O.C.G.A. § 9-3-51 (2019)

Annotations

Editor’s notes. Ga. L. 2020, p. 37, § 2/SB 451, not codified by the General Assembly, provides that: “This Act shall apply to causes of action which have accrued on or after January 1, 1968.” Law reviews. For article discussing architect liability for product design and supervision of construction, and the statute of limitations, see 14 Ga. St. B.J. 164 (1978). For survey article on torts, see 34 Mercer L. Rev. 271 (1982).

For note, “The Effect of Georgia’s Architectural Statutes of Limitations on Real and Personal Property Claims for Negligent Construction,” see 7 Ga. St. U.L. Rev. 137 (1990). For annual survey of construction law, see 43 Mercer L. Rev. 141 (1991). For annual survey of construction law, see 62 Mercer L. Rev. 71 (2010). For article, “Construction Law,” see 63 Mercer L. Rev. 107 (2011). For article with annual survey on construction law, see 73 Mercer L. Rev. 59 (2021).

JUDICIAL DECISIONS ANALYSIS GENERAL CONSIDERATION APPLICATION General Consideration Constitutionality. - Separate classification and treatment of architects, engineers, and contractors by O.C.G.A. § 93-51 from owners, tenants, and manufacturers is reasonable and not arbitrary. Mullis v. Southern Co. Servs., 250 Ga. 90, 296 S.E.2d 579, 1982 Ga. LEXIS 1014 (1982). O.C.G.A. § 9-3-51 does not violate Ga. Const. 1976, Art. III, Sec. VII, Para. IV (see now Ga. Const. 1983, Art. III, Sec. V, Para. III), in that it definitely relates to and has a natural connection with the main object of the legislation and with what is expressed in the title. Mullis v. Southern Co. Servs., 250 Ga. 90, 296 S.E.2d 579, 1982 Ga. LEXIS 1014 (1982). O.C.G.A. § 9-3-51 does not violate Ga. Const. 1983, Art. I, Sec. I, Para. XII, relating to a person’s right to self-representation. Nelms v. Georgian Manor Condominium Ass’n, 253 Ga. 410, 321 S.E.2d 330, 1984 Ga. LEXIS 959 (1984). Effect upon § 9-3-30. - O.C.G.A. § 93-51 does not establish a new eight-year statute of limitation in place of the fouryear statute that applies under O.C.G.A. § 9-3-30. Howard v. McFarland, 237 Ga. App. 483, 515 S.E.2d 629. O.C.G.A. § 9-3-30(a) governed homebuyers’ claims for negligent construction, breach of warranty, and negligent misrepresentation against homebuilders and a company that manufactured stucco that was used in construction, but whereas the buyers’ cause of action against the builders did not begin to run until the buyers purchased the home, the buyers’ cause of action against the manufacturer began to run when the home was substantially completed and because that date was more than four years before the buyers’ filed suit, the buyers’ claim against the manufacturer was barred. Colormatch Exteriors, Inc. v. Hickey, 275 Ga. 249, 569 S.E.2d 495, 2002 Ga. LEXIS 479 (2002).

This section was intended to establish an outside time limit which would commence upon substantial completion of an improvement to real property, within which preexisting statutes of limitations would continue to operate. Benning Constr. Co. v. Lakeshore Plaza Enters., Inc., 240 Ga. 426, 241 S.E.2d 184, 1977 Ga. LEXIS 1515 (1977); Landon v. Williams Bros. Concrete Co., 149 Ga. App. 699, 256 S.E.2d 99, 1979 Ga. App. LEXIS 1992 (1979); R.L. Sanders Roofing Co. v. Miller, 153 Ga. App. 225, 264 S.E.2d 731, 1980 Ga. App. LEXIS 1759 (1980) (see now O.C.G.A. § 9-3-51). Construction with § 9-3-30. - O.C.G.A. § 9-3-51 is a statute of ultimate repose and does not extend the four-year limitation period of O.C.G.A. § 9-3-30 covering an action for damages to realty. Armstrong v. Royal Lakes Assocs., 232 Ga. App. 643, 502 S.E.2d 758. Only improvements to real property controlled by section. - This section is applicable only to improvements to real property. Turner v. Marable-Pirkle, Inc., 238 Ga. 517, 233 S.E.2d 773, 1977 Ga. LEXIS 1083 (1977). O.C.G.A. § 9-3-51 had no application to a claim that a landowner negligently maintained a grate installed by a contractor on its property. England v. Beers Constr. Co., 224 Ga. App. 44, 479 S.E.2d 420. Section not retroactive. - Statute of limitation in this section cannot be construed to have retroactive application. Jaro, Inc. v. Shields, 123 Ga. App. 391, 181 S.E.2d 110, 1971 Ga. App. LEXIS 1236 (1971). Application of this section to cause of action which had not accrued or vested at time of enactment of section in 1968 is not a retrospective application. U-Haul Co. v. Abreu & Robeson, Inc., 156 Ga. App. 72, 274 S.E.2d 26, 1980 Ga. App. LEXIS 2882 (1980), aff’d, 247 Ga. 565, 277 S.E.2d 497, 1981 Ga. LEXIS 787 (1981). No statements tolling statute of limitations. - Trial court’s rulings that

General Consideration (Cont’d) there was no genuine issue of material fact showing that the defendants made any statements sufficient to toll the statute of limitation as a matter of law were affirmed since the plaintiff did not exercise due diligence, and the statute of limitation had run on the plaintiff’s claim for breach of contract per se, even if such a claim existed. Southern States Chemical v. Tampa Tank & Welding, 359 Ga. App. 731, 858 S.E.2d 72, 2021 Ga. App. LEXIS 169 (2021). Immunity of O.C.G.A. § 9-3-50 et seq., should not be extended to manufacturers. Northbrook Excess & Surplus Ins. Co. v. J.G. Wilson Corp., 250 Ga. 691, 300 S.E.2d 507, 1983 Ga. LEXIS 605 (1983). Defendant was not a mere manufacturer but a designer within the contemplation of O.C.G.A. § 9-3-51 since allegedly defective doors were designed by the defendant’s engineering and design department to fit specifications and architectural drawings presented by the owner and since the doors were not only designed by the defendant but were custom designed and made for the plaintiff’s use. Northbrook Excess & Surplus Ins. Co. v. J.G. Wilson Corp., 250 Ga. 691, 300 S.E.2d 507, 1983 Ga. LEXIS 605 (1983). Limitation of O.C.G.A. § 9-3-51 applies regardless of when injury occurs or, indeed, whether a cause of action has accrued at all prior to the expiration of the period. Atlanta Gas Light Co. v. City of Atlanta, 160 Ga. App. 396, 287 S.E.2d 229, 1981 Ga. App. LEXIS 2984 (1981). “Discovery rule” inapplicable. - Tolling of a period of limitation by the discovery rule is confined to cases involving bodily harm. Fort Oglethorpe Assocs. II v. Hails Constr. Co., 196 Ga. App. 663, 396 S.E.2d 585, 1990 Ga. App. LEXIS 1011 (1990), cert. denied, No. S90C1669, 1990 Ga. LEXIS 552 (Ga. Oct. 4, 1990). Third-party claim for indemnification is an “action” covered under subsection (a) of O.C.G.A. § 9-3-51, and in view of the fact that the claim was not filed within two years of the date of injury, as required by subsection (b) of O.C.G.A. § 9-3-51, it was not timely filed. Gwinnett

Place Assocs. v. Pharr Eng’g, Inc., 215 Ga. App. 53, 449 S.E.2d 889, 1994 Ga. App. LEXIS 1125 (1994). Application Installation of company-owned gas line not improvement within section. - Installation of an underground gas line by a utility company for the transmission of natural gas, when the ownership of the line continues in the company, is not such an improvement to real estate as is contemplated by O.C.G.A. § 9-3-51. Atlanta Gas Light Co. v. City of Atlanta, 160 Ga. App. 396, 287 S.E.2d 229, 1981 Ga. App. LEXIS 2984 (1981). Burial of construction debris on an undeveloped lot could not be considered an improvement to real property for purposes of O.C.G.A. § 9-3-51. Armstrong v. Royal Lakes Assocs., 232 Ga. App. 643, 502 S.E.2d 758. Power plant’s electrical system qualified as an improvement to real property within meaning of O.C.G.A. § 9-3-51 when it consisted of a complex system of buildings and electrical components covering acres and acres of land, and in addition, was essential to the purpose of the realty, i.e., the generation and distribution of electrical power and as a result, clearly enhanced the value of the realty. Mullis v. Southern Co. Servs., 250 Ga. 90, 296 S.E.2d 579, 1982 Ga. LEXIS 1014 (1982). Erection of power pole and placing of necessary equipment thereon for transmission of electricity is not such an improvement to real estate as was contemplated by this section. Turner v. MarablePirkle, Inc., 238 Ga. 517, 233 S.E.2d 773, 1977 Ga. LEXIS 1083 (1977). Changing of light bulbs. - Genuine issue of material fact existed, precluding summary judgment, as to whether a scoreboard on the property owner’s softball field constituted the improvement to real property necessary to trigger the statute of repose of O.C.G.A. § 9-3-51(a) regarding the advertising agency employee’s claim for injuries allegedly sustained when the employee was thrown from the scoreboard due to its defective wiring as the employee changed light bulbs on it. Kull v. Six Flags over Ga. II, L.P., 254 Ga.

App. 897, 564 S.E.2d 747, 2002 Ga. App. LEXIS 438 (2002), rev’d on other grounds, 276 Ga. 210, 576 S.E.2d 880, 2003 Ga. LEXIS 120 (2003). Elevator constituted improvement to realty. - Elevator, specially designed and manufactured for installation in the plaintiff’s home and installed there as an integral part of the home pursuant to the defendant’s specifications, was an improvement to real property within the contemplation of O.C.G.A. § 9-3-51. Beall v. Inclinator Co., 182 Ga. App. 664, 356 S.E.2d 899, 1987 Ga. App. LEXIS 1768 (1987). Work done constituted improvement. - Georgia’s eight-year statute of repose for improvements to real property, O.C.G.A. § 9-3-51, barred a claim against an installer of asbestos at a paper mill where a claimant worked because the installation and removal of old insulation constituted an improvement to real property under the realty statute of repose, and the dust and debris associated with the improvement to real property was covered by O.C.G.A. § 9-3-51(a). Toole v. Georgia-Pacific, LLC, No. A10A2179, 2011 Ga. App. LEXIS 810 (Ga. Ct. App. Jan. 19, 2011), cert. denied, No. S11C1137, 2011 Ga. LEXIS 572 (Ga. July 11, 2011). Fireplace constituted improvement to realty. - Action for loss of real and personal property in a fire allegedly caused by a fireplace defect was barred because the fireplace was an improvement to real property within the meaning of O.C.G.A. § 9-3-51, and suit was not initiated until after eight years from the date of substantial completion thereof. Hanna v. McWilliams, 213 Ga. App. 648, 446 S.E.2d 741, 1994 Ga. App. LEXIS 762 (1994). Improvement that works properly cannot be deemed as having a “deficiency.” - Because O.C.G.A. § 9-3-51 specifically applies to “deficiencies” in the design or construction of an improvement to real property that causes personal injury or property damage, it follows that, while an improvement that works properly and does not cause any damage arguably “adds value” to the property, it could not be deemed as having a “deficiency”; because it caused no damage, no cause of

action would arise from its use, and, therefore, the statute would not apply in such a case. Wilhelm v. Houston County, 310 Ga. App. 506, 713 S.E.2d 660, 2011 Ga. App. LEXIS 533 (2011), cert. denied, No. S11C1745, 2012 Ga. LEXIS 219 (Ga. Feb. 27, 2012). Interlock device that was an integral part of a chlorine circulation system installed in a pool was an improvement to real property for purposes of O.C.G.A. § 9-3-51. Standard Fire Ins. Co. v. Kent & Assocs., 232 Ga. App. 419, 501 S.E.2d 858. Contractor’s contribution action against subcontractors could be maintained without a prior judgment. - Trial court erred in dismissing a contractor’s independent suit against several subcontractors for contribution and indemnity. Under O.C.G.A. § 51-12-32, the contractor was not required to suffer a judgment against it in an underlying suit before pursuing its right of contribution, and the contractor needed to protect its rights before expiration of the construction statute of repose, O.C.G.A. § 9-3-51. R. Larry Phillips Constr. Co. v. Muscogee Glass, 302 Ga. App. 611, 691 S.E.2d 372, 2010 Ga. App. LEXIS 194 (2010), cert. denied, No. S10C1094, 2010 Ga. LEXIS 587 (Ga. July 12, 2010), cert. denied, No. S10C1105, 2010 Ga. LEXIS 568 (Ga. July 12, 2010). Company’s suit against contractor for indemnification not barred. - Power company sued a former contractor seeking indemnification under the parties’ contracts for litigation expenses the company incurred in a wrongful death suit filed by the estate of the contractor’s former employee. The company’s suit was not barred by O.C.G.A, § 9-3-51 as the suit did not allege that the contractor’s construction was deficient, and the indemnification provisions did not require such a showing. Nat’l Serv. Indus. v. Ga. Power Co., 294 Ga. App. 810, 670 S.E.2d 444, 2008 Ga. App. LEXIS 1177 (2008), cert. denied, No. S09C0517, 2009 Ga. LEXIS 236 (Ga. Apr. 20, 2009). Defective construction action time barred. - Action against builder of a house based on alleged defective construction of the house was time barred since

Application (Cont’d) the homeowner did not acquire title to the house until after the tort and contract statutes of limitation had expired, and the homeowner was not allowed to revive those causes of action; neither the discovery rule nor the continuing tort theory applied to actions involving only damage to real property, and since all representations allegedly made by the builder took place after the statutes of limitation had expired, equitable estoppel did not toll the running. Bauer v. Weeks, 267 Ga. App. 617, 600 S.E.2d 700, 2004 Ga. App. LEXIS 733 (2004). According to a purchaser, the acts of a county, the county health department, and builders that resulted in the problems the purchaser experienced were not just related to the “construction of an improvement to real property,” the improvements were essential to such construction and occurred prior to the substantial completion of the improvement; accordingly, any cause of action for damage to real property that resulted from the deficiencies in such construction was subject to the eight-year statute of repose in O.C.G.A. § 9-3-51. Wilhelm v. Houston County, 310 Ga. App. 506, 713 S.E.2d 660, 2011 Ga. App. LEXIS 533 (2011), cert. denied, No. S11C1745, 2012 Ga. LEXIS 219 (Ga. Feb. 27, 2012). Purchaser’s claims against a county, the county health department, and builders were barred by the statute of repose, O.C.G.A. § 9-3-51, because the purchaser’s house and the septic system were completed before the purchaser moved in, but the purchaser did not file suit for damages allegedly resulting from construction defects in the septic system and/or the development of the property until more than nine years later. Wilhelm v. Houston County, 310 Ga. App. 506, 713 S.E.2d 660, 2011 Ga. App. LEXIS 533 (2011), cert. denied, No. S11C1745, 2012 Ga. LEXIS 219 (Ga. Feb. 27, 2012). Trial court erred in denying a developer’s motion for summary judgment on the homeowners’ claim for negligent construction because the developer presented testimony that the sale of the last townhouse closed on December 8, 2004, and that on the date of closing, construction of the

townhouses was substantially complete; thus, O.C.G.A. § 9-3-51, the statute of repose, barred any action filed after December 8, 2012, and the homeowners filed the homeowners’ suit two months after that date. Ashton Atlanta Residential, LLC v. Ajibola, 331 Ga. App. 231, 770 S.E.2d 311, 2015 Ga. App. LEXIS 133 (2015). Claims barred after expiration of eight-year repose period regardless of builder’s alleged fraud in construction. - Because a homeowner was injured in a deck collapse after the eightyear statute of repose period of O.C.G.A. § 9-3-51(a) had expired, it was irrelevant whether the builder had fraudulently covered up its allegedly negligent construction of the deck at the time it was built 11 years earlier. The owner’s action for injuries was barred. Rosenberg v. Falling Water, Inc., 302 Ga. App. 78, 690 S.E.2d 183, 2009 Ga. App. LEXIS 1447 (2009), aff’d, 289 Ga. 57, 709 S.E.2d 227, 2011 Ga. LEXIS 249 (2011). Court of appeals properly affirmed the trial court’s grant of summary judgment to a contractor in a homeowner’s action to recover damages for injuries the homeowner sustained when a deck collapsed because the homeowner’s right to file suit never accrued since the homeowner was not personally injured until years after the statute of repose time period expired; the injuries the homeowner sustained occurred more than a decade after the home had been substantially completed by the contractor, and the contractor took no action to prevent the homeowner from discovering a cause for the injuries or to dissuade the homeowner from filing suit with respect to the injuries, even if such a cause of action existed. Rosenberg v. Falling Water, Inc., 289 Ga. 57, 709 S.E.2d 227, 2011 Ga. LEXIS 249 (2011). Planning and design claim barred. - Engineering firm was properly granted summary judgment in the driver’s negligent planning and design action because the eight-year statute of repose in O.C.G.A. § 9-3-51 applied when the road was “an improvement to real property” in that the road was permanent in nature and added value to the property by allowing the public to efficiently traverse the

county. Feldman v. Arcadis US, Inc., 316 Ga. App. 158, 728 S.E.2d 792, 2012 Ga. App. LEXIS 505 (2012). Failure to warn claim barred. - Trial court properly granted summary judgment to a general contractor in a personal injury action by a minor, arising from the minor’s fall through a window that had been installed in a pub by the contractor, as the claim was barred by the expiration of the period contained in O.C.G.A. § 9-3-51; there was no exception for a failure to warn. Taylor v. S & W Dev., Inc., 279 Ga. App. 744, 632 S.E.2d 700, 2006 Ga. App. LEXIS 693 (2006). Nuisance claim barred by statute of repose. - Purchaser’s nuisance claims against a county, the county health de-

partment, and builders were barred by the statute of repose, O.C.G.A. § 9-3-51, because the purchaser could not maintain a nuisance action under the facts asserted in the plaintiff’s complaint; a plaintiff cannot maintain a nuisance claim that is based upon damage to a house resulting from a defect constructed into the house that was concealed from the plaintiff by the builder and/or the seller because, instead, the applicable causes of action are fraud against the seller and/or negligent construction against the builder. Wilhelm v. Houston County, 310 Ga. App. 506, 713 S.E.2d 660, 2011 Ga. App. LEXIS 533 (2011), cert. denied, No. S11C1745, 2012 Ga. LEXIS 219 (Ga. Feb. 27, 2012).

RESEARCH REFERENCES Am. Jur. 2d. 13 Am. Jur. 2d, Building and Construction Contracts, § 110 et seq. 51 Am. Jur. 2d, Limitation of Actions, §§ 108 et seq., 137 et seq. Am. Jur. Proof of Facts. Improper or Defective Wiring as Cause of Fire, 47 POF2d 451. C.J.S. 54 C.J.S., Limitation of Actions, § 82 et seq. ALR. Provision of death statute as to time of bringing action as a condition of the right of action or as a mere statute of limitations, 67 A.L.R. 1070. Complaint or declaration which fails to allege that action for wrongful death was brought within statutory period, or affirmatively shows that it was not, as subject to demurrer, 107 A.L.R. 1048. Exceptions attaching to limitation prescribed by death statutes or survival statutes allowing recovery of damages for death, 132 A.L.R. 292. Amendment of complaint or declaration by setting up death statute after expiration of period to which action is limited by the death statute or by the statute of limitations, 134 A.L.R. 779. Time for which statute of limitations begins to run against cause of action for wrongful death, 97 A.L.R.2d 1151. Construction and operation of parking-

space provision in shopping-center lease, 56 A.L.R.3d 596. Right to amend pending personal injury action by including action for wrongful death after statute of limitations has run against independent death action, 71 A.L.R.3d 933. When statute of limitations begins to run on negligent design claim against architect, 90 A.L.R.3d 507. Products liability: what statute of limitations governs actions based on strict liability in tort, 91 A.L.R.3d 455. Validity and construction, as to claim alleging design defects, of statute imposing time limitations upon action against architect or engineer for injury or death arising out of defective or unsafe condition of improvement to real property, 93 A.L.R.3d 1242. Statutes of limitation: actions by purchasers or contractees against vendors or contractors involving defects in houses or other buildings caused by soil instability, 12 A.L.R.4th 866. Time of discovery as affecting running of statute of limitations in wrongful death action, 49 A.L.R.4th 972. What constitutes “improvement to real property” for purposes of statute of repose or statute of limitations, 122 A.L.R.5th 1. Fraud, misrepresentation, or deception as estopping reliance on nonmedical malpractice statutes of repose, 98 A.L.R.6th 417.