The Supreme Court of Georgia recently held that a homebuilder, who allegedly concealed a construction defect, was shielded by the statute of repose where the plaintiff’s injuries occurred more than eight years after the construction of a faulty deck. Rosenberg v. Falling Water, Inc., 2011 WL 977816 (Ga., 2011).
On March 28, 2002, Rosenberg purchased a home built by Falling Water in 1994. On August 31, 2005, Rosenberg fell and sustained serious injuries when the back deck collapsed. Rosenberg sued Falling Water, alleging it had negligently constructed the deck and committed fraud by hiding the defective construction by using certain bolts that made it appear that the deck was properly attached to the house. Falling Water moved for summary judgment, asserting that Rosenberg’s claims were barred by O.C.G.A. § 9-3-51(a), which prohibits recovery for personal injuries resulting from a construction defect of an improvement to real property more than eight years after “substantial completion of such an improvement.” Rosenberg argued that because Falling Water committed fraud, it should not be allowed to assert the statute of repose defense.
The statute of repose should not be applied to relieve a defendant of liability for injuries which occurred during the period of liability, but which were concealed from the plaintiff by the defendant’s fraud. In other words, the defendant is not allowed to cause the plaintiff to miss the deadline imposed by the statute or repose and then use that same statute to defeat the plaintiff’s otherwise viable action. The Supreme Court of Georgia declined to extend this exception in Rosenberg because the plaintiff was injured years after the statute had expired. Therefore, Rosenberg never had a viable cause of action to pursue. Additionally, Falling Water had taken no action to prevent Rosenberg from discovering a cause of action or to discourage Rosenberg from filing a lawsuit. Under the plain language of the statute, the Court held, Rosenberg’s claims were barred because they accrued more than eight years after the construction was completed.
For more information, please contact Timothy Buckley III, Esq. at (404) 633-9230.