Pennsylvania’s Statute of Repose bars certain actions against any person or company for the negligent design or construction of an improvement to real property that is more than 12 years old. In other words, if a dangerous condition of a real property causes an injury to a person, any claim against the designer or installer is barred if the construction was completed more than 12 years ago. For example, if a set of stairs was negligently designed or constructed, and a person falls and is injured more than 12 years after the stairs were completed, the injured person’s claims against the contractor that built the stairs may be barrred by this defense.
The statute of repose is codified in Pennsylvania as 42 Pa.C.S. § 5536. The statute states that claims other than for personal injury may be barred as well. The following types of claims must be brought within twelve years of the completion of the improvement to real property:
(1) Any deficiency in the design, planning, supervision or observation of construction or construction of the improvement.
(2) Injury to property, real or personal, arising out of any such deficiency.
(3) Injury to the person or for wrongful death arising out of any such deficiency.
(4) Contribution or indemnity for damages sustained on account of any injury mentioned in paragraph (2) or (3).
What Is An Improvement To Real Property?
As stated in 42 Pa.C.S. § 5536, the statute of repose applies if the harm is caused by an improvement to real property. Our Supreme Court has defined an “improvement to real property” as “[a] valuable addition made to property (usually real estate) or an amelioration in its condition, amounting to more than mere repairs or replacement, costing labor or capital, and intended to enhance its value, beauty or utility or to adapt it for new or further purposes….” McCormick v. Columbus Conveyer Co., 522 Pa. 520, 564 A.2d 907, 909 (Pa. 1989) (citing Black’s Law Dictionary 682 (5th ed. 1979)). One of the most common improvements are fixtures involving chattel or personalty affixed to real property. See Noll by Noll v. Harrisburg Area YMCA, 537 Pa. 274, 643 A.2d 81, 87 (Pa. 1994).
Our courts developed a three-part test to determine whether personalty amounts to a fixture: “(1) the relative permanence of attachment to realty; (2) the extent to which the chattel is necessary or essential to the use of the realty; and (3) the intention of the parties to make a permanent addition to the realty.” Id. (citations omitted). Graver v. Foster Wheeler Corp. Appeal, 96 A.3d 383 (Pa. Super. Ct. 2014).
In simple terms, an improvement to real property is usually a permanent physical improvement to real estate. Generally the improvement is one that is physically affixed to the property, which is intended to enhance the value of the property. This can include products such as a boiler, furnace, deck, elevator, escalator, or light fixture, or something substantial permanently installed on the property.
Exceptions To The Statute Of Repose
It should be noted that Pennsylvania’s statute of repose is not an absolute defense. First and foremost, the doctrine does not bar claims against a property owner, tenant or someone in possession or control of the property or improvement. A cause of action against a property owner or tenant for a dangerous condition of a property cannot be barred by the statute of repose. Also, if a person is injured or killed more than 10 and within 12 years of the completion of the improvement a civil action or proceeding may be commenced within the time otherwise limited by the statute, but not later than 14 years after completion of construction of the improvement. 42 Pa.C.S. § 5536(b)(1).
Additionally, if an installer or manufacturer of a product retains a certain level of control over the product or improvement, then the statute of repose may not apply. This could apply to circumstances in which a manufacturer maintains a contract or service agreement to routinely inspect, control or maintain the product or improvement. In the case of Fetterhoff v. Fetterhoff, the Court declined to find that an installer had retained the necessary control over an elevator to defeat the statute of repose defense. However, the Court noted it is conceivable that a designer, manufacturer or installer could retain ample control over an improvement so as to trigger the section 5536(b)(2) exception (such as a manufacturer installing elevators in its own building).
The Court’s opinion contained language that suggested that if the defendant maintained a service contract, it may have had the necessary control to overcome the statute of repose. The Court reasoned that the defendant had no contract to service or maintain the elevator at issue in that case. The Court further reasoned that repair work could have been done by any company of the owner’s choice. The Court upheld the defense by stating the defendant had no obligation to inspect or repair the elevator in the absence of a request by the owners. Fetterhoff v. Fetterhoff, 354 Pa. Super. 438 (Pa. Super. Ct. 1986).
However, the reasoning by the Court in Fetterhoff seems to invite the argument that if a defendant has a contract or service agreement, sufficient control may be shown to overcome the statute of repose. For this reason, investigating whether a service agreement or contract to inspect, maintain or repair the improvement is necessary to fully fight the statute of repose defense.
A working knowledge of the statute of repose is important for any attorney that handles injury claims in Pennsylvania. At Mattiacci Law, we are familiar with defending against the statute of repose and the best ways to challenge the defense.
If you or a family member has been injured on a property, contact the personal injury firm of Mattiacci Law today for a free consultation.