeowners' suit two months after that date. Ashton Atlanta Residential, LLC v. Ajibola, 331 Ga. App. 231, 770 S.E.2d 311 (2015).

- Because a homeowner was injured in a deck collapse after the eight-year statute of repose period of O.C.G.A. § 9-3-51(a) had expired, it was irrelevant whether the builder had fraudulently covered up its allegedly negligent construction of the deck at the time it was built 11 years earlier. The owner's action for injuries was barred. Rosenberg v. Falling Water, Inc., 302 Ga. App. 78, 690 S.E.2d 183 (2009), aff'd, No. S10G0877, 2011 Ga. LEXIS 249 (Ga. 2011).

Court of appeals properly affirmed the trial court's grant of summary judgment to a contractor in a homeowner's action to recover damages for injuries the homeowner sustained when a deck collapsed because the homeowner's right to file suit never accrued since the homeowner was not personally injured until years after the statute of repose time period expired; the injuries the homeowner sustained occurred more than a decade after the home had been substantially completed by the contractor, and the contractor took no action to prevent the homeowner from discovering a cause for the injuries or to dissuade the homeowner from filing suit with respect to the injuries, even if such a cause of action existed. Rosenberg v. Falling Water, Inc., 289 Ga. 57, 709 S.E.2d 227 (2011).

- Because the storage tank was substantially completed by January 2002 and the appellants did not initiate the current action until January 2012, the appellants' breach of contract claims arising out of the alleged deficiency in the tank company's and the corrosion control company's planning, design, or construction of the storage tank renovation were barred by the statute of repose. Southern States Chemical, Inc. v. Tampa Tank & Welding, Inc., 353 Ga. App. 286, 836 S.E.2d 617 (2019).

- Engineering firm was properly granted summary judgment in the driver's negligent planning and design action because the eight-year statute of repose in O.C.G.A. § 9-3-51 applied when the road was "an improvement to real property" in that the road was permanent in nature and added value to the property by allowing the public to efficiently traverse the county. Feldman v. Arcadis US, Inc., 316 Ga. App. 158, 728 S.E.2d 792 (2012).

- Trial court properly granted summary judgment to a general contractor in a personal injury action by a minor, arising from the minor's fall through a window that had been installed in a pub by the contractor, as the claim was barred by the expiration of the period contained in O.C.G.A. § 9-3-51; there was no exception for a failure to warn. Taylor v. S & W Dev., Inc., 279 Ga. App. 744, 632 S.E.2d 700 (2006).

- Purchaser's nuisance claims against a county, the county health department, and builders were barred by the statute of repose, O.C.G.A. § 9-3-51, because the purchaser could not maintain a nuisance action under the facts asserted in the plaintiff's complaint; a plaintiff cannot maintain a nuisance claim that is based upon damage to a house resulting from a defect constructed into the house that was concealed from the plaintiff by the builder and/or the seller because, instead, the applicable causes of action are fraud against the seller and/or negligent construction against the builder. Wilhelm v. Houston County, 310 Ga. App. 506, 713 S.E.2d 660 (2011), cert. denied, No. S11C1745, 2012 Ga. LEXIS 219 (Ga. 2012).

RESEARCH REFERENCES

Am. Jur. 2d.

- 13 Am. Jur. 2d, Building and Construction Contracts, § 115 et seq. 51 Am. Jur. 2d, Limitation of Actions, §§ 131, 142, 145 et seq., 167.

Improper or Defective Wiring as Cause of Fire, 47 POF2d 451.

- 54 C.J.S., Limitation of Actions, § 64 et seq.

- Provision of death statute as to time of bringing action as a condition of the right of action or as a mere statute of limitations, 67 A.L.R. 1070.

Complaint or declaration which fails to allege that action for wrongful death was brought within statutory period, or affirmatively shows that it was not, as subject to demurrer, 107 A.L.R. 1048.

Exceptions attaching to limitation prescribed by death statutes or survival statutes allowing recovery of damages for death, 132 A.L.R. 292.

Amendment of complaint or declaration by setting up death statute after expiration of period to which action is limited by the death statute or by the statute of limitations, 134 A.L.R. 779.

Time for which statute of limitations begins to run against cause of action for wrongful death, 97 A.L.R.2d 1151.

Construction and operation of parking-space provision in shopping-center lease, 56 A.L.R.3d 596.

Right to amend pending personal injury action by including action for wrongful death after statute of limitations has run against independent death action, 71 A.L.R.3d 933.

When statute of limitations begins to run on negligent design claim against architect, 90 A.L.R.3d 507.

Products liability: what statute of limitations governs actions based on strict liability in tort, 91 A.L.R.3d 455.

Validity and construction, as to claim alleging design defects, of statute imposing time limitations upon action against architect or engineer for injury or death arising out of defective or unsafe condition of improvement to real property, 93 A.L.R.3d 1242.

Statutes of limitation: actions by purchasers or contractees against vendors or contractors involving defects in houses or other buildings caused by soil instability, 12 A.L.R.4th 866.

Time of discovery as affecting running of statute of limitations in wrongful death action, 49 A.L.R.4th 972.

What constitutes "improvement to real property" for purposes of statute of repose or statute of limitations, 122 A.L.R.5th 1.

Fraud, misrepresentation, or deception as estopping reliance on nonmedical malpractice statutes of repose, 98 A.L.R.6th 417.