Even though construction cases often involve colorful facts, legal opinions are often quite boring. When a judge writes a colorful opinion about an otherwise boring case, we tip our hat. This week we tip our hat to Judge Brandon Harrison and colleagues on the Arkansas Court of Appeals for their opinion in Thompson Thrift Construction v. Modus Studio et al., 2025 Ark. App. 193 (2025), a construction defect case arising out of a student housing project in Fayetteville. The issue was whether the Arkansas statute of repose – which cuts off a builder’s liability for defects after a certain number of years have passed following substantial completion – defeated the plaintiff’s claim.
Here is how Judge Harrison’s opinion introduced this otherwise boring issue of statutory interpretation:
The Pantheon in Rome has stood for more than 1,900 years. If it collapsed tomorrow, the claim-accrual and statute-of-limitations principles that apply in Arkansas to ordinary negligence claims would give an injured person three additional years to sue those who were alleged to have negligently designed or constructed it. That’s a long time to stay on the legal hook. So in the 1960s, like legislatures in a number of other states, the Arkansas General Assembly changed the accrual and limitations principles that apply to tort or contract claims for damages “caused by any deficiency in the design, planning, supervision, or observation of construction or the construction and repairing of any improvement to real property” against a person “performing or furnishing the design, planning, supervision, or observation of construction or the construction and repair of the improvement.” Ark. Code Ann. § 16-56-112. With a few express exceptions, for those architectural or construction-type claims “no action … shall be brought” more than five years from the date of substantial completion of the improvement, even if the limitation period for that kind of claim has not run—and even if no claim exists yet because no damage or injury has yet occurred.
As the above-quoted passage indicates, other states passed similar statutes of repose around the same time. Today, 48 states and the District of Columbia have one. The wording of those statutes varies from state to state. For example, in many states the period of repose begins to run upon substantial completion. In others, the period begins with final completion or the acts or omissions at issue. Many states allow an extension if the injury occurs in the final year of the repose period, while others do not. Some states apply different periods depending on the nature of the injury (property damages v. personal injury) or the identity of the plaintiff (private v. government). All are subject to change at any time at whim of the state legislature. None should be confused with statutes of limitation, which have a similar effect but generally begin to run only when the injury or damage occurs (which in the Pantheon example may not occur for some 1,900 years after construction).
The only two states without a statute of repose are New York and Vermont. Potential claimants against the contractors and architects of ancient Rome would do well to start there. Just know that Judge Harrison and his colleagues on the Arkansas Court of Appeals “would take the defense side of that case” (Thompson, 2025 Ark. App. 193 n. 1).