eNotes: Liability – September 2019

TT&H LAWYERS IN COURT

TT&H Attorneys Monica O’Neill and Christopher Gallagher win dismissal of federal rights lawsuit.

On August 14, 2019, Monica O’Neill and Christopher Gallagher, attorneys in TT&H’s Philadelphia office, won the dismissal of a federal civil rights lawsuit filed in the United States District Court for the Eastern District of Pennsylvania.  The Plaintiff had brought the action pursuant to 42 U.S.C. § 1983, alleging that the Defendants violated her rights under the 4th and 14th Amendments.  The Plaintiff claimed that the Defendants established a policy of reunifying children with their biological parents without regard for the rights of those who served as in loco parentis guardians.  Dismissing the Plaintiff’s action with prejudice, the Court agreed with Monica and Christopher that the Plaintiff did not establish that her due process rights were violated and did not adequately plead a class of one equal protection claim.

Questions about this case can be directed to Monica O’Neill, at (215) 564-2928 ext. 8503 or moneill@tthlaw.com, or to Christopher Gallagher, at (215) 364-2928 ext. 8519 or cgallagher@tthlaw.com.

 

TT&H Attorney Jolee Bovender wins defense verdict for hotel in premises liability action.

In connection with a recent arbitration, TT&H Attorney Jolee Bovender won a defense verdict on behalf of a Gettysburg area hotel. The Plaintiff claimed that he tripped and fell over a loose bumper block located in the hotel’s parking lot, resulting in a fractured elbow. Jolee was able to secure a defense verdict for the hotel, successfully arguing that a bright blue bumper block, even if loose, is not a dangerous condition. She further argued that the condition was open and obvious and could have been avoided by the Plaintiff with the exercise of due care.

Questions about this case can be directed to Jolee Bovender, at (717) 255-7626 or jmbovender@tthlaw.com.

 

TT&H SPEAKING OUT

On November 22, 2019, Ryan Blazure, an attorney in TTH’s Wilkes-Barre office, will be presenting in Scranton, PA on the negotiation and reduction of liens, as part of National Business Institute’s seminar entitled: Damages and Liens in Personal Injury.  The full-day course is accredited for Pennsylvania, New York and New Jersey Attorney, and Pennsylvania Insurance, continuing education credits. Further details can be found at: https://www.nbi-sems.com/ProductDetails/Damages-and-Liens-in-Personal-Injury/Seminar/83849ER_PACLEET2700000?crdt=OH%20CLE&pt=1.

Questions about this seminar can be directed to Ryan Blazure, at (570) 820-0240 ext. 8603 or rblazure@tthlaw.com.

 

CLIENT ADVISORY

PENNSYLVANIA CLIENT ADVISORY

Pennsylvania Supreme Court adopts new rule of civil procedure governing the initiation of lawsuits against “John Doe” or “Jane Doe” designations.

On April 1, 2019, the Supreme Court of Pennsylvania adopted Pa.R.C.P. No. 2005, which governs the initiation of an in personam lawsuit against unknown defendants, typically referred to as “John Doe” or “Jane Doe”. The new Rule provides that a plaintiff or a joining party may designate an unknown defendant by a “Doe” designation in a complaint provided that: (1) a defendant’s actual name is unknown to the plaintiff or joining party after having conducted a reasonable search with due diligence; (2) the “Doe” designation is averred to be fictitious; (3) a factual description of the unknown defendant is averred with sufficient particularity for identification; and (4) the plaintiff or joining party avers that a reasonable search to determine the actual name has been conducted. The Rule further provides that within 20 days after the actual name of the “Doe” defendant has been identified, the plaintiff or joining party shall file a motion to amend the complaint by replacing the “Doe” designation with the defendant’s actual name. The Rule requires an affidavit to be attached to the motion describing the nature and extent of the investigation that was made to determine the identity of the defendant, and the date upon and the manner in which the defendant’s actual name was identified.

The Rule requires a complaint using a “Doe” designation to describe the defendant with sufficient particularity for identification. The rule imposes a duty on the plaintiff or joining party to exercise due diligence in identifying the actual name of the defendant both before and after the complaint is filed. While a sufficient description of an unknown defendant is typically fact specific to a particular case, it may include the physical characteristics of the unknown defendant, the position or title of the job performed by the unknown defendant, the alleged conduct of the unknown defendant, and how the unknown defendant is connected to the action.

Per the Comment section, Rule 2005 is not intended to affect the substantive rights of any litigant. The ability to substitute the actual name of the “Doe” defendant after the expiration of the statute of limitations does not impermissibly extend it. Rule 2005 does not extend the time for filing an action as prescribed by the applicable statute of limitations. The rule is intended solely to provide a procedural mechanism to substitute the actual name of a Doe-designated defendant where the action has been filed within the limitations period and the defendant has been adequately described in the complaint to demonstrate that it was that defendant against whom the action was asserted.

A defendant introduced to an action by its actual name in an amended complaint may respond by preliminary objection challenging compliance with Rule 2005. Prior to the adoption of Rule 2005, the Rules of Civil Procedure were silent as to the use of “Doe” defendants in litigation. Prior case law did allow for the naming of “Doe” defendants. Rule 2005 is intended to fill the gap by standardizing the procedure in which to assert a cause of action against a “Doe” defendant in Pennsylvania.

Questions about this advisory can be directed to Michael Bishop, at (908) 574-0510 or mbishop@tthlaw.com.

 

SIGNIFICANT CASE SUMMARIES

FEDERAL CASE SUMMARIES

Kaiser Martin Group, Inc. v Haas Door Co.

United States District Court for the Eastern District of Pennsylvania

No. 19-1823, 2019 U.S. Dist. LEXIS 110283

Decided: July 2, 2019

In a products liability action, the Federal Court granted a motion to dismiss, finding that claims for breach of implied warranties were barred by the express warranty’s disclaimer of implied warranties.

Background

The Plaintiff, Kaiser Martin Group, Inc., sued Haas Door Co. for damage arising from the sale of twenty-four retractable garage doors installed in a horse riding arena. The owners of the arena had previously settled a lawsuit against Kaiser, a construction company, and assigned Kaiser their claims against Haas. Kaiser brought claims for breach of express warranty, breach of implied warranties, breach of contract, negligence, and violations of the UTPCPL. Haas moved to dismiss all claims arguing, in part, that the conspicuous language in the manufacturer’s warranty disclaimed any claims for breaches of the implied warranties of merchantability or fitness for a particular purpose.

With respect to the claim for breach of implied warranties, the Court granted the motion, finding that the express warranty for the doors contained a conspicuous disclaimer. The text was printed legibly in capital letters, used the exact disclaimer language suggested by the UCC, and appeared in a paragraph set apart from other text at the bottom of a single page warranty document. The Court also dismissed Kaiser’s breach of contract claim with prejudice because it was duplicative of the breach of express warranty claim. The Court dismissed Kaiser’s remaining claims, with leave to amend, because Kaiser did not sufficiently allege elements of those claims, i.e., that Haas owed Kaiser a duty of care, or that it was entitled to enforce the express warranty made to the owners of the arena.

Holding

The Court granted Haas Door Co.’s motion to dismiss all claims, dismissing the claims for breach of implied warranties and breach of contract with prejudice, while giving Kaiser leave to amend its claims for breach of express warranty, negligence, and violation of the UTPCPL.

Questions about this case can be directed to Ken Newman at (412) 926-1425 or knewman@tthlaw.com, or to Rick Murphy, at (412) 926-1443 or rmurphy@tthlaw.com.

 

Anderson v. US Postal Serv.

United States District Court for the Eastern District of Pennsylvania

2019 U.S. Dist. LEXIS 109369

Decided: July 1, 2019

Where the party contracting with the U.S. Postal Service to provide snow and ice removal services was an independent contractor exercising day-to-day supervision and control over its employees, the independent contractor exception to the Federal Tort Claims Act deprived the Court of subject matter jurisdiction over the federal defendants.

Background

Plaintiff brought a personal injury action under the Federal Tort Claims Act (“FTCA”) to recover damages sustained when he slipped and fell on snow and/or ice in the parking lot of a United States post office. Plaintiff filed suit against the United States, as owner and occupant of the subject property, and Merit Services Solutions, LLC (“Merit”), the contractor hired by the post office to engage in snow removal on the property. The federal defendants filed a motion to dismiss the amended complaint for lack of subject matter jurisdiction, pursuant to the independent contractor exception to the FTCA waiver of tort immunity.

Holding

The FTCA operates a limited waiver of sovereign immunity, making the federal government liable for personal injury caused by the negligence of its employees acting within the scope of their employment. 28 U.S.C. § 1346(b)(1). The FTCA defines employees of the government as “officers or employees of any federal agency,” and the statutory definition of “federal agency” specifically excludes “any contractor with the United States.” 28 U.S.C. § 2671. Under the “independent contractor” exception, the government retains sovereign immunity and cannot be held liable for the negligence of its independent contractors or their employees. To determine whether the exception applies, the critical factor is whether the government has the power to “control the detailed physical performance of the contractor.” An additional significant factor is whether the government supervised the contractor’s day-to-day operations.

In Anderson, because the contractor exercised broad responsibilities for the snow and ice removal at the Postal Service property, and exercised day-to-day supervision and control over the employees carrying out those duties, Merit was deemed an independent contractor. As such, the independent contractor exception to the FTCA deprived the court of subject matter jurisdiction over the federal defendants.

Questions about this case can be directed to John Lucy, at (717) 441-7067 or jlucy@tthlaw.com.

PENNSYLVANIA CASE SUMMARIES

Nazarak v. Waite

Pennsylvania Superior Court

2019 Pa. Super. 235

Decided: August 2, 2019

Evidence of workman’s compensation lien permitted at trial where defendant did not argue relevance.

Background

Seth Nazarak was in a vehicle accident during the course and scope of his employment. As a result, Nazarak received both medical and indemnity benefits through workman’s compensation. Prior to trial, Defendants – the driver of the other vehicle involved in the accident and his employer – filed motions in limine to limit Nazarak’s medical damages evidence solely to the amount paid by workman’s compensation and DPW, to preclude evidence of the compromise and release, and to limit Nazarak’s wage loss to the amount of indemnity payments paid by workman’s compensation. These motions were denied. Following the evidence, the Defendants requested supplemental jury points to provide the jury with an understanding of Nazarak’s duty to repay the lien, which were refused. The jury found in favor of Nazarak.

On appeal, Defendants argued that the Trial Court erred in permitting evidence of Nazarak’s workman’s compensation lien, as it was an inadmissible collateral source, permitted a double recovery, and usurped the function of the jury by valuing the case and prejudicing Defendants. Notably, Defendants failed to argue that the workman’s compensation lien and settlement were not admissible simply because they were not relevant. Pennsylvania courts may admit evidence of a collateral source if the evidence is relevant to a contested issue in the case. In Nazarak’s case, the issue for the jury was damages, not liens, and thus Defendants should have argued the clear irrelevant nature of the evidence of the lien.

Holding

The Superior Court did not find any abuse in the Trial Court’s discretion in admitting this evidence. Again, the Superior Court was not tasked with considering the relevance of the workman’s compensation lien to damages as this was not argued at the Trial Court. As to the collateral source rule, the Court determined that the purpose of the collateral source rule – protection of the plaintiff and prevention of a benefit to the alleged wrongdoer – was not implicated when Nazarak himself offered the evidence. Further, there was no dispute that Nazarak would have to repay the workman’s compensation lien from the damages awarded by the jury and thus no double recovery would occur. Finally, the jury was permitted to judge for themselves what impact, if any, the payment of workman’s compensation benefits had on its finding of factual cause and damages.

Questions about this case can be directed to Julia Morrison, at (717) 441-7056 or jmorrison@tthlaw.com

 

Boukassi v. Wal Mart Stores, Inc.

Pennsylvania Superior Court

No. 3449 EDA 2018 (non-precedential decision)

Decided: August 1, 2019

The Pennsylvania Superior Court affirmed an Order granting summary judgment in a premises liability claim against Appellees Wal-Mart Stores, Inc. and Wal-Mart Store #2141. Appellant Fatima Boukassi had argued that the Trial Court erred in granting summary judgment in favor of Appellees because the determination of constructive notice was a question for the jury.

Background

On May 2, 2016, Appellant slipped and fell at Wal-Mart Store #2141. Appellant testified that the store was busy when she arrived, and that she entered through the main entrance, walked straight to the dairy section, picked up some lemonade, and turned around to exit. She further testified that walking back down the same aisle she had just come from, she slipped and fell on a spilled substance in the middle of the aisle. According to Appellant, the spill was about three inches in diameter, was liquid, yellowish, oily, and had no dirt or streak marks in or around it. Appellant was in the store for approximately two minutes before she fell and did not hear anyone say anything about a spill on the floor. She did not look at the floor or see anything on the floor before she fell, and she testified that she did not know where the spill came from.

Appellant commenced her action by filing a complaint on March 15, 2017. On May 14, 2018, a panel of arbitrators found in favor of Appellees. Appellant timely appealed the arbitrators’ findings on May 24, 2018. On August 30, 2018, Appellees filed a motion for summary judgment, asserting that “since Appellant is unable to establish actual or constructive notice and that Appellees’ actions fell below the standard of reasonable case, there is no genuine issue of material fact.” Appellant filed a response alleging, in relevant part, that she was “a business invitee . . . to be afforded the highest level of care,” and “there are clear issues of fact which are only ripe for the finder of fact to determine . . . as to how this accident occurred.” The Trial Court granted Appellees’ motion for summary judgment on November 8, 2018.

Holding

The Pennsylvania Superior Court sided with the Appellees and found that no genuine issues of material fact existed. The Superior Court found that the Appellant was not able to prove constructive notice of the alleged defect by the Appellees and absent the same, no legal duty was breached by the Appellees. The Court thus affirmed the Court of Common Pleas’ Order granting summary judgment.

Questions about this case can be directed to Christopher Gallagher, at (215) 564-2928 or cgallagher@tthlaw.com.

 

Cruz v. Midwives & Assocs.

Pennsylvania Superior Court

No. 172 EDA 2019 (non-precedential decision)

Decided: July 30, 2019

Plaintiff’s use of “Default Notice” language that pre-dated 1994 amendment renders default judgment void.

Background

After Defendants failed to file a responsive pleading to Plaintiff’s complaint within twenty (20) days of service, Plaintiff served Defendants with the prerequisite “Ten Day Default Notices.” Of importance, Plaintiff used the “Default Notice” language that pre-dated the 1994 amendments. At the conclusion of the ten-day period, Plaintiff filed for a default judgment, which was entered. Subsequent thereto, Defendants filed a petition to open the default, which was denied. Defendants then filed a timely appeal.

Holding

The Superior Court, relying on its previous decision in AmeriChoice Fed. Credit Union v. Ross, 153 A.3d 1018 (Pa. Super. 2015), struck the default judgment. The Court found the default judgment was defective on its face for using the “Default Notice” language that pre-dated the 1994 amendments to the Pennsylvania Rules of Civil Procedure. Under the circumstances, the Defendants did not have to meet the three-prong test established by the Pennsylvania Supreme Court for the opening of a default judgment.

Questions about this case can be directed to Brook Dirlam, at (412) 926-1438 or bdirlam@tthlaw.com.

 

Virnelson v. Johnson Matthey, Inc.

Pennsylvania Superior Court

No. 343 EDA 2017 (non-precedential decision)

Decided: July 25, 2019

A factual record must exist before a court can decide whether an investigator or his report is protected by the consulting expert privilege provided at Pa.R.C.P. No. 4003.5(a)(3).

Background

This appeal involved whether a report prepared by a consulting firm, hired to conduct an independent safety evaluation of a site and determine the cause of a fatal accident, was protected by the consulting expert privilege provided at Pa.R.C.P. No. 4003.5(a)(3). Here, Appellants hired BakerRisk to conduct an independent evaluation of an accident site. BakerRisk in turn prepared a report on the matter. The existence of the report was disclosed to Appellee’s counsel by the inadvertent disclosure of a case evaluation report to Appellant’s client. Appellant argued that the report was protected because it was a report prepared by a non-testifying expert retained in anticipation of litigation. Appellee argued it was not privileged because Appellants hired BakerRisk to conduct an independent evaluation. Judge Young found the report was subject to disclosure.

Holding

On appeal, the Superior Court found that because no factual record existed, including witness testimony or evidence presented, it was unable to determine whether Judge Young’s conclusion as to the nature of the relationship between Appellants and BakerRisk was protected. Accordingly, the case was remanded for a hearing to develop the factual record on the matter.

Questions about this case can be directed to Jolee Bovender, at (717) 255-7626 or jmbovender@tthlaw.com.

 

Pa. Mfrs. Indem. Co. v. Pottstown Indus. Complex LP

Pennsylvania Superior Court

2019 Pa. Super. LEXIS 729

Decided: July 22, 2019

A contractual claim based upon faulty workmanship gives rise to a covered occurrence under a commercial general liability policy if the work damages property other than that supplied by the insured or connected to its work, and if the damage was caused by an accident, which is an unexpected and undesirable event.

Background

A tenant sued its commercial lessor for damage to inventory valued in excess of $700,000. The inventory was destroyed due to four floods of the premises. The flooding was caused by the landlord’s improper maintenance and repair of the roof, including poor caulking, gaps and separations in the roof membrane, undersized drain openings, and clogging of the drains with debris. Although the complaint sounded in breach of contract, there were allegations of negligence on the part of the lessor. The lessor sought coverage for the property damage under its commercial general liability (CGL) policy. The insurer provided a defense subject to a reservation of rights and brought a declaratory judgment action. The Common Pleas Court held that there was no coverage, reasoning that the complaint against the landlord did not alleged any covered occurrence.

The Superior Court reversed. It acknowledged that claims of faulty workmanship are essentially contractual in nature and do not typically give rise to an occurrence covered by a CGL policy. However, the Court distinguished the prevailing precedents and held that the underlying complaint triggered coverage.

Holding

The Court limited prior decisions holding that allegations of faulty workmanship do not give rise to an occurrence. Those cases involved damage to work or products that the insured was contractually obligated to provide; whereas, the underlying complaint alleged damage to other property. Further, the damage to that property was not caused by the insured’s performance of services upon it. Rather, the insured provided substandard work on the roof of a building. In addition, the damage was due to a number of floods, which satisfied the requirement of an accident (i.e., an unexpected and undesirable event). Although the underlying complaint sounded in breach of contract, the facts alleged negligence in the maintenance and repair of the roof and the facts were determinative of coverage rather than the legal theory attached to them. Finally, the Court noted that there was no breach of contract exclusion in Coverage A (bodily injury and property damage liability), unlike Coverage B (personal and advertising injury liability), which contained such an exclusion.

Questions about this case can be directed to Louis Long, at (412) 926-1424 or llong@tthlaw.com.

 

MARYLAND CASE SUMMARY

Stracke v. Butler

Maryland Court of Appeals

September Term, 2018, No. 64

Decided: August 16, 2019

A well-intended error in medical judgment – even if it costs the patient’s life – does not equate to a wanton and reckless disregard for the life of that patient.

Background

Kerry Butler complained of chest pains. His wife, Crystal Butler, called 911. Stracke and Cisneros (Baltimore City paramedics) were dispatched to the Butlers’ home. The paramedics had difficulty locating the residence because of an unlit street and discrepancies in the reported address. When the paramedics arrived, Ms. Butler informed them that Mr. Butler thought that he was having a heart attack. Mr. Butler had his hand on his chest. The paramedics had Mr. Butler go to the ambulance for assessment. Mr. Butler began walking to the ambulance on his own. Inside of the ambulance, Mr. Butler’s vitals were assessed and it was determined that he was in stable condition. Twenty-seven minutes after arrival, the paramedics determined that Mr. Butler should be transported to the hospital. Upon arrival at the hospital, the paramedics advised hospital staff that Mr. Butler was experiencing “burning in his throat.” After waiting in the emergency room for approximately 10 minutes, Mr. Butler became unconscious and was taken to the code room where he passed away. It was determined that he died of a heart attack.

Mr. Butler’s Estate, as well as his survivors, filed a wrongful death and survival action in the Circuit Court for Baltimore City. The paramedics claimed municipal immunity under the Fire and Rescue Company Act, Cts. & Jud. Proc. § 5-604(a). Butler’s Estate argued that the paramedics’ actions amounted to gross negligence and, therefore, they were not immune from the suit. A Baltimore City Jury found the paramedics were grossly negligent and produced an award of $3,707,000.00. The paramedics moved for judgment notwithstanding the verdict, which was granted. The Trial Court found that the Estate’s evidence of gross negligence was insufficient. The Court of Special Appeals reversed the Trial Court’s grant of JNOV and ordered the verdict to be reinstated. The Court of Appeals then granted certiorari.

Conclusion

The Court of Appeals explained the standard for gross negligence, that being “a failure to perform a manifest duty in reckless disregard of the consequences [which] represents an utter indifference to the life of another.” It held that a well-intended error in medical judgment – even if it costs the patient’s life – does not equate to a wanton and reckless disregard for the life of that patient. Therefore, the Court held that the Estate’s evidence was insufficient to elevate the paramedics’ conduct to gross negligence and, therefore, the paramedics were entitled to immunity under the Fire and Rescue Company Act, Cts. & Jud. Proc. § 5-604(a).

Questions about this case can be directed to Salvatore Cardile, at (410) 653-0460 or scardile@tthlaw.com.

 

NEW JERSEY CASE SUMMARY

Maison v. NJ Transit Corp.

New Jersey Superior Court, Appellate Division

No. A-3737-17T2

Decided: July 17, 2019

Superior Court holds that non-party tortfeasors should be included on the jury’s verdict sheet, where not precluded by statute – such as the workers’ compensation bar – even where the person(s) have not been identified by name.

Background

The defendants, New Jersey Transit and its bus driver, appealed from a jury verdict in favor of plaintiff and from the denial of defendants’ motion for judgment notwithstanding the verdict (“j.n.o.v.”), new trial, or remittitur.  The plaintiff had boarded a NJ Transit bus and sat near the back in front of a group of teenagers.  The teenagers began making profane comments toward plaintiff and one of them threw an object at her.  When plaintiff confronted the teenagers, one of them brandished a knife, causing plaintiff to change seats. When the teenagers got off the bus, one of them threw a liquor bottle at plaintiff’s head, requiring plaintiff to be transported to the hospital.  The bus driver testified to witnessing the entire interaction, but testified that he did not intervene because plaintiff appeared to handle the situation. The bus driver further testified that he would have intervened had plaintiff asked for help, and he would have called police if he had noticed that one of the teenagers brandished a knife.

Plaintiff filed suit against NJ Transit and the driver.  Although her action was initially dismissed under the New Jersey Tort Claims Act’s (“TCA”) police protection immunity, plaintiff amended her complaint to allege that NJ Transit was a common carrier and breached its duty to keep passengers safe from harm. The Trial Court denied defendants’ motion for a directed verdict on plaintiff’s amended complaint based on TCA immunity for failure to provide police protection and good faith execution of the law. The jury awarded plaintiff a verdict of $1.8 million in damages.

Holding

On appeal, the Appellate Division affirmed in part and vacated and remanded in part.  The Court ruled that the Trial Court properly applied the common carrier standard of negligence to the defendants and that there was sufficient evidence for the jury to find that the driver’s inaction proximately caused plaintiff’s injury. However, the Court ruled that the Trial Court erred by failing to include the non-party bottle thrower on the verdict sheet to apportion fault.  The Court noted that defendants had raised third-party conduct as a cause of plaintiff’s injuries as a separate defense in their Answer.

Questions about this case can be directed to Michael Bishop, at (908) 574-0557 or mbishop@tthlaw.com.

 

DC CASE SUMMARY

B. Frank Joy, LLC v. District of Columbia Sewer & Water Auth.

District of Columbia Court of Appeals

No. 18-CV-311

Decided: August 1, 2019

D.C. Court of Appeals holds that statue of repose bars D.C. Water’s negligence action against general contractor arising from roadway collapse 17 years after construction.

Background

On May 21, 2013, the roadway collapsed at the intersection of 14th and F Streets, NW, in Washington D.C., creating a sinkhole that damaged a major sewer pipe and other underground sewer and water infrastructure, resulting in $916,538.46 in damage. On May 20, 2016, D.C. Sewer and Water Authority (D.C. Water) filed a lawsuit against B. Frank Joy, LLC (“Joy”), the general contractor who had installed a manhole in the intersection in 1996 to allow for fiber optic cables to pass under the roadway as part of an AT&T telecommunications system. D.C. Water alleged that during construction, Joy negligently installed a pre-cast manhole and bisected a storm water lateral, causing storm water to be blocked from the sewer system and to be redirected into the soil. This in turn forced soil through a crack in a larger sewer pipe, ultimately causing erosion that resulted in an underground void which led to the roadway collapse.

Joy moved to dismiss the complaint arguing that the action was barred by D.C.’s ten-year statute of repose, which bars actions to recover damages resulting from defective or unsafe conditions of an improvement to real property unless injury occurs within ten years from the date the project is substantially completed. The statute does not bar actions brought by the D.C. government. D.C. Water opposed the motion and argued that: (1) the manhole was not an improvement to real property; (2) that the action did not arise from a defective or unsafe condition of the manhole but from manhole misplacement; and (3) that the action was brought by D.C. government. The Trial Court denied the motion and found that the manhole did not constitute an improvement to real property. Joy renewed the motion at trial, which was again denied, and a jury returned a verdict for D.C. Water. Joy appealed.

Holding

The Court of Appeals reversed the Trial Court’s denial of the motion to dismiss and held that the manhole constitutes an improvement to real property, that the action arose from an unsafe condition, and that prior binding precedent holding that D.C. Water was not part of the D.C. government for purposes of D.C.’s statute of limitations dictated the same conclusion for the statute of repose. Thus, the Trial Court should have dismissed the action as barred by the statute of repose. In its holding, the Court of Appeals adopted a common sense definition of improvements to real property, rather than using an analysis of the common law of fixtures. This common sense approach will benefit future litigants by providing guidance as to how the Court will view improvements. More importantly, this holding provides contractors working with D.C. Water with certainty that their exposure to liability will not exist in perpetuity.

Questions about this case can be directed to Peter Biberstein, at (202) 945-9506 or pbiberstein@tthlaw.com.