considerations it may have to be revised as to scope of application or the number of years within which an action may be brought. The model, drafted with the aid of the legal counsel of the sponsoring organizations, goes somewhat beyond the existing state laws in legal details and extent of coverage. It suggests four years as the reasonable period of time for an action, and also a limitation on damages to property as well as persons. The full text of the model statute is as follows: Section 1. No action, whether in contract (oral or written, sealed or unsealed), in tort or otherwise, to recover damages (i) for any deficiency in the design, planning, supervision or observation of construction or construction of an improvement to real property, (ii) for injury to property, real or personal, arising out of any such deficiency, or (iii) for injury to the person or for wrongful death arising out of any such deficiency, shall be brought against any person performing or furnishing the design, planning, supervision or observation of construction, or construction of such an improvement more than four years after substantial completion of such an improvement. Section 2. Notwithstanding the provisions of Section 1 of this act, in the case of such an injury to property or the person or such an injury causing wrongful death, which injury occurred during the fourth year after such substantial completion, an action in tort to recover damages for such an injury or wrongful death may be brought within one year after the date on which such injury occurred (irrespective of the date of death) but in no event may such an action be brought more than five years after the substantial completion of construction of such an improvement. Section 3. Nothing in this act shall be construed as extending the period prescribed by the laws of this state for the bringing of any action. Section 4. The limitation prescribed by this act shall not be asserted by way of defense by any person in actual possession or the control, as owner, tenant, or otherwise, of such an improvement at the time any deficiency in such an improvement constitutes the proximate cause of the injury or death for which it is proposed to bring an action. Section 5. As used in this act, the term "person" shall mean an individual, corporation, partnership, business trust, unincorporated organization, association, or joint stock company. Need Concerted Action Professional liability problems are bound to grow if the past few years is an indication of the future. Bringing the time element on liability claims under control will not solve the over-all liability problem, but it can be a significant step. Consulting engineers therefore should join forces promptly with architects and contractors in a concerted effort to obtain the best possible legislation to bring the problem into balance with the fair interests of the public and of the design professions and the construction industry. On occasion the courts have taken it upon themselves to reject stale claims as a matter of equity and justice. The Supreme Court of Tennessee recently dismissed a suit filed in 1958 against a surveying firm alleging an error in the survey of a parcel of land performed in 1934. The Tennessee high court commented: "If these surveyors could be held liable to such an unforeseeable and remote purchaser 24 years after the survey, they might, with equal reason, be held liable to any and all purchasers to the end of time. We think no duty so broad and no liability so limitless should be imposed.' This type of sound reasoning will be helpful in meeting similar cases while corrective legislation is being considered. However, it should not be regarded as an adequate substitute for pinning down in law the principle indicated by the Tennessee tribunal. Judges, like other professionals, are notoriously independent in their views. The design professions may be leaning on a thin reed to hope other jurists will likewise see the problem so clearly and fairly. Mr. ABERNETHY. I overlooked one statement a while ago, that of Mr. Theodore R. Cromar, on behalf of the Potomac Valley Chapter of Maryland, the American Institute of Architects. This statement and any others the clerk may have will be also included in the record. (The documents referred to follow:) STATEMENT OF THEODORE R. CROMAR, JR., POTOMAC VALLEY CHAPTER OF MARYLAND, AMERICAN INSTITUTE OF ARCHITECTS Mr Chairman and Members of the Committee, my name is Theodore R. Cromar, Jr., an Architect registered in The District of Columbia. I am appearing here today in behalf of The Potomac Valley Chapter of Maryland, The American Institute of Architects. We sincerely believe that this legislation is essential to the construction industry of the District of Columbia. At the present time, our liability for negligence extends throughout our lifetime and in some cases even after our death. Our liability for negligence-unlike that of the Doctor or the Attorney-extends not just to our client-but to the whole world to millions of people completely unknown to us, anyone of which may at some time enter a building we have designed. After our services have been completed and the building is built, we have no control over the proper maintenance of the building nor would we have any knowledge of improper maintenance. Our first knowledge would be the occasion of damage or injury. We feel that the Owner or person in control of a building must at some point be liable for the proper maintenance and housekeeping. There are many things that the Owner or Landlord should inspect periodically-the checking against roof leaks to guard against rotting roof timbers-the periodic tightening of connections in wooden roof trusses to prevent splitting and further serious consequences the cleaning of chimney flues to prevent clogging and collection of combustible gasses which could cause an explosion-the inspection of roof drains to make certain that water still drains away from and not against foundation walls where the added pressure might cause the foundation wall to fail. The four year limitation called for in this proposed amendment seems reasonable and logical. During this period it is reasonable to assume that the building would have been subjected to all of the extremes for which it was designed-the maximum snowfall-the maximum floor loads-the maximum wind loads and so forth that during this four year period any deficiency would manifest itself and could be properly corrected. Other states are recognizing that remedial legislation is necessary for the protection of the construction industry and approximately 27 states have passed similar laws and several other states have laws pending. A particularly trying situation is to defend oneself against a claim for alleged negligence which may have been committed some twenty years previously. This is quite a formidable task trying to find witnesses and records which may have vanished due to the passage of time. The merits of such a case have no bearing on the fact that you must still defend yourself at some expense of time and money. Professional liability insurance premiums have been rising steadily in the past few years and the limits of protection in some cases are quite low. There is the distinct possibility that we may not be able to buy insurance at all in states which do not have some statutory limit. We sincerely thank the Committee for its time and consideration. STATEMENT BY DONALD A. BUZZELL, EXECUTIVE DIRECTOR, CONSULTING ENGINEERS COUNCIL OF THE UNITED STATES Mr. Chairman, my name is Donald A. Buzzell. I am Executive Director of the Consulting Engineers Council of the U.S., a national association of approximately 2,000 engineering firms offering services in all fields of practice. Typical of the thousands of projects designed by U.S. consulting engineers are: the Chesapeake Bay-Bridge Tunnel, Sitka Dam in Alaska, Dodgers Stadium in Los Angeles, Portland, Oregon Municipal Airport, Omaha sewage treatment plant, and the Times-Herald Building in Dallas, Texas. All of these projects are without serious flaw, but under present law injury to any person due to engineering error or omission, even if such injury should be revealed, or should occur seventy-five years from now, could subject the design engineer, if he is still living, to a ruinous law suit. A comparable situation exists with regard to virtually every project which has been constructed in the District of Columbia. Despite a specific limitation on the extent of elapsed time within which an injured party may bring action (Section 12-301 of the 1961 District of Columbia Code), no statutory protection exists for District of Columbia architects and engineers. It is this omission in the law which we favor correcting by adoption of H.R. 6527 or H. R. 6678. In recent years more than thirty states have recognized the impropriety of such extensive obligation by adopting statutes of limitations covering architects, engineers and surveyors. The desirability of establishing such limitations is endorsed by no less an authority than the United States Supreme Court which says, "Statutes of limitations are vital to the welfare of society and are favored in the law. They are found and approved in all systems of enlightened jurisprudence. They promote repose by giving security and stability to human affairs. While time is constantly destroying the evidence of right, they supply its place by a presumption which renders proof unnecessary .." (Wood v. Carpenter, 101 U.S. 135; 25 L. Ed. 807) We strongly concur in the objectives of H.R. 6527 and H.R. 6678. There must be a point in time when exposure of an architect or engineer to a suit and judgement for damages (allegedly resulting from negligence in performance of professional services) terminates with finality. To ignore such a basic tenet is to invite actions such as those recorded in the files of the Victor O. Schinnerer Insurance Company, of Washington, D.C. In one case an architect designed a building which was built and occupied in 1940. In 1956, a window-washer fell to his death when a safety hook pulled from the wall of the building. Suit was brought the same year against the owner and the original architect even though sixteen years had elapsed since construction. The architect contributed $16,000 to the settlement of the case. In Sherman v. Miller Construction Co. (90 Ind. App. 462, 158 N.E. 255) an architect was sued for negligence in failing to properly design a balcony guard rail through which an infant had fallen six years after completion of construction As more and more suits of this nature are filed, insurance companies are increasingly reluctant to underwrite insurance covering the enormous liability of A-E firms with billions of dollars in projects completed over the years. Only three insurance firms remain in the professional liability field and the premium rates for even minimal coverage are so excessive as to limit the number who may subscribe. In endorsing this legislation, consulting engineers are seeking no waiver of basic responsibility. As professionals they recognize their obligations to exercise the utmost in skill, ability, judgment and taste both reasonably and without neglect. But there are limitations on the duties of a professional. In the case of Bayne v. Everham (197 Mich. 181, 163 N.W. 1002) the Court, for example noted: "The responsibility of an architect does not differ from that of a lawyer or physician. When he possesses the requisite skill and knowledge and in the exercise thereof has used his best judgement, he has done all that the law requires. Responsibility is, however, eternal in the District of Columbia where liability for negligence arising out of professional assignments performed by A-E's or their employees at any time during their careers continues through entire lifetimes and, in the case of causes of action that survive a tort feasor, even beyond a lifetime, to be charged against the designers' estate. The possibility of such action is certainly the antithesis of the Supreme Court's promotion of repose and the giving of security to human affairs, and casts doubts on the extent to which any system of jurisprudence which bars such right can be said to be enlightened. Like any other statute of limitation, the proposal which we endorse is procedural. It provides a maximum period of four years following project completion during which actions or damages for injury, either to property or to persons, may be brought. This legislation in no way exempts owners or landlords from responsibility for maintaining safe facilities. Simply stated, this legislation is limited in scope to one particular situation— suits by persons injured as the result of negligent improvements to real property which are brought against persons who designed, planned, built, or supervised the building of the improvement and, thereafter, have no control over the property. We believe this legislation is fair and reasonable. It does not exempt an architect or engineer from responsibility for any negligence or impropriety in designer specification. It merely establishes a four-year period during which claims for injury to person or property may be brought. This period does not commence until the property or facility is available for use and certainly four years from that date date would seem like a reasonable time for any deficiencies in design or construction to become evident. This legislation will do much to correct a serious omission in the present District of Columbia statutes, and on this basis we strongly endorse its objectives and urge its adoption. In behalf of Consulting Engineers Council/U.S.A., I deeply appreciate this opportunity to discuss the significance of this important legislation. Mr. ABERNETHY. Is there anyone in the room who wishes to make a statement on this bill? Mr. FAULKNER. Could I say one word, Mr. Chairman? Mr. ABERNET HY. Would you again identify yourself, please. Mr. FAULKNER. I am William Faulkner, representing the Washington Metropolitan Chapter of the American Institute of Architects. Mr. ABERNETHY. Proceed. Mr. FAULKNER. In listening to the discussion and discussing it here among ourselves, the statutory period of four years as suggested in the bill is obviously an arbitrary period, I would feel, from the discussion and from what I know of my constituents, that if it seems proper to have a somewhat longer period I am sure this would be acceptable. We picked an arbitrary figure but we wouldn't absolutely stand on that figure. Mr. ABERNETHY. Thank you, sir. Now, Mr. Robinson, Mr. William A. Robinson, Assistant Corporation Counsel. I think we had better have some comment from you on this, sir. STATEMENT OF WILLIAM A. ROBINSON, ASSISTANT CORPORATION COUNSEL, DISTRICT OF COLUMBIA Mr. ROBINSON. The Commissioners did consider all three bills, and in a letter addressed to Mr. McMillan dated September 28, they indicated they would offer no objection to enactment of any of the three bills under consideration. The Commissioners pointed out that the effects of the bill were to change existing law in three respects. One, that it precludes litigation based upon the alleged defective or unsafe condition of an improvement to real property which is not begun within four years of the date of substantial completion of such improvement. There are two other aspects of the proposed legislation. One would reduce from three to two years the existing statute of limitations with respect to actions to recover damages for personal injury and injuries to real or personal property, that is, except as to the owner. That would, of course, remain at three years as it is presently. The third change in existing law would be to increase from the present one year to two years an action for wrongful death which is caused by defective or unsafe condition of real property. I don't think that point has been brought out in previous testimony. Mr. ABERNETHY. The Commissioners considered the various periods of time that were included in the bill and they were acceptable to them? They have offered no amendments. Mr. ROBINSON. No, Mr. Chairman. As has been pointed out, it is an arbitrary figure. It could be less, it could be more. Mr. ABERNETHY. More or less. Mr. ROBINSON. Without knowing some specific case with which to make reference, it is more or less impossible for the Commissioners to know whether this is a good period of time or a bad one. They had no recommendation specifically on that point. In view of the testimony, however, which has been presented at the hearing indicating that it may be desirable to have a somewhat longer period, I could ascertain from them their views as to that and supply them to the staff of the committee, if you wish. Mr. ABERNETHY. I do not think that would be necessary, but if we come to that conclusion we will get in touch with you. Mr. Winn? Mr. WINN. I do not have any questions of Mr. Robinson, but I would like to know, Mr. Chairman, is there any objection, either organized or otherwise, to this bill that has been submitted to the committee in any manner? Mr. ABERNETHY. There has been none at all. Without objection, the Commissioners' report on this proposed legislation will be made a part of the record, following Mr. Robinson's statement. (The report referred to follows:) GOVERNMENT OF THE DISTRICT OF COLUMBIA, Hon. JOHN L. MCMILLAN EXECUTIVE OFFICE, Washington, September 28, 1967. Chairman, Committee on the District of Columbia, DEAR MR. MCMILLAN: The Commissioners of the District of Columbia have for report H.R. 6527, H.R. 6678, and H.R. 11544, 90th Congress, substantially identical bills "To amend title 12, District of Columbia Code, to provide a limitation of actions for actions arising out of death or injury caused by a defective or unsafe improvement to real property." Section 1 of the bills adds a section 310 to title 12 of the District of Columbia Code to bar any action to recover damages for personal injury, injury to real or personal property, or wrongful death allegedly resulting from the defective or unsafe condition of an improvement to real property unless such action is commenced within two years from the date of such injury or death, or four years from the date the improvement was substantially completed, whichever occurs first. An improvement to real property is considered "substantially completed" when it is first used, or is first available for use after having been completed in accordance with the contract or agreement, including any modifications thereof. Subsection (b) of the proposed section 310 provides that the time limitations of subsection (a) shall not apply to any action based on an express or implied contract, or to any action against the owner or person in actual possession or control of the real property at the time the defective or unsafe condition of the improvement complained of caused injury or death. One of the effects of the amendments made by the bills is to preclude litigation based upon the alleged defective or unsafe condition of an improvement to real property (except as to the owner or person in control or possession thereof) which is not begun within four years of the date of substantial completion of such improvement. Other effects of the proposed amendments are to reduce from three to two years existing statutes of limitations with respect to actions (other than an action against the owner or person in control or possession) seeking to recover damages for personal injury and injuries to real or personal property caused by the defective or unsafe condition of an improvement to real property, and to increase from one year to two years the time within which actions for wrongful death due to the aforesaid conditions may be brought (other than as to an owner or person in control or possession, the limitation for which remains unchanged). The Commissioners offer no objection to the enactment of any of the aforesaid bills. Sincerely yours, WALTER N. TOBRINER, Mr. ABERNETHY. Also, there are some other letters and communications here which we will make part of the record at this point. |