Cournoyer v. Massachusetts Bay Transp. Authority, 83-1906

• Decision Date: 11 July 1984
• Docket Number: No. 83-1906,83-1906
• Citation: Cournoyer v. Massachusetts Bay Transp. Authority, 744 F.2d 208 (1st Cir. 1984)
• Parties: Sylvio COURNOYER, Plaintiff, Appellant, v. MASSACHUSETTS BAY TRANSPORTATION AUTHORITY, Et Al., Defendants, Appellees.
• Court: U.S. Court of Appeals — First Circuit

Page 208

744 F.2d 208

Sylvio COURNOYER, Plaintiff, Appellant, v.MASSACHUSETTS BAY TRANSPORTATION AUTHORITY, Et Al Defendants, Appellees.

No. 83-1906.

United States Court of Appeals First Circuit.

Argued May 7, 1984.

Decided July 11, 1984.

Elizabeth Mulvey, Boston, Mass., with whom Andrew C. Meyer, Jr., and Lubin & Meyer, Boston, Mass., were on brief, for plaintiff, appellant.

John R. Duxbury, Boston, Mass., for defendant, appelleeAMCA Intern. Corp.

Before COFFIN and BREYER, Circuit Judges, and PETTINE, ^*Senior District Judge.

PETTINE, Senior District Judge.

In this diversity case, the plaintiff/appellant, Sylvio Cournoyer, claims that he was injured on October 19, 1977, while sandblasting the steel girders of an elevated streetcar structure owned by the Massachusetts Bay Transportation Authority (MBTA).He says that he was standing on the roof of an ungrounded steel building when an electric current arced from the MBTA structure to the building, shocking the appellant and causing him to fall forty feet to the ground.At the time of the accident, the appellant was employed by the Town Hall Construction Company, which had contracted with MBTA for maintenance of the structure.The appellant says that the steel building was "designed, supplied and constructed" in late 1969 or early 1970 by the Priggen Steel Building Company(Priggen), an assertion uncontested by the appellee.The appellee acknowledges that it purchased Priggen in 1973, assuming all of Priggen's assets and liabilities.

In Count II of the appellant's second amended complaint, he charged the appellee with negligence for various acts committed by Priggen.In Count X, the appellee was charged (again through Priggen) with breach of express and implied warranties to design the building in an architecturally sound manner.The plaintiff now appeals from the district judge's allowance of the appellee's motion for summary judgment as to both counts.The motion was based upon the following statute of repose:

Actions of tort for damages arising out of any deficiency or neglect in the design, planning, construction or general administration of an improvement to real property shall be commenced only within three years next after the cause of action accrues; provided, however, that in no event shall such actions be commenced more than six years after the performance or furnishing of such design, planning, construction or general administration.

Mass.Gen.Laws Ann. ch. 260, Sec. 2B(West Supp. 1983).

The Supreme Judicial Court of Massachusetts has explained that

[a]statute of limitations normally governs the time within which legal proceedings must be commenced after the cause of action accrues.A statute of repose, however, limits the time within which an action may be brought and is not related to the accrual of any cause of action.The injury need not have occurred, much less have been discovered.As a statute of repose, G.L. c. 260, Sec. 2B, precludes recovery against those within the protection of the statute for any injury which occurs more than six years after the performance or furnishing of the design, planning, construction, or general administration of an improvement to real property.Simply put, after six years, the statute completely eliminates a cause of action against certain persons in the construction industry.

Klein v. Catalano, 386 Mass. 701, 702, 437 N.E.2d 514, 516(1982)(footnotes and citations omitted).

Of course, it hardly need be said that the Supreme Judicial Court of Massachusetts is the "final judicial arbiter" of the meaning of ch. 260, Sec. 2B.SeeGurley v. Rhoden, 421 U.S. 200, 208, 95 S.Ct. 1605, 1610, 44 L.Ed.2d 110(1975).

It is uncontested, as we think it would have to be, that if ch. 260, Sec. 2B applies to this casethe district court was correct in granting summary judgment for the appellee.As noted above, Priggen completed the building in 1969 or 1970, but the appellant did not file suit until 1980.The appellant argues first, however, that the sixty-foot building on which he was standing at the time of the accident "more closely resembles a product than an improvement to real property."This perception is based upon the plaintiff's allegation that the building is

a pre-fabricated structure and not the result of an original architectural design.This steel building was mass-produced in much the same way as a metal tool shed from Sears Roebuck, and identical buildings had been constructed on previous occasions.No engineering was involved in the design of this warehouse assembled by Priggen on the East Cambridge site.In fact, Priggen itself described the structure as a "pre-fabricated, pre-engineered metal building" that was available in a choice of "our six standard colors."

Appellant's Briefat 4(references to appendix omitted).

Even if we assume the accuracy of this description of the building in question, we cannot say that the building is not an improvement to real property within the meaning of ch. 260, Sec. 2B.In construing this section soon after the Klein decision, the Massachusetts Appeals Court referred to the following definition of "improvement": "a permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinary repairs."Raffel v. Perley, 14 Mass.App.Ct. 242, 245, 437 N.E.2d 1082, 1084(1982)(quoting Webster's Third New International Dictionary (1971)).In light of this definition, the appellant's allegation that the building in question was prefabricated is beside the point.Obviously, there is nothing inherent in the nature of a prefabricated building that would take it out of this definition, and we find nothing in the record that would do so.We must conclude, therefore, that the building in question is an improvement to real property within the meaning of ch. 260, Sec. 2B.See alsoMontaup Electric Co. v. Ohio Brass Corp., 561 F.Supp. 740, 747-48(D.R.I.1983)(finding that an electric transmission line is an improvement to real property within the meaning of ch. 260, Sec. 2B).

The appellant's next argument is that, even if the building from which he fell is an improvement to real property within the meaning of the statute, the appellee nevertheless cannot take advantage of ch. 260, Sec. 2B because its predecessor in interest was not a member of the class that the statute was designed to protect.It is true that the Supreme Judicial Court of Massachusetts has said that the statute"has the effect of granting immunity from suit only to architects, engineers, contractors, and others involved in the design, planning, construction, or general administration of improvements to real property...."Klein, 386 Mass. at 715, 437 N.E.2d at 523.The appellant says that Priggen fell into none of these classifications, and that the company was merely the supplier of a product, namely the component parts of metal buildings.And it seems clear that under Klein a supplier is without the statute's protection.Seeid. at 716, 437 N.E.2d at 524(explaining how the Massachusetts Legislature could "have reasonably concluded that it is appropriate to place separate time limits on the liability of builders and suppliers").

For the sake of argument we are willing to assume that Priggen was in fact a supplier within some meaning of the term.But after our examination of the record we think that it is undeniable that Priggen was also the building's designer.Indeed, the appellant admits this on the first page of his brief to this court.As a designer, of course, Priggen falls squarely within the terms of ch. 260, Sec. 2B and is entitled to its protection.In light of this at least potentially dual role of the appellee as both supplier and designer of the building in question, one argument would appear to be essential to a successful evasion of the statute in this case: that the appellant was injured by the appellee's negligent act committed in its role as a supplier.In light of the distinction drawn by Klein between suppliers and manufacturers on the one hand and those "involved in the design, planning, construction, or general administration of improvements to real property" on the other, we are unwilling to say that one who performed roles in both groups would under no circumstances be amenable to suit after the running of the statute of repose.¹This possibility plays no role in the instant case, however, simply because the appellant has made no specific allegation of negligence by Priggen in what we are willing to assume was its role as a supplier.Without such an allegation, the appellant must stand by his own characterization of Priggen as a designer, thereby granting the appellee at least a prima facie entitlement to the protection of the statute, one that remains unrebutted.In short, this attempt by the appellant to escape the guillotine of ch. 260, Sec. 2B must fail.

The appellant also seems to make the related argument that, even if Priggen did design the building from which the appellant fell, Priggen was not the sort of designer that the statute was intended to protect.The appellant says that the "real purpose" of the statute, one that "justifies the special privilege accorded to architects and designers," is "to encourage creativity and new trends in the planning of individual structures."Therefore, the appellant argues, "[t]he grant of summary judgment in favor of the [appellee] was clearly inappropriate, as a jury could find that [the appellee's] role in supplying component parts for the building did not reach the level of creativity or individuality necessary to invoke the protection of G.L. c. 260 Sec. 2B."

Even if we were to find merit in this argument, it would be inadequate to exclude this appellee from the protection of the statute.This is so because, as the district court explained, "[t]hough protection of...