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Failue to Disclose Defective Condition Allows Suit to go Forward

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In a case of first impression, the Missouri Court of Apppeals has recently ruled in Thompson, et al. v. Higginbotham, et al. that a builder who was also at one time the owner of an apartment building cannot use the 10 year statutue of limitation (“SOL”) as a defense to a claim for defective balcony when the builder failed to disclose the condition.

In the Thompson case several individuals were injured when a balcony on an apartment complex collapsed. The Plaintiffs sued the builder more than 10 years after construction was completed. The trial court determined that the Plaintiffs were barred by the 10 year SOL. The Court of Appeals reversed the decision and stated:

“Accordingly, we find merit to the Plantiffs’ claim of circuit court error in granting the O’Rileys’ Motion for Summary Judgment. There are material facts in dispute as to whether the O’Rileys owed a duty to the Plaintiffs as vendors who had reason to know about a risky condition and failed to disclose it to their vendee and thus did not have a sole connection to the defective balcony as designers, planners, and builders. We reverse and remand for further proceedings.”

I agree with the decision reached by the Court of Appeals. A Defendant who has superior knowledge of a defective conditions should have an affirmative duty to disclose that condition to the subsequent buyer. Thus, the right decision was reached and justice was preseved.