Smith v. Allen-Bradley Company

• Decision Date: 23 January 1974
• Docket Number: Civ. A. No. 72-C-42-L.
• Citation: 371 F. Supp. 698
• Parties: James Edmond SMITH, Plaintiff, v. ALLEN-BRADLEY COMPANY and T. W. and C. B. Sheridan Company, Defendants.
• Court: U.S. District Court — Western District of Virginia

371 F. Supp. 698

James Edmond SMITH, Plaintiff, v. ALLEN-BRADLEY COMPANY and T. W. and C. B. Sheridan Company, Defendants.

Civ. A. No. 72-C-42-L.

United States District Court, W. D. Virginia, Lynchburg Division.

January 23, 1974.

William B. Poff, Woods, Rogers, Muse, Walker & Thornton, Roanoke, Va., and Lacey E. Putney, Putney & Putney, Bedford, Va., for plaintiff.

William R. Rakes, Gentry, Locke, Rakes & Moore, Ronaoke, Va., for Allen-Bradley Co.

S. J. Thompson, Jr., Caskie, Frost, Davidson, Hobbs & Hamblem, Lynchburg, Va., for T. W. and C. B. Sheridan Co.

OPINION

TURK, Chief Judge.

This diversity case is before the court on defendants' motion to dismiss, and the issue presented at this time is whether plaintiff's cause of action is barred by the statute of limitations.

Plaintiff alleges in his complaint that on or about May 28, 1970, while engaged in the course of his employment for Rubatex Corporation, a "limit switch" malfunctioned causing a Sheridan #34 Die Cutting Press to operate in a faulty manner with the proximate result that both of his hands were crushed to such an extent that they had to be amputated. The "limit switch" had been manufactured by defendant, Allen-Bradley Company, and sold to plaintiff's employer in connection with the Sheridan #34 Die Cutting Press, which in turn had been sold to plaintiff's employer by defendant, T. W. and C. B. Sheridan Company.¹ Plaintiff alleges that the defendants are jointly and severally liable for his injuries on theories of implied and express warranty; negligence in design, manufacture and assembly; and strict liability in tort. The defendants contend that since the machinery in question was installed in the Rubatex plant in early 1953, plaintiff's cause of action is time barred by § 8-24.2 of the Code of Virginia, as amended, (Supp.1973).

In pertinent part § 8-24.2 of the Code of Virginia now provides:

"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 or unsafe condition of an improvement to real property . . . shall be brought against any person performing or furnishing the design, planning, surveying, supervision of construction or construction of such improvement to real property more than five years after the performance or furnishing of such services and construction.

This limitation shall not apply to the manufacturer or supplier of any equipment or machinery or any other articles which are installed in or become a part of any real property either as improvements or otherwise."

The second paragraph of the above statute, enclosed in brackets, became effective on March 13, 1973 and is thus not applicable to plaintiff's cause of action, although as is readily apparent, this amendment would preclude defendants' reliance of § 8-24.2 in a case such as the one at bar arising after March 13, 1973.

Plaintiff contends that the above statute, even prior to the enactment of the 1973 amendment, was not meant to apply to manufacturers of chattels which became improvements to realty. Rather, plaintiff argues, the statute was enacted in 1964 at the behest of architects, designers, engineers, and building contractors who feared that their potential liability would be extended significantly by the enactment of laws which removed the protection of privity of contract.² Plaintiff concedes that the machine which caused his injury was a fixture, and all fixtures are improvements, but he argues that since this improvement was not of the type which resulted from the performance of the services of architects, contractors or construction engineers, the injury resulting from it was never intended to come within the ambit of § 8-24.2. Plaintiff further argues that because the word "improvement" both precedes and follows the words "design", "planning", "surveying", "supervision of construction", and "construction" in the statute, its meaning is limited to improvements which can be architecturally designed, surveyed or constructed and not manufactured chattels which are added at a later time.

The court finds itself persuaded that manufacturers of chattels were never intended to be included within the protection of § 8-24.2 and would be inclined to deny defendants' motions were it not for one insuperable obstacle. That obstacle is the case of Wiggins v. Proctor & Schwartz, Inc., 330 F.Supp. 350 (E.D.Va.1971), aff'd, Civil No. 71-1952, (4th Cir., March 8, 1972) (per curiam). In Wiggins the District Court held that a 4500 pound Super Jute Picker affixed to a heavy concrete foundation on the premises of plaintiff's employer was an improvement to the realty, and its defendant manufacturer was included within the terms of § 8-24.2. Interpreting the words of the statute, the court reasoned that "a manufacturer of a given product is assuredly one who designs, plans, supervises and constructs the improvement which is considered as such the moment it is affixed to the realty." 330 F.Supp. at 353. The court in Wiggins stated that architects and engineers probably prompted the passage of § 8-24.2 but could find no logical reason for not including permanent fixtures to an existing building within the meaning of the terms of the statute.

The case at bar presents no factual basis for a meaningful distinction of Wiggins. Referring to the depositions of the Plant Manager and an electrician at the Rubatex Plant where the accident occurred, the court notes that the Sheridan Die Cutting Press weighed an estimated 8000 to 10,000 pounds and was affixed to the concrete floor in the plant by heavy bolts. The "limit switch" which allegedly malfunctioned was designed for the machine and made a part of it. Plaintiff has made a point of the fact that the machine in question has been moved on four occasions since its installation in early 1953, but in the opinion of the court this fact does not provide a meaningful basis for distinguishing Wiggins.³ The machine in the case at bar was considerably larger than that in Wiggins and thus in a sense even more of an improvement to the realty.

Although the issue presented in the case at bar is indistinguishable from that in Wiggi...