The Construction Statute of Repose - Articles

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Posted by: Donald Paine on Aug 13, 2008

Journal Issue Date: Aug 2008

Journal Name: August 2008 - Vol. 44, No. 8

Take another look at Tenn. Code Ann.  § §28-3-201 through 205, particularly at  §202. I recently did so and was impressed by the breadth of this defense:

All actions to recover damages for any deficiency in the design, planning, supervision, observation of construction, or construction of an improvement to real property, for injury to property (real or personal) arising out of any such deficiency, or 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 design, planning, supervision, observation of construction, construction of (or land surveying in connection with) such an improvement within four years after substantial completion of such an improvement.

Assume that your dream home starts falling apart five years after completion. You have no cause of action against those who designed or built it. The cause of action expired at the end of the repose period. And assume that the defectively constructed garage buries your new SUV. The same draconian result places your predicament in the category of tough.

This is the oldest of our repose statutes. It's been around since 1965, when I was still practicing law in the Army. It has been amended only once, to add the provision protecting land surveyors. And it is constitutional.

Justice Harbison wrote in Harmon v. Angus R. Jessup Associates Inc., 619 S.W.2d 522 at 525 (Tenn. 1981): "We believe the General Assembly could fairly conclude that four years is reasonable with respect to construction."

There are not many ways around this statute of repose. Fraud or wrongful concealment are exceptions in  §205(b). The burden of proving same is difficult.

If a personal injury or wrongful death occurs during the fourth year, the repose period is extended for one year from injury or death. Consequently, if your client is injured halfway through the fourth year, you can commence a timely action halfway through the fifth year.

Don Paine DONALD F. PAINE is a past president of the Tennessee Bar Association and is of counsel to the Knoxville firm of Paine, Tarwater, Bickers, and Tillman LLP. He lectures for the Tennessee Law Institute, BAR/BRI Bar Review, Tennessee Judicial Conference, and UT College of Law. He is reporter to the Supreme Court Advisory Commission on Rules of Practice and Procedure