In the summer of 1991, Dutton & Garfield, Inc. (D&G) began construction to replace the roof on the Winnisquam Regional School District's middle school. The work was completed in the spring of 1992. Structural problems with the roof were discovered nine years later. The school district filed suit against D&G for negligent construction and design of the replacement roof. D&G filed a motion to dismiss the suit, arguing that RSA 508:4-b, II, known as a statute of repose, relieved it of any liability because suit was not filed within eight years of the completion of construction. The trial court found RSA 508:4-b unconstitutional and a jury awarded the school district $136,500 in damages.
D&G appealed to the New Hampshire Supreme Court, arguing that the trial court erred in holding the eight-year statute of repose unconstitutional. The school district argued that the eight-year limitation on liability was unconstitutional because it violated equal protection guarantees found in Part I, Articles 1 and 14 of the New Hampshire Constitution. The school district argued that the statute of repose created different classes of defendants, relieving certain of them from liability after eight years, but not others. For example, architects, contractors and engineers are relieved of liability, but not the owners or occupiers of the building. The school district also argued that the statute of repose was unreasonable because it eliminates a cause of action before a design or construction defect could reasonably be discovered.
The Supreme Court disagreed. It stated first that it had previously held that the right to recover for one's injuries is not a fundamental constitutional right but is “an important substantive right,” citing Carson v. Maurer , 120 N.H. 925 (1980). The Court has also held that the New Hampshire Constitution does not forbid regulation based on classifications, but “[t]he issue is whether a difference in treatment is constitutionally permissible.” The Court applied its middle tier test to the question of whether the eight-year statute of repose violates the equal protection guarantees of the state constitution: “[T]he test is whether the challenged classifications are reasonable and have a fair and substantial relation to the object of the legislation.”
When classifications are not based on race or ethnic origin (known as “suspect” classifications), the middle tier test gives deference to the legislature: “[C]ourts will not second-guess the legislature as to the wisdom of or necessity for legislation. Our sole inquiry is whether the legislature could reasonably conceive to be true the facts on which the challenged legislative classifications are based.”
The Court pointed out that the statute of repose, RSA 508:4-b, according to its stated purpose when enacted by the legislature, was intended to prevent “adverse effects on the construction of improvements to real estate in New Hampshire” caused by “an almost infinite period of liability” that particularly affects the building trade. The legislature's rationale, the Court stated, was “reasonable, not arbitrary, and bears a fair and substantial relationship to the legislative purpose” and, therefore overturned the trial court's finding that the statute was unconstitutional and the award of damages to the school district.