Snow v. Harnischfeger Corp.

• Citation: 12 F.3d 1154
• Decision Date: 08 September 1993
• Docket Number: No. 93-1489,93-1489
• Parties: Prod.Liab.Rep.(CCH)P. 13,776 David SNOW, et al., Plaintiffs, Appellants, v. HARNISCHFEGER CORPORATION, Defendant, Appellee. . Heard
• Court: United States Courts of Appeals. United States Court of Appeals (1st Circuit)

Page 1154

12 F.3d 1154

Prod.Liab.Rep.(CCH)P. 13,776

David SNOW, et al., Plaintiffs, Appellants, v. HARNISCHFEGER CORPORATION, Defendant, Appellee.

No. 93-1489.

United States Court of Appeals,

First Circuit.

Heard Sept. 8, 1993.

Decided Dec. 29, 1993.

Rehearing Denied Jan. 26, 1994.

Walter A. Costello, Jr. with whom Julie M. Conway and Costello, Barrett and Gonthier, P.C. were on brief, for plaintiffs, appellants.

David M. Rogers with whom Richard P. Campbell and Campbell & Associates, P.C. were on brief, for defendant, appellee.

Before TORRUELLA and STAHL, Circuit Judges, and DiCLERICO, ^* District Judge.

DiCLERICO, District Judge.

Plaintiffs David Snow, Linda Snow, Jason Snow and Kevin Snow brought an action against defendant Harnischfeger Corporation ("Harnischfeger") alleging defective design and negligence after the trolley wheel of an Harnischfeger crane injured David Snow. Harnischfeger moved for summary judgment, claiming the Massachusetts real estate statute of repose barred the action. The district court agreed and granted summary judgment. We affirm.

I BACKGROUND

In March 1973, Rust Engineering Company ("Rust"), an engineering and construction firm acting as agent for Refuse Energy Systems Company ("RESCO"), engaged Harnischfeger to assist in the design and manufacture of two thirteen-ton overhead cranes for use at RESCO's Saugus, Massachusetts trash-to-energy plant. ¹ The cranes are used to move trash into trash feed hoppers where the trash is burned and steam is generated and converted into electricity. Rust incorporated the cranes into the plant's buildings as part of the original construction. Harnischfeger was not involved in the design or construction of the RESCO facility, nor did Harnischfeger install the cranes.

On December 29, 1987, the trolley wheel of one of the overhead cranes severed David Snow's third, fourth and fifth finger and a portion of his right hand. At the time, Snow was working at the Saugus facility. The Snow family brought an action in Essex Superior Court, Commonwealth of Massachusetts, alleging the crane was unsafe due to Harnischfeger's failure to equip the trolley with wheel guards and rail sweeps, automatic audio or visual movement alarms, a proper lock-out system or kill switch, and Harnischfeger's failure to warn of inherent risks. ² Harnischfeger removed the action to the district court pursuant to 28 U.S.C. Sec. 1446, and moved for summary judgment under the Massachusetts real estate statute of repose ("statute").

The statute, Mass.Gen.Laws Ann. ch. 260, Sec. 2B (West 1992) ("M.G.L. c. 260, Sec. 2B"), provides:

Action [sic] 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. ³

Id. ⁴ The district court found Harnischfeger was included in the class of actors protected under the statute and granted the summary judgment motion. ⁵

On appeal the Snows argue (1) the district court improperly granted summary judgment where genuine issues of material fact remained; (2) the district court impermissibly extended repose to the manufacturer of a machine thereby changing Massachusetts' product liability law; (3) the district court improperly found Harnischfeger was a protected actor within the meaning of M.G.L. c. 260, Sec. 2B; and (4) questions of local law are central to the disposition of the appeal and should be certified to the Massachusetts Supreme Judicial Court ("SJC").

II DISCUSSION

Standard of Review

"We review a grant of summary judgment de novo, using the same criteria incumbent upon the district court." Gaskell v. Harvard Coop. Soc'y, 3 F.3d 495, 497 (1st Cir.1993) (citing VanHaaren v. State Farm Mut. Auto. Ins. Co., 989 F.2d 1, 3 (1st Cir.1993); High Voltage Eng'g Corp. v. Federal Ins. Co., 981 F.2d 596, 598 (1st Cir.1992); Pedraza v. Shell Oil Co., 942 F.2d 48, 50 (1st Cir.1991), cert. denied, --- U.S. ----, 112 S.Ct. 993, 117 L.Ed.2d 154 (1992)). The role of summary judgment is "to pierce the boilerplate of the pleadings and assay the parties' proof in order to determine whether trial is actually required." Wynne v. Tufts Univ. Sch. of Medicine, 976 F.2d 791, 794 (1st Cir.1992). It is appropriate only 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." Fed.R.Civ.P. 56(c). The burden is on the moving party to establish the lack of a genuine, material factual issue, Finn v. Consolidated Rail Corp., 782 F.2d 13, 15 (1st Cir.1986), and the court must view the record in the light most favorable to the nonmovant, according the nonmovant all beneficial inferences discernable from the evidence. Mesnick v. General Elec. Co., 950 F.2d 816, 822 (1st Cir.1991) (quoting Griggs-Ryan v. Smith, 904 F.2d 112, 115 (1st Cir.1990)), cert. denied, --- U.S. ----, 112 S.Ct. 2965, 119 L.Ed.2d 586 (1992); Caputo v. Boston Edison Co., 924 F.2d 11, 13 (1st Cir.1991). Once the defendant has made a properly supported motion for summary judgment, however, the plaintiffs "may not rest upon mere allegation or denials of [their] pleading, but must set forth specific facts showing there is a genuine issue for trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250, 106 S.Ct. 2505, 2511, 91 L.Ed.2d 202 (1986) (citing Fed.R.Civ.P. 56(e)).

Issues of Fact

According to the Snows, four genuine issues of material fact remain in dispute, making summary judgment inappropriate. We have reviewed their contentions and find them to be without merit.

The Snows first argue there is a genuine issue of fact as to whether Harnischfeger is in the construction business. ⁶ The Snows do not dispute Harnischfeger designed and manufactured the crane. Instead, the Snows assert that these activities are not sufficient for a court to find that Harnischfeger is involved in the construction industry and that such involvement is necessary to bring Harnischfeger within M.G.L. c. 260, Sec. 2B. Harnischfeger contends M.G.L. c. 260, Sec. 2B provides protection " 'to architects, engineers, contractors and others involved in the design, planning, construction or general administration of improvements to real property' " and suggests it deserves repose as an " 'engineer' or 'other' involved in the 'design,' 'planning' and 'construction' of the overhead crane." Brief of Defendant-Appellee at 10-11 (alteration in original) (quoting Klein, 437 N.E.2d at 523).

Whether a defendant's activities fall within the statute is a question of law. See, e.g., McDonough v. Marr Scaffolding Co., 412 Mass. 636, 591 N.E.2d 1079, 1081 (1992) (court appropriately granted summary judgment after concluding defendant's actions were construction activity contemplated by M.G.L. c. 260, Sec. 2B). Moreover, as Harnischfeger notes, the statute does not limit its protection solely to those involved in the actual construction of improvements to real property. Harnischfeger may be a protected actor even without being involved in the construction business. As the district court aptly stated, the Snows' contention is "merely [an argument] about how to apply law to the established facts." Snow v. Harnischfeger, 823 F.Supp. 22, 24 (D.Mass.1993). To the extent there is a dispute, it is immaterial to the disposition of the action.

The Snows next argue there is a genuine issue of fact as to whether the overhead crane is a unique product. They argue the crane, like many standard cranes, was merely customized to fit inside a building, shed or structure. Harnischfeger maintains that the product is unique and custom designed for RESCO. In support Harnischfeger offers affidavits showing the following: Harnischfeger designed, manufactured and constructed the cranes' lifting capacity as well as the dimensions of the major components for specific plant and job functions; Rust supplied specifications that were the basis of the designs including specified overhead and wall clearances; and Harnischfeger custom designed sixteen component parts and manufactured and assembled virtually all the components. The Snows counter that they have presented evidence showing the crane is a standard design and the trolley was previously designed for sale in Florida.

The Snows' evidence, which consists of Harnischfeger's brochures and literature along with expert affidavits and deposition testimony, does not create any genuine issue of fact for trial. The brochures emphasize that customers should avoid "standard" cranes and should have Harnischfeger's experts design a crane that will satisfy their particular needs. At best, the literature suggests Harnischfeger has standardized the materials used to create the crane and standardized certain components to be mixed and matched into a final product. In addition, the opinions of Snows' experts that the crane, as a final product, is a basic design similar to cranes used in other industries do not contradict Harnischfeger's evidence. A crane can be designed for a particular location and specialized function and still retain the essential characteristics common to industrial cranes. Moreover, the ability of the crane to be adopted for use by another industry is immaterial to Harnischfeger's status as a protected actor because the relevant inquiry involves the motivation behind and the activity of producing the product, not the product itself. See Dighton v. Federal Pac. Elec. Co. 506 Mass. 687, 506 N.E.2d 509, 516 (1987). Furthermore, the deposition testimony of James...