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This was an appeal from a lower courts
granting of summary judgment in favor of the defendant based upon
defendants argument that the Nevada’s statute of repose barred
plaintiff’s action. The Nevada Supreme Court, after examining the nature
and purpose of the statutes of repose and the nature of the complaints
brought by plaintiff, reversed the summary judgment and ordered the case
remanded to trial.
The case involved an action whereby Davenport, a tenant of the defendant, was walking her dog in June of 1999. During her walk, she traversed the sidewalk in the common area of the complex which was bordered, on one side, by a grass strip. The grass strip was elevated above a parking lot and was supported by a white brick retaining wall. The top of the retaining wall was more or less flush with the grass area it supported and there was no fence or other structure along the edge of the retaining walls edge. As Davenport walked, two other dogs rushed towards her. She moved off the sidewalk, across the grass strip, backed up to the edge of the strip where the retaining wall was and stumbled over the edge, suffering personal injuries. The retaining wall had been completed in 1987. It had remained structurally unchanged since that time. The defendant was not the original owner of the complex and was not involved in the design or construction of the retaining wall. Davenport sued alleging that the apartment complex had acted negligently by failing to design, build and maintain a reasonably safe retaining wall and by failing to warn her of the hazard. The defendant moved for summary judgment, arguing that the statute of repose barred all of her claims and that she could not prevail on her failure to warn claim because the alleged hazard was open and obvious. The complex was granted summary judgment on both grounds. In reversing the lower court decision, the Supreme Court noted the distinction between statutes of limitations and statutes of repose. Limitations foreclose suit after a fixed period of time following an occurrence or discovery of injury while a statute of repose bars actions after a certain period of time regardless of whether damage or injury has been discovered or has occurred. Nevada’s repose statutes bar, for example, causes of action for personal injury or property damage caused by a deficiency in improvements to real property when the action is commenced more than 10 years after substantial completion of the improvements in question. The Supreme Court noted that the statutes of repose are disguised to protect owners, occupiers, or any persons involved in the design, planning, supervision or observation of construction of an improvement to real property. The Court closely examined the enabling language of Nevada’s statutes of repose which include persons performing or furnishing design, planning, supervision or observation of construction or observation of construction or the construction of an improvement to real property. The phrasing of that language, concluded the Court, indicates the legislatures intent to qualify functions which the statutes are concerned with. The Court found that nothing in the statutes language indicates the protection extends to functions performed after the improvement in question has been completed, such as maintenance. In citing from an Oklahoma case, the Court stated: “Maintenance is not the same as nor synonymous with design and construction” The Court further noted that the duty to maintain may include, under appropriate circumstances, an obligation to upgrade facilities that harbor foreseeable hazards. In the case under review, one of the defenses arguments was that Davenport’s entire claim for relief was that Comstock was negligent in failing to install a guardrail or fence at the top of the wall and therefore the negligence action was based upon reasonableness of a design in planning decision. That language, in the complaint, alleged negligent maintenance in the context of failing to upgrade facilities and that, the Supreme Court concluded, brought the case outside of the protection the statutes of repose would otherwise have provided. The Supreme Court gave limited comment to its decision to overturn the remaining portion of the lower courts decision which granted summary judgment on the failure to warn issue. The Court concluded, after reviewing photographs of the scene, that the question of whether the peril was obvious was best left for jury determination. |
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