(dissenting).
I agree with the majority opinion in so far as it holds that the installation of the furnace by Yale was an “improvement to real property” within the meaning of Minn.St. 541.051. However, I dissent from the conclusion that there is no rational basis for granting immunity to those who construct or design improvements, while denying immunity to “owners.” Accordingly, I would affirm the trial court’s decision that the statute is constitutional, and reverse as to the liability of Yale who designed and fabricated the furnace, leaving only Thompson-Yaeger and Frerichs responsible for the damages.
By the time the case was submitted to the jury Thompson-Yaeger, which negligently serviced the furnace, and Yale were the only defendants left in the main action. Frerichs, the tenant which triggered the fire by leaving flammable material adjacent to the furnace, and Tjernlund, which manufactured the furnace, were third-party defendants from which the principal defendants sought contribution or indemnity. The jury exonerated Tjernlund and found Yale 80 percent negligent, and Thompson-Yaeger and Frerichs each 10 percent negligent.
1. Contrary to the facts from which the majority reasons, I respectfúlly suggest that there is in this case no discrimination against either the “owners” or “material suppliers.” None of those held liable below fall into either of those categories. As a matter of sound judicial policy and fundamental law, in a decision considering so serious an issue as the constitutionality of a legislative enactment, I submit that those unaffected by the statute may not espouse the cause of others who may or may not be prejudiced in situations not here present. Basic judicial principles which require “standing” as a prerequisite to invoking the jurisdiction of the court, particularly on constitutional matters, should restrain us from passing on an issue where none of the parties has a stake in the outcome.
2. On the merits, however, there is no reason to assume that the statute was intended to exclude from immunity “material suppliers” who had a part in the design or construction. Carter v. Hartenstein, 248 Ark. 1172, 1175, note, 455 S.W.2d 918, 920 (1970); Rosenberg v. Town of North Bergen, 61 N.J. 190, 201, 293 A.2d 662, 668 (1972); Reeves v. Ille Elec. Co., Mont., 551 P. 647 (1976). In Regents of U. of Calif. v. Hartford Acc. & Indem. Co., 59 Cal.App.3d 675, 131 Cal.Rptr. 112, 140 (1976), hearing granted by Supreme Court of California, the court of appeal stated:
“It has been assumed in the cases voiding the legislation that materialmen are not relieved, whereas contractors and architects are granted repose after expiration of the statutory period. That may *560be true under the Hawaiian statute, but we are not prepared to say that a supplier is not a ‘person who * * * performs * * * construction of an improvement to real property’ when he furnishes material or equipment which he knows is to be incorporated in that improvement.”
But whether or not he takes part in the “design” of the improvement, when the issue is before us a persuasive argument can be made that a materialman does come within the definition of “any person performing * * * construction,” and consequently he is not excluded from the favored class in a manner which renders that classification impermissible. Certainly one who furnishes structural supplies, plumbing, or heating or electrical equipment, fashioned for specific use in erecting a building, is a person “performing” an integral part of the construction process. It would be difficult for us to hold otherwise. This leaves only the owner, and those in possession of the property, responsible for maintaining the building in a safe condition after a period of 10 years has uneventfully elapsed. For reasons which a number of courts and commentators have articulated, this is as it should be.
3. There is evidence that 84 percent of all claims against architects for faulty design are brought within 4 years of the completion of their professional services. Comment, 18 Catholic U.L.Rev. 361, 366.1 The likelihood of hidden defects, attributable to design, emerging after 10 years is probably slight. But again, that is not the case before us. The hazardous conditions created by Yale were open and obvious, even to a layman. The furnace was installed immediately adjacent to one wall, and 6 to 8 inches from another, both walls constructed of combustible material. Another furnace in an adjoining store was placed in' juxtaposition to the Frerichs’ furnace so that one wall was exposed to heat from both sides. Under the circumstances even a superficial inspection and observation made it the duty of the owners and tenants to take corrective measures. In this highly volatile atmosphere Frerichs permitted paper and cartons to be stored in a 4- or 5-inch space between the furnace and the wall while the owner took no effective measures to eliminate that obvious and imminent danger. This, then, is the classic case where the owner has had every opportunity to observe the defective design almost as soon as the work was completed but has failed to re*561quire that it be corrected, and has slept on its rights for 18 years. Both the owner and the tenant were in a position to prevent the very catastrophe which occurred. It would not be inequitable to permit them to bear the loss in circumstances of this kind.
4. The benefits of imposing responsibility on owners and occupants to inspect and correct patent defects in my opinion greatly outweigh the occasional hardship resulting from denying indemnity from negligent architects and contractors after 10 years have elapsed. As to latent defects there are different policy considerations. Nevertheless there are compelling reasons for permitting immunity even in those situations. Some 40 states have adopted statutes similar to § 541.051. Two-thirds of the courts which have considered them have recognized a rational basis for shifting responsibility to owners. Without such a statute the potential liability of architects and contractors would continue indefinitely, almost in perpetuity. Here the event occurred 18 years after the building had been completed, inspected, and' accepted by the owners. Meanwhile, Yale had no right to enter and inspect the premises or to control the service and operation of the furnace which it installed. During those years there was every opportunity for neglect, abuse, poor maintenance, mishandling, improper modification, and unskilled repair. The task of distinguishing between a failure of the system attributable to faulty design and construction, as against faulty maintenance and operations, then becomes almost impossible for factfinders to undertake.
5. Statutes of limitations where no vested rights have been forfeited have uniformly been upheld. Within the 10-year period under § 541.051 the injured party has 2 years after discovery to bring an action. After 10 years no cause of action exists. Such protection is essentially a trade-off for the greatly increased exposure of architects and contractors which has stemmed from the denial of the defense of privity as to third-party claims, and the extension of their liability by the adoption of a rule that discovery of the defect commences the prescribed period of limitations, rather than the time when the work was completed. This concession seems eminently fair in light of the problems of proof presented after 10 years. Here after 18 years, records of the defendants might well have been destroyed or lost; those who performed the work may no longer be available to testify; and inevitably memories will have dulled by passage of time. , These are the classic reasons for all statutes of limitations. The usual period is 6 years. The likelihood of prejudice resulting after 10 years is almost geometrically increased.
6.Of the ten states which have held statutes such as § 541.051 constitutional, opinions of the Arkansas, New Jersey, and California courts are particularly relevant. In Carter v. Hartenstein, supra, a 4-year statute of limitations was held to be constitutional in barring a claim against an architect and contractor for faulty design of an elevator which caused the death of a passenger. The court held that it was not a denial of equal protection to require the owner to accept responsibility for the condition of the premises. To permit no limitation in perpetuity against one who designs or erects a structure would discriminate against professional builders, the court said. But it concluded by observing, “This case has nothing to do, as presented, with questions of concealed defects, imminently and inherently dangerous, or prospective liability.” 248 Ark. 1176, 455 S.W.2d 921. (Italics supplied.)
The New Jersey court in Rosenberg v. Town of North Bergen, supra, was dealing with a defective highway built by defendants 30 years before plaintiff was injured. The court held that a 10-year limitation was a “reasonable measure of protection” against the increased exposure of architects and contractors arising from the revised rules as to privity and discovery. 61 N.J. 198, 293 A.2d 666. “There comes a time when [the defendant] ought to be secure in his reasonable expectation that the slate has been wiped clean of ancient obligations, and he ought not to be called on to resist a claim when ‘evidence has been lost, memories have faded, and witnesses have disappeared.’ ” Note, 63 Harv.L.Rev. 1177, 1185.
*562California also has a 10-year statute which was sustained in Regents of U. of Calif. v. Hartford Acc. & Indem. Co., supra. There, latent deterioration occurred to a building because of a deficiency in design. The court of appeal held that after 10 years the statute “cuts off the right of action before it accrues” without a denial of any constitutional rights. 131 Cal.Rptr. 132. The court further noted:
“ * * * [I]nsofar as the liability to the property of third persons is concerned * * * the effect of the section is to make the owner, tenant or other possessor of the property responsible for insuring against the loss, and to relieve those mentioned of the necessity of securing insurance which will cover contingent liabilities for an infinite period of time. It is arguable that in the long run the distribution of those risks over persons who are responsible for improvements over ten years old will tend to lessen the costs of insurance to the favored classes, and that the resultant costs of construction to those who use the services of that class. The ten-year period that the exceptions in subdivision (f) of the statute are reasonably adapted to protecting the owner from the results of most shoddy work. The courts long recognized the sharing of risks through liability insurance, and no reason suggests itself why the legislators are not as capable of planning for such eventualities as judges. The fact that the former are more responsive to popular will may be an advantage in insuring greater flexibility of systems of apportioning loss which meet with popular disapproval than is the case with the judiciary.” 131 Cal.Rptr. 140.
I find persuasive the California court’s reasoning that the apportioning of risks is a proper and a constitutionally permissible legislative function with which the judiciary should not interfere.
I would affirm the trial court’s determination that Minn.St. 541.051 is constitutional.
ROGOSHESKE and MacLAUGHLIN, JJ., took no part in the consideration or decision of this case.. The following table was presented in 1967 to a committee of Congress by an architectural malpractice insurer based on 570 pending suits (Comment, 18 Catholic U.L.Rev. 361, 367):