Ruling Clarifies What Constitutes Construction of Property Improvement Under Florida’s Statute of Repose for Defect Claims

B. Michael Clark, Jr.
February 12, 2021


A 2019 Florida appellate court ruling in a case against a homebuilder alleging negligent construction of an attic ladder provided added clarity over what constitutes the construction of an improvement to real property under the state’s statute of repose law.

In James Harrell v. The Ryland Group, the First District Court of Appeal considered an appeal of a final summary judgment entered in favor of Ryland over the applicability of the 10-year statute of repose and whether the homebuilder failed to establish that the period of repose had run.

The case originally stemmed from injuries sustained by Harrell when the attic ladder he was climbing at his home collapsed. His lawsuit alleged that the homebuilder was negligent “by failing to ensure that the attic ladder was installed in a secure manner with the appropriate hardware” and “by failing to verify that the ladder was secure before selling the home.”

The builder filed a motion to dismiss, arguing in part that the claim was barred by the 10-year statute of repose of section 95.11(3)(c), Florida Statutes. The trial court found that the statute is applicable because an attic ladder is an improvement to real property, but it denied the motion because it was not clear from the face of the complaint whether the suit was filed before the expiration of the 10-year period.

After further hearings, the plaintiff argued that section 95.11(3)(c) does not apply because “the act of fastening a pre-assembled attic ladder does not constitute design, planning or construction of an improvement to real property.” In addition, even if the statute were applicable, the plaintiff contended the homebuilder had failed to establish that the alleged negligent act occurred more than 10 years before the filing of the complaint because it did not show when the ladder was installed.

The trial court was not swayed and ultimately granted summary judgement for the homebuilder.

In the subsequent appeal, the appellate panel noted that the state’s 10-year statute of repose was intended to protect engineers, architects and contractors from stale claims. Its applicability turns on whether Harrell’s lawsuit is founded on the “construction of an improvement to real property.”

After turning to the dictionary definitions for “construction” and “improvement,” the panel concluded that the attic ladder need not be permanent and is not required to increase the value and/or utility of the property. The court found that the ladder is unquestionably an addition to real property, provides added utility and meets the definition of improvement.

The opinion also cites several rulings and concludes that just as with the property improvements in those cases, the attic ladder in question was installed as part of the construction of the home, required labor and money, made the property more useful/valuable in that it provides a more convenient means of access to another level, was not mere repair or replacement, and was affixed to the attic as an integral part of the home.

After establishing that the attic ladder constitutes an improvement, the panel then considered the question of whether the claim arises from the construction of that improvement. Although Ryland did not construct the ladder itself, the First DCA concluded that the action is founded on the construction of an improvement to real property because the claim was that the builder negligently failed to ensure the secure installation of the ladder with the proper hardware (not that the ladder itself was defective).

The panel then turned to whether the 10-year statute of repose had run. The statute requires the action to be commenced within ten years after the date of: (1) actual possession by the owner, (2) issuance of a certificate of occupancy, (3) abandonment of the construction if not completed, or (4) completion or termination of the contract, whichever is latest. The opinion concluded that the contract was completed in May 2004, based upon the original owner’s occupancy, so the complaint was time barred because it was filed after May 2014.

In affirming the lower court’s summary judgment in this case, the First DCA has provided the construction industry in Florida with a helpful measure of added clarity as to what constitutes an improvement of real property under the state’s statute of repose.