In the SVF Riva Annapolis, LLC, v. Gilroy case, the Court of Appeals of Maryland considered the application of the statute of repose defense under § 5-108 of the Courts and Judicial Proceedings Article of the Code of Maryland to the owner of a property where an accident took place. The Court of Appeals held that CJP § 5-108(d)(2)(i) provides an exception to the statute of repose for anyone in possession or control of real property, regardless of whether the claimed injury resulted from exposure to asbestos.
The case involved a claim for wrongful death which occurred on January 13, 2012 at a Chuck E. Cheese restaurant in Annapolis. Sean McLaughlin, Plaintiffs’ decedent, was at the restaurant to repair the air conditioning. While seeking to examine the equipment on the roof, McLaughlin placed a ladder on an exterior wall, mistakenly believing it went to the roof but which, in reality, went to a concrete pad typically occupied by dumpsters or trash compactors. McLaughlin climbed the ladder, mounted the wall, and fell 20 feet to the concrete pad below sustaining severe injuries leading to his death 12 days later.
Plaintiffs filed suit against the premises owner, the property management company and the tenant in negligence and premises liability claims, asserting that all three defendants failed to warn McLaughlin that the wall had no roof access. The owner and management company filed motions to dismiss contending, in part, that the statute of repose barred the claims because the building was completed in 1990, beyond the 20-year limit imposed by the statute, and claiming that the “possession and control exception” applied only to asbestos cases. The Circuit Court for Anne Arundel County agreed and granted the motion to dismiss on repose. The Court of Special Appeals, the intermediate level court, reversed, holding that the exception was not limited to asbestos cases. The Court of Appeals granted certiorari to decide the narrow issue of whether the possession and control exception applies in non-asbestos cases.
In reaching its decision, the Court of Appeals examined the statute of repose. The statute generally prohibits a plaintiff from bringing a claim for injury resulting from an improvement to real property more than 20 years after an improvement (or 10 years if against certain enumerated professionals). There are, however, exceptions to the statute of repose. The Court noted that the possession and control exception excludes certain defendants from the protections articulated in CJP § 5-108(a) and (b). The confusion comes about because all of the listed exceptions in CJP § 5-108(d) other than the possession and control exception discuss asbestos cases. CJP § 5-108(d)(2)(ii)-(iv) all relate to claims against manufacturers or suppliers of asbestos products. The possession and control exception eliminates the statute’s protection for any defendant “in actual possession and control of the property as owner, tenant, or otherwise when the injury occurred[.]” The Court found it significant that, despite its proximity to three additional exceptions relating to asbestos, the possession and control exception makes no mention of asbestos.
The Court then went on to discuss legislative history on the statute of repose and then issued its holding – that CJP § 5- 108(d)(2) sets out four independent exceptions to the statute or repose. Specifically, CJP § 5-108(d)(2)(i) does not apply only in cases involving injury from exposure to asbestos, but applies to any defendant “in actual possession and control of the property as owner, tenant, or otherwise . . .”
While the SVF Riva Annapolis, LLC, v. Gilroy case clarifies this limitation of the statute of repose, the decision is limited to those in possession or control of premises. Thus, this case does nothing to expand liability for entities such as builders, contractors, professionals, sellers or others involved in the construction of improvements to real property. The exception clarified in this case applies only to those in possession or control – so builders, contractors, professionals, sellers and other such entities, who normally are no longer involved with the property after the construction is completed, should still enjoy the full benefit and protection of the statute of repose.
If you would like a copy of the court’s decision or have any questions, please do not hesitate to contact MacDonald Law Group.