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COA: Statute of repose doesn't bar woman's complaint

June 8, 2011

In a case of first impression, the Indiana Court of Appeals concluded that a woman’s negligence complaint isn’t barred by a statute of repose.

In Cynthia Perdue v. Greater Lafayette Health Services d/b/a Home Hospital, No. 79A05-1011-CT-687, Cynthia Perdue tripped and fell on an inverted ramp in a parking garage owned and maintained by Home Hospital. There were no markings or warnings of the change in elevation. Perdue was injured in the fall.

She sued, claiming Home Hospital was negligent in not using ordinary care to maintain the premises in a reasonably safe manner; that the company failed to actively inspect the premises to discover and fix unsafe defects; and it failed to warn of dangerous conditions created by the uneven floor in the parking garage. She claimed Home Hospital’s negligence proximately caused her injuries.

Home Hospital filed a motion for summary judgment alleging her claim was barred by Indiana Code 32-30-1-5, the statute of repose, because her injury arose out of an alleged deficiency in design or construction of the structure. That statute bars claims alleging deficiency in the design of an improvement of real property brought within the earlier of 10 years after substantial completion or 12 years after the completion and submission of plans to the owner if the action is for a deficiency in the design of the improvement. The statute also said deficiency did not mean a failure by a possessor to use reasonable care to maintain an improvement following the substantial completion of an improvement in real property.

The trial court ruled in favor of Home Hospital. Perdue argued that she doesn’t allege negligence due to an alleged deficiency in design or construction of the garage, but that her claims are based on the company’s failure to use reasonable care in maintaining its premises in a safe condition or one that protected her from harm.

This is an issue of first impression, so the judges relied on Ruddy v. Skelly, 231 P.3d 725 (Okla. Civ. App. 2009), an Oklahoma case similar to the instant one. In Ruddy, the court held that the statute of repose didn’t bar the plaintiff’s claim because it was based on common law negligence for failure to warn an invitee of a hidden danger, not liability based on design or construction defects.

The Indiana COA also cited several Indiana cases, including Burrell v. Meads, 569 N.E.2d 637, 642-43 (Ind. 1991), and Harris v. Traini, 759 N.E.2d 215, 225, (Ind. Ct. App. 2001), to reverse the lower court.

“Here, after the garage was completed and Home Hospital assumed full control of the premises, it had a duty, distinct from any duty it may have had with regard to the design and construction of the premises, either to repair dangerous conditions of the premises or to warn invitees of any danger,” wrote Judge Edward Najam.

Home Hospital hasn’t shown as a matter of law that no genuine issues of material fact exist, so it is not entitled to summary judgment. The appellate court remanded for further proceedings.

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