Witherspoon v. Sides Const. Co., Inc.

• Decision Date: 01 February 1985
• Docket Number: No. 83-661,83-661
• Citation: 219 Neb. 117,362 N.W.2d 35
• Parties: D.J. WITHERSPOON, Appellant, v. SIDES CONSTRUCTION CO., INC., A Corporation, et al., Appellees.
• Court: Nebraska Supreme Court

Page 35

362 N.W.2d 35

219 Neb. 117

D.J. WITHERSPOON, Appellant, v. SIDES CONSTRUCTION CO., INC., A Corporation, et al., Appellees.

No. 83-661.

Supreme Court of Nebraska.

Feb. 1, 1985.

Syllabus by the Court

1. Summary Judgment. The primary purpose of the summary judgment procedure is to pierce the allegations made in the pleadings and show conclusively that the controlling facts are other than as pled, and thus resolve, without the expense and delay of trial, those cases where there exists no genuine issue either as to any material fact or as to the ultimate inferences to be drawn therefrom, and the moving party is entitled to judgment as a matter of law.

2. Summary Judgment. In considering a motion for summary judgment, the evidence is to be viewed most favorably to the party against whom the motion is directed, giving to that party the benefit of all the favorable inferences which may reasonably be drawn from the evidence.

3. Summary Judgment. The party moving for summary judgment has the burden of showing that no genuine issue as to any material fact exists; that party must therefore produce enough evidence to demonstrate his entitlement to a judgment if the evidence remains uncontroverted, after which the burden of producing contrary evidence shifts to the party opposing the motion.

4. Products Liability: Limitations of Actions. The statute of repose applicable to the manufacturer of an allegedly defective product is contained in Neb.Rev.Stat. § 25-224 (Cum.Supp.1984) and begins to run when possession of the product is first relinquished for ultimate use or consumption, not when it is first placed into the stream of commerce by the manufacturer.

5. Actions: Construction Contracts: Breach of Contract: Contractors and Subcontractors. An owner's action for a general contractor's failure to erect a structure in a workmanlike manner is one for breach of contract.

6. Limitations of Actions: Construction Contracts: Contractors and Subcontractors. The period of repose applicable to a general contractor is found in Neb.Rev.Stat. § 25-223 (Reissue 1979) and begins to run when construction of the structure is completed.

7. Limitations of Actions. A statute of repose is a type of a statute of limitations.

8. Limitations of Actions. A period of limitations begins to run upon the violation of a legal right, that is, when the aggrieved party has the right to institute and maintain suit, even though the nature and extent of the damages may not be known.

9. Words and Phrases. A professional act or service is one arising out of a vocation, calling, occupation, or employment involving specialized knowledge, labor, or skill, and the labor or skill involved is predominantly mental or intellectual, rather than physical or manual.

10. Limitations of Actions: Words and Phrases. Architects and engineers are professionals for purposes of Neb.Rev.Stat. § 25-222 (Reissue 1979).

11. Limitations of Actions: Construction Contracts. The period of repose applicable to an architect who has a duty to inspect throughout construction is contained in Neb.Rev.Stat. § 25-222 (Reissue 1979) and begins to run when construction is completed.

12. Limitations of Actions: Construction Contracts. The period of repose applicable to an engineer who has no duty other than to provide a design to an architect is contained in Neb.Rev.Stat. § 25-222 (Reissue 1979) and begins to run when the design is delivered to the architect.

Cynthia G. Irmer of Matthews & Cannon, P.C., Omaha, for appellant.

Lyman L. Larsen and John D. Hartigan, Jr., of Kennedy, Holland, DeLacy & Svoboda, Omaha, for appellee Sides Construction.

Eugene P. Welch and John W. Iliff of Gross, Welch, Vinardi, Kauffman & Day, P.C., Omaha, for appellee Stanley J. How & Associates.

Judith A. Schweikart of Kutak Rock & Huie, Omaha, for appellee McWane Cast Iron Pipe.

Dean F. Suing and Moira B. White of Katskee & Henatsch, Omaha, for appellee Raymond G. Alvine & Associates.

KRIVOSHA, C.J., BOSLAUGH, WHITE, HASTINGS, CAPORALE, SHANAHAN, and GRANT, JJ.

CAPORALE, Justice.

Plaintiff-appellant, D.J. Witherspoon, suffered damages when the pipe supplying water to his house broke. As a consequence, he brought suit against the manufacturer of the pipe, McWane Cast Iron Pipe Co., Inc.; the general contractor, Sides Construction Co., Inc.; the architect, Stanley J. How & Associates, Inc.; the engineer, Raymond G. Alvine & Associates; and the plumbing subcontractor, J.H. Martig, Inc., together with its trustee in bankruptcy, James J. Stumpf. The defendants-appellees McWane, Sides, How, and Alvine each moved for summary judgment on the ground that Witherspoon's action was time barred. The district court sustained each of those motions and dismissed the action as to all the movants. We affirm as to Alvine, and we reverse and remand for further proceedings as to McWane, Sides, and How.

Facts and Posture of Case

The primary purpose of the summary judgment procedure is to pierce the allegations made in the pleadings and show conclusively that the controlling facts are other than as pled, and thus resolve, without the expense and delay of trial, those cases where there exists no genuine issue either as to any material fact or as to the ultimate inferences to be drawn therefrom, and the moving party is entitled to judgment as a matter of law. Neb.Rev.Stat. § 25-1332 (Reissue 1979); Cummings v. Curtiss, 219 Neb. 106, 361 N.W.2d 508 (1985); Gilbreath v. Ridgeway, 218 Neb. 822, 360 N.W.2d 474 (1984); Stromsburg Bank v. Nuttelman, 218 Neb. 687, 358 N.W.2d 746 (1984); Straub v. American Bowling Congress, 218 Neb. 241, 353 N.W.2d 11 (1984); Galyen Petroleum Co. v. Hixson, 213 Neb. 683, 331 N.W.2d 1 (1983); Mutual Benefit Life Ins. Co. v. Chisholm, 213 Neb. 301, 329 N.W.2d 103 (1983). In considering a motion for summary judgment, the evidence is to be viewed most favorably to the party against whom the motion is directed, giving to that party the benefit of all the favorable inferences which may reasonably be drawn from the evidence. McHenry v. First Nat. Bank, 216 Neb. 580, 344 N.W.2d 652 (1984); Strong v. K & K Investments, 216 Neb. 370, 343 N.W.2d 912 (1984). Since the party moving for summary judgment has the burden of showing that no genuine issue as to any material fact exists, that party must therefore produce enough evidence to demonstrate his entitlement to a judgment if the evidence remains uncontroverted, after which the burden of producing contrary evidence shifts to the party opposing the motion. Bailey v. City of North Platte, 218 Neb. 810, 359 N.W.2d 766 (1984); Hanzlik v. Paustian, 211 Neb. 322, 318 N.W.2d 712 (1982), appeal after remand 216 Neb. 575, 344 N.W.2d 649 (1984).

The evidence, viewed in accordance with the applicable rule, establishes that in 1968 or 1969 Witherspoon retained How to design a house to be constructed on land Witherspoon owned. How then selected Alvine to be the engineer for the project. Witherspoon next contracted with Sides to build the house according to the plans and specifications provided by How and Alvine. Sides engaged Martig to install the plumbing, including a 3-inch water supply pipe required by the plans and specifications. The water utility required that a ductile iron pipe be used; however, a cast iron pipe fabricated by McWane was installed. Burial of the pipe on Witherspoon's land was completed in September of 1969, and the pipe provided water for construction purposes from October 1, 1969. Construction of the house was completed around Christmas of 1970. Because the cast iron pipe had been installed without sufficient thrust restraint at the point where it entered the house, it broke on December 31, 1979. As a consequence, a foundation wall collapsed and the basement flooded, resulting in damages of $353,753.84.

Witherspoon commenced this suit on December 9, 1980. He bases his action against McWane on strict liability in tort, and against Sides, How, and Alvine on negligence.

Manufacturer's Motion

The operative allegation against the manufacturer McWane is that it "is strictly liable in tort for manufacturing and placing into the stream of commerce a defective product," in that the pipe was of inadequate quality.

The applicable period of repose is contained in Neb.Rev.Stat. § 25-224 (Cum.Supp.1984), which in relevant part reads:

[A]ny product liability action, except one governed by section 2-725, Uniform Commercial Code or by subsection (5) of this section, shall be commenced within ten years after the date when the product which allegedly caused the personal injury, death, or damage was first sold or leased for use or consumption.

The statute does not define the meaning of the phrase "first sold ... for use or consumption," nor does it have an independent, clear meaning of its own. Does the phrase mean when the product is first placed into the stream of commerce by the manufacturer or when possession of the product is relinquished for ultimate use or consumption?

Neb.U.C.C. § 2-106(1) (Reissue 1980) defines sale as the "passing of title from the seller to the buyer for a price (Section 2-401)." Under Neb.U.C.C. § 2-401(2) (Reissue 1980), title, unless the parties agree otherwise, "passes to the buyer at the time and place at which the seller completes his performance with reference to the physical delivery ...." One difficulty with attempting to apply § 2-401 to product liability cases is that it is not clear who is the seller and who is the buyer. On the state of the record in this case, either Sides, Martig, or Witherspoon could be considered to be the buyer, just as either McWane, Sides, or Martig could be considered to be the seller. The Uniform Commercial Code definition of sale, then, does not help us define "sold" in this context.

When statutory language is ambiguous and must be construed, recourse should be had to the legislative history for the purpose of discovering the intent of the lawmakers. Worley v. City of...