Georgia Court Enforces One-Year Statute of Limitations in a Wrongful Death Case

In BPG Inspection v. Omstead,  BPG agreed to a fee of $380 to conduct an inspection of the home that the Omstead's were considering purchasing.  The key contractual language at issue ran as follows:

YOU MAY NOT FILE A LEGAL ACTION, WHETHER SOUNDING IN TORT (EVEN IF DUE TO OUR NEGLIGENCE OR OTHER FAULT), CONTRACT, ARBITRATION OR OTHERWISE, AGAINST US OR OUR EMPLOYEES MORE THAN ONE YEAR AFTER THE INSPECTION, EVEN IF YOU DO NOT DISCOVER A DEFECT UNTIL AFTER THAT. THIS TIME LIMIT MAY BE SHORTER THAN THE LAW OTHERWISE PROVIDES.

A BPG employee undertook the inspection in February 2020 and provided a report that cautioned that the inspector's role was to identify material defects discovered upon visual examination.  "Latent, inaccessible, or concealed defects are excluded from this inspection."  The report mentioned a seven-foot tall retaining wall but observed that it seemed to be functioning as intended.  The inspector returned one month later in connection with some repairs that the Omstead's had requested of the sellers.  

The Omsteads later discovered that defects in the retaining wall was causing water to leak into their garage.  While they were attempting to address those defects in July 2021, the wall collapsed onto Mr. Omstead, and he died from his injuries. In September 2021, Mrs. Omstead filed suit against BPG and its inspector, alleging negligence, fraud, breach of contract, and breach of warranty.  The trial court denied summary judgment to defendants, finding its exculpatory clauses void as against public policy.  

In January, the Georgia Court of Appeals dismissed this case based on the one-year limitation on claims. Under Georgia law, such a limitation can be enforced, even in the case of a wrongful death suit.   The Court of Appeals stressed the courts' limited ability to find contractual provisions void for violating public policy.  The court canvassed Georgia statutes, including statutes that provide for the invalidity of some categories of contracts on public policy grounds.  It could find no statutory basis for invalidating the limitation at issue in this case, nor did it find any precedent that would permit it to do so consistent with Georgia law.  

Judge Barnes specially concurred.  Although she agreed that the majority had correctly applied existing law, she wrote separately to urge the legislature "to enact legislation prohibiting parties from contractually shortening the statute of limitation for bringing tort claims arising out of personal injury or wrongful death."  She noted that legislatures in Alabama, Mississippi, and South Carolina have already done so.  Hooray for inter-branch dialogue!  

And yet, I'm not sure if Alabama, Mississippi, and South Carolina have this one right.  Given the limited scope of the inspection and the low fee charged for it, limiting exposure to liability makes a lot of sense.  From the facts we have, it does not look like plaintiff would have a strong case, even if there were a way around the one-year limitation on claims.  These were latent defects, not discoverable without specialized expertise.  If the leak was substantial, there might have been evidence of water damage, but perhaps the problem was really that sellers concealed that damage.  So many possibilities.  And given that water slowly erodes at surfaces, I'm not sure how a trier of fact winds back to the clock to determine whether the problems that caused the wall to collapse should have been detectable fifteen months earlier.