Pfeifer v. City of Bellingham
772 P.2d 1018, 112 Wash. 2d 562 (1989)
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Rule of Law:
A construction statute of repose does not shield a builder-vendor from liability for claims arising from the separate activity of selling the property, such as concealing a known dangerous condition from the buyer.
Facts:
- In 1979, Island Construction Company completed building the Willowwood condominium complex.
- During construction, Island Construction allegedly altered architectural plans, resulting in the building being classified as a 2-story structure rather than a 3-story structure, which reduced fire protection requirements.
- The alleged alterations included failing to install required fire stops and 2-hour fire walls.
- Island Construction sold the condominium units to individual buyers in 1979.
- In 1986, Holly Pfeifer was leasing a third-floor unit in the complex from an original owner.
- On June 2, 1986, a fire spread rapidly through Pfeifer's building.
- Because the fire blocked the building's only exit, Pfeifer was forced to jump from her third-story window, resulting in physical and emotional injuries.
Procedural Posture:
- Holly Pfeifer sued Island Construction Company in a state trial court for negligence.
- Pfeifer later filed an amended complaint alleging negligent and intentional concealment of a dangerous condition.
- The trial court granted summary judgment in favor of Island Construction, ruling that the action was barred by the construction statute of repose (RCW 4.16.300).
- Pfeifer, as appellant, sought review from the Washington Supreme Court, which accepted the direct appeal.
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Issue:
Does Washington's construction statute of repose (RCW 4.16.300-.320) bar a personal injury claim against a builder-vendor that is based on the seller's alleged concealment of a known, dangerous construction defect during the sale of the property, when the injury occurs more than six years after construction was completed?
Opinions:
Majority - Utter, J.
No. Washington's construction statute of repose does not bar a claim against a builder-vendor when the claim arises from the distinct activity of selling property, rather than from the construction itself. The court determined that the statute's language, which applies to claims "arising from" enumerated construction activities, requires an "activity analysis." A claim based on a seller's common law duty to disclose known dangerous conditions (Restatement (Second) of Torts § 353) arises from the sale, not the construction. Therefore, a builder who also acts as a seller is not shielded by the statute from liability incurred in their capacity as a seller. The legislative purpose of protecting builders from stale claims related to construction does not extend to protecting sellers who conceal known dangers.
Dissenting - Durham, J.
Yes. The construction statute of repose should bar the claim because the majority's activity-based distinction effectively repeals the statute. The dissent argues that since most builders also sell their properties, any claim for defective construction can now be easily re-framed as a claim for failure to disclose the defect during the sale, thus circumventing the statute's time bar. This distinction is artificial because the two claims are intimately related and arise from the same underlying facts. The legislative intent was to provide broad protection from stale claims, and the majority's holding creates a loophole that undermines this purpose and will render the statute meaningless in most common construction scenarios.
Analysis:
This decision significantly narrows the scope of Washington's construction statute of repose by establishing the "activity analysis" framework. It creates a dual-liability standard for builder-vendors, holding that they are not shielded from common law seller liabilities, such as fraudulent concealment, even if claims for negligent construction would be time-barred. This precedent allows plaintiffs to bypass the statute of repose by pleading causes of action based on the defendant's role as a seller rather than as a builder. Consequently, the case places a greater burden on builder-vendors and shifts post-litigation focus towards characterizing the defendant's conduct as either a construction activity or a sales activity.
