McDonough v. Marr Scaffolding Co.

• Decision Date: 13 May 1992
• Citation: 591 N.E.2d 1079,412 Mass. 636
• Parties: , Prod.Liab.Rep. (CCH) P 13,340 Anne J. McDONOUGH, et al. 1 Administrators v. MARR SCAFFOLDING COMPANY, et al. 2
• Court: United States State Supreme Judicial Court of Massachusetts Supreme Court

Page 1079

591 N.E.2d 1079

412 Mass. 636, Prod.Liab.Rep. (CCH) P 13,340

Anne J. McDONOUGH, et al. ¹ Administrators v. MARR SCAFFOLDING COMPANY, et al. ²

Supreme Judicial Court of Massachusetts Norfolk.

Argued April 6, 1992.

Decided May 13, 1992.

Stephen Moulton, Boston (Bruce A. Bierhans and Amy Bressler Nee, with him), for plaintiffs.

Samuel Goldblatt, Buffalo, N.Y. (Thomas J. Schlesinger, Cambridge, with him), for Snyder Tank Corp.

George C. Rockas, Boston (Walter R. May, Jr., with him), for Marr Scaffolding Co.

Before LIACOS, C.J., and WILKINS, ABRAMS, NOLAN and O'CONNOR, JJ.

NOLAN, Justice.

The plaintiffs, Anne J. McDonough and John E. McDonough, Jr., administrators of the estate of Michael William McDonough, appeal from the award of summary judgment in favor of the defendant Marr Scaffolding Company (Marr) on their amended complaint which alleged negligence, breach of warranty, and wrongful death under G.L. c. 229, § 2 (1990 ed.), in connection with Marr's supplying and installation of bleachers in the Randolph Skating Rink (rink) in 1972. A Superior Court judge awarded summary judgment to Marr on the basis of G.L. c. 260, § 2B (1990 ed.), the statute of repose.

The amended complaint also sought recovery against the defendant Snyder Tank Corporation (Snyder) in its capacity as manufacturer of the bleachers and supplier of the bleachers to Marr. Snyder moved for summary judgment, following the award of summary judgment to Marr, also relying on the statute of repose as grounds therefor. A Superior Court judge denied Snyder's motion and Snyder appealed from that decision to the Appeals Court. A single justice of that court ordered Snyder's appeal "consolidated with any other appeal." We granted the plaintiffs' application for direct appellate review. We affirm the decision awarding summary judgment to Marr, vacate the order denying summary judgment to Snyder, and direct the entry of an order granting Snyder's motion for summary judgment.

We deal first with the plaintiffs' appeal from the award of summary judgment to Marr. "The standard of review of a grant of summary judgment is whether, viewing the evidence in the light most favorable to the nonmoving party, all material facts have been established and the moving party is entitled to a judgment as a matter of law." Augat, Inc. v. Liberty Mut. Ins. Co., 410 Mass. 117, 120, 571 N.E.2d 357 (1991), and cases cited. In our opinion, the judge correctly ordered summary judgment for Marr on the basis of the statute of repose. We set forth the undisputed material facts of this case as found by the judge.

In 1972, Marr entered into an agreement with the town of Randolph to install two sets of bleachers in the town's skating rink. At Marr's request, Snyder specifically designed the bleachers for the rink, manufactured the component parts, and shipped them to Marr. In accordance with Snyder's plans, Marr assembled and erected two bleacher units which measured 102 feet and seventy-two feet in length, respectively, and which were eight rows high. The project took Marr between two and three weeks to complete. In 1980, Marr installed "riserboards" on a section of the bleachers behind the officials' box. Marr finished this work on February 5, 1980.

On April 11, 1985, four year old Michael William McDonough attended his brother's hockey game at the rink. Michael watched the game while sitting on the bleachers. At some point, Michael slipped between a seat and a foot rest of the bleachers, and fell to the ground. Michael sustained fatal head injuries.

In 1988, the plaintiffs commenced this action alleging that Michael's death resulted from Marr's negligent assembly and installation of the bleachers. Marr moved for summary judgment, asserting that G.L. c. 260, § 2B, the statute of repose, barred the plaintiffs' suit. Specifically, Marr argued that its activities with respect to the assembly and installation of the bleachers were "construction" activities as contemplated by § 2B which it completed in 1972, well over six years prior to the accident. Therefore, Marr argued, any work it performed relating to the bleachers could not provide the basis of a tort action pursuant to c. 260, § 2B. The plaintiffs subsequently amended their complaint to state a claim against Marr as supplier of the bleachers, claiming breach of warranty on the grounds that the bleachers were a defective and unreasonably dangerous product, lacking riserboards to block the gap between the seat and the foot rest.

The judge awarded summary judgment to Marr, agreeing that the plaintiffs' action was barred by G.L. c. 260, § 2B. ³ The judge concluded that the plaintiffs could not escape the effect of the statute of repose by attempting to limit Marr's role in the project to that of mere supplier of goods. The judge found that Marr assembled and installed the uniquely configured bleachers in the rink. The judge further decided that this work constituted "construction" activity of the type contemplated by § 2B, the result of which was "an improvement to real property" under § 2B. For these reasons the judge held that the statute of repose encompassed Marr's activities and that the plaintiffs' action was barred thereunder.

The judge rejected the plaintiffs' attempt to avoid the operation of the statute of repose by amending the complaint to state a claim against Marr for breach of warranty under G.L. c. 106, § 2-314 (1990 ed.). Quoting Dighton v. Federal Pac. Elec. Co., 399 Mass. 687, 691 n. 6, 506 N.E.2d 509 (1987), the judge noted that "any claim for breach of warranty pursuant to G.L. c. 106, § 2-314 (1984 ed.) states a cause of action which sounds, like negligence, in tort and not in contract." Since § 2B applies to "[a]ction[s] of tort for damages," the judge held that the plaintiffs' claims under c. 106, § 2-314, also are barred by the statute of repose.

In addition, the judge dismissed the plaintiffs' suggestion that a material issue of fact existed as to whether the bleachers constituted "an improvement to real property" so as to bring their action within the scope of § 2B. The plaintiffs argued that the bleachers could not be classified as a real property improvement, since they are not "permanent" structures, but rather may be disassembled and removed from the rink. The judge stated that the bleachers do not have to be permanently affixed to the real property in order to be considered "an improvement to real property" within the meaning of § 2B. Rather, the judge ruled, it is sufficient if the improvement is a "betterment of real property." Dighton, supra at 697 n. 12, 506 N.E.2d 509, quoting Webster's Third New Int'l Dictionary 1138 (1971). The judge concluded that the bleachers enhanced the usefulness of the rink and increased its value; therefore, the bleachers may properly be classified as an improvement to real property within the meaning of § 2B. See Conley v. Scott Prods., Inc., 401 Mass. 645, 647, 518 N.E.2d 849 (1988).

Lastly, the judge considered the plaintiffs' assertion that a wrongful death action under G.L. c. 229, § 2, is not subject to the provisions of G.L. c. 260, § 2B. The plaintiffs argued that only the repose provision for medical malpractice actions applies to wrongful death cases. However, the judge held that the specific reference to the medical malpractice repose provision in the wrongful death statute did not signal the inapplicability of all other repose statutes to that cause of action.

The plaintiffs challenge each of the judge's conclusions, as well as the rulings supporting them. First, the plaintiffs argue that the judge erred in granting summary judgment to Marr in light of our decision in Sullivan v. Iantosca, 409 Mass. 796, 569 N.E.2d 822 (1991), a case decided after the entry of summary judgment for Marr. The plaintiffs assert that Sullivan supports their position that the statute of repose does not protect a supplier or manufacturer of goods from being sued for its tortious acts, even where that supplier also was a contractor who performed acts which were protected under the statute, such as design and construction activities. More particularly, the plaintiffs claim that, according to Sullivan, the statute does not prevent an action against Marr in its role as supplier of a defective and unreasonably dangerous product, i.e., bleachers without riserboards, even though Marr acted as a contractor for the project in assembling and installing the bleachers. We do not agree with the plaintiffs' arguments.

Contrary to the plaintiffs' suggestion, the Sullivan case does not hold that a contractor, whose activities unquestionably fall within the scope of § 2B, loses the protections of the statute of repose by acting also as a supplier of goods in the course of performing as a contractor. In Sullivan, we considered the issue whether the statute of repose barred a claim for deceit against the seller of a house, where the seller also had acted, in some representative capacity, as the builder of the house and, therefore, was protected under the statute for any claim based on negligence in design or construction. Sullivan, supra at 799, 569 N.E.2d 822. We held that the statute did not bar a claim for deceit against the seller because § 2B "grants protection to designers, planners, builders, and the like ... [but not] people who sell real estate." Id. Sellers of real estate, we suggested, are not included in the class of persons protected from suit under the statute, essentially for the same reasons why materialmen and suppliers are excluded from the protections of the statute. Suppliers and manufacturers are not included within the class of persons protected from suit under the statute, largely because those classes of persons can maintain a high quality of performance through standardized production, unlike designers and builders, whose work relies heavily on individual expertise. Klein v. Catalano, 386 Mass. 701,...