District of Columbia Armory Board v. Volkert, 21283.

• Court: United States Courts of Appeals. United States Court of Appeals (District of Columbia)
• Writing for the Court: WRIGHT, McGOWAN and TAMM, Circuit
• Citation: 131 US App. DC 74,402 F.2d 215
• Parties: The DISTRICT OF COLUMBIA ARMORY BOARD et al., Appellants, v. D. G. VOLKERT, t/a Ewin Engineering Associates, and Reynolds Metals Company, Appellees.
• Docket Number: No. 21283.,21283.
• Decision Date: 06 September 1968

131 US App. DC 74, 402 F.2d 215 (1968)

The DISTRICT OF COLUMBIA ARMORY BOARD et al., Appellants,
v.
D. G. VOLKERT, t/a Ewin Engineering Associates, and Reynolds Metals Company, Appellees.

No. 21283.

United States Court of Appeals District of Columbia Circuit.

Argued February 5, 1968.

Decided September 6, 1968.

402 F.2d 216

Mr. John R. Hess, Asst. Corporation Counsel for the District of Columbia, with whom Messrs. Charles T. Duncan, Corporation Counsel, Hubert B. Pair, Principal Asst. Corporation Counsel, and Richard W. Barton, Asst. Corporation Counsel, were on the brief, for appellants.

Mr. John K. Mallory, Jr., Washington, D. C., with whom Mr. Roger D. Chittum, Washington, D. C., was on the brief, for appellee D. G. Volkert, t/a Ewin Engineering Associates.

Mr. Carl L. Taylor, Washington, D. C., with whom Mr. Frank F. Roberson, Washington, D. C., was on the brief, for appellee Reynolds Metals Company.

Before WRIGHT, McGOWAN and TAMM, Circuit Judges.

McGOWAN, Circuit Judge:

Appellants, the District of Columbia Armory Board and its individual members, complain of a District Court order granting summary judgment against them in their suit seeking damages for cracks which appeared in the D. C. Stadium. The judgment appealed from was founded upon assertions by appellees that the suit was untimely under the applicable statute of limitations. For the reasons hereinafter appearing, we find no error in the District Court's disposition of the matter.

I

The action was begun in the District Court on March 14, 1966. It alleged that the cause of the cracks was the use of aluminum electrical conduit in conjunction with calcium chloride in the concrete mix, thereby causing electric current to escape with consequent damage to the concrete structure. Appellee Reynolds Metals Company "Reynolds" was the manufacturer and supplier of the aluminum conduit to General Electric Company, which was the immediate vendor of the electrical subcontractor. Appellee D. G. Volkert, t/a Ewin Engineering Associates "Ewin", contracted with the Board to supply architectural-engineering services in the preparation of plans and specifications and in supervising construction under them. Reynolds had no direct contractual relations with the Board, and is sued in two counts of negligence and one count of breach of implied warranty. Ewin is sued in one count of negligence, one count of breach of implied warranty, and one count of breach of a contract under seal.

The essence of appellants' complaint is that appellees either knew, or should have known, that the interaction of aluminum conduit and calcium chloride would inevitably result in damage to the structure, and that Ewin should not have prepared plans and specifications contemplating the use of both, nor should Reynolds have supplied aluminum conduit for such use.

Ewin and Reynolds each moved for summary judgment, under Rule 56, FED. R.CIV.P., and Local Rule 9(h) of the District Court, relying upon 12 D.C.CODE § 301.¹ They asserted that, because of

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information elicited in pretrial discovery, there were no material issues of fact to be tried with respect to the Board's knowledge of the damage and its cause more than three years prior to the filing of suit. The principal item upon which appellees rely is the deposition taken of Mr. James A. Blaser, Director of the Department of Buildings and Grounds of the District of Columbia, who served as the Board's Contracting Officer for the construction of the D. C. Stadium

That construction began in July, 1960, and was completed in April, 1962. Mr. Blaser, a qualified civil engineer, testified that the cracking first came to his attention in "late January or early February of '62." He related that, because similar problems had developed in the construction of other buildings in the Washington Metropolitan Area, a study group had been set up by a number of governmental agencies to try to ascertain the cause, apparently under the primary leadership of the Federal Bureau of Standards. Mr. Blaser's D. C. Department of Buildings and Grounds had a representative in the study group in the person of Mr. Richard Crutchfield, Chief of Design and Engineering for the D. C. Department of Buildings and Grounds.

By "late February of '62," according to Mr. Blaser, the group had concluded its effort, and, to his knowledge, it had decided that the cracking was due to the interaction of aluminum conduit and calcium chloride. Mr. Blaser said that, in response to this conclusion, "We immediately stopped any usage of aluminum conduit imbedded in concrete."² This reference is presumably to other buildings than the Stadium because Mr. Blaser went on to say that all of the conduit installation at the Stadium had been completed by mid-February, 1962. He formally accepted the Stadium on behalf of the Board in April, 1962. The deposition includes this colloquy upon the Board's state of knowledge as of February, 1962:

Q. Mr. Blaser, it is a fair summary of your information that by mid-February, approximately mid-February 1962, it was common knowledge to the people working on the stadium project that there was a problem of concrete cracking and the probable cause of it was aluminum conduit in the presence of steel reinforcing rods to

402 F.2d 218

which additives of calcium chloride had been added?

A. I would say, the end of February would be better than the middle of February.

Q. There isn\'t any doubt in your mind about the year involved, is there?

A. No, sir.

Appellants filed a pleading in opposition to the motions for summary judgment. It does not challenge Mr. Blaser's deposition but asserts instead that it was not until July 1, 1963, that any "serious disturbance was reported," and that it thereafter engaged an engineering firm to look into the matter. This firm reported to the Board on July 20, 1964, that the damage was caused by the juxtaposition of aluminum conduit and calcium chloride. As noted above, suit was not brought until nearly two years later. The only issue of material fact tendered by the Board in its opposition to summary judgment was phrased by it in these terms:

Therefore, an issue of fact of grave materiality is in issue, to wit, at what point in time were the plaintiffs aware, with sufficient, scientific and technical justification, to aver and establish the ground upon which suit could be brought against these defendants.

II

Appellants argue to us that they were entitled to refrain from suit until they had explored the matter in their own way by means of retaining an...