Negligence In Concrete Products Design and Manufacture Action
Sections 13-80-104(1)(a) and 13-80-104(2), C.R.S. 1999, provide in pertinent part:
(1)(a) Notwithstanding any statutory provision to the contrary, all actions against any architect, contractor, builder or builder vendor, engineer, or inspector performing or furnishing the design, planning, supervision, inspection, construction, or observation of construction of any improvement to real property shall be brought within the time provided in section 13-80-102 after the claim for relief arises, and not thereafter, but in no case shall such an action be brought more than six years after the substantial completion of the improvement to the real property . . . .
(2) In case any such cause of action arises during the fifth or sixth year after substantial completion . . . said action shall be brought within two years after the date upon which said cause of action arises. (emphasis added)
Section 13-80-104 is both a statute of limitations and a statute of repose. a statute of limitations takes effect when a claim arises, while a statute of repose bars the bringing of a suit after a set period of time, regardless whether an injury has occurred or a claim has arisen. Gleason v. Becker-Johnson Associates, Inc., 916 P.2d 662 (Colo. App. 1996).
This statute focuses on two categories:
(1) certain types of professionals;
(2) certain building activities.
The statute delineates the types of protected individuals, and differentiates between those whose activities relate to the building of a structure and those who manufacture products made part of the structure through the efforts of others. the conduct at issue must originate from an activity that the statute was designed to protect, namely, the process of building an improvement to real property. See Stanske v. Wazee Electric Co., 722 P.2d 402 (Colo. 1986) (interpreting predecessor statute).
For example, in Adcock v. Montgomery Elevator Co (1995), the plaintiff, who had suffered injuries in an escalator accident, contended that the defendant was merely a manufacturer of a standardized product.
The manufacturer in that case had designed, manufactured and installed the product, there, the escalator. the court held that if a manufacturer engages in significant activities at the construction site, which included, as here, installing its product, it is protected by the statute of repose, especially when the manufacturer had invested a substantial amount of time in the installation process.
See also Garner v. Kinnear Manufacturing Co., 37 F.3d 263 (7th Cir. 1994) (manufacturer of garage door who also designed apparatus to owner's specifications, designed blueprint for assembly, and installed whole door assembly protected under Illinois statute of repose);
Frankenmuth Mutual Insurance Co. v. Marlette Homes, Inc., 456 Mich. 511, 573 N.W.2d 611 (1998) (manufacturer of modular homes was not mere supplier of mass-produced goods but a "contractor" protected under statute of repose because it made an improvement to real property);
Ball v. Harnischfeger Corp., 877 P.2d 45 (Okla. 1994) (manufacturer who custom-designed crane performed one of activities specified by statute of repose and was therefore more than mere supplier). Cf. Illinois Masonic Medical Center v. a C & S, 266 Ill. App. 3d 631, 640 N.E.2d 31, 203 Ill. Dec. 604 (1994) (manufacturer who does not install product is not protected by statute of repose unless its role in construction extends beyond furnishing standard products).