Broome v. Truluck

Lewis, Chief Justice:

This action was commenced on June 26, 1975 to recover for injuries sustained by appellant, when she caught her foot on a raised threshold and fell as she was proceeding through a door at one of the entrances to the garage of Waltcrboro Motor Sales Company in Walterboro, South Carolina, on July 10, 1973. The premises of Walterboro Motor Sales Company were renovated in 1962 and the door in question was installed at that time, with installation substantially completed in December 1962. Appellant brought this action against the manufacturer of the door and respondent, the architect, who designed the building, alleging negligence in the design and manufacture of the door.

This appeal is from an order of the lower court granting respondent’s motion for summary judgment on the ground that the present action is barred by Section 15-3-640 of the 1976 Code of Laws, which provides that any action brought to recover damages for any deficiency in the design of any improvement in real estate against the person furnishing the design must be brought within ten (10) years after substantial completion of the improvement. Appellant concedes here, as she did in the lower court, that if Section 15-3-640 is constitutional, this action is barred, because the improvement designed by respondent, which allegedly caused appellant’s injury in 1973, was substantially completed in December 1962, more than ten years after the improvement. The issues in this appeal relate solely to the constitutionality of the foregoing statute.

Appellant contends that Section 15-3-640 is unconstitutional because it violates: (1) Article 3, Section 17 of the South Carolina Constitution in that the title does not sufficiently identify the subject of the Act; (2) Article 1, Section 9 of the South Carolina Constitution which provides that every person shall have a speedy remedy in the courts for wrongs sustained; and (3) the equal protection and due process clauses of the State (Article 1, Section 3) and Federal (Fourteenth Amendment) Constitutions.

We need consider only the third ground of appellant’s attack upon the constitutionality of the statute, since it, in our opinion, clearly violates the constitutional guaranty of equal protection of'the law.

The statute in question (Section 15-3-640) is as follows:

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

It is apparent from the descriptive terms used that the sole object, purpose and scope of the foregoing statute was to grant to architects, engineers, and contractors in the real estate construction industry immunity from suit for their torts after the lapse of ten years from the date of the substantial completion of the improvement causing injury or damage.

While the General Assembly has the power in passing legislation to make a classification of its citizens, the constitutional guaranty of equal protection of the law requires that all members of a class be treated alike under similar circumstances and conditions, and that any classification cannot be arbitrary but must bear a reasonable relation to the legislative purpose sought to be effected. Gasque, Inc. v. Nates, 191 S. C. 271, 2 S. E. (2d) 36

The question then is whether there is a sound basis for regarding architects, engineers, and contractors engaged in the improvement of real property as a distinct and separate class for the purpose of granting immunity from suit after the lapse of ten (10) years. Certainly, such classification must fall if the benefits (immunity) granted to them is denied to others similarly situated. The latter result clearly follows when we consider that architects, engineers, and contractors are not the only persons whose negligence in the improvement of real property may cause damage or injury to others. Neither the owners nor the manufacturers of components that go into the construction of the building are protected. In fact, the owner is specifically excluded from the protection of the statute. Section 15-3-670, 1976 Code of Laws. Only architects, engineers, and contractors are singled out for preferential treatment. While it is broadly stated that a vital distinction exists between architects, engineers, and contractors on the one hand, and owners and manufacturers, on the other, such vital distinction is no where pointed out such as to justify granting immunity to one group and not to the other. No rational basis appears for making such distinction. Skinner v. Anderson, 38 Ill. (2d) 455, 231 N. E. (2d) 588; Fujioka v. Kam, 55 Haw. 7, 514 P. (2d) 568.

The Illinois Supreme Court considered a similar statute to the present one, but containing a four (4) year limitation period. The court pointed out:

That the statute benefits all architects and construction contractors is significant only if the benefits conferred upon them are not denied others similarly situated.

In discussing the discriminatory effect of the statute upon others similarly situated, the court in Skinner soundly reasoned :

More important is the fact that of all those whose negligence in connection with the construction of an improvement to real estate might result in damage to property or injury to person more than four years after construction is completed, the statute singles out the architect and the contractor, and grants them immunity. It is not at all inconceivable that the owner or person in control of such an improvement might be held liable for damage or injury that results from a defective condition for which the architect or contractor is in fact responsible. Not only is the owner or person in control given no immunity; the statute takes away his action for indemnity against the architect or contractor.

Green v. Zimmerman, S. C., 238 S. E. (2d) 323, Smith’s Advance Sheet October 22, 1977, is inapplicable. In Green the statute involved was based upon a reasonable classification to accomplish valid legislative purposes.

The judgment of the lower court is accordingly reversed and the cause remanded for further proceedings.

Ness and Rhodes, JJ., concur. Gregory, J., concurs in result. Littlejohn, J., dissents.