This past June, the Court
of Appeals of Maryland held that the “possession and control” exception to the state’s
Statute of Repose for injuries related to improvements to real property, is not
limited to asbestos-related injuries.
A statute of repose bars
certain claims after a specific amount of time has passed. In Maryland, the
Statute disallows actions for defects or dangerous conditions resulting from
“improvements to real property” after 20 years have passed since the
improvement. CJP § 5-108(a). However, there are four exceptions that eliminate
this protection. The first exception provides that the protection will not
apply when the “Defendant was in actual possession and control of the
property…when the injury occurred.” CJP § 5-108(d)(2)(i). The remaining
exceptions relate to claims against providers of asbestos products. CJP §
5-108(d)(ii)-(iv).
The Gilroy case arose when survivors of the decedent filed suit against
the owner and property manager of a shopping center and restaurant tenant,
located in the shopping center, on the basis of negligence and premises
liability. The decedent had set up a ladder on the wall of the restaurant,
thinking it would lead to the roof, to do work. Unbeknownst to him, that wall
led to an open-air garbage area through which the decedent fell to his death.
During litigation, the
defendants relied on a statute of repose defense, arguing that the building was
completed more than 20 years before the accident. The plaintiffs invoked an
exception to the statute—namely, the same defendants were still in possession and
control of the property at the time of the injury.
The circuit court granted
summary judgment in favor of the defendants, holding that the Statute of Repose
was a proper defense to the claims, and the “possession and control” exception
only applied to asbestos-related claims. The Court of Special Appeals reversed
this decision, ruling that the first exception was not limited to asbestos-related
claims. The Court of Appeals affirmed this ruling.
The Court determined that
the “possession and control” exception, though in close proximity to the
asbestos exceptions, is not limited to asbestos-related cases. The Court relied
on the plain language of the Statute, explaining that the exception did not
mention asbestos at all and the four exceptions were all joined by the disjunctive
“or.” The Court also noted that when the asbestos exceptions were added in 1991,
there was no discussion related to the “possession and control” exception,
which was adopted in 1970.
This decision expands the
scope of the exceptions to the Statute of Repose. Instead of limiting the
exceptions to asbestos-related cases, the Court held that the “possession and
control” exception also applies to other cases where the defendants still
possess and control the property at the time of the injury to the plaintiff(s).
This decision will preclude the Statute of Repose defense in future cases where
the defendants remain in control and possession of a property despite the
20-year limitation.
-Mitchell Fine, Law Clerk
