May 22, 2013
NSPE Issue Briefs
Statutes of Limitation and Repose
NSPE also supports statutes of limitation, which bar actions against design professionals after a specified period of time following the date of injury or discovery of the deficiency.
Professional engineers were once insulated from liability exposure by the concept of privity, but a 1957 decision by a New York appeals court, Inman v. Binghamton Housing Authority (3 N.Y. 2d 137, 143 N.E. 2d 895), stripped design professionals of that liability protection. In Inman, the court found that design professionals were liable to parties to which they were not in privity.
As a consequence of Inman, suits against design professionals proliferated. Designers found themselves owing a duty of care to parties to whom no duty had been previously owed or contemplated. State legislatures responded to this situation by enacting statutes of repose.
Statutes of repose bar actions against design professionals after a defined period of time following the completion of services or the substantial completion of construction. Statutes of repose do not absolve the design professional of all liability. Rather they protect professionals from having to defend an action brought many years after a project has been completed, for conditions the design professional cannot reasonably be held responsible. The statutes are based on the general legal principle that a potential defendant in a lawsuit should not be required to defend him/herself against stale claims that could easily be based upon faded memories, lost evidence, or witnesses who have since disappeared. Stale claims are a possibility in the construction industry because the real property on which the services were performed may last several decades.
Statutes of repose differ from statutes of limitations in terms of the point of time from which the limitation is measured. Statutes of limitation begin at the date of injury or discovery of the deficiency. Since this discovery could occur at any time, the limitation can run indefinitely. Statutes of repose, on the other hand, begin at a period of time following the completion of services or the substantial completion of construction. This substantially narrows the time period in which the design professional is exposed to liability, making statutes of repose preferable to statutes of limitation.