On March 18, 2011, in a split 4-3 decision, the Georgia Supreme Court upheld a Georgia Court of Appeals decision granting summary judgment in favor of a company that built a deck attached to the plaintiff’s home. The Georgia Supreme Court held in Rosenberg v. Falling Water, Inc., Case No. S10G08770 (Ga. March 18, 2011), that the plaintiff’s personal injury claims were barred by Georgia’s eight year statute of repose.
In 1994, Falling Water, Inc., constructed a deck on the back of a Cobb County home. Thereafter, in 2002, Richard Rosenberg purchased the home, and in 2005, Rosenberg contracted with his neighbors to remove the exterior siding and replace it with vinyl siding. On the second day of the renovation project, Rosenberg returned home from work and stepped on the back deck to see the progress on the siding. As soon as Rosenberg stepped on the deck, it collapsed and fell, causing Rosenberg to receive serious personal injuries. Subsequently, Rosenberg filed suit against Falling Water alleging that Falling Water negligently constructed the deck by failing to properly attach the deck to the house and had committed fraud by using certain bolts to make it appear as if the deck were properly attached to the house.
Falling Water moved for summary judgment, citing Georgia’s Statute of Repose, which states that no actions to recover damages for personal injuries due to faulty construction can be brought more than eight years after substantial completion of such an improvement. O.C.G.A § 9-3-51. In response to Falling Water’s motion for summary judgment, Rosenberg argued that Falling Water fraudulently concealed the defects and faulty construction of the deck and, therefore, the statute of repose did not bar his claims. Because the deck was completed nearly 12 years before it collapsed, the Georgia Supreme Court held that any claims against Falling Water were barred.
Writing for the majority, Justice Harold Melton held that the statute of repose frames the time period in which a right may accrue. In this case the time period began as soon as the construction of the deck was substantially completed (1994) and ended eight years following the substantial completion of the deck. Rosenberg sustained injuries nearly 12 years after the completion of the deck and as a result, “once eight years passed with no injury, even the possibility of such an accrued right was eliminated.”
In the dissent, Chief Justice Carol Hunstein recommended that the case be remanded to the Georgia Court of Appeals to determine whether Rosenberg put forth sufficient evidence to establish an issue of material fact as to whether Falling Water should be stopped from using the eight year statute of repose because it fraudulently concealed its negligent conduct. If Rosenberg established that Falling Water fraudulently concealed the faulty construction then the eight year statute of repose would have been tolled and therefore would not bar his personal injury claims against Falling Water.
The unfortunate end result is that Georgia consumers are not able to toll the statute of repose even if the construction company has fraudulently concealed their construction negligence.
