UNITED STATES COURT OF APPEALS FOR THE FIRST CIRCUIT
No. 93-1489
DAVID SNOW, ET AL.,
Plaintiffs, Appellants,
v.
HARNISCHFEGER CORPORATION,
Defendant, Appellee.
APPEAL FROM THE UNITED STATES DISTRICT COURT
FOR THE DISTRICT OF MASSACHUSETTS
[Hon. Douglas P. Woodlock, U.S. District Judge]
Before
Torruella and Stahl, Circuit Judges,
and DiClerico,* District Judge.
Walter A. Costello, Jr. with whom Julie M. Conway and Costello,
Barrett and Gonthier, P.C. were on brief for appellants.
David M. Rogers with whom Richard P. Campbell and Campbell &
Associates, P.C. were on brief for appellee.
December 29, 1993
*Of the District of New Hampshire, sitting by designation.
DiClerico, District Judge. Plaintiffs David Snow, DiClerico, District Judge.
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
1Harnischfeger has designed and manufactured overhead cranes since 1906 and has built more than 24,000 overhead trolley cranes. Harnischfeger customizes each overhead trolley crane it manufactures. Overhead cranes such as those built by Harnischfeger are generally considered heavy-duty machinery for specific production purposes and used by many industries to lift and move heavy objects.
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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. 1446, and moved for summary judgment
2In their amended complaint, the Snows charge Harnischfeger with defective design, negligence, breach of express warranty and breach of the implied warranty of merchantability.
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under the Massachusetts real estate statute of repose
("statute").
The statute, Mass. Gen. Laws Ann. ch. 260, 2B
(West 1992) ("M.G.L. c. 260, 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
3Massachusetts courts have construed the statute to apply to implied breach of warranty claims where the underlying cause of action is the same as the tort claim. Klein v. Catalano,
437 N.E.2d 514, 526 & n.19 (Mass. 1982); see also Anthony's
Pier Four, Inc. v. Crandall Dry Dock Eng'rs, Inc., 489
N.E.2d 172, 175 (Mass. 1986).
4M.G.L. c. 260, 2B was last revised in 1984. Id.
5The district court barred the Snows' action noting the RESCO plant became operational in 1975 and the Snows did not institute their action until 1990. In 1986, Harnischfeger designed two replacement trolleys. The Snows do not argue that we should measure the application of the statute from the date Harnischfeger designed the replacement trolleys.
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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, 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 (1992). The role of
summary judgment is "to pierce the boilerplate of the
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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 (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
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trial." Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 250
(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
6The Snows assert:
[t]he defendant claimed that because it manufactured an overhead crane that became affixed to real property, it was involved in the construction business. The plaintiffs contend that the defendant's design and manufacture of an overhead crane which is housed in a structure on real property, does not mean the defendant was involved in the type of construction contemplated by M.G.L. c. 260 2B.
Brief of the Plaintiffs-Appellants at 5-6.
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that such involvement is necessary to bring Harnischfeger
within M.G.L. c. 260, 2B. Harnischfeger contends M.G.L.
c. 260, 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., 591 N.E.2d 1079, 1081 (Mass. 1992) (court
appropriately granted summary judgment after concluding
defendant's actions were construction activity contemplated
by M.G.L. c. 260, 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,
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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
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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 N.E.2d 509, 516 (Mass. 1987). Furthermore, the
deposition testimony of James Fravert, a Harnischfeger
employee, does not establish that the design of the RESCO
trolley was the same as one previously used by Harnischfeger
for sale to Brevard County, Florida. Fravert does not
testify that the design was duplicated, only that a design
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drawing was duplicated and the duplicated drawing was
modified to create the drawing for the RESCO crane.
Lastly, the Snows raise the issue of the status of
the crane, arguing first that there is a genuine issue of
fact as to whether the crane is an improvement to real
property. Once again, however, the Snows do not dispute any
relevant facts but rather the application of law to these
facts. The parties agree as to the essential
characteristics of the crane. There is an established legal
standard defining improvements for purposes of M.G.L. c.
260, 2B as well as case law establishing when the
definition should be applied. See Milligan v. Tibbetts
Eng'g Corp., 461 N.E.2d 808, 811 (Mass. 1984) (adopting
definition found in Webster's Third International
Dictionary); see also Dighton, 506 N.E.2d at 516
(explaining when definition is useful). The Snows suggest
no disputed facts that would in any way preclude us from
applying the legal standard.
The Snows also argue there is a genuine issue of
fact as to whether the crane is a permanent fixture. The
SJC has rejected adoption of a fixture analysis to determine
applicability of the statute of repose, noting the statute
"makes no reference to `fixtures,' nor does it appear that
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the Legislature intended, by its choice of the common term
`improvement,' to subsume that tangle of highly technical
meanings, often distinct in diverse legal contexts, which is
the law of fixtures." Dighton, 506 F.2d at 515. The fact
that a product is affixed, permanently or otherwise, neither
makes the product an improvement nor turns the producer into
a protected actor. Id. Thus, the crane's status as a
permanent fixture is immaterial to our inquiry.
Harnischfeger as a Protected Actor
The Snows further challenge the summary judgment
order by maintaining the district court acted impermissibly
and without precedent in applying the statute to
Harnischfeger, who they define as "manufacturers of a
machine." The Snows argue Harnischfeger, as a manufacturer,
is outside the class of actors M.G.L. c. 260, 2B is
designed to protect. Harnischfeger admits to having
manufactured the crane but argues a manufacturer who engages
in protected activities is entitled to repose.
The purpose of the statute is "to protect
providers of `individual expertise'" who "render
particularized services for the design and construction of
particular improvements to particular pieces of real
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property." Id. The statute does not name a class of
protected actors, but instead extends protection to "those
who commit `any deficiency or neglect in the design,
planning, construction, or general administration of an
improvement to real property.'" Id. at 514. Certain actors
obviously fall within the statute. See id. at 516. These
actors include architects, engineers and contractors.
Klein, 437 N.E.2d at 523. The statute shields these actors
from any liability after six years as long as they were
involved in an enumerated activity with respect to an
improvement to real property. Other actors, such as
materialmen and "mere" suppliers, are outside the scope of
the statute and not entitled to its protection. Dighton,
506 N.E.2d at 514 n.10; McDonough, 591 N.E.2d at 1082.
Ambiguity in the application of M.G.L. c. 260,
2B arises when it is unclear whether a party acted as a
materialman or supplier rather than an architect, engineer,
contractor, surveyor or some other protected actor. See
Dighton, 506 N.E.2d at 514. A party is not a protected
actor when the party does not perform protected acts. See
id. at 515. Conversely, an actor such as a manufacturer or
supplier may be protected if that actor becomes more than a
"mere" supplier by engaging in protected activities.
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McDonough, 591 N.E.2d at 1082 (manufacturer who designed
bleacher units specifically for the rink in which they were
installed by another is more than mere supplier and entitled
to benefit of statute). Thus, application of the statute is
necessarily dependent on the nature of the party's
activities.7 See Dighton, 506 N.E.2d at 516.
In Dighton, the defendant did not claim to have
provided particularized services with respect to the
improvement -- the building -- but rather claimed the
7The Snows argue that Dighton imposes a requirement upon the
court to engage in a two-step analysis to determine whether Harnischfeger is protected under M.G.L. c. 260, 2B. According to the Snows, Dighton requires the court to
consider whether the statute names the party as a protected actor, i.e., an architect or engineer. If the answer is yes, the court may determine whether the defendant engaged in protected acts. Dighton imposes no such test. The Dighton court
merely noted that the trial judge framed the question in this bipartite form. 506 N.E.2d at 514. The court rejected the bipartite formulation:
On its face, 2B defines the protected actor largely by reference to protected acts. The body of 2B names no class of protected actors. Rather, its terms extend protection to persons allegedly responsible for acts, i.e., those who commit "any deficiency or neglect in the design, planning, construction, or general administration of an improvement to real property."
Id. Thus, the court can and must engage in an activities
analysis when the defendant's status as a protected actor is unclear. See id.
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benefit of the statute as a designer, manufacturer and
supplier of a component that fell within Webster's
definition of improvement.8 Id. at 515, 516. The SJC did
not reject the contention that a producer of a component may
be entitled to protection. See id. at 516; see also
McDonough, 591 N.E.2d at 1084. Instead, the SJC rejected a
formalistic inquiry and established the producer's
motivations and activities as the relevant focus of inquiry,
not the nature of the product or the ability to define the
product as an improvement or a fixture. Dighton, 506 N.E.2d
at 516.
In considering whether an actor not clearly within
the statute is entitled to repose, the court engages in a
fact-based activities analysis. See id. The court must
consider the motivation of the actor in producing the
improvement.9 Id. If the actor designed the improvement
8This definition has been adopted by the SJC where the defendant's status as a protected actor is not in doubt. Id. at 516.
9The SJC provides the following illustration:
[I]f a piece of metal sculpture were welded to an exposed girder in a building, it certainly could be characterized as a "permanent addition to or betterment of" the property, one "enhanc[ing] it capital value," one "involv[ing] the expenditure of labor or
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for public sale or for general use, then the actor is not
protected because the actor is engaged in the activity of
creating a fungible product. See id. If, however, the
improvement is produced for a particular project and to the
specifications of an architect or an engineer, M.G.L. c.
260, 2B may protect the actor as someone engaged in the
activity of designing a particularized improvement. Id.
Like the defendant in Dighton, Harnischfeger does
not claim to have rendered particularized services with
respect to the design or construction of the RESCO facility.
Instead, Harnischfeger claims to be brought within the
money," one "designed to make the property more . . . valuable," and one clearly distinguish[able] from ordinary repairs." But would that tell us whether, or to what extent, the sculptor had been involved in the protected activity of "improvement to real
property?" We think not. If he produced the sculpture on commission by the developer to specifications provided in part by the architect and the engineer, we might conclude that he is protected by 2B; but if he mass- produced the sculpture and sold it for use in a variety of contexts, or for incorporation into any building, we would conclude that he had been involved merely in the activity of producing and selling a fungible commodity, and not in the activity of improving real estate.
Dighton, 506 N.E.2d at 516 (alteration in original).
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protection of the statute by designing RESCO's cranes.
Pursuant to affidavits submitted, when designing the crane
that caused Mr. Snow's injuries, Harnischfeger's motivation
in producing the crane was to create, at the request of the
construction engineer, an essential component of the plant
building, made to the construction engineer's
specifications, for sale only to RESCO and for incorporation
only into the RESCO plant. RESCO intended the cranes to be
a permanent and integral part of the overall plant, making
the property useful. Harnischfeger was not motivated to
create a fungible crane available to a variety of buyers and
appropriate for incorporation into a number of facilities.
Harnischfeger's actions conform to those outlined by the
Dighton Court and are protected activities.10
As the plaintiffs note, "[w]hen faced with the
question of whether or not the defendant is entitled to
repose under M.G.L. c. 260 2B, the first question to be
answered is `Is the defendant a protected actor under M.G.L.
c. 260 2B?'" Brief of the Plaintiffs-Appellants at 11.
10As the Snows' experts note, a subsequent purchaser could remove and modify the RESCO cranes for use in another industry, although this contingency was neither Rust's nor Harnischfeger's intention. Furthermore, we do not look at possible future uses and are therefore unconcerned that the crane could someday be sold to another party, or could be incorporated into another plant.
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Having answered affirmatively, we now state our agreement
with the trial court that the crane is an improvement to
real property within the meaning of the statute. See Snow,
823 F. Supp. at 24-25. For purposes of M.G.L. c. 260, 2B,
an improvement is
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, 461 N.E.2d at 811 (quoting Raffel v. Perley, 437
N.E.2d 1082, 1085 (Mass. App. 1982)). RESCO intended the
crane to be a betterment of real property enhancing its
capital value and making the property more useful and
valuable. Therefore, Harnischfeger is entitled to the
protection afforded by M.G.L. c. 260, 2B.
Certification Certification
Following the district court order and subsequent
appeal and shortly before oral arguments, the Snows brought
a motion asking for the first time that the following two
questions be certified to the SJC:
(1) Whether the defendant, Harnischfeger, the manu-facturer of a manually operated overhead crane, is a
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member of the class M.G.L. c. 260, 2B was designed to protect?
(2) Whether the district court acted appropriately in using Webster's Third International Dictionary's definition of `improvement' in determining whether the plaintiffs' product liability claims were barred by M.G.L. c. 260, 2B?
The Snows had argued to the district court that Dighton was
dispositive of the issues in their case but now claim "[t]he
foregoing questions of local law are central to the
disposition of this appeal. . . . [T]he local law on this
question has not been clearly determined."11 Plaintiffs-
Appellants' Memorandum in Support of their Motion to Certify
Questions of Local Law to the Supreme Judicial Court of
Massachusetts at 2.
Certification of determinative issues is
appropriate where "it appears to the certifying court there
is no controlling precedent in the decisions of the Supreme
Judicial Court." Supreme Judicial Court Rule 1:03, 1
(1986). The SJC construed the scope of M.G.L. c. 260, 2B
in a number of cases. See, e.g., McDonough, 591 N.E.2d at
1084 (repose extends to designer of bleacher units
specifically designed for rink); Parent v. Stone & Webster,
11The Snows also acknowledged the dispositive nature of the case law at a hearing before the district court.
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556 N.E.2d 1009, 1011 (Mass. 1990) (repose extends to
contruction engineer who installs distribution panel);
Dighton, 506 N.E.2d at 516 (repose does not extend to
manufacturer of mass marketed circuit breaker affixed to
real property). The Snows themselves list in their motion
for certification no less than ten cases where Massachusetts
courts have determined whether a defendant is a protected
actor under M.G.L. c. 260, 2B. Massachusetts courts have
also extensively addressed when Webster's definition of
improvement is to be utilized. See Dighton, 506 N.E.2d at
516; Milligan, 461 N.E.2d at 811; Raffel, 437 N.E.2d at
1085. Thus, we are satisfied that sufficient guidance is
available and certification is inappropriate under the
circumstances of this case.
Affirmed.
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