McMacken v. State

325 N.W.2d 60, 1982 S.D. LEXIS 397

Opinions

MORGAN, Justice

(on rehearing).

In response to a petition by appellant, rehearing was granted on our decision herein ¹ limited however to the issue of the purported incongruity between that decision and our earlier decision in Holy Cross Parish v. Huether, 308 N.W.2d 575 (S.D.1981) decided July 22, 1981. Appellant claims the McMacken decision created an irreconcilable conflict between the language of the two cases.

SDCL 15-2-9,² on which our decision in McMacken hinges, is an affirmative defense that must be pleaded as such. SDCL 15-6— 8(c); see American Property Services, Inc. v. Barringer, 256 N.W.2d 887 (S.D.1977). In Holy Cross, while the architect’s brief mentioned the statute, it had not been pleaded as a bar nor was it relied on in the appeal. The builder’s brief never mentioned the statute nor was it cited in our opinion. Further, Holy Cross was decided on the grounds of fraud and fraudulent concealment of a latent defect. Those grounds were neither pleaded nor argued in McMacken. Indeed, the railing, the design of which was an issue, was in plain view for fourteen years. Its height was patently obvious to all who viewed it.

We hold Holy Cross to be clearly distinguishable on its facts and its pleadings from McMacken and we reaffirm our decision herein.

FOSHEIM, C. J., and WOLLMAN, J., concur. DUNN and HENDERSON, JJ., dissent.

Footnotes

1

. McMacken v. State, 320 N.W.2d 131 (S.D.1982), decided May 26, 1982.

2

. SDCL 15-2-9 provides:

No action to recover damages for any injury to real or personal property, for personal injury or death arising out of any deficiency in the design, planning, supervision, inspection and observation of construction, or construction, of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of such injury, shall be brought against any person performing or furnishing the design, planning, supervision, inspection and observation of construction, or construction, of such an improvement more than six years after substantial completion of such construction. Date of substantial comple tion shall be determined by the date when construction is sufficiently completed so that the owner or his representative can occupy or use the improvement for the use it was intended.