The Clock Beats All Arguments

A recent decision by the Ohio First District Court of Appeals holds the discovery rule does not apply to construction defect claims against design professionals.

Generally, the discovery rule means that the applicable statute of limitations does not begin to run until the negligence is discovered by the injured party. However, in Breazeale v. Infrastructure & Development Engineering, Inc. (Appeal No. C-230172) the First District Court of Appeals held that the discovery rule did not apply to professional negligence claims against construction-design professionals; the four-year statute of limitations began to run on the date the alleged negligence (i.e., the completion of the design) occurred. The case involved a landslide that developed four years after homeowners purchased a home and six years after a geotechnical engineer completed its work.

The court recognized that there were strong public policy reasons why the discovery rule should apply to professional negligence claims. The court wrote, “As the Breazeales point out, construction projects often last more than four years, and by the time of occupancy, the statute of limitation to address a design professional’s negligence has already expired in those cases.”  However, the court found it was bound by previous Supreme Court of Ohio precedent holding the discovery rule did not apply to negligence claims against other professionals: “It is unclear as to whether the Ohio Supreme Court considered this problematic outcome when it decided Flagstar, but until it does, we are bound by the well-established precedent that the discovery rule is inapplicable to professional negligence claims.”

Writing in concurrence, one judge wrote separately to emphasize that, while the court was bound by precedent, “the result is unjust.”

As of yet, it is unclear whether the homeowner will file a notice of appeal. Owners, contractors, and other stakeholders in construction projects should be aware of this case law within Ohio when planning construction projects and negotiating the relevant construction contract documents.