Garner v. Kinnear Mfg. Co.

• Decision Date: 23 November 1994
• Docket Number: Nos. 92-2858,92-3302,s. 92-2858
• Citation: 37 F.3d 263
• Parties: , Prod.Liab.Rep. (CCH) P 14,063 Willie GARNER and Sara Garner, Plaintiffs-Appellants, v. KINNEAR MANUFACTURING COMPANY, Midwest Kinnear Manufacturing Company, Kinnear Manufacturing Company, a Division of Harsco Corporation, Harsco Corporation, and Wayne Dalton Corporation, f/k/a Kinnear Manufacturing Company, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 263

37 F.3d 263

30 Fed.R.Serv.3d 592, Prod.Liab.Rep. (CCH) P 14,063

Willie GARNER and Sara Garner, Plaintiffs-Appellants, v. KINNEAR MANUFACTURING COMPANY, Midwest Kinnear Manufacturing Company, Kinnear Manufacturing Company, a Division of Harsco Corporation, Harsco Corporation, and Wayne Dalton Corporation, f/k/a Kinnear Manufacturing Company Defendants-Appellees.

Nos. 92-2858, 92-3302.

United States Court of Appeals, Seventh Circuit.

Argued Nov. 5, 1993.

Decided Sept. 26, 1994.

Rehearing and Suggestion for Rehearing En Banc Denied Nov. 23, 1994.

Clifford W. Horwitz, Marc A. Perper, and Jay R. Luchsinger (argued), Horwitz, Horwitz & Associates, Chicago, IL, for plaintiffs-appellants.

Thomas H. Fegan, Robert M. Burke, Brian C. Fetzer, Mindy Kallus (argued), and Genevie F. Labuda, Johnson & Bell, Chicago, IL, for defendants-appellees.

Before BAUER, CUDAHY and RIPPLE, Circuit Judges.

CUDAHY, Circuit Judge.

One of the plaintiffs, Willie Garner (hereinafter "Garner"), was injured when a motor assembly used to operate a rolling warehouse door fell on him. He and his wife then sued the manufacturer for negligent manufacture and installation. The district court granted the defendant's motion for summary judgment, holding the suit was barred under the Illinois statute of repose. We affirm.

I.

Garner suffered severe personal injuries on May 19, 1989 when a cast-iron mounting plate, part of the mechanism used to operate an overhead warehouse garage door, fractured and the plate and the attached motor fell and struck him. In 1991, Garner and his wife filed suit against defendant Kinnear Manufacturing Company ("Kinnear"), ¹ in the Northern District of Illinois, alleging that Kinnear's negligence proximately caused Garner's injuries. In particular, the plaintiffs alleged that Kinnear was negligent in: (1) manufacturing a mounting plate that was too weak to support a motor; (2) manufacturing the mounting plate with a defective weld; (3) failing to warn that the plate was inadequate to support the motor; (4) installing a plate that was too weak to support a motor; (5) installing a door assembly that placed excessive weight on the plate; and (6) establishing a door assembly in which the movement of the equipment created excessive stress upon the plate.

Kinnear, in its answer, raised as an affirmative defense the Statute of Repose for Improvements to Real Property, 735 ILCS 5/13-214(b) (1992). Section 13-214(b) precludes a tort action arising from construction activity unless filed within ten years of the completion of that construction activity. Because Kinnear installed the overhead steel door in 1970, it maintained the claim was time-barred, and as a consequence, moved for summary judgment.

In support of its motion, Kinnear submitted the deposition testimony of Robert S. Taylor, a project manager for Abell-Howe Company, the general contractor that worked on the building in issue in 1970. Taylor testified that Kinnear, a subcontractor, installed a rolling steel door for an addition to the building. The door consisted of several parts, including the door, the operating mechanism and the mounting plate to which the door was affixed. Through Taylor's testimony, Kinnear sought to show that the door assembly was part of new construction in connection with the building and was thus an improvement to real property. Therefore, Sec. 13-214(b) should apply. Kinnear also submitted the affidavit of Harold Page, the former manager of the Chicago branch of Kinnear. Page testified that following Kinnear's 1970 installation of the door, Kinnear did not repair, maintain or service the door involved in the injury to Garner. Since, according to Kinnear, Garner sustained injuries nineteen years after Kinnear installed the garage door system, Sec. 13-214(b) bars the Garners' complaint.

Following the testimony of Page, the Garners requested leave to depose newly disclosed witnesses, including Page, because Page's identity had not been revealed in Kinnear's answers to interrogatories. The district court granted the Garners' motion in part but denied their request to depose Page. The Garners then filed motions to compel discovery and for leave to amend the complaint to conform to evidence adduced during discovery, but the district court denied both motions after counsel for the Garners failed to appear for the hearing on the motions. After hearing oral argument on the motions, the court declined to change its order and requested that the Garners respond to the summary judgment motion.

The Garners opposed Kinnear's motion for summary judgment with the affidavit of Robert Larson, a plant engineer and electrical foreman of Continental Steel Corporation (now Sheffield Steel). Larson testified that a 1983 purchase order and requisition slip submitted by Continental to Kinnear showed that Continental had ordered a 2-horsepower motor from Kinnear in 1983 to replace the original 1 1/2-horsepower motor above the warehouse door. The new motor was installed on the mounting plate that later fractured and fell on Garner. Larson also testified that in 1984, one year later, Kinnear had sold and installed counterbalance springs above one of the two doors on the south wall of the plant: either the southeast or southwest door. The mounting plate that fractured and injured Garner was situated above the southeast door of the plant.

The Garners also submitted affidavits of three mechanical engineers to establish that the replacement motor and counterbalance springs were the proximate causes of Garner's injuries. The engineers opined that the installation of the 2-horsepower motor in 1983 applied additional stress (beyond that of the replaced 1 1/2-horsepower motor) to the mounting plate during operation of the overhead door system. This additional force from the larger 1983 motor, the engineers reasoned, caused the plate to fracture, and as a result, to injure Garner. In addition, one engineer also testified that the mounting plate fracture may also have been caused by Kinnear's improper installation of the counterbalance springs in 1984. Another of the plaintiffs' witnesses inspected the failed plate and concluded that the plate had been welded after its manufacture to repair faults in the casting. The welding, however, did not restore the original strength of the casting but merely hid the casting's defects. The defective weldpoint, in the expert's view, contributed to the ultimate failure of the plate.

In reply, Kinnear asked the court to disregard Larson's affidavit because it was not sworn to. In the alternative, Kinnear pointed out that the 2-horsepower motor sold to Continental was installed by Continental employees and that Kinnear could not have known where Continental planned to use the motor.

The district court on July 8, 1992 granted Kinnear's motion for summary judgment. The court concluded that "[a]s the uncontradicted evidence establishes that Kinnear installed the rolling steel door as part of a new building addition in 1970 and performed no additional service, maintenance or repair thereafter, the construction statute of repose is properly applied in this case." Garner v. Kinnear Manufacturing Co., No. 91 C 2089, 1992 WL 166924, at * 3, 1992 U.S. Dist. LEXIS 10,322, at * 7 (N.D.Ill. July 8, 1992). Following entry of summary judgment, the Garners moved for leave to file a second amended complaint. The district court denied the motion, and the Garners appeal.

II.

We, of course, review the entry of summary judgment de novo. We will affirm if there is no genuine issue of material fact, so that the movant is entitled to judgment as a matter of law. Fed.R.Civ.P. 56; Kralman v. Ill. Dept. of Veterans' Affairs, 23 F.3d 150, 152 (7th Cir.1994). Summary judgment is proper where the evidence presented by the opponent of the motion is not significantly probative and therefore not a sufficient basis to support a jury verdict in that party's favor. Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986); Baker v. Elmwood Distributing, Inc., 940 F.2d 1013, 1017 (7th Cir.1991).

A. Improvement to Real Property

The primary legal issue in this case is, of course, whether the Illinois statute of repose bars the Garners' claim. That statute provides in pertinent part:

No action based upon tort, contract or otherwise may be brought against any person for an act or omission of such person in the design, planning, supervision, observation or management of construction, or construction of an improvement to real property after 10 years have elapsed from the time of such act or omission.

735 ILCS 5/13-214(b) (1992). The Garners contend that the statute is inapplicable both because the mounting plate was not an improvement to real property and because Kinnear does not belong to the class protected by the statute. We are not persuaded by either of these arguments.

Whether an item constitutes an "improvement to real property" is a question of law but its resolution is grounded in fact. Herriott v. Allied Signal, Inc., 998 F.2d 487, 489 (7th Cir.1993). The Garners contend that the mounting plate is a "product" (and not an improvement to real property) because it was not manufactured at the site of Kinnear's Joliet plant, ² and because it was merely attached to a mounting apparatus with a few bolts. ³ Br. Appellants at 26. The case law, however, does not indicate that these factors are controlling in determining whether an item is an "improvement" within the meaning of the statute. ⁴ In defining what constitutes an improvement, the Illinois Supreme Court in a recent case has cited first the definition of "improvement" as provided in Black's Law Dictionary:

A valuable addition made to property (usually real estate) or an amelioration in its condition, amounting to more than mere repairs or replacement, costing labor or capital, and intended to enhance its value, beauty or utility or to adapt it for new or...