Anyone who deals with construction litigation in Florida knows that such claims are subject to a ten-year statute of repose. This generally means that, regardless of when a plaintiff knew or should have known of some problem with the construction, the plaintiff’s claims are usually barred if brought more than ten years after the certificate of occupancy was issued. The statute of repose is designed to establish an absolute deadline for any claims related to construction projects; this is something the ordinary statute of limitations does not accomplish because of its exceptions.
Florida’s statute of repose provides, in most relevant part, that “[a]n action founded on the design, planning, or construction of an improvement to real property” must be commenced within ten years. Fla. Stat. § 95.11(3)(c). This language would clearly apply to the design and construction of a building’s structural elements. But what if, twelve years after original construction, a homeowner files a lawsuit related to personal injuries he suffered while using an attic ladder? Is such a claim “an action founded on the design, planning or construction of an improvement to real property”? The First District Court of Appeal in Florida recently answered that question in the affirmative and concluded that the statute of repose applies and bars such a claim. See James Harrell v. The Ryland Group, Case No. 1D18-3728, 2019 WL 3783384, 44 Fla. L. Weekly D2045b (Fla. 1st DCA Aug. 13, 2019).
The opinion discusses the history and purpose of Florida’s statute of repose, and what constitutes an “improvement to real property” in Florida jurisprudence:
As such, the applicability of section 95.11(3)(c) turns on whether Appellant’s action is founded on the “construction of an improvement to real property.” We refer to the dictionary to ascertain the plain and ordinary meaning of the words “construction” and “improvement” because the Legislature did not define them. “Construction” is defined as “[t]he act of building by combining or arranging parts or elements; the thing so built.” Construction, BLACK’S LAW DICTIONARY (11th ed. 2019). “Improvement” is defined as “[a]n addition to property, usu. real estate, whether permanent or not; esp., one that increases its value or utility or that enhances its appearance.” Improvement, BLACK’S LAW DICTIONARY (11th ed. 2019). Cf. Hillsboro Island House Condo. Apartments, Inc. v. Town of Hillsboro Beach, 263 So. 2d 209, 213 (Fla. 1972) (finding that beach erosion projects were “capital improvements” for the purpose of the town charter and relying on the fourth edition of Black’s Law Dictionary defining “improvement” as “[a] valuable addition made to property (usually real estate) or an amelioration in its condition, amounting to more than mere repairs or replacement of waste, costing labor or capital, and intended to enhance its value, beauty or utility or to adapt it for new or further purposes”).
Under the current definition of “improvement,” the attic ladder need not be permanent and is not required to increase the value and/or utility of the property. See Improvement, BLACK’S LAW DICTIONARY (11th ed. 2019) (“An addition to property, usu. real estate, whether permanent or not; esp., one that increases its value or utility or that enhances its appearance.”). The attic ladder is unquestionably an addition to real property, and it provides added utility. While the attic could be accessed absent the pull-down stairs with a household ladder, the pull-down stairs provide convenience as they obliviate the need to have a standalone ladder tall enough for attic access that one then has to carry to and properly place under the attic opening. Nothing in the statutory language or dictionary definition requires the addition to significantly increase the value or utility of the property or to be essential to the property. Given such, the attic ladder meets the current definition of improvement.
We note that the attic ladder also meets the prior definition of improvement because it is an addition to property, it amounts to more than mere repair or replacement of waste, it cost labor and capital given that it required installation and cost $249, and we cannot conceive of a reason why the original owners would have opted to pay for it other than to intend to enhance the value or utility of the property. See Improvement, BLACK’S LAW DICTIONARY (4th ed. 1969) (“A valuable addition made to property (usually real estate) or an amelioration in its condition, amounting to more than mere repairs or replacement of waste, costing labor or capital, and intended to enhance its value, beauty or utility or to adapt it for new or further purposes.”).
Case law supports our conclusion that the attic ladder constitutes improvement to real property. For example, in Plaza v. Fisher Development, Inc., 971 So. 2d 918, 924 (Fla. 3d DCA 2007), the Third District concluded that the store’s conveyor system was a structural improvement to real property, not a product to which strict liability would apply. The court noted that the conveyor system was installed when the store was being built and reasoned that the conveyor is “ ‘an integral part of’ Pottery Barn’s operation, in that the subject conveyor allowed items sold to customers to travel easily from the second floor storage area to the first floor retail area, and the conveyor system is affixed to the real property, thereby adding value to the property.” Id.; see also Simmons v. Rave Motion Pictures Pensacola, L.L.C., 197 So. 3d 644, 645, 647 (Fla. 1st DCA 2016) (affirming the judgment against the appellant, who was injured when a movie theater seat broke underneath him due to a failure in the welding in its bottom, upon concluding that the seating system was a structural improvement to real property, not a product, because “[the appellees] are not the manufacturer of the theater seating system. There is also evidence that the seating system is an integral part of the movie theatre’s operation, as it was installed as part of the construction of the theater, and the entire seating system was bolted to the floor. Moreover, … there is no evidence that either the seat bottom or, more importantly, the seating system could be disassembled and resold.”); Bernard Schoninger Shopping Ctrs., Ltd. v. J.P.S. Elastomerics, Corp., 102 F.3d 1173, 1175 (11th Cir. 1997) (finding section 95.11(3)(c) applicable to the appellant’s claims stemming from a leaky roof the appellee had installed because “[t]he installation of over 100,000 square feet of membrane and fiberboard [on top of the existing roof] at a cost of tens of thousands of dollars is a ‘valuable addition’ to the Kmart building, and it therefore qualifies as an ‘improvement’ ” (citation omitted)). Cf. Dominguez v. Hayward Indus., Inc., 201 So. 3d 100 (Fla. 3d DCA 2015) (concluding that a pool filter, which is a component part of the swimming pool, does not constitute an improvement to real property under section 95.031(2)(b), Florida Statutes, which sets forth a statute of repose for products liability claims and exempts “improvements to real property, including elevators and escalators”).
Like the items in the foregoing cases, the attic ladder at issue here was installed as part of the construction of the home, required labor and money, made the property more useful/valuable in that it provides a more convenient means of access to another level, was not mere repair or replacement, and was affixed to the attic, making it an integral part of the home. Having concluded that the attic ladder constitutes an improvement to real property, the question remains whether Appellant’s claim arises from the construction of that improvement.
It is undisputed that the attic ladder was pre-assembled and Appellee’s only involvement with the ladder was its installation. Although Appellee did not construct the ladder itself, we find that the action is founded on the construction of improvement to real property because Appellant’s claim is that Appellee negligently failed to ensure the secure installation of the ladder with the proper hardware (not that the ladder itself was defective). That is, the action is based on Appellee’s act of building by combining the attic ladder with the attic, which it undisputedly constructed. See Construction, BLACK’S LAW DICTIONARY (11th ed. 2019) (“The act of building by combining or arranging parts or elements; the thing so built.”). Therefore, we conclude that Appellant’s action is founded on the construction of improvement to real property, rendering section 95.11(3)(c) applicable.
Harrell, 2019 WL 3783384 *3-6.
Thus, when faced with a lawsuit involving anything that might constitute an improvement to real property—even something like an attic ladder that allegedly caused personal injury—remember to consider the statute of repose.
Matthew J. Meyer, Esq.
Ansa Assuncao LLP