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Durre v. Wilkinson Development

Nebraska Supreme Court
285 Neb. 880, 830 N.W. 2d 72 (2013)
ELI5:

Rule of Law:

Nebraska's 10-year statute of repose for improvements to real property is an absolute bar to all actions for damages, including personal injury and wrongful death claims, that are filed more than ten years after the construction was completed. To toll this statute based on fraudulent concealment, the plaintiff must prove the defendant committed an affirmative act of deception that prevented the plaintiff from discovering the misconduct.


Facts:

  • Tri-City Sign Company designed and built a sign and pole structure for a restaurant owned by Wilkinson Development.
  • Tri-City obtained a building permit for the installation of a 65-foot-high sign.
  • Tri-City completed the installation of the sign on or about May 15, 1999.
  • In November 2008, Wilkinson hired Love Signs to replace lamps and ballasts in the sign.
  • On April 3, 2009, Mark Durre and his wife were sitting in their pickup truck, which was parked under the sign.
  • The sign and pole structure collapsed onto the truck's cab as a result of a steel pole shearing, injuring Mark Durre and killing his wife.
  • After the collapse, an investigation revealed that the sign's actual height was between 74 and 75 feet, which was 9 to 10 feet taller than specified in the building permit.

Procedural Posture:

  • Mark Durre filed a personal injury and wrongful death suit against Wilkinson Development, Inc. in the District Court for Lincoln County on November 13, 2009.
  • On March 10, 2011, Durre filed an amended complaint, adding Tri-City Sign Company and Love Signs as defendants.
  • Tri-City and Love Signs each moved for summary judgment.
  • The district court sustained Tri-City's motion, ruling that the claim was barred by the 10-year statute of repose.
  • The district court sustained Love Signs' motion, finding no evidence that it breached a duty of reasonable care.
  • The claims against Wilkinson were dismissed by a separate order.
  • Durre, as appellant, appealed the summary judgments in favor of appellees Tri-City and Love Signs to the Nebraska Supreme Court.

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Issue:

Does Nebraska's 10-year statute of repose for improvements to real property bar a personal injury and wrongful death claim filed more than 10 years after construction, and is the running of this statute tolled by fraudulent concealment where the builder constructed the improvement to a height different from the design specifications?


Opinions:

Majority - Justice Wright

Yes, the claim against the builder is barred by the statute of repose, and the statute is not tolled by fraudulent concealment. The court held that Nebraska's 10-year statute of repose, Neb. Rev. Stat. § 25-223, unambiguously applies to all actions for damages arising from improvements to real property, including tort claims for personal injury. Relying on its precedent in Williams v. Kingery Constr. Co., the court affirmed that the phrase 'any action to recover damages' is plain and direct, requiring no interpretation to exclude personal injury claims. Since the sign was completed in May 1999 and the action against Tri-City was not commenced until March 2011, the claim was filed outside the 10-year period and is therefore time-barred. On the issue of fraudulent concealment, the burden shifted to Durre to produce evidence of an affirmative act of concealment by Tri-City that prevented him from timely filing suit. Durre failed to provide any evidence that Tri-City knew the sign's actual height was non-conforming or that it took any steps to conceal this information from Durre to prevent him from filing a lawsuit. The court also affirmed summary judgment for Love Signs, concluding it was hired only to service the sign's lighting and owed no broader duty to inspect for or warn of latent structural defects.



Analysis:

This decision reinforces the absolute nature of statutes of repose in the construction context, confirming their application to personal injury and wrongful death claims, not just property damage. It solidifies the high bar for plaintiffs seeking to overcome a statute of repose through a fraudulent concealment argument, requiring specific evidence of an affirmative act of deception intended to prevent the plaintiff from discovering the claim. The ruling significantly limits the long-term liability of contractors for latent defects, providing them with a definitive end to potential liability and making it extremely difficult for individuals injured by old construction flaws to seek recourse from the original builder.

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