Brennaman v. R.M.I. Co.

Moyer, C.J.,

concurring in part and dissenting in part. I concur with the majority’s analysis of what constitutes an improvement to real property but disagree with the conclusion that R.C. 2305.131 is unconstitutional and, therefore, dissent from the judgment announced today.

*468 A mere four years ago this court affirmed the constitutionality of R.C. 2305.131 in Sedar v. Knowlton Constr. Co. (1990), 49 Ohio St.3d 193 , 551 N.E.2d 938 . However, once again, the majority ignores the doctrine of stare decisis and the policy of consistency underlying it, to strike down a valid exercise of the General Assembly’s power.

Any constitutional analysis begins with the proposition that legislative enactments enjoy a strong presumption of constitutionality. State ex rel. Jackman v. Court of Common Pleas of Cuyahoga Cty. (1967), 9 Ohio St.2d 159 , 38 O.O.2d 404 , 224 N.E.2d 906 . It is not our duty to assess the wisdom of a statute but to determine whether it was enacted pursuant to the General Assembly’s constitutional authority. Primes v. Tyler (1975), 43 Ohio St.2d 195 , 72 O.O.2d 112 , 331 N.E.2d 723 .

As succinctly stated in Sedar , “[ujnlike a true statute of limitations, which limits the time in which a plaintiff may bring suit after the cause of action accrues, a statute of repose, such as R.C. 2305.131, potentially bars a plaintiffs suit before the cause of action arises.” (Emphasis sic.) Sedar, supra, 49 Ohio St.3d at 195 , 551 N.E.2d at 941 . A statute of repose does not deny a remedy for a vested cause of action but, rather, bars the action before it ever arises. Id. at 201 , 551 N.E.2d at 946 . Therefore, no right of action ever accrued to appellants in which their constitutional rights to damages or jury determination arose.

Ohio’s statute of repose for architects and engineers does not violate Section 16, Article I of the Ohio Constitution by denying appellants a remedy. Appellants have recourse through workers’ compensation which, given appropriate circumstances, may be enhanced through a VSSR award. Appellants may possibly have an action against the employer for an intentional tort. If the appellants had not been employees, they may have had causes of action under a premises liability theory. Appellants have not been denied redress for their losses but their monetary award has simply been predetermined by the laws of workers’ compensation. Those who are dissatisfied with this result should seek to change the limitations imposed by workers’ compensation rather than attack a constitutional exercise of the authority of the General Assembly.

Furthermore, as to the right to trial by jury, argued by the appellants but not addressed by the majority, the constitutional guarantee applies only to those actions recognized at common law at the time the Ohio Constitution was adopted. Belding v. State ex rel. Heifner (1929), 121 Ohio St. 393 , 169 N.E. 301 . While a cause of action in negligence existed at common law under trespass on the case, the doctrine of privity barred an action such as this against a builder by a third party at the time the Ohio Constitution was adopted. Sedar, supra; Sorrell v. Thevenir (1994), 69 Ohio St.3d 415 , 633 N.E.2d 504 . Therefore, no cause of *469 action such as this existed at common law and, as such, no right to a jury trial existed.

As stated earlier, at common law appellants’ actions against Bechtel would have been strictly barred by the doctrine of privity. The statute of repose strikes a rational balance between the rights of injured parties and the rights of architects and engineers who design and build improvements to real property. The majority’s opinion exposes designers and builders to unlimited liability for the life of a structure that quite possibly will extend beyond the life of the builder. Successors in interest may very well be called upon to defend against suits after the actual designer has died. The statute of repose guards against this risk of stale litigation.

Furthermore, the majority ignores the rights of the builders. If a builder discovers a potentially hazardous defect in a building he or she has designed after that building has been turned over to the owner, the builder has no legal right to go on the property to correct the defect. The occupier of the real property is in control of the premises and could exclude the builder from entry. By assigning the risk of loss to the occupier of real property, the General Assembly has apportioned liability in a rational and equitable manner to that person best able to correct any problem.

In Sedar , we found the distinction between aAhitects and occupiers to be rational because architects and engineers were no longer in control of the premises and therefore could not take the same corrective measures occupiers could. We also found ten years to be a rational standard to be applied in attempting to avoid the pitfalls of stale litigation. I believe that same reasoning applies today and, therefore, would uphold the constitutionality of R.C. 2305.131.

Wright and F.E. Sweeney, JJ., concur in the foregoing opinion.