Baker v. Poolservice Company

• Decision Date: 03 November 2006
• Docket Number: Record No. 052371.
• Citation: 636 S.E.2d 360
• Parties: Douglas B. BAKER, as Personal Representative of the Estate of Virginia Graeme Baker v. POOLSERVICE COMPANY, et al.
• Court: Virginia Supreme Court

636 S.E.2d 360

Douglas B. BAKER, as Personal Representative of the Estate of Virginia Graeme Baker v. POOLSERVICE COMPANY, et al.

Record No. 052371.

Supreme Court of Virginia.

November 3, 2006.

COPYRIGHT MATERIAL OMITTED

Gene C. Schaerr (Robert T. Hall, Steven M. Frei, Charles B. Molster, III, Jeffrey M. Anderson, Winston & Strawn, Hall, Sickels, Frei & Kattenburg, on briefs), Reston, for appellant.

John D. McGavin, Lewis F. Powell, III (Melissa H. Katz, Robert M. Tata, M. Christine Klein, John J. Brandt, Francis P. Manchisi, Trichilo, Bancroft, McGavin, Horvath & Judkins, Hunton & Williams, Wilson Elser Moskowitz Edelman & Dicker, on briefs), Fairfax, for appellees.

Virginia Association of Defense Attorneys (Mark D. Loftis, Frank K. Friedman, Woods Rogers, on brief), Roanoke, amicus curiae in support of PoolService Co.

Present: HASSELL, C.J., LACY, KEENAN, KINSER, LEMONS, and AGEE, JJ., and CARRICO, S.J.

OPINION BY Justice G. STEVEN AGEE.

Douglas B. Baker, personal representative of the estate of Virginia Graeme Baker, appeals from the judgments¹ of the Circuit Court of Fairfax County, which sustained the demurrer of Poolservice Company ("Poolservice") and the plea in bar of Hayward Pool Products, Inc. ("Hayward") in a wrongful death action filed by Baker, and dismissed the case with prejudice. At issue in this appeal is whether the trial court erred as to either judgment. For the reasons set forth below, we will affirm the judgments of the trial court.

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW

The facts underlying this case are tragic: Seven-year-old Virginia Graeme Baker ("Virginia") drowned on June 15, 2002 after becoming pinned underwater by suction to the drain cover of an outdoor spa. A few days before a party, the owners of the spa hired Poolservice to perform routine annual maintenance and cleaning of the spa and its adjoining pool, and to determine why the spa was "not working to [its] full functional capacity." In the course of this maintenance, Poolservice returned the spa's pump to its normal working condition by eliminating a clog created by hair and other foreign matter. Poolservice's repair work did not involve the drain cover and it was not hired to perform a safety inspection of the spa or to retrofit any of its parts.

Douglas B. Baker filed a wrongful death action as Virginia's personal representative against Poolservice and Hayward, the manufacturer of the drain cover used in the spa. Baker's amended motion for judgment alleged negligence and willful, wanton and reckless misconduct against Poolservice. Baker also alleged a breach of implied warranty of merchantability; breach of implied warranty of fitness; negligence; and willful, wanton, and reckless misconduct against Hayward.

Poolservice filed a demurrer asserting that the amended motion for judgment "fail[ed] to state [claims] for which relief can be granted" as it sought to impose duties on Poolservice to "retro-fit an existing spa or hot tub which it neither manufactured, installed or sold" and to "initiate campaigns for safety." At the hearing on Poolservice's demurrer, Baker acknowledged "[t]here's no specific case on point" that would impose "a duty upon a repair person to advise the owner of a danger." Baker also conceded that Poolservice was not negligent in its performance of the actual repairs of the spa: "they didn't breach the contract. They did exactly what the contract called for. They fixed the pump."

The trial court sustained Poolservice's demurrer in an order issued August 19, 2005. In its bench ruling, the trial court explained it did so because it "could find no authority whatsoever that imposes upon a repair person a duty to warn."

Hayward filed a plea in bar to the amended motion for judgment, asserting the five-year statute of repose in Code § 8.01-250 barred Baker's action because the drain cover was manufactured and installed more than five years prior to Virginia's death.² At the evidentiary hearing on the plea in bar, argument centered on whether the flat drain cover manufactured by Hayward was "an ordinary building material which would fall within the protections of the Statute of Repose, or whether it was machinery, equipment, or some other related article which would not enjoy the benefit of the Statute of Repose."³ On August 25, 2005, the trial court entered an order granting Hayward's plea in bar and dismissed the claims against it with prejudice. From the bench, the trial court explained that

[t]he characteristics of this drain cover would indicate that it is fungible and interchangeable with other similar products. And while it looks like it's portable and so forth, it appears that it is part and parcel of the filtration system that is in the Jacuzzi spa.

Furthermore, the evidence is unequivocal that the manufacturer of this drain cover does nothing but simply package it and then sell it to distributors who, in turn, resell it to installers and contractors who then would incorporate it into a finished Jacuzzi spa. There appear to be no particular instructions for a particular project that may go with it.... The Supreme Court [of Virginia] has indicated that ordinary building materials do enjoy the benefit of the Statute of Repose in Code § 8.01-250, and the evidence would seem to indicate that this would be such an ordinary building material under the current standards set by our court. And accordingly, it would appear also that as an ordinary building material, that it is subject to the Statute of Repose, and therefore, the Plea in Bar should be granted.

We awarded Baker this appeal.

II. ANALYSIS

Baker assigns error to the judgments of the trial court sustaining Poolservice's demurrer, granting Hayward's plea in bar, and dismissing Baker's claims with prejudice. We address each ruling in turn.

A. Poolservice's Demurrer

Baker argues the trial court erred in sustaining Poolservice's demurrer because the amended motion for judgment pled claims against Poolservice for breaching two legal duties: (1) "a duty not to create or exacerbate a risk of physical harm in the course of making repairs to the spa" and (2) "a duty to make use of the company's superior knowledge to warn the homeowners about that risk."

Baker contends Poolservice breached the former duty when it repaired the pump system in the spa, thereby "increas[ing] the risk of suction entrapment and consequent physical injury beyond the level of risk that existed before the repairs were made."

Citing § 324A of the Restatement (Second) of Torts,⁴ Baker contends "a repairman who makes [a] requested repair[,] but whose work nevertheless creates or exacerbates a dangerous condition is liable for injuries that result from the dangerous condition." Baker posits that because Poolservice knew that a "fully-functioning pump would increase the risk of suction entrapment" in the spa, it breached its duty "not [to] make repairs that it knew would increase the risk of entrapment."

Baker claims that Featherall v. Firestone Tire & Rubber Co., 219 Va. 949, 252 S.E.2d 358 (1979), in which the Court applied § 388 of the Restatement (Second) of Torts,⁵ recognizes that a repairman is subject to liability for physical injuries resulting from "knowingly return[ing] property to its owner in a dangerous condition [without] warn[ing] the owner about that condition." Baker also claims that under Hegwood v. Virginia Natural Gas, Inc., 256 Va. 362, 505 S.E.2d 372 (1998), Poolservice had a legal duty to "warn the occupants of the premises of the known dangerous defect," the risk of suction entrapment.

Poolservice responds that the trial court did not err in sustaining its demurrer because Poolservice had none of the duties Baker alleged. Poolservice contends its repairs "did nothing beyond returning the spa to its normal operating condition" and "did not alter the product to make it more dangerous [or] increase the risk of harm." Poolservice distinguishes the case at bar from the principle espoused in § 324A of the Restatement (Second) of Torts, because unlike situations where repair work created a dangerous condition, Poolservice's repairs merely restored the spa to its original and intended operating condition. Poolservice likewise asserts that it did not create the dangerous condition because any danger from the functioning spa "existed long before Poolservice ever serviced" it.

Poolservice also argues the duty Baker seeks to impose on repairmen to warn individuals of product defects would "transform the repairer into the insurer of products manufactured by others[,] a position which has no support under Virginia law." And it asserts that Featherall and § 388 of the Restatement (Second) of Torts are inapplicable because "the repairs performed by Poolservice did not render the product dangerous" and Featherall applied § 388 only in the context of the manufacturer of a product. Poolservice distinguishes Hegwood based on the utility work involving an inherently dangerous substance, as compared to the "variety of services on pools and spas" that it, as a maintenance company, provides. We agree with Poolservice.

"A demurrer tests the legal sufficiency of facts alleged in pleadings, not the strength of proof." Glazebrook v. Board of Supervisors, 266 Va. 550, 554, 587 S.E.2d 589, 591 (2003) (citations omitted). We are thus called upon to determine whether the "amended motion for judgment alleged sufficient facts to constitute a foundation in law for the judgment sought." Hubbard v. Dresser, Inc., 271 Va. 117, 122, 624 S.E.2d 1, 4 (2006). On appeal, we undertake this review using a de novo standard, accepting "as true all facts properly pleaded in the bill of complaint and all reasonable and fair inferences that may be drawn from those facts." Glazebrook, 266 Va. at 554, 587 S.E.2d at 591.

Virginia law does not impose upon Poolservice the legal duties Baker alleged in his amended motion for judgment. While no decision has been cited by the parties or...