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Suit against a design professional by a motorist that was injured due to an out-of-control drunk driver in a January 2009 accident was dismissed because the design services of the professional had been performed more than eight years before the accident, and the eight year period established by statute of repose for actions involving “improvements to real property” was found applicable by the court.  In Feldman v. Arcadis US, 728 S.E.2d 792 (Ga. 2012), the basis of the suit was the alleged negligent performance of design services for a stretch of highway.  The primary issue to be decided by the court was whether  highway design and construction should be deemed an “improvement to real” property as that term is used in the relevant state statute.  Because “the road is permanent in nature and added value to the property by allowing the public to efficiently traverse the county,”  the court found it was indeed an “improvement.”  The court explained that “Although it is true that no one actually lives on the road in order to “occupy” it …, countless vehicles traverse the road each day, and such daily public “occupation” in this manner would lead to the discovery of any such flaw within the reasonable time frame as a design flaw in a building.”  Therefore, applying the statute of repose is appropriate since “The statute of repose serves to limit the time for discovery of a design or construction flaw to a reasonable number of years, because such flaws would be discovered through the normal use of an improvement….”

The state statute of repose in this case states:

No action to recover damages: (1) For any deficiency in the survey or plat, planning, design, specifications, supervision or observation of construction, or construction of an improvement to real property; (2) For injury to property, real or personal, arising out of any such deficiency; or (3) 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 survey or plat, design, planning, supervision or observation of construction, or construction of such an improvement more than eight years after substantial completion of such an improvement.

About the author: Article written by J. Kent Holland, Jr.,  a construction lawyer located in Tysons Corner, Virginia,  with a national practice (formerly with Wickwire Gavin, P.C. and now with Construction Risk Counsel, PLLC) representing design professionals, contractors and project owners.  He is founder and president of a consulting firm, ConstructionRisk, LLC, providing consulting services to owners, design professionals, contractors and attorneys on construction projects.  He is publisher of ConstructionRisk.com Report and may be reached at Kent@ConstructionRisk.com or by calling 703-623-1932.  This article is published in ConstructionRisk.com Report, Vol. 14, No. 10 (Nov 2012).

Copyright 2012, ConstructionRisk.com, LLC