Suing an engineering, construction or installation firm for defects in building design or construction can be a tough prospect if the work was finished long ago and/or was substantially complete and accepted by the owner prior to the injury.
This is true in many states. In Florida, for example, the Florida Supreme Court ruled in Slavin v. Kay in 1959 that once a purchaser accepts a building, it’s the purchaser who accepts any of the building’s defects for purposes of liability. But this is true only when the defects are patent. Latent defects aren’t covered, and in some cases, a contractor might still be liable to third parties for injuries caused by latent defects. Subsequent court opinions held latency is determined by whether the danger posed by that condition was open and obvious – not whether the physical condition itself was open and obvious.
What this means is if you are injured as a result of a defective building condition, most likely, the defendant to pursue will be the owner of that property/structure. It might also be worth exploring the management firm/maintenance company, if the problem was failure to ensure proper upkeep.
According to court records, plaintiff was a doctoral candidate at a university in New Hampshire, and as such, she frequently worked in a laboratory, mixing chemicals. She received a tuition waiver, stipend and health insurance for her work.
She was injured through exposure to chlorine gas while doing laboratory work that was required by her program under the direction of a university professor.
Initially, she collected workers’ compensation benefits from the university. However, with workers’ compensation comes the exclusive remedy provision, which holds no other course of recovery against employer is allowable. However, she contended that because she was not technically an “employee” of the university, the exclusive remedy provision doesn’t apply. She argued even if it did, she could still bring a claim under the dual capacity doctrine because the school owed her a separate fiduciary duty as a student, separate from the duty it owed her as an employee. While a superior court found the issue not ripe for a final decision on that question, the university later reached a settlement agreement with plaintiff.
She then filed a separate injury case against the construction company and HVAC company that were responsible for installation/approval of a faulty vent that resulted in her exposure.
Defendants filed a motion for summary judgment on grounds plaintiff’s claims were barred by the statute of limitations, as the claim was brought more than eight years after the systems had been installed. Court granted this request. Plaintiff unsuccessfully sought reconsideration and then appealed. She asserted trial court erred in ruling the law governing the statute of repose (statute of limitations) didn’t violate her constitutional rights to due process and remedy. She also argued that she tried to identify and sue defendants prior to the expiration of repose.
However, appellate court rejected these arguments and affirmed trial court’s grant of summary judgment to defendants.
If you have been injured in an accident, contact the Hollander Law Firm at (888) 751-7770 for a free and confidential consultation. There is no fee unless we win.
Lennartz v. Oak Point Associates, LLC , Feb. 20, 2015, New Hampshire Supreme Court
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