591 N.E.2d 871 | Ohio Ct. App. | 1991
Plaintiff-appellant, Edward V. Sette, appeals from the judgment of the Franklin County Court of Common Pleas granting the motion of defendant-appellee, Benham, Blair Affiliates, for summary judgment on the basis that appellant's action was barred by the ten-year statute of repose governing improvements to real property.
On January 5, 1976, appellee entered into a contract with appellant's employer, Metal Container Corporation, to provide architectural and engineering services for the construction of a two-piece can plant to be located in Columbus. Appellee completed its services on the contract on or about March 1, 1978. At one point in the can manufacturing process, the cans are cleaned by a pressurized hot water system designed by appellee to supply hot water solely for that part of the process.
On August 13, 1986, appellant was injured when he attempted to remove a pump assembly from its housing. The pump was a component part of the pressurized system which allegedly malfunctioned, causing extremely hot water to spray appellant as he was removing the pump. *653
As a consequence of his injuries, appellant commenced this action against appellee seeking recovery on grounds of negligence, product liability, and breach of express and implied warranties. Appellee answered and ultimately filed a motion for summary judgment contending that appellant's action was time barred by R.C.
Appellant appeals and raises the following assignments of error:
"I. The trial court erred in finding that the pressurized hot water system was an improvement to real property.
"II. The trial court erred in holding that Ohio Revised Code § [2305].131 barred plaintiff-appellant's cause of action that occurred within the ten years provided by statute."
In his first assignment of error, appellant contends that the trial court erred by applying R.C.
R.C.
"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. This limitation does not apply to actions against any person in actual possession and control as owner, tenant, or otherwise of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury or damage for which the action is brought."
The question presented by appellant's first assignment of error is whether the pressurized hot water system constitutes an "improvement to real property," as that phrase is used in R.C.
"`A valuable addition made to property (usually real estate) or an amelioration in its condition, amounting to more than mere repairs or replacement of waste, costing labor or capital, and intending to enhance its value, beauty or utility or to adapt it for new or further purposes.' Black's Law Dictionary 682 (5 Ed. 1979)." Id. at 12, 4 OBR at 332,
Jones went on to review cases from other jurisdictions with similar laws to ascertain more specific criteria. The court found that a determination of the permanency of the system, whether the alleged improvement was an integral part of a larger system, and whether it enhanced the intended use of the property were all relevant to the ultimate conclusion.
Two years later, the Sixth Circuit Court of Appeals citedJones with approval when it was confronted with R.C.
"* * * The test for an improvement is not whether an addition can be removed without damage to the land, but if it `add[s] to the value of the realty, for the purposes for which it was intended to be used.' * * *" Id. at 115.
Finally, both Jones and Adair were analyzed by an Ohio Court of Appeals in Fritz v. Otis Elevator Co. (1988),
Application of these principles to the hot water system at issue herein demonstrates that it too is an improvement to real property within the scope of R.C.
Appellant's first assignment of error is overruled.
Appellant secondly argues that R.C.
As previously noted, the services provided by appellee on the plant from which appellant was injured were completed by March 1, 1978. Therefore, the ten-year statute of repose was set to expire on March 1, 1988. Appellant was injured on August 13, 1986, almost nineteen months before being barred by R.C.
The Supreme Court in Sedar v. Knowlton Constr. Co. (1990),
The basis underlying the Supreme Court's decision inGaines was that the plaintiff had not been afforded a reasonable time in which to commence her action. She discovered her injuries six months before the statute of repose would work as a bar to her action. In so concluding, the court stated:
"* * * This court has held that a legislative enactment may lawfully shorten the period of time in which the remedy may be realized `as long as the claimant is still afforded a reasonable time in which to enforce his right.' Adams v. Sherk (1983),
R.C.
Appellant argues that R.C.
Appellant's second assignment of error is overruled.
Appellant's assignments of error are overruled, and the judgment of the trial court is affirmed.
Judgment affirmed.
BOWMAN, P.J., and WHITESIDE, J., concur.