Adair v. Koppers Co., Inc.

• Decision Date: 28 May 1982
• Docket Number: Civ. A. No. C81-2482-Y.
• Citation: 541 F. Supp. 1120
• Parties: Daniel ADAIR, Plaintiff, v. The KOPPERS COMPANY, INC., Defendant.
• Court: U.S. District Court — Northern District of Ohio

541 F. Supp. 1120

Daniel ADAIR, Plaintiff, v. The KOPPERS COMPANY, INC., Defendant.

Civ. A. No. C81-2482-Y.

United States District Court, N. D. Ohio, E. D.

May 28, 1982.

Thomas Mester, Daniel J. White, Komito, Nurenberg, Plevin, Jacobson, Heller & McCarthy Co., L.P.A., Cleveland, Ohio, for plaintiff.

Albert J. Rhoa, Rhoa, Follen, Rawlin & Johnson, and W. Andrew Hoffman, Cleveland, Ohio, for defendant.

R. Patrick Baughman, Thos P. Mulligan, Cleveland, Ohio, for Rep. Steel.

MEMORANDUM AND ORDER

KRUPANSKY, Circuit Judge, Sitting by Designation.

This is a diversity personal-injury action initiated by plaintiff Daniel Adair (Adair) against defendant Koppers Company, Inc. (Koppers) for damages designed to recompense an injury allegedly sustained by Adair while operating the "A" coal handling conveyer (conveyer) during a course of employment as a temporary foreman at the Republic Steel Corporation, Warren Plant. Koppers is alleged to have designed, manufactured, assembled and/or sold the conveyor in such a manner so as to create liability under theories of negligence, strict liability in tort and breach of express and implied warranties.

Presently before the Court is Kopper's motion for summary judgment pursuant to Rule 56, Fed.R.Civ.P., which pertinently states:

(c) Motion and Proceedings Thereon .... The Judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law.

The Sixth Circuit has enunciated the standard to be applied in the determination of a Rule 56 motion:

In ruling on a motion for summary judgment, the court must construe the evidence in its most favorable light in favor of the party opposing the motion and against the movant. Further, the papers supporting the movant are closely scrutinized, whereas the opponent's are indulgently treated.

Bohn Aluminum & Brass Corp. v. Storm King Corp., 303 F.2d 425 (6th Cir. 1962), followed by: Bd. of Educ. of the City School Dist. of the City of Cincinnati, et al. v. H.E.W., 532 F.2d 1070, 1071 (6th Cir. 1976); U. S. v. Articles of Device Consisting of Three Devices ... "Diapulse", et al., 527 F.2d 1008, 1011 (6th Cir. 1976); E.E.O.C. v. MacMillan Bloedel Containers, Inc., 503 F.2d 1086, 1093 (6th Cir. 1974); Bosely, et al. v. City of Euclid, et al., 496 F.2d 193 (6th Cir. 1974); Avery Products Corp. v. Morgan Adhesives Co., 496 F.2d 254, 257 (6th Cir. 1974). See also U. S. v. Diebold, 369 U.S. 654, 655, 82 S.Ct. 993, 994, 8 L.Ed.2d 176 (1962).

Kopper's motion for summary judgment advances that the instant cause of action is barred by the statute of limitations established in O.R.C. § 2305.131 which states in full:

§ 2305.131. Limitation of actions against architects and engineers, non-application of statute.

No action to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained as a result of said injury, shall be brought against any person performing services for or furnishing the design, planning, supervision of construction, or construction of such improvement to real property, more than ten years after the performance or furnishing or such services and construction.

This limitation does not apply to actions against any person in actual possession and control as owner, tenant, or otherwise of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury or damages for which the action is brought.

The record discloses that Koppers, pursuant to a contract executed with Trumbull-Cliffs Furnace Company in 1923, constructed an industrial complex styled a By-Product Coke Plant wherein the instant conveyor was installed as an integral operating unit.¹ The authenticity of such contract is conceded by plaintiff. (See Defendant's Brief, Exhibits A and B). Trumbull-Cliffs Furnace Company was subsequently purchased by Adair's employer, Republic Steel Corporation. Koppers performed additional services to the conveyor in 1949 whereby the operating capacity of the unit was increased. (See Defendant's Brief, Exhibits C and D). Koppers has exerted no dominion or control over the instant conveyor since 1949, well in excess of the 10 year limitations period of § 2305.131.

The contract refers to Koppers as "Contractor" and to Trumbull-Cliffs Furnace Company as "Purchaser". For the consideration of $2,670,000, Koppers agreed to provide labor, plant and material necessary to construct an industrial complex in accordance with blueprints, plans, drawings and specifications which were attached to the contract and incorporated therein by reference. Numerous drawings, blueprints, photographs and specifications relative to the instant conveyor and the complex as a whole are before the Court and their authenticity is also conceded by the parties. (See Exhibits attached to Defendant's Motion and Plaintiff's Brief in Opposition.) A system of several conveyors, of which the instant conveyor "A" is one, was designed and constructed by Koppers to transport coal from the rail system to the By-Product Coke Ovens. (See Defendant's Brief, Exhibit D; reprinted in larger form in Defendant's Answers to Interrogatories, filed February 23, 1982, Blueprint # 36040).

Koppers admits to having designed the conveyor "A". (See Admissions, filed February 19, 1982, and Defendant's Answers To Interrogatories, filed February 23, 1982, No. 24). There is no issue of record indicating that Koppers acted in any capacity other than as a Contractor, designer and engineer in accordance with the construction contract. The following answers to interrogatories are pertinent to Koppers' role in the manufacture, design, sale and installation of the conveyor:

14. State what role this defendant played in the design, manufacture, assembly, destruction, sale or installation of the subject conveyor.

ANSWER: Defendant prepared the drawings attached to this document and entered into the contract attached to this document. Defendant, after the lapse of 58 years, has no record or knowledge of what role, if any, defendant played in the manufacture, assembly, distribution, sale or installation of the subject conveyor other than as set forth in the attached drawings and contract.

16. Was this defendant the immediate supplier of the subject conveyor to Republic Steel Corporation?

ANSWER: Yes.

19. Did this defendant, or any of its employees of representatives, install the subject conveyor or any component parts thereof at Republic Steel Corporation?

ANSWER: It is probable that defendant installed the conveyor but defendant does not really know.

21. Was this defendant the manufacturer or assembler of the conveyor?

ANSWER: It is extremely doubtful that defendant manufactured the conveyor here involved.

(Note: Koppers response to requests for admissions, filed February 19, 1982 provides the following:

1. The subject conveyor was manufactured by defendant, The Koppers Company, Inc. (ANSWER: DENY.)

24. State whether this defendant designed the subject conveyor.

ANSWER: Yes.

25. If the answer to the preceding Interrogatory is in the affirmative, state the name and address of each person employed by you who participated in or has knowledge of the design of the subject winder.

ANSWER: Everyone who participated is long dead. No present Koppers employee has any knowledge not obvious from the drawings and contract attached to this document.

33. If this defendant manufactured the subject conveyor, please state when it was manufactured.

ANSWER: See Answer 20. (Answer 20 provides: "After the lapse of 58 years, defendant lacks the records and knowledge to answer this question")

34. Does this defendant possess or control any production records pertaining to the manufacture of the subject conveyor?

ANSWER: No.

Accordingly, all evidence of record, construed in a light most favorable to Adair, confirms that Koppers did design, "manufacture", install and sell the conveyor to Trumbull-Cliffs Furnace Company in accordance with the contract executed in 1923, and the specifications and blueprints incorporated therein.

The specifications incorporated into the contract regulate a myriad of features of the industrial complex including, as an illustrative example, the following: acid ejector, agitator engine, air compressors, ammonia liquor feed tank, ascension pipes, bagging scale with hopper, benzol washers, bleeders, by-product building, charging pumps, coal spillage elevator, etc. (See generally, scores of categories of "Specifications" attached to Koppers' Answers to Interrogatories, filed February 23, 1982). The following specification is provided for Conveyor A:

3-f CONVEYOR "A"

One (1) 36" belt conveyor will be provided approximately 50'-0 centers. Conveyor will be driven at the head and by an A.C. motor and unit spur gear drive connected to conveyor head shaft by flexible coupling. A solenoid break will be provided for the motor. The motor will be mounted on a separate cast iron base and connected to first countershaft by a flexible coupling. Unit drive will be in a cast iron oil tight housing. Drive countershafts will run in amply proportioned bearings which will be greatly lubricated except for high speed countershaft which will have ring oiling bearings. Gears will be cut steel and pinions will be cut forged steel. All gears will run in oil.

((See "Specifications," page 46, attached to Koppers' Answer to Interrogatories filed February 2, 1982). Of the several conveyors incorporated into the complex for the purpose of transporting material substances, each was uniquely planned, designed, engineered and constructed as necessary to effectuate a...