Miller v. Consolidated Aluminum Corp., C-2-84-1056.

• Citation: 729 F. Supp. 1154
• Decision Date: 31 January 1990
• Docket Number: No. C-2-84-1056.,C-2-84-1056.
• Parties: Faye L. MILLER, Plaintiff, v. CONSOLIDATED ALUMINUM CORPORATION, et al., Defendants.
• Court: U.S. District Court — Southern District of Ohio

729 F. Supp. 1154

Faye L. MILLER, Plaintiff, v. CONSOLIDATED ALUMINUM CORPORATION, et al., Defendants.

No. C-2-84-1056.

United States District Court, S.D. Ohio, E.D.

January 31, 1990.

Frank A. Ray, Columbus, Ohio, for plaintiff.

Gerald P. Ferguson and Edgar A. Strause, Vorys, Sater, Seymour & Pease, Columbus, Ohio, and Jeffrey S. Meyer, Harnischfeger Industries, Inc., Brookfield, Wis., for defendant Harnischfeger Industries, Inc.

OPINION AND ORDER

KINNEARY, District Judge.

This matter comes before the Court to consider the motion of the defendant, Harnischfeger Industries, Inc. (Harnischfeger"), for summary judgment. The plaintiff, Faye L. Miller, seeks damages from defendants Harnischfeger and Dynascan Corporation ("Dynascan") as a result of a fatal accident befalling her husband, Eugene F. Miller, on July 24, 1982. The decedent worked for the Hannibal, Ohio plant of Consolidated Aluminum Corporation ("CONALCO") as an operator of an overhead crane ("Crane # 22") manufactured by Harnischfeger, the radio control system of which was a product of Dynascan.

The Hannibal, Ohio CONALCO plant in which Miller worked receives aluminum from a reduction plant in units called "cruets." The employees dump the metal into a furnace and mix in alloying agents. They skim material from the metal and process it in a "casthouse." The workers pour the molten aluminum into molds to form ingots. They then "scalp" the metal to ensure a smooth surface on the ingot, and from there the metal enters a series of mills to reduce the size of the metal units. Further reduction takes place in the "hot mill." The metal leaves the hot mill in coil form.¹

Crane # 22 and others like it move the coils from the hot mill into the cold mill "rolling bay" for temporary storage. The coils rest in steel trays which are stacked in the bay. From there, the cranes move the metal to the "cold mill" for final processing. After final processing, CONALCO ships the metal to its customers.²

The accident here occurred when the decedent Miller, manipulating the radio control of Crane # 22 in the cold mill rolling bay, lifted a 107,000 pound tray full of aluminum coils. As the tray rose, a coil on it became entangled with an overhanging adjacent stacked tray which caused the lifted tray to move laterally, pinning Miller against a stack of stationary trays.³

Faye Miller's First Amended Complaint states claims against Harnischfeger and Dynascan for negligence, strict liability, and breach of warranty. Harnischfeger now moves for summary judgment; it argues that the plaintiff has elicited insufficient evidence to support her claims. In addition, Harnischfeger contends that the plaintiff's claims are time-barred as a result of Ohio's ten year statute of repose for actions arising out of the design, planning, supervision of construction, or construction of improvements to real property. Ohio Rev.Code Ann. § 2305.131 (Anderson 1981).

In considering the defendant's motion, the Court is mindful that summary judgment is appropriate only in limited circumstances. Rule 56(c) of the Federal Rules of Civil Procedure provides, in pertinent part, as follows:

The judgment sought shall be rendered forthwith if the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law.

The moving party bears the burden of establishing the absence of a genuine issue as to any material fact. Adickes v. S.H. Kress & Co., 398 U.S. 144, 157, 90 S.Ct. 1598, 1608, 26 L.Ed.2d 142 (1970). The United States Supreme Court has held, however, that the standard of summary judgment "mirrors the standard for a directed verdict under Federal Rule of "Civil Procedure 50(a), which is that the trial judge must direct a verdict if, under the governing law, there can be but one reasonable conclusion as to the verdict." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986). This is true where, for instance, the dispute turns only on a legal question and the moving party must prevail as a matter of law even if the Court were to resolve all factual disputes in favor of the non-moving party. See Ross v. Franzen, 777 F.2d 1216, 1222 (7th Cir.1985); 10A C. Wright, A. Miller & M. Kane, Federal Practice and Procedure § 225, at 79 (2d ed. 1983).

A summary judgment motion also requires special treatment of the record. The Court "must view the evidence presented through the prism of the substantive evidentiary burden" and determine "whether reasonable jurors could find by a preponderance of the evidence that the plaintiff is entitled to a verdict." Anderson, 477 U.S. at 252, 254, 106 S.Ct. at 2512, 2513; see also Celotex Corp. v. Catrett, 477 U.S. 317, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Nonetheless, in making this determination the Court may not impinge upon the proper function of the jury. Therefore, all of "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson, 477 U.S. at 255, 106 S.Ct. at 2513. With this standard in mind, the Court will address the defendant's motion for summary judgment. The Court will first consider the threshold issue of the timeliness of the plaintiff's Complaint. Following an analysis of Ohio's statute of repose, the Court will consider the evidence supporting the plaintiff's claims.

I. OHIO'S STATUTE OF REPOSE

Harnischfeger's threshold argument is that Ohio's statute of repose for architects and engineers bars the plaintiff's action against it.⁴ The statute of repose provides in part:

No action to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained as a result of said injury, shall be brought against any person performing services for or furnishing the design, planning, supervision of construction, or construction of such improvement to real property, more than ten years after the performance or furnishing of such services and construction.

Ohio Rev.Code Ann. § 2305.131 (Anderson 1981).

The defendant claims that the plaintiff's action falls within the terms of the statute's bar. The plaintiff seeks to recover "damages ... for bodily injury or wrongful death" arising from the "defective ... condition" of the crane's construction or radio controller and its "unsafe condition" as a component of an unsafe operating environment.⁵ Id. Moreover, Harnischfeger "performed services for" and "furnished the design, planned, and supervised the construction" of the crane. Id. Furthermore, the crane constitutes an "improvement to real property." Id. Finally, Harnischfeger's services ended at the latest in 1969 when installation of Crane # 22 was complete. The instant suit, brought in 1984, followed the performance or furnishing of Harnischfeger's services by more than ten years. Thus, the defendant concludes that since no cause of action could accrue more than ten years after the installation,⁶ the plaintiff cannot maintain her suit.

The plaintiff does not dispute the defendant's reasoning except to argue that the crane was not an "improvement to real property." Walls, pillars, roofs, and so on are undoubtedly improvements. Miller concedes that pieces of machinery can constitute improvements as well, despite the fact that some might argue that machinery and equipment are not part of a building's structure the way a wall is.

The plaintiff, however, does not include all equipment within the category of improvements. Miller defines improvements to include only those items of equipment which would be permanent additions to the property, installed in the course of an extensive (if not complete) fitting or refitting of an entire equipment system which is integral to the function or purpose of a building or other structure. Here, the plaintiff claims that Crane # 22 is not permanent; CONALCO has the ability to dismantle and remove Crane # 22. Moreover, the installation of the crane was not part of a complete or extensive fitting or retrofitting of the building in which it operates. Also, the crane is not part of an equipment system; instead, each crane is an independent unit with a function separate and apart from the other cranes. Thus, the plaintiff concludes that Crane # 22 is not an "improvement to real property."

The only dispute between the parties, then, is the narrow issue here of whether Crane # 22 is an "improvement to real property" within the meaning of section 2305.131, which precludes the accrual of a cause of action ten years after installation.⁷ To resolve this issue, the Court must turn first to the language of the relevant statute.⁸ If the plain language is unambiguous on its face, then the text of the statute is dispositive.

The statute of repose bars certain kinds of actions against certain persons "arising out of the defective and unsafe condition of an improvement to real property." Ohio Rev.Code Ann. § 2305.131. Unfortunately, the statute itself does not define the term "improvement to real property." Therefore, the Court cannot use the plain language of the text directly to determine whether Crane # 22 is an improvement to real property.

The text, however, indirectly permits the Court to resolve the issue, even though the legislature did not define "improvement to real property" in the statute. In construing this statute, the Court may attribute to the term "improvement to real property" the ordinary meaning of the words comprising it. See Adair v. Koppers Co., 741 F.2d 111, 113 (6th Cir.1984). Ohio has a rule of statutory construction which provides that "words and phrases shall be read in context and construed according to the rules of grammar and common usage." Ohio Rev.Code...