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Ga. SC rules for builder after deck collapses

By Jessica M. Karmasek | Mar 24, 2011

Justice Harold Melton wrote, "Rosenberg never held a timely-accrued right to bring suit against Falling Water for his personal injuries."

ATLANTA (Legal Newsline) - The Georgia Supreme Court last week upheld the decision of two lower courts in favor of a builder who was sued by a future homeowner who suffered serious injuries resulting from a deck collapse.

The Court filed its majority opinion on March 18.

In it, the Court disagrees with plaintiff Richard Rosenberg's appeal that the doctrine of estoppel invalidates the statute of repose, even when a plaintiff receives no injuries prior to the running of the statutory period.

On May 5, 1994, the builder, Falling Water, Inc., obtained a permit from the City of Kennesaw to begin construction of a house at 1423 Shiloh Way. The city issued a certificate of occupancy for the property on July 12, 1994.

On July 14, 1994, Falling Water transferred title to the property to Susan and William Nowicki. The Nowickis subsequently sold the property to Axel and Charlotte Bayala.

On March 28, 2002, almost eight years after the city issued a certificate of occupancy for the property and Falling Water transferred title to the property, the Bayalas sold the house to Rosenberg.

The house had a deck attached to the back. In August 2005, Rosenberg hired his neighbors, who, the Court noted, were not carpenters, builders or renovators, to remove the wood siding from the house so that it could be replaced with vinyl siding.

On Aug. 31, 2005 -- the second day of the renovation project -- the neighbors removed the siding from the back of the house, but left the original siding at the site where the deck was attached to the house.

When Rosenberg arrived home from work, he walked out onto the deck to check the progress of the project. As soon as he stepped on the deck, it collapsed and he fell, sustaining serious injuries.

On May 25, 2006, Rosenberg sued Falling Water for injuries resulting from the deck collapse. In his complaint, he alleged that the builder had negligently constructed the deck by failing to properly affix it to the house and had committed fraud by hiding the defective construction from future owners by using certain bolts that made it appear that the deck was properly attached to the house.

In Falling Water's motion for summary judgment, it asserted that Rosenberg's claims were barred by OCGA § 9-3-51 (a), which imposes an eight-year statute of repose on actions to recover for personal injuries resulting from a deficiency in the construction of an improvement to real property.

Rosenberg argued that because Falling Water committed fraud, it should be equitably estopped from asserting a defense based upon the statute of repose.

A trial court granted summary judgment to Falling Water based upon a finding that Rosenberg's claims were barred by the statute of repose. The Court of Appeals thereafter affirmed the trial court, finding that Falling Water was not estopped from asserting a defense based on the statute of repose because Rosenberg's injury occurred after the statute had run.

Justice Harold D. Melton wrote for the Court that it "has repeatedly held that a statute of ultimate repose frames the time period in which a right may accrue, if at all.

"Therefore, if an injury occurs outside this time period, the injury is not actionable, as there is no longer even an inchoate right which may be brought to fruition by injury."

Here, the injuries sustained by Rosenberg occurred more than a decade after his home was completed by Falling Water.

"As a result, Rosenberg's right to file suit against Falling Water never accrued, and, once eight years passed with no injury, even the possibility of such an accrued right was eliminated," the Court wrote.

It again points to the eight-year time period in shooting down Rosenberg's other arguments -- that a question of fact remains whether Rosenberg fraudulently concealed a defect in the deck construction, and Falling Water should be equitably estopped from asserting the statute of repose defense if such fraud can be shown.

"Rosenberg's argument that the exception to the statute of repose set forth in these cases should be extended to his situation is logically untenable," the Court wrote.

"In the present case, Rosenberg never held a timely-accrued right to bring suit against Falling Water for his personal injuries. As set forth above, Rosenberg was not personally injured until years after the statute of repose time period expired. Therefore, he has never had a viable cause of action to pursue."

From Legal Newsline: Reach Jessica Karmasek by e-mail at

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