Griebel v. Andersen Corp. , 1992 Minn. LEXIS 243 ( 1992 )

TOMUANOVICH, Justice

(dissenting).

I respectfully dissent. The majority, ignores the clear command of the statute that in order for the two-year limitations period to apply, the injury must arise out of condition which is both defective and unsafe. By defining “unsafe” as “insecure” instead of “hazardous,” I believe the majority has stretched the definition of “unsafe” so it will include most merely defective improvements. I do not believe we should whittle away at the meaning of “unsafe” in this fashion to avoid the fact that the legislature chose the word “and,” not “or.”

While we never have defined “defective and unsafe,” we have indicated that “and” is an important word and that “defective” and “unsafe” mean different things. For example, in Kittson County v. Wells, Denbrook & Assoc., Inc., 308 Minn. 237, 241 N.W.2d 799 (1976), we said:

While the statute does not use the term “tort,” it contains several references which strongly suggest the legislature intended it to apply only to tort actions. First, the statute refers several times to an “injury” to person or property. Second, the statute requires that such an injury arise out of the “defective and unsafe ” condition of an improvement to real property.

Id. 241 N.W.2d at 801-02 (emphasis in original). Although Kittson involved different issues than this case, we recognized a meaningful distinction between “defective” and “unsafe.”

Other courts looking at identical or similar statutory language have noted important distinctions between “defective” improvements and “defective and unsafe” improvements. See E.A. Williams, Inc. v. Russo Dev., 82 N.J. 160, 411 A.2d 697, 702-OS (1980), Newark Beth Israel v. Gruzen, 124 N.J. 357, 590 A.2d 1171, 1174-75 (1991), and Kocisko v. Charles Shutrump & Sons Co., 21 Ohio St.3d 98, 488 N.E.2d 171, 173 (1986). The E.A. Williams case is on point with the present case. There, a building owner sued a surveyor when it turned out that a new building had been incorrectly placed on the owner’s property. The New Jersey court held that while the surveying error made the improvement to property defective, it did not make it “unsafe,” so the two-year limitations period did not apply. In contrast, in Newark Beth Israel, the New Jersey court held the statute did apply when an architect erroneously designed the base unit of a hospital so that, contrary to the parties’ intention, an addition could not be built safely on top of it. The court reasoned that while the base unit was not inherently unsafe, it would be unsafe to put on the addition contemplated by both parties. Id. 590 A.2d at 1175. The court defined an “unsafe” improvement as one “defectively designed so as to create a hazard for those attempting to use it.” Id. I would adopt that definition in this case.

There is reason to believe that the legislature deliberately selected the words “defective and unsafe” in Minn.Stat. § 541.-051. The statute was adopted in 1965, presumedly in response to “pressures brought to bear upon state legislatures by the architectural profession and construction industry after a major extension of their potential liability [with the erosion of the privity-of-contract doctrine].” Kittson, 241 N.W.2d at 802 (quoting Comment, Limitation of Action Statutes for Architects and Builders — Blueprint for Non-action, 18 Catholic U.L.Rev. 361 (1969)). At least 30 jurisdictions have adopted comparable statutes, and many are strikingly similar to Minnesota’s — with one notable exception. Half of the jurisdictions with statutes similar to Minn.Stat. § 541.051 have substituted the word “or” for “and.” ¹ The impact of that word change is significant, extending application of the two-year limitations period to those cases where the challenged improvement is defective but not unsafe.

Some legislatures have chosen to use “defective or unsafe” language. Ours has not. Thus I believe our legislature’s word choice was intentional. I would hold that under Minn.Stat. § 541.051, a complained of improvement must be both defective and hazardous before the two-year limitations period applies. Because the parties have stipulated that there is no health hazard, under this definition, the disputed improvements cannot be considered unsafe. As a result, I would hold the two-year limitations period does not apply.

YETKA, J., joined in the dissent of Justice TOMLJANOVICH.

1 . Examples of statutes applying the "defective or unsafe” language are D.C.Code Ann. § 12-310 (1989); Mo.Rev.Stat. § 516.097(1) (1986); N.M.Stat.Ann. § 37-1-27 (1978 Michie & Supp. 1990); N.C. Gen.Stat. § 1-50(5)(a)(1991); S.C.Code Ann. § 15-3-640 (Law.Co-op.Supp. 1991); Tex.Civil Prac. & Rem.Code Ann. § 16.-008(a) (West 1986); Utah Code Ann. § 78-12-25.5(8) (1992); and W.Va.Code Ann. § 55-2-6a (1992). Examples of statutes employing "defective and unsafe" language are Md.Cts. & Jud. Proc.Code Ann. § 5-108(a) (1989 & Supp.1991); Mich.Comp.Laws Ann. § 600.5839 (West 1987); NJ.Stat.Ann. § 2A:14-1.1 (West 1987); Ohio Rev.Code Ann. § 2305.131 (Anderson 1991); and Wis.Stat.Ann. § 893.89 (West 1983 & Supp. 1991) (declared unconstitutional on equal protection grounds by Funk v. Wollin Silo & Equip., Inc., 148 Wis.2d 59, 76-77, 435 N.W.2d 244, 252 (1989)).