GWB Attorney Kyle White Featured in SC Lawyers Weekly Article
Court to determine if appliances are fixtures
Permanent improvements subject to statute of repose
By: Heath Hamacher January 14, 2016
South Carolina courts have never determined whether a household appliance constitutes a permanent improvement to real property,but after a United States District Court for the District of South Carolina judge denied summary judgment to a defendant homebuilder in a faulty oven installation case, they are about to.
Declining to grant judgment as a matter of law in Murray v. D.R. Horton,Inc. without all the information in front of him (discovery is still ongoing), District Judge R. Bryan Harwell did seem to hint in the Dec. 30 order that a major consideration will be whether or not the stove/oven range was bolted down properly.
“Plaintiffs argue the range was not permanent because it was movable and attached to the wall only by an electrical cord,but Defendant asserts movability does not negate permanence,” Harwell wrote. “However, Defendant cites no authority – either from South Carolina or any other jurisdiction – that states a plugged-in cooking range or other similar kitchen appliance (bracketed down or not) constitutes a permanent improvement to real property.”
In the order, Harwell reiterated another district judge’s observations in a 2009 case, Ervin v. Cont’l Conveyor & Equip. Co: “The courts of South Carolina have had relatively few opportunities to interpret and apply the statute of repose in the context of improvements to real property.”
Kyle White of Gallivan, White & Boyd in Greenville is not affiliated with this case, but is interested in the litigation, particularly with respect to the statute of repose, as an attorney whose caseload contains a heavy dose of product liability.
“I think what the judge was telling us is that one of the most important considerations is the degree to which the equipment or the appliance or the structure at issue is actually affixed to the real estate,” White said. “And so, without a determination to what extent it is, it’s really difficult to determine whether the item is an improvement for the purpose of the statute of repose.”
The purpose of the statute of repose is to “create an absolute time limit beyond which liability no longer exists” and to give developers the substantive right “to be exempt from liability after a certain time period.”
There’s no dispute that the defendant homebuilder installed the range in 2006, but whether it qualifies as an improvement will determine whether D.R.Horton can benefit from the statute of repose or whether Roger and Judith Murray can go forward with their lawsuit.
State law requires that a personal injury action based on the defective or unsafe condition of an improvement to real property be brought no later than eight years after substantial completion of the improvement.
The Murrays filed this action eight years and five days after the issuance of the certificate of occupancy for their Murrells Inlet home,which,according to the applicable law, constitutes proof of substantial completion of the improvement.
But if the range is not a permanent improvement,and the Murrays say it is not because it was not affixed to the floor as instructed by the manufacturer,the statute of limitations would not begin until Roger discovered that it wasn’t bracketed down.
The Murrays’ attorney, Stephen Goldfinch of Goldfinch Winslow in Murrells Inlet, believes that Harwell agrees – as will the court, eventually – that an oven not affixed to anything can’t be considered a fixture.
“I think the judge has decided that-and I’m not sure that you can make a blanket statement that all appliances are non-fixtures now – but I think you can come to a conclusion that low-priced, sort of introductory ovens that are made to come and go and to plug into an outlet and to be unplugged and replaced with another are not in fact fixtures,” he said.
Harwell noted that discovery is still ongoing and that the factual issue of whether the anti-tip bracket was or was not installed is unresolved.
According to the complaint, the Murrays were preparing a Thanksgiving meal on Nov. 26, 2014, when Roger noticed that the oven light was not working. As he leaned inside the oven to replace the bulb, the range tipped forward, spilling boiling water from a pot on top of the stove onto his body.
According to the complaint, he suffered third-degree burns on more than 15 percent of his body.
About three weeks later, the Murrays sued, accusing Horton of failing to install the “anti-tip bracket” on the rear foot of the cooking range.
Harwell cited 2001’s South Carolina Pipeline Corp. v. Lone Star Steel Co. in noting that whether an addition to real property constitutes an improvement “requires a case by case determination.”
In Pipeline, the South Carolina Supreme Court set forth three criteria for determining whether an addition is an improvement: whether the addition 1) made the property more valuable, 2) involved the
investment of labor and money, and 3) was permanent.
By “permanent,” a court must determine whether the addition has a “lengthy useful life.”
In this case, D.R. Horton contends that the range is in fact permanent while the Murrays insist it was “generally intended to be moved” and “merely plugged into the wall.” If it were permanent and affixed to the real property, they further argued,it wouldn’t have tipped.
“So for them to claim that it was a fixture even though it was never mounted properly is a ludicrous argument,” Goldfinch said.
The defendants are represented by attorneys from the Greenville office of Ogletree Deakins. Those attorneys did not immediately return a message seeking comment.
Unlike a hypothetical huge piece of machinery bolted down to the foundation of a manufacturing plant, clearly outfitted for the plant and increasing its value, the question of whether an oven or a washing machine is an improvement is still “murky,” according to White.
Goldfinch said that while questions still remain,he believes Harwell’s order has already provided more guidance than was previously available.
“I think we can safely say that something that is simply plugged in and not mounted anywhere is not a fixture in South Carolina anymore,” Goldfinch said. “That’s still a pretty big deal.”
The discovery deadline has been extended to May 1, court records show.
The nine-page decision is Murray v. D.R. Horton,Inc. (Lawyers Weekly No. 002-001-16). A digest of the opinion is available online at sclawyersweekly.com.
Follow Heath Hamacher on Twitter @SCLWHamacher
Tagged With: STATUTE OF REPOSE
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