On appeal from the Superior Court of New Jersey, Law Division, Bergen County, Docket No. L-7338-98.
Before Judges Conley, Lefelt and Lisa.
The opinion of the court was delivered by: Lefelt, J.A.D.
NOT FOR PUBLICATION WITHOUT THE APPROVAL OF THE APPELLATE DIVISION
Frank Diana fell to his death on July 22, 1997, while ascending a fixed vertical steel ladder attached to a concrete block wall leading to a Bilco roof hatch. Plaintiff, Frank's wife Sandra, sought compensation from defendant Russo Development Corporation, the building's general contractor, and several other defendants. We granted Russo Development Corporation's motion seeking leave to appeal in order to review the trial court's determination denying summary judgment to the corporation on the basis that the hatch and ladder were not improvements to real property under the statute of repose, N.J.S.A. 2A:14-1.1. Thus, the sole issue presented by this interlocutory appeal is whether the hatch and ladder are improvements to real property and entitled to protection under the statute of repose. We answer this question affirmatively and reverse that portion of the trial court's decision.
The building containing the Bilco hatch and ladder was constructed between 1984 and 1986. Plaintiff's complaint was not filed until August 6, 1998, and thus Frank's fall occurred more than ten years after the hatch and ladder were incorporated into the building. At the time of the fall, Frank was working for Temprite doing heating and air- conditioning maintenance and repairs on the roof of the building in question. Defendant Lawrence Russo had leased the portion of the building where the accident occurred to defendant KKD Imports, Inc., which had employed Temprite to perform the work on the roof.
It is not clear exactly how the accident occurred. It appears that Frank had gone up and down the ladder several times before the tragic fall. Apparently, he had lowered rope from the roof and was going to pull a nitrogen tank to the roof from a position on the roof. Co-workers heard a "bang" and saw a tank regulator on the metal stair platform with Frank lying on the floor some twenty-five feet below the roof.
Plaintiff's expert claimed that the hatch cover was installed backwards and the fixed steel ladder was defective in design because it failed to incorporate a cage or other fall protection.
The Statute of Repose was adopted in 1967 "'to limit the expanding liability of contractors, builders, planners and designers.'" Ebert v. South Jersey Gas Co., 157 N.J. 135, 138 (1999)(quoting Horosz v. Alps Estates, Inc., 136 N.J. 124, 128 (1994). Rather than barring a remedy, the statute prevents a cause of action from arising. Hein v. GM Constr. Co., Inc., 330 N.J. Super. 282, 286 (App. Div. 2000). The Supreme Court has counseled that the statute should be construed "as applying to all who can, by a sensible reading of the words of the act, be brought within its ambit." Rosenberg v. Township of North Bergen, 61 N.J. 190, 198 (1972). The Court noted that there seemed to be "no reason not to include within the favor of the statute all [architects, contractors and the like] whether they be planners and builders of structures, roads, playing fields or aught else that by broad definition can be deemed 'an improvement to real property.'" Ibid.
In pertinent part, the statute provides: "[n]o action, . . . . to recover damages for any deficiency in the design, planning, surveying, supervision or construction of an improvement to real property" can be brought against "any person performing or furnishing the design, planning, surveying, supervision of construction or construction" more than ten years after the "performance or furnishing of such services and construction." N.J.S.A. 2A:14-1.1(a); See E.A. Williams, Inc. v. Russo Development Corp., 82 N.J. 160, 170-71 (1980)(discussing the statutory structure).
Before, proceeding to address the sole issue at hand, we first clarify what we need not and do not decide in this appeal. The statute not only requires that damages arise from "deficiencies in design, plan supervision, or construction of the improvement, but also that those deficiencies be related to a resulting condition which is itself 'defective and unsafe.'" E.A. Williams, supra, 82 N.J. at 169. The statute applies to any injury, for which suit is brought, "arising out of the defective and unsafe condition of an improvement to real property." N.J.S.A. 2A:14-1.1(a). If the plaintiff cites a particular defect or error that does not constitute an unsafe condition, the statute does not apply. For example, in E.A. Williams the Court found that a surveyor's "error [in placing a building on a lot] did not create a hazardous or unsafe condition in the building but rather resulted in its functional impairment with consequential economic losses entailed in its correction." Id. at 172. No party to this litigation asserts that the deficiencies plaintiff alleged regarding the hatch and ladder did not create a defective and unsafe condition. Thus, this statutory limitation is not at issue.
To be protected by the statute, a particular defendant's activity in connection with the installation of the claimed improvement must be that of designing, planning, supervising or constructing the improvement. Santos v. Hubey Corp., 236 N.J. Super. 608, 611 (Law Div. 1989). If the defendant only manufactured or sold a product, the protections of the statute would not apply. Id. at 612. Here, no one contests that Russo Development Corporation supervised the construction of the building in question. Thus, it is clear that ...