SVF RIVA ANNAPOLIS LLC, et al.
MOREEN ELIZABETH GILROY, et al.
Argued: April 6, 2018
Circuit Court for Anne Arundel County Case No.:
Barbera, C.J. Greene Adkins McDonald Watts Hotten Getty, JJ.
statute of repose "shelters legislatively-designated
groups from an action after a certain period of time."
Anderson v. United States, 427 Md. 99, 118 (2012).
Maryland's statute of repose, codified at Md. Code (1973,
2013 Repl. Vol.), § 5-108 of the Courts and Judicial
Proceedings Article ("CJP"), bars certain claims
relating to injuries caused by improvements to real property.
CJP § 5-108(d)(2) lists several exceptions to the
statute of repose. Subsection (d)(2)(i) provides that the
protections of the statute shall not apply if the
"defendant was in actual possession and control of the
property as owner, tenant, or otherwise when the injury
occurred . . . ." The remaining subsections,
(d)(2)(ii)-(iv), eliminate the statute's protection for
certain defendants in cases where a claimed injury was caused
by exposure to asbestos. In this case, we must determine
whether the possession and control exception opens defendants
to liability even in cases that do not involve asbestos.
January 13, 2012, Sean McLaughlin arrived at the Chuck E.
Cheese restaurant located at the Festival at Riva Shopping
Center in Annapolis, Maryland to repair the HVAC unit on the
restaurant's roof. McLaughlin placed a ladder on one of
the restaurant's exterior walls that he presumably
thought led up to the building's roof. The wall enclosed
an open-air garbage area typically occupied by dumpsters or
trash compactors. After McLaughlin climbed the ladder, he
mounted the wall and fell 20 feet to the concrete pad on the
other side. McLaughlin sustained severe injuries and died 12
Moreen Elizabeth Gilroy and McLaughlin's other
survivors filed a wrongful death action in the
United States District Court for the District of Maryland
against Petitioners SVF Riva Annapolis, LLC
("SVF"), the owner of the shopping center in which
Chuck E. Cheese was located, and Rappaport Management
Corporation ("Rappaport"), the shopping
center's property manager. In federal court, SVF joined
the tenant and restaurant operator, CEC Entertainment, Inc.
("CEC"), in a third-party complaint. Gilroy amended
her federal complaint to include CEC. The federal court
dismissed the complaint without prejudice for lack of
subject-matter jurisdiction because the parties lacked
refiled the complaint against SVF, Rappaport, and CEC in the
Circuit Court for Anne Arundel County. The complaint alleged,
in negligence and premises liability claims, that all three
defendants failed to warn McLaughlin that the wall had no
Rappaport filed separate motions for summary judgment and CEC
filed a motion to dismiss. SVF and Rappaport both contended
that the statute of repose barred Gilroy's claims because
the building was completed in 1990, beyond the 20-year limit
imposed by the statute, and because the possession and
control exception applied only to asbestos cases.
Additionally, Rappaport argued that as the property manager,
it was not in "possession and control" of the
property, and therefore not subject to liability. CEC moved
to dismiss on the grounds that McLaughlin was contributorily
negligent, and the action was untimely under Maryland's
Wrongful Death Act, CJP § 3-904(g)(1). CEC also
incorporated SVF's arguments regarding the statute of
hearing, the Circuit Court, ruling that the statute of repose
applied, granted the motions for summary judgment and motion
to dismiss and explained that the possession and control
exception only applies to asbestos-related claims. The judge
[T]he Court notes that subsection (d), while it has the
language the plaintiff has pointed out, all relates to
asbestos. And in this section it appears that the
[L]egislature was clearly trying to create the carve out or
the exception for the asbestos cases. And to read this
otherwise would render the statute of repose, basically
meaningless, and there would be no statute of repose.
Court of Special Appeals reversed-holding that the possession
and control exception is not limited to asbestos cases.
See Gilroy v. SVF Riva Annapolis LLC, 234 Md.App.
104, 125 (2017). We granted certiorari to answer the
Does the possession and control exception to the statute of
repose apply in non-asbestos cases?
reasons set forth below, we hold that it does and shall
affirm the decision of the Court of Special Appeals.
parties appeal the Circuit Court's decision to grant the
motions for summary judgment and a motion to dismiss. When
considering such motions, we must first determine whether
there are any genuine disputes of material fact. Koste v.
Town of Oxford, 431 Md. 14, 24-25 (2013). If there is no
such dispute, then we decide whether the lower court's
legal conclusion was legally correct. Id. at 25.
Here, the Circuit Court reached a conclusion regarding the
scope of CJP § 5-108(d)(2)(i). Assessing a lower
court's interpretation of a statute is a question of law
which, we review without deference. State v. Neiswanger
Mgmt. Servs., LLC, 457 Md. 441, 455 (2018) ("We
review the Circuit Court's statutory interpretation
issue here is one of statutory interpretation: whether the
statute's possession and control exception applies in
non-asbestos cases. "The cardinal rule of statutory
construction is to ascertain and effectuate the intent of the
[L]egislature." Blake v. State, 395 Md. 213,
224 (2006). When interpreting a statute, "[t]his Court
provides judicial deference to the policy decisions enacted
into law by the General Assembly." Phillips v.
State, 451 Md. 180, 196 (2017). This analysis assumes,
however, "that the [L]egislature's intent is
expressed in the statutory language and thus our statutory
interpretation focuses primarily on the language of the
statute . . . ." Id.
We begin our analysis by first looking to the normal, plain
meaning of the language of the statute, reading the statute
as a whole to ensure that no word, clause, sentence or phrase
is rendered surplusage, superfluous, meaningless or nugatory.
If the language of the statute is clear and unambiguous, we
need not look beyond the statute's provisions and our
analysis ends. Occasionally we see fit to examine extrinsic
sources of legislative intent merely as a check of our
reading of a statute's plain language. In such instances,
we may find useful the context of a statute, the overall
statutory scheme, and archival legislative history of
Douglas v. State, 423 Md. 156, 178 (2011) (quoting
Evans v. State, 420 Md. 391, 400 (2011)).
with these principles, we begin with an analysis of the plain
language of CJP § 5-108.
§ 5-108 is titled "[i]njury to person or property
occurring after completion of improvement to realty." In
pertinent part, it provides:
(a) Injury occurring more than 20 years later. -
Except as provided by this section, no cause of action for
damages accrues and a person may not seek contribution or
indemnity for damages incurred when wrongful death, personal
injury, or injury to real or personal property resulting from
the defective and unsafe condition of an improvement to real
property occurs more than 20 years after the date the entire
improvement first becomes available for its intended use.
(d) (1) "Supplier" defined. - In this
subsection, "supplier" means any individual or
entity whose principal business is the supply, distribution,
installation, sale, or resale of any product that causes
(2) This section does not apply if:
(i) The defendant was in actual possession and
control of the property as owner, tenant, or
otherwise when the injury occurred;
(ii) In a cause of action against a manufacturer or supplier
for damages for personal injury or death caused by asbestos
or a product that contains asbestos, the injury or death
results from exposure to asbestos dust or fibers which are
shed or emitted prior to or in the course of the affixation,
application, or installation of the asbestos or the product
that contains asbestos to an improvement to real property;
(iii) In other causes of action for damages for personal
injury or death caused by asbestos or a product that contains
asbestos, the defendant is a manufacturer of a product that
contains asbestos; or
(iv) In a cause of action for damages for injury to real
property that results from a defective and unsafe condition
of an improvement to real property [under certain
conditions]: . . . .
§ 5-108(a) prohibits a plaintiff from bringing a claim
for wrongful death, personal injury, or injury to personal
property resulting from an improvement to real property more
than 20 years after the improvement. CJP § 5-108(b)
provides that such actions have a 10-year limit when brought
against certain classes of professionals such as architects,
professional engineers, and contractors.
possession and control exception excludes certain defendants
from the protections articulated in CJP § 5-108(a) and
(b). CJP § 5-108(d)(2)(ii)-(iv) all relate to claims
against manufacturers or suppliers of asbestos products. The
possession and control exception, however, makes no mention
of asbestos and eliminates the statute's protection for
any defendant "in actual possession and control of the
property as owner, tenant, or otherwise when the injury
occurred[.]" Id. (d)(2)(i).
Court of Special Appeals observed, the four exceptions in CJP
§ 5-108(d)(2) are linked by the conjunction
"or." Gilroy, 234 Md.App. at 111.
"And" and "or" are both conjunctions used
to link other words, phrases, or clauses. "Or" has
a disjunctive meaning while "and" has a conjunctive
meaning. Compare The American Heritage Dictionary of the
English Language 1236 (4th ed. 2006) ("or" is
a conjunction "[u]sed to indicate an alternative,
usually only before the last term of a series . . . ."),
with id. at 66 ("and" is a conjunction
meaning "[t]ogether with or along with; in addition to;
as well as[; u]sed to connect words, phrases, or clauses that
have the same grammatical function in a
several cases, Maryland courts have interpreted
"or" consistently with its disjunctive meaning. In
Thanos v. State, 282 Md. 709, 716-17 (1978), we
recognized the "well-settled principle that where, as
here, a statute forbids the doing of any of several acts
stated disjunctively, a charging document alleging more than
one act in a single count, even in the very language of the
statute, will be defective as indefinite, since the
disjunctive renders it uncertain which alternative is
intended." (footnote omitted). Likewise, in
Burnett v. Spencer, 230 Md.App. 24, 33
(2016), the Court of Special Appeals observed:
[Md.] Rule 2-631 states that "judgments may be enforced
only as authorized by the rules or by the
statute." Because the rule employs the disjunctive term
"or," it is obvious, as a matter of logic and
grammar, that a person may enforce a judgment by a method
that is authorized by the rules alone: the ...