Stone v. United Engineering, a Div. of Wean, Inc.

Page 439

475 S.E.2d 439

197 W.Va. 347

Thomas E. STONE, Plaintiff Below, Appellee, v. UNITED ENGINEERING, A DIVISION OF WEAN, INCORPORATED, and/or United Engineers and Constructors, Inc., and/or United Engineering Corporation, a Foreign Corporation; and Ravenswood Aluminum Corporation, a Corporation, Defendants Below, Appellees Kaiser Aluminum & Chemical Corporation, a Corporation, Appellant.

No. 23101.

Supreme Court of Appeals of West Virginia.

Submitted April 24, 1996.

Decided July 8, 1996.

Syllabus by the Court

1. "W.Va.Code, 55-2-6a, limits the time period in which a suit may be filed for deficiencies in the planning, design, or supervision of construction of an improvement to real property to ten years. This period commences on the date the improvement is occupied or accepted by the owner of the real property, whichever occurs first." Gibson v. Department of Highways, 185 W.Va. 214, 406 S.E.2d 440 (1991).

2. W. Va.Code, 55-2-6a [1983] does not limit the time period in which a suit may be filed against the owner of real property for deficiencies in the planning, design, survey, observation or supervision of construction or actual construction of any improvement to real property to ten years if that owner planned, designed, surveyed, observed or supervised the construction or actually constructed that improvement to real property.

3. When determining whether an item is an improvement to real property under W. Va.Code, 55-2-6a [1983], the statute of repose, a court must consider the enhanced value created when the item is put to its intended use, the level of integration of the item within any manufacturing system, whether the item is an essential component of the system, and the item's permanence.

4. " 'The admissibility of testimony by an expert witness is a matter within the sound discretion of the trial court, and the trial court's decision will not be reversed unless it is clearly wrong.' Syl. Pt. 6, Helmick v. Potomac Edison Co., 185 W.Va. 269, 406 S.E.2d 700 (1991)." Syl. Pt. 1, Mayhorn v. Logan Medical Foundation, 193 W.Va. 42, 454 S.E.2d 87 (1994).

5. "The ultimate test of the existence of a duty to use care is found in the foreseeability that harm may result if it is not exercised. The test is, would the ordinary man in the defendant's position, knowing what he knew or should have known, anticipate that harm of the general nature of that suffered was likely to result?" Syl. Pt. 3, Sewell v. Gregory, 179 W.Va. 585, 371 S.E.2d 82 (1988).

6. " 'The general rule with regard to proof of damages is that such proof cannot be sustained by mere speculation or conjecture.' Point 1, Syllabus, Spencer v. Steinbrecher, 152 W.Va. 490, ." Syl. Pt. 5, Sisler v. Hawkins, 158 W.Va. 1034, 217 S.E.2d 60 (1975).

7. " 'When the illegal part of the damages ascertained by the verdict of a jury is clearly distinguishable from the rest, and may be ascertained by the court without assuming the functions of the jury and substituting its judgment for theirs, the court may allow plaintiff to enter a remittitur for such part, and then refuse a new trial.' Point 4, Syllabus, Chapman v. [J.W.] Beltz & Sons Co., 48 W.Va. 1 [35 S.E. 1013]." Syl. Pt. 2, Earl T. Browder, Inc. v. County Court of Webster Co., 145 W.Va. 696, 116 S.E.2d 867 (1960).

Charles R. McElwee, John C. Palmer, IV, Sarah Stump Kolb, Robinson & McElwee, Charleston, for Appellant Kaiser Aluminum & Chemical Corporation.

Arden J. Curry, Arden J. Curry, II, Pauley, Curry, Sturgeon & Vanderford, Charleston, for Appellee Thomas E. Stone.

Allen R. Prunty, Jackson & Kelly, Charleston, for Appellee Kaiser Engineering, Inc.

Thomas E. Scarr, John R. Teare, Jr., Charleston, for Appellee Ravenswood Aluminum.

McHUGH, Chief Justice:

This is an appeal from the judgment order of November 21, 1994 and from the subsequent order of February 24, 1995, denying defendant Kaiser Aluminum & Chemical Corporation's (hereinafter "Kaiser") motion for judgment notwithstanding the verdict or, in the alternative, for a new trial. ¹ Following a jury trial in the Circuit Court of Kanawha County, Kaiser was ordered to pay to plaintiff Thomas E. Stone $722,195.11 plus post-judgment interest and costs ² after the jury found Kaiser 25% at fault for plaintiff's injuries resulting from the negligent design of the hotline at the aluminum fabrication facility formerly owned by Kaiser. ³ This Court has before it the petition for appeal, all matters of record and the briefs and arguments of counsel. For the reasons stated below, the orders of the circuit court are affirmed, in part; reversed, in part, and remanded, with directions.

I.

On or about February 7, 1989, Kaiser sold its aluminum fabrication facility located near Ravenswood, West Virginia, to Ravenswood Aluminum Corporation (hereinafter "Ravenswood Aluminum"). On or about December 22, 1990, plaintiff, along with 1700 other workers, was hired by Ravenswood Aluminum to replace hourly union employees involved in a labor dispute.

In January of 1991, plaintiff began working on the facility's hotline as a tilt pot operator. The hotline, approximately 440 yards long, is a powered conveyor system which, in addition to the tilt pot, consists of three mills ⁴ which compress heated aluminum ingots so that the aluminum can be formed into rolls, a number of shears, auxiliary or exit equipment associated with the finishing mill, and 360 rollers on various roll tables connecting the three mills. The rollers, which are mounted horizontally, are connected to the power source so that the aluminum ingots can be transported along the conveyor system. ⁵

The tilt pot operator's station is located at the beginning, or northernmost end, of the hotline. The tilt pot is a mechanical apparatus which holds heated aluminum ingots ⁶ in a vertical position. The tilt pot operator uses a series of controls to tip the tilt pot onto the roll tables to be processed by the operator at the 168-inch reversing mill, the first major component through which ingots pass after leaving the tilt pot. A tilt pot operator is also required, among other things, to walk onto the hotline (the powered conveyor system) to take the temperature of heated ingots with a hand-held probe. To do this, tilt pot operators must walk in front of, behind and alongside heated ingots while other ingots are being processed on the hotline by other operators.

On January 22, 1991, plaintiff was injured while he was standing on a walkway between the rollers, directly behind the north end (rear) of an aluminum ingot, checking the ingot's temperature. In the meantime, another ingot was being processed in the 168-inch reversing mill. The operator of the 168-inch mill inadvertently made a reverse pass on the heated ingot being processed, causing the ingot to travel north and to strike the south end (front) of the ingot behind which plaintiff was standing. ⁷ Plaintiff's right leg became pinned between the roll table and the ingot, resulting in the amputation of plaintiff's leg below the knee.

It is undisputed that the powered conveyor system, or hotline, was designed by Kaiser, beginning operation sometime in 1957. Kaiser's design provided no device for a tilt pot operator such as plaintiff, while walking on the conveyor system, to de-energize, or stop, it, so as to prevent mill operators from inadvertently sending heated ingots back into the tilt pot operator's station. ⁸

II.

A.

Kaiser's first argument on appeal is that the trial court committed reversible error in failing to rule, as a matter of law, that plaintiff's claim against it for negligent design of the hotline was barred under W. Va.Code, 55-2-6a [1983], the statute of repose. ⁹ W. Va.Code, 55-2-6a [1983] provides:

No action, whether in contract or in tort, for indemnity or otherwise, nor any action for contribution or indemnity to recover damages for any deficiency in the planning, design, surveying, observation or supervision of any construction or the actual construction of any improvement to real property, or, to recover damages for any injury to real or personal property, or, for an injury to a person or for bodily injury or wrongful death arising out of the defective or unsafe condition of any improvement to real property, may be brought more than ten years after the performance or furnishing of such services or construction: Provided, That the above period shall be tolled according to the provisions of section twenty-one [§ 55-2-21] ¹⁰ of this article. The period of limitation provided in this section shall not commence until the improvement to the real property in question has been occupied or accepted by the owner of real property, whichever occurs first.

(footnote added). See Gibson v. Department of Highways, 185 W.Va. 214, 406 S.E.2d 440 (1991) (holding W.Va.Code, 55-2-6a [1983] constitutional).

We find, as a matter of law, that W. Va.Code, 55-2-6a [1983] was not intended to extend repose to a defendant such as Kaiser, which not only designed, but also owned, the hotline. Accordingly, it was not error for the trial court to deny Kaiser's motions for summary judgment and for a directed verdict on this issue. ¹¹

Kaiser's primary contention is that, under W. Va.Code, 55-2-6a [1983], a defendant which engages in the activities or services enumerated in the statute may be protected from liability for any deficiency in the performance of such activities. While plaintiff argues that our statute of repose applies only to architects and builders, ¹² Kaiser maintains that the statute is much broader, protecting those who allegedly commit "any deficiency in the planning, design, surveying, observation or supervision of any construction or the actual construction of any improvement to real property," Id., in relevant part, ¹³ regardless of the defendant's profession or occupational status. Kaiser thus contends that because it performed the statutorily-protected activity of designing the hotline on which plaintiff was injured,...