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Hall v. Luby Corp.

Decided: January 31, 1989.

JOYCE HALL, INDIVIDUALLY, AND AS ADMINISTRATRIX AD PROSEQUENDUM AND GENERAL ADMINISTRATRIX OF THE ESTATE OF SHARONDA COLWELL, DECEASED; HAKIM COLWELL, AN INFANT BY HIS GUARDIAN AD LITEM, JOYCE HALL: AND SALEEM COLWELL, AN INFANT BY HER GUARDIAN AD LITEM, JOYCE HALL, PLAINTIFFS,
v.
LUBY CORPORATION, A CORPORATION OF THE STATE OF NEW JERSEY; LARRY MC NEIL, INDIVIDUALLY; OTIS ELEVATOR COMPANY, A CORPORATION OF THE STATE OF NEW JERSEY, DEFENDANTS



Villanueva, J.s.c.

VILLANUEVA

This is a personal injury action against the owner of an apartment building and the designer and installer of the elevator where the accident occurred.

Defendant Otis Elevator Company, who designed, constructed and installed the elevator 58 years before the accident in question, moves for summary judgment to dismiss the complaint and cross claims against it.

The issue is whether one who designs, fabricates and installs an elevator is entitled to the protection of the ten-year statute of limitations afforded in N.J.S.A. 2A:14-1.1. Although the plaintiffs have not opposed this motion, defendant McNeil contends that the statute was never intended to apply to the manufacturer of "stock" items, such as an elevator.

The court holds that the installation of an elevator is "an improvement to real property" because if it were to be removed it would materially damage the real property and subject the owner of the building to fines and penalties, and therefore, the statute applies to the designer, fabricator and installer of it. Accordingly, Otis has the benefit of the statute.

Statement of Facts.

The complaint, filed October 21, 1987, alleges that on May 24, 1986, Sharonda Colwell, was fatally injured on an elevator located in an apartment building where she lived at 49 South Clinton Street, East Orange. The complaint alleges that plaintiffs, Joyce Hall, Hakim Colwell and Saleem Colwell suffered

emotional distress as a result thereof and that the accident occurred as a result of the elevator in question being negligently manufactured, assembled, designed, marketed, modified, installed, maintained, repaired, sold or caused to be sold, shipped and/or distributed component parts thereof, by defendant Otis Elevator Company.

The elevator in question was designed and manufactured prior to 1928 and was installed by Otis in January 1928, 58 years prior to this accident.

Otis did not own the property at the time of the accident. Otis did not have a contract to service or maintain the elevator involved at the time of this accident. Otis' contract for maintenance of this elevator was cancelled on February 1, 1981, when it ceased working in that building.

Plaintiffs allege that defendant Luby Corporation, the record owner of the property, is a "dummy" corporation, run solely by defendant Larry McNeil for his benefit and formed by him to avoid personal liability.

The action Against Otis Elevator Company is Barred by the provisions of N.J.S.A. 2A:14-1.1 because it was commenced in 1987, 59 years after the design, construction and installation of the elevator involved in this suit.

Otis Elevator Company designed, constructed and installed the elevator 58 years prior to this occurrence. N.J.S.A. 2A:14-1.1 extinguishes any cause of action arising more than ten years after the performance of construction or services regarding improvements to real property, such as the elevator in question.

The pertinent statute, N.J.S.A. 2A:14-1.1, reads as follows:

10 years; damages for injury from unsafe condition of improvement to real property.

No action whether in contract, in tort, or otherwise to recover damages for any deficiency in the design, planning, supervision or construction of an improvement to real property, or for any injury to property, real or personal, or for an injury to the person, or for bodily injury or wrongful death, arising out of the

defective and unsafe condition of an improvement to real property, nor for any action for contribution or indemnity for damages sustained on account of such injury, shall be brought against any person performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property, more than 10 years after the performance or furnishing of such services and construction. This limitation shall not apply to any person in actual possession and control as owner, tenant, or otherwise, of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury or damage for which the action is brought.

Although the available materials regarding the legislative history of N.J.S.A. 2A:14-1.1 are "meager and unrevealing," Rosenberg v. Town of North Bergen, 61 N.J. 190, 194 (1972), it is clear that the expanded application of the "discovery rule" to new types of tort litigation was a driving force behind the Legislature's adoption of the statute. E. A. Williams v. Russo Development Corp., 82 N.J. 160, 165 (1980). The discovery rule, first adopted in Fernandi v. Strully, 35 N.J. 434 (1961), holds that a cause of action does not accrue until the defect or negligence complained of is, or should have been, discovered. As Justice Handler observed in E. A. Williams, supra:

Because of the expansion of the discovery rule to new fields, those involved in the design and construction of buildings and other improvements to real property were concerned that their potential liability for injuries caused by defective workmanship would last indefinitely, inasmuch as many defects would often not be discovered or give rise to a claim for damages until an injury had in fact occurred. [82 N.J. at 165.]

In Welch v. Engineers, Inc., 202 N.J. Super. 387 (App.Div.1985), the date when the ten-year time bar matures under the statute "must be measured from the final date the person claiming repose and immunity from suit furnishes any and all services or construction which it has undertaken at the job site." Id. at 397.

The Appellate Division in Welch, supra, stated:

The statute has been interpreted, not simply as being a statute of limitation, but, as one defining the substantive rights and abolishing a cause of action against designers, planners, supervisors or constructors of real property improvements ten years after the completion of the improvement. Hudson County v. Terminal Constr. Corp., 154 N.J. Super. 264 (App.Div.1977), certif. den. 75 N.J. 605 (1978).

The Appellate Division stated:

While discussing the legislative intent of N.J.S.A. 2A:14-1.1, Justice Handler concluded:

Clearly, Otis falls within a protected class intended to be benefited by the protection of the statute. The Court in Williams determined that even a surveyor falls within the ...


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