Ball v. Harnischfeger Corp., 81292

• Decision Date: 14 June 1994
• Docket Number: No. 81292,81292
• Citation: 1994 OK 65,877 P.2d 45
• Parties: Prod.Liab.Rep. (CCH) P 13,964, 1994 OK 65 Charles BALL, Plaintiff, v. HARNISCHFEGER CORPORATION, Defendant.
• Court: Oklahoma Supreme Court

Page 45

877 P.2d 45

Prod.Liab.Rep. (CCH) P 13,964, 1994 OK 65

Charles BALL, Plaintiff, v. HARNISCHFEGER CORPORATION, Defendant.

No. 81292.

Supreme Court of Oklahoma.

June 14, 1994.

Certified Question of Law From the United States District Court for the Eastern District of Oklahoma, Frank H. Seay.

The certified question inquires as to the applicability of 12 O.S.1991 § 109 to the manufacturer of an overhead crane. We answer that the manufacturer may be protected under Section 109 if the manufacturer is sued for performing one of the activities enumerated in the statute.

QUESTION ANSWERED.

Micky Walsh, Elizabeth J. Sloan, Durbin, Larimore & Bialick, Oklahoma City, for plaintiff.

Bert M. Jones, Rhodes, Hieronymus, Jones, Tucker and Gable, Tulsa, for defendant.

SUMMERS, Justice.

The Honorable Frank H. Seay, judge of the United States District Court for the Eastern District of Oklahoma, pursuant to the Uniform Certification of Questions of Law Act, 20 O.S.1991 § 1601-1611, has certified the following question to this Court:

Do the provisions of Oklahoma's statute of repose, Okla.Stat. tit. 12, § 109, apply to the manufacturer of a product, which upon installation is determined to be an improvement to real property?

We answer by stating that a manufacturer is protected if the suit is based on the manufacturer's performance of one of the activities set forth in 12 O.S.1991 § 109.

Charles Ball was injured when he fell from an overhead crane while working at the Johnston Terminal at the Port of Muskogee. He brought suit against the manufacturer of the crane, Harnischfeger Corporation, based on manufacturers products liability. Harnischfeger asserted that the statute of repose barred the action because the crane had been in place for more than ten years. Judge Seay determined that there was no Oklahoma precedent on this issue, and certified the question to us, noting that our decision will likely govern the outcome of the case.

The crane was designed and manufactured by Harnischfeger in 1972 to fit specifications set by Willbros, the predecessor in interest of Johnston Terminal. The crane was designed to meet certain specifications necessary for the operation of the terminal. It lifts and moves steel beams to and from barges, rail cars, and trucks. The crane was shipped to Willbros, and reassembled on site. A representative of Harnischfeger inspected the assembly of the crane and monitored it in operation.

The crane is a stationary part of the terminal. It is a five motor electric traveling overhead crane consisting of a bridge, two trolleys, each with one hoist, a service platform and an operator's cab. This crane bridge, a design unique to this crane, consists of two parallel welded steel box girders which span the width between the crane and runway girders. At each end of the bridge is a truck which rides on the rails on top of the crane runway girders. The girders are supported by columns set in the ground on foundations to support the weight of the crane and its load. The operator's cab is attached to one end of the bridge. The trolleys are wheeled vehicles which ride on the rails atop each parallel girder of the bridge. Each trolley has the hoist machinery, the wire rope and the hook with which loads are attached and hoisted. Ball was attempting to grease the wheels of the trolley when he fell. The federal District Court found that the crane had been in place for more than ten years and was an improvement to real property.

Section 109 reads as follows:

No action in tort to recover damages

(i) for any deficiency in the design, planning, supervision or observation of construction or construction of an improvement to real property,

(ii) for injury to property, real or personal, arising out of any such deficiency, or

(iii) for injury to the person or for wrongful death arising out of any such deficiency,

shall be brought against any person owning, leasing, or in possession of such an improvement or performing or furnishing the design, planning, supervision or observation of construction or construction of such improvement more than ten (10) years after substantial completion of such an improvement.

In recent years we have been called on to evaluate Section 109 several times. In St. Paul Fire & Marine Ins. Co. v. Getty Oil Co., 782 P.2d 915 (Okla.1989), we were faced with the question of the statute's validity in light of a variety of challenges made pursuant to the Oklahoma constitution. We held it to be constitutional. Later in Riley v. Brown & Root, Inc., 836 P.2d 1298 (Okla.1992), we upheld it against another constitutional challenge. In Mooney v. Young Mens Christian Association of Greater Tulsa, 849 P.2d 414, 416 (Okla.1993), we applied the statute of repose to the manufacturer of an elevator, and held that the plaintiff's claims of negligent installation of the elevator were barred. But in that case the issue of whether § 109 applied to a manufacturer was not raised by the parties nor addressed by us.

This, then, is the first occasion on which this question has been posed directly to this Court. ¹ Ball asserts that Section 109's bar does not shield a manufacturer from liability because the statute was only intended to protect building professionals such as architects and engineers. As support for this argument, Ball notes that this Court has referred to the statute as one protecting "architects and engineers." Riley, 836 P.2d at 1299.

On the other hand, Harnischfeger urges that the manufacturer of a product which is unique to the location and is an improvement to real property is within the statute's protection. Harnischfeger points out that the statute expressly protects certain activities such as designing, constructing, planning and supervising construction. Citing to cases from other jurisdictions, Harnischfeger asserts that a manufacturer can be included within the protection of the statute of repose if the manufacturer is acting in one the capacities enumerated by the statute.

Only a few jurisdictions have adopted a per se rule which excludes manufacturers from protection under statutes of repose. In the cases reaching this result, the courts have reasoned that the statutes of repose were enacted to protect individuals whose livelihood is based on the uniqueness and creativity of a design. Unlike a manufacturer of massed-produced goods who can use quality controls to assure the safeness of the product, individuals engaged in the activities of designing, planning, constructing and supervising construction do not have such protection. Thus, lobbying forces convinced state legislatures to enact legislation to protect certain activities to avoid years and years of possible liability:

In the mid 1960's, faced with what they considered to be an intolerable situation, architects, engineers, and builders, through their respective professional organizations, began a drive to alleviate the undesirable consequences of [the elimination of privity as requisite to suit]. The American Institute of Architects ... along with the National Society of Professional Engineers and the Associated General Contractors, began to push for model legislation which would substantially curtail the limitless duration of liability imposed upon its members. In the span of approximately two years, 1965-1967, thirty jurisdictions ... enacted or amended statutes of limitations specifically for architects, engineers, and builders.

In re Beverly Hills Fire Litigation, 672 S.W.2d 922, 925 (Ky.1984), quoting note, Recent Statutory Developments Concerning the Limitations of Actions Against Architects, Engineers, and Builders, 60 Ky.L.J. 462, 464 (1971). Relying on this as a statement of intent behind the enactment of the statutes of repose, a few jurisdictions held that a manufacturer was not protected. Furthermore, some courts felt that the inclusion of manufacturers within the protected group would have a detrimental, or at the least confusing, effect on the law of products liability. ²

A majority of the states which have addressed this issue have reached a different result. Rather than focusing on the status of the party (such as an engineer, manufacturer or architect), their trend is to focus on the activity involved, to determine whether the manufacturer was acting as a designer, planner, supervisor or constructor of an improvement to real property. If the manufacturer is involved in one of the enumerated activities, protection will be extended. ³ If the manufacturer acted only as a supplier, protection is denied. ⁴

For example, in Snow v. Harnischfeger Corp., 12 F.3d 1154 (1st Cir.1994), the First Circuit Court of Appeals was presented with the same issue regarding the same product, an overhead crane. There, the crane was made to the specifications of the engineering firm and was installed in the building to move trash into trash feed hoppers. As in our case, the cranes were incorporated into the plant's buildings as part of the construction.

The court stated that "Harnischfeger may be a protected actor even without being involved in the construction business", because the statute did not, by its express language, limit its protection to those in the construction business. Rather, the statute protected those who designed, planned, constructed or administered the construction. Harnischfeger pointed out that its cranes were unique in design, and manufactured to meet the unique specifications presented by each new building. Relying on this, the court stated that the relevant inquiry "involves the motivation behind and the activity of producing the product, not the product itself." Id. at 1158.

The court noted that the cranes were not mass-produced in a manner so as to make the manufacturer a mere supplier of goods:

The purpose of the statute is 'to protect providers of 'individual expertise' who 'render particularized services for the design and construction of particular improvements to particular pieces of...