Snow v. Harnischfeger Corp.

• Citation: 823 F. Supp. 22
• Decision Date: 20 April 1993
• Docket Number: Civ. A. No. 90-13096-WD.
• Parties: David SNOW, Linda Snow, Jason Snow and Kevin Snow, Plaintiffs, v. HARNISCHFEGER CORPORATION, Defendant.
• Court: U.S. District Court — District of Massachusetts

823 F. Supp. 22

David SNOW, Linda Snow, Jason Snow and Kevin Snow, Plaintiffs, v. HARNISCHFEGER CORPORATION, Defendant.

Civ. A. No. 90-13096-WD.

United States District Court, D. Massachusetts.

April 20, 1993.

Walter Costello, Costello, Barrett & Gonthier, PC, Salem, MA, for plaintiffs.

Richard P. Campbell, David M. Rogers, Campbell & Associates, Boston, MA, for defendant.

MEMORANDUM AND ORDER

WOODLOCK, District Judge.

This litigation began in December, 1990, when David Snow ("Snow"), Linda Snow, Jason Snow, and Kevin Snow brought suit in Essex Superior Court, from which defendant Harnischfeger removed the case to this court under 28 U.S.C. § 1446. Snow, an electrician, alleges he was injured by a Harnischfeger Corp. crane at a Refuse Energy Systems Company ("RESCO") trash-to-energy plant in Saugus, Massachusetts. Harnischfeger seeks summary judgment against Snow, arguing that a Massachusetts statute of repose, M.G.L. c. 260, § 2B, applies to bar this action against a person who made an improvement to real property. I agree and will consequently grant the defendant's motion.

I

In assessing Harnischfeger's motion for summary judgment, all of "the evidence of the non-movant is to be believed, and all justifiable inferences are to be drawn in his favor." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 255, 106 S.Ct. 2505, 2513, 91 L.Ed.2d 202 (1986). Given that vantage, the facts in the light most favorable to plaintiffs are as follows:

On December 29, 1987, Snow, an employee of RESCO, worked from a crane's support trolley to repair an overhead lighting problem at the company's Saugus plant. After finishing a portion of his work, Snow and a co-worker came down off the trolley and onto an adjoining catwalk (which served as the service platform to the crane).¹ Both men thought they saw smoke coming out of a trash hopper. Better to investigate, "Snow leaned over the catwalk railing and placed his hand on the crane's rail to steady himself."² Meanwhile his co-worker mistakenly gave the "all clear" sign to the crane operator. When the operator moved the crane, its trolley came down the rail over Snow's right hand, severing three fingers and a portion of his palm.

Snow alleges that Harnischfeger's design of the crane and its trolley was negligent: the trolley wheels should have been equipped with wheel guards; the trolley should have been equipped with an audible or visual warning system; the trolley should have been provided with a "proper lockout system" (which would have required both Snow and his co-worker to unlock the trolley before it would run).

Harnischfeger argues that even if Snow's allegations of negligence were correct, his claims would be barred by the applicable Massachusetts statute of repose. The RESCO plant and its two overhead cranes were constructed in 1973-75, and the plant opened for business in 1975. The cranes, Harnischfeger alleges, were improvements to real property, bringing their manufacturer within the protection of c. 260, § 2B, which provides:

Actions of tort for damages arising out of any deficiency or neglect in the design, planning, construction or general administration of an improvement to real property ... shall be commenced only within three years next after the cause of action accrues; provided, however, that in no event shall such actions be commenced more than six years after the earlier of the dates of: (1) the opening of the improvement to use; or (2) substantial completion of the improvement and the taking of possession for occupancy by the owner.

Because the plant and its cranes were opened to use in 1975, and Snow brought his action in 1990, Harnischfeger asserts Snow's cause is barred by Massachusetts law.

In opposition, Snow contends that Harnischfeger is not a company charged with the "design, planning, construction or general administration" of real property improvements; and that the crane RESCO purchased was not an "improvement" to RESCO's real property.³ By answering the second question first, one can most efficiently answer the question whether Harnischfeger is within c. 260, § 2B's protected class.

II

Harnischfeger asserts, without contradiction, that between March, 1973 and June, 1974, it worked with an engineering company employed by RESCO to design and assemble the plant's cranes.

The components of the crane which were custom designed were: (a) the grapple buckets, (b) the length and diameter of wire rope, (c) the hoist drum length and diameter, (d) the gear reducers, (e) the motors (electric), (f) the sizes of the control components, (g) the trolley spread, (h) the electrical conductor system, (i) the operator's cab, (j) the bridge girder sections, (k) the bridge drives and speeds, (l) the trolley drives and speeds, (m) the size of electrical conductors, (n) the bridge and trolley wheel size and types, (o) the bridge rails, and (p) the crane electrical control systems and electrical protection panels. Toth Affidavit at ¶ 5.

Harnischfeger's Memorandum in Support of Summary Judgment at 4.⁴ The cranes load refuse into feed hoppers, and are integral to the plant's conversion of trash into energy.

There exists a mini-jurisprudence of what constitutes an improvement to real property sufficient to bring the improver within a state's statute of repose; and a subset of cases even treats Harnischfeger and its cranes in particular. The Supreme Judicial Court, in construing c. 260, § 2B, has noted its holding, in another context, that "the word `improvements' is of broad signification," Milligan v. Tibbetts Engineering Corp., 391 Mass. 364, 366, 461 N.E.2d 808 (1984) (citation omitted); and stated that the words of the Massachusetts statute of repose are to be construed according to their "usual and natural meaning." Klein v. Catalano, 386 Mass. 701, 705, 437 N.E.2d 514 (1982) (citation omitted). In holding that the construction of a dead-end road was an improvement to real property within c. 260, § 2B, the SJC adduced the definition of "improvement" in Webster's Third New Int'l Dictionary 1138 (1971): "a permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinary repairs." Milligan, 391 Mass. at 368, 461 N.E.2d 808.

Consistent with the SJC's plain meaning approach to c. 260, § 2B, Massachusetts courts have held that designers, constructors, or planners a) of bleachers adapted for a skating rink,⁵ b) of an electrical distribution panel for an electric plant,⁶ c) of aluminum siding⁷ and foam insulation⁸ for a private home, d) of a prefabricated building for a transportation authority,⁹ e) of a mooring system for a shipboard cocktail lounge,¹⁰ f) of a student center and its plate glass door panels,¹¹ were all actors within the protection of the State's statute of repose.

Two Massachusetts cases, both concerning electric panels, furnish by their contrasts a ready explication of the statute. In Dighton v. Federal Pacific Electric Co., 399 Mass. 687, 506 N.E.2d 509 (1987), the court held that the supplier and manufacturer of a mass-produced circuit breaker panel was a seller of goods, not a designer of an item that constituted an improvement to real property within c. 260, § 2B. The Legislature, the court found, "meant to protect providers of `individual expertise' in the business of designing, planning, constructing, and administering improvements to real estate"; the statute does not apply to "mere suppliers of standardized products" who can avail themselves of the "quality control standards of the factory," "but only to the kinds of economic actors who perform acts of `individual expertise' akin to those commonly thought to be performed by architects and contractors— that is to say, to parties who render particularized services for the design and construction of particular improvements to particular pieces of real property." Id. at 695-96, 506 N.E.2d 509 (citation and internal quotation marks omitted).

In Parent v. Stone & Webster Engineering Corp., 408 Mass. 108, 111, 556 N.E.2d 1009 (1990), the court held that an engineering company which installed an electrical distribution panel at an electric plant as part of its work in the plant's coal conversion had rendered "particularized services" which "clearly involved the expenditure of labor and money, and served to make the facility productive as a power generating plant."

Harnischfeger's particularized service in designing and constructing the crane installed at the RESCO plant makes it an actor within the protection of the Massachusetts statute of repose. Harnischfeger's work is not similar to the materialman's in Dighton nor to that of others excluded from the compass of the statute. See, e.g., Raffel v. Perley, 14 Mass.App.Ct. 242, 437 N.E.2d 1082 (1982) (survey plans marking property off into individual lots do not constitute an improvement within c. 260, § 2B). Rather, Harnischfeger's efforts here more closely approximate those of Stone and Webster in Parent.

In opposition to this conclusion, Snow makes six points in chief. First, he cites McCalla v. Harnischfeger Corp., 215 N.J.Super. 160, 521 A.2d 851, certif. den., 108 N.J. 219, 528 A.2d 36 (1987), in which the New Jersey Superior Court's Appellate Division held that a Harnischfeger crane installed in an iron foundry was not an improvement to real property within that state's statute of repose. The court drew its analysis from various New Jersey tax cases treating the meaning of the term "fixture," and found that, consistent with those definitions, the crane was not a fixture, but merely a piece of "production machinery." Id. 215 N.J.Super. at 169, 521 A.2d 851. Without arguing against the persuasiveness of the New Jersey case, Harnischfeger provides a counter that goes at least to the weight of authority, and cites three cases which hold its cranes are "improvements" as...