Lewis v. Hopewell Valley Racquet Club
| Decision Date | 10 December 1993 |
| Citation | 269 N.J.Super. 71,634 A.2d 568 |
| Parties | , Prod.Liab.Rep. (CCH) P 13,811 Evan LEWIS, Plaintiff, v. HOPEWELL VALLEY RACQUET CLUB, et al., Defendant. Evan LEWIS, Plaintiff, v. ARROW MASTER CORPORATION, Defendant-Respondent. TENCOR, INC. (incorrectly named as Hopewell Valley Racquet Club), Third Party Plaintiff-Appellant, v. DURAFLEX, INC. and Princeton Pool & Patio, Third Party Defendants. |
| Court | New Jersey Superior Court — Appellate Division |
Steven Polansky, Moorestown, for appellant Tencor, Inc. (Spector, Gadon & Rosen, attys., Mr. Polansky, on the brief).
Michael K. Tuzzio, Edison, for respondent Arrow Master (Donington, Karcher, Leroe, Salmond, Luongo & Ronan, attys., Susan S. Rankin, on the brief).
Before Judges KING, A.M. STEIN and A.A. RODRIGUEZ.
The opinion of the court was delivered by
KING, P.J.A.D.
This case presents the question whether a swimming pool, installed with diving stands and boards, is an "improvement to real property" within the meaning of our ten-year statute of repose, N.J.S.A. 2A:14-1.1. 1 The statute protects "person[s] performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property, ..." Id. We conclude that the designer and installer of this in-ground pool and accessories, Arrow Master Corporation, is entitled to the benefit of the statute of repose and affirm the summary judgment in its favor.
I
Plaintiff Evan Lewis was injured in a diving accident on June 24, 1988 at the Hopewell Valley Swim Club. Plaintiff sued various defendants on June 14, 1989, including the appellant, Tencor, Inc., the owner of the swim club. Plaintiff amended his complaint on June 22, 1990 to sue respondent, Arrow Master, which built and installed the pool and diving stands. Arrow Master also installed the original diving boards, but not the replacement board involved in this accident.
Tencor settled with plaintiff for $115,000. The other defendants also apparently settled with plaintiff or obtained dismissals. Tencor alone pursued a cross-claim for contribution against the nonsettling defendant Arrow Master, under the Joint-Tortfeasors Contribution Law, N.J.S.A. 2A:53A-1 to -5, based on a consent judgment against Tencor in favor of plaintiff. Arrow Master moved successfully for summary judgment on the cross-claim raising the ten-year bar of N.J.S.A. 2A:14-1.1.
The 35' by 83' in-ground pool was designed and built in 1978, more than ten years before plaintiff's initial complaint was filed in June 1989. Arrow Master constructed and installed the pool with the two diving stands. Arrow Master hired an architectural firm, Fountainhead Associates, to design the pool. Arrow Master claims that the pool was constructed in accordance with the requirements of Hopewell Township and the standards set by the National Swimming Institute. Pursuant to the construction contract, Arrow Master also supplied the original diving board for the one-meter diving stand that plaintiff was using at the time of the accident. This original diving board was replaced before the accident by the more flexible diving board actually in use when plaintiff was hurt. Arrow Master had nothing to do with the replacement board. Arrow Master supplied the diving stands which were bolted down to the pool deck during construction, as part of the contract for construction of the pool. The two diving stands and the original boards were described in the pool construction contract under "accessory equipment." In 1978, upon completion of construction of the pool, the pool house, a "kiddy" pool, the cabana, and a kitchen, the Hopewell Township assessor increased Tencor's tax assessment for improvement to real estate by $56,900 for taxable year 1979.
The negligence theories against the defendant Arrow Master relevant to design and construction are contained in plaintiff's expert's report, part of the record on this appeal. In the expert's report, plaintiff claimed: (1) the diving well area was too shallow by 2- 1/2 feet in violation of industry standards, (2) the transition slopes from the shallow to the deep end were and (3) the well "should extend from the plummel [sic] of the board 16.4 feet out and it did not in this case." The expert concluded "with a reasonable degree of scientific probability that the defects identified above in the design and construction ... were a substantial contributing cause" of plaintiff's injury. Clearly, the claim asserted against Arrow Master was for negligent design and construction of the pool and the accessory one-meter and one and one-half meter diving stands.
We recently reviewed the background of N.J.S.A. 2A:14-1.1, enacted in 1967, L. 1967, c. 59, § 1, and entitled "10 years; damages for injury from unsafe condition of improvement to real property" in Rolnick v. Gilson & Sons, Inc., 260 N.J.Super. 564, 567, 617 A.2d 288 (App.Div.1992). We said that "impetus for [this] limitation of liability" was provided by two legal developments in tort law, the adoption of the "discovery" rule and the abolition of the rule that designer and contractor liability terminates upon completion and acceptance of work by the owner. Id.; see Rosenberg v. Town of North Bergen, 61 N.J. 190, 195-97, 293 A.2d 662 (1972). New Jersey is one of about 30 or more states which has adopted these statutes of repose in response to legislative activism by architects, engineers and contractors. Id.
As we observed in Rolnick, "there has been some uncertainty over the intended scope of the limitations provision, and more particularly over the key phrase 'improvement to real property.' " 260 N.J.Super. at 567, 617 A.2d 288. In Rolnick, we concluded that the sale and installation in a residence of a brand-name, mass-produced and mass-marketed appliance, an attic ventilator fan provided by the contractor as an option in a central air conditioning unit, constituted the sale of a product and not an improvement to realty. Since the fan was an "extra" and not "an integral component of the air conditioning system," the statute of repose was inapplicable. Id. at 566, 617 A.2d 288. We observed that in the cases where N.J.S.A. 2A:14-1.1 had been applied, the claimed defect was in an integral structural component of a basic mechanical or electrical system which was essential to the function of that system. Id. at 568, 617 A.2d 288. We concluded in Rolnick that the attic fan was more like a dishwasher, clothes dryer, or other home appliance, since it was optional and not essential to the structure or function of a basic mechanical or electrical system. Id. at 569, 617 A.2d 288. In contrast to the result in Rolnick, our courts have applied the statutory time-bar in cases involving a transfer switch assembly cabinet for a missile control center, Brown v. Jersey Central Power and Light, 163 N.J.Super. 179, 394 A.2d 397 (App.Div.1978), certif. denied, 79 N.J. 489, 401 A.2d 244 (1979); a three-to-four-ton dimmer panel in the permanent electrical system in a school auditorium, Wayne Tp. Bd. of Educ. v. Strand Century Inc., 172 N.J.Super....
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Ebert v. South Jersey Gas Co.
...489, 401 A.2d 244 (1979). Various applications of the statute demonstrate its wide scope. See e.g. Lewis v. Hopewell Valley Racquet Club, 269 N.J.Super. 71, 634 A.2d 568 (App.Div.1993) (diving blocks bolted to a pool deck held to be improvements to real property); Morris v. Clinton Tp., 225......