Present: All the Justices
COOPER INDUSTRIES, INC., ET AL.
v. Record No. 992957 OPINION BY JUSTICE CYNTHIA D. KINSER
November 3, 2000
ANDRES MELENDEZ
FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK
John C. Morrison, Jr. Judge
In this product liability case, we address issues
concerning proximate causation, misuse of a product, the
statute of repose, and a trial court’s discretion to send a
jury back for further deliberations when a juror expresses
disagreement with the verdict during a poll of the jury.
Because we find no error, we will affirm the judgment of
the circuit court, which was in accordance with a jury
verdict in favor of the injured plaintiff.
MATERIAL PROCEEDINGS
This product liability action arose out of an
explosion of an industrial circuit breaker, known as a K-
Don 600 amp circuit breaker, located in Vault 21 of Pier 23
at the Norfolk Naval Base on June 1, 1994. The explosion
occurred as Andres Melendez, Jr., a civil employee of the
Navy’s Public Works Center, his supervisor, and a co-worker
were “racking” or installing the circuit breaker in an
energized switchgear. 1 As a result of the explosion,
Melendez and his supervisor were seriously burned, and the
co-worker was killed.
Melendez filed a motion for judgment in the circuit
court alleging negligence, breach of implied warranty, and
strict liability against Cooper Industries, Inc., Arrow
Hart, Inc., and Crouse-Hinds Co. (collectively Cooper), the
manufacturer of the switchgear at issue in this case. 2 In
its grounds of defense, Cooper raised an affirmative
defense that Melendez’s action was barred by the applicable
statute of repose, Code § 8.01-250. Over Melendez’s
objection that the plea in bar involved disputed factual
questions to be resolved by a jury, the circuit court
1
The Public Works Center had responsibility for all
utilities and maintenance at the naval base.
2
Arrow Hart actually manufactured the switchgear.
However, Cooper is the successor in interest to Arrow Hart
and Crouse-Hinds. Accordingly, we will use the name
“Cooper” in this opinion even though certain references in
the record are to Arrow Hart.
Melendez named several other defendants in the motion
for judgment, including Gould Electronics, Inc. and I.T.E.
Imperial Corp. (collectively ITE), manufacturers of the
circuit breaker; Glastic Corporation, manufacturer of
insulation used in the switchgear and circuit breaker; and
Westinghouse Electric Corporation, the company that
retrofitted circuit breakers for the Navy. However, these
defendants settled with Melendez before trial. Thus,
Cooper was the only defendant at trial.
Melendez also nonsuited his negligence and strict
liability claims, leaving only the claim for breach of
implied warranty for trial.
2
conducted an evidentiary hearing and concluded that the
statute of repose does not apply. Because one of Cooper’s
witnesses, Robert L. Smith, could not be present for that
proceeding, the court agreed to reconsider the issue after
hearing Smith’s testimony at trial.
Following several days of trial, a jury returned a
verdict in favor of Melendez in the amount of $5,000,000.
After the court announced the verdict, Cooper requested a
poll of the jurors. During that poll, one juror responded
“No” when asked if that was his verdict. The court then
instructed the jurors, “Well, ladies and gentleman, you’re
going to have to return to your jury room at this point. I
had instructed you previously that your verdict must be
unanimous.” At that point, the foreperson of the jury
stated, “It was unanimous, Your Honor, when we was [sic] in
that jury room.” Thereupon, the court stated, “Ladies and
gentleman, step back into your jury room, please.” Cooper
immediately moved for a mistrial. After approximately two
minutes, the jury returned to the courtroom with the same
verdict as the original. The court polled the jurors
again, and this time, each juror, including the one who
initially answered “No,” responded “Yes, your Honor” to the
question, “Is that your verdict?”
3
Following the trial, Cooper renewed its motion for a
mistrial based on the result of the first jury poll and
also moved to set aside the jury verdict on numerous
grounds, including the issue regarding the statute of
repose. After considering briefs and argument on both
motions, the circuit court denied the motions and entered
judgment in favor of Melendez in accordance with the jury
verdict. 3
In a letter opinion, the court explained its reasons
for concluding, once again, that the statute of repose does
not apply. Rejecting Cooper’s comparison of the switchgear
and circuit breaker at issue in this case to an electric
panel box used in a private residence, the court concluded
that the switchgear and circuit breaker are “equipment or
machinery” within the purview of Code § 8.01-250 and not
ordinary building materials. The court described the
switchgear, which is designed to hold 10 circuit breakers,
as a “metal cabinet . . . 8’6” in height, 8’9” wide, and
5’2” deep.” The court further stated that the circuit
breaker “measure[d] 20.5” in height, 26.5” deep, and . . .
14” wide.”
3
In its judgment order, the court set off the sum that
Melendez had received in settlement from other defendants
against the amount of the jury verdict. See n. 2, supra.
4
Continuing, the court advised the parties that it had
considered an owner’s manual and instructions regarding the
installation and use of the circuit breaker in question, a
shop drawing prepared by Cooper depicting the switchgear,
and the Navy’s contract specifications for the equipment. 4
The court noted that the detailed instructions included in
the owner’s manual probably would not have been provided
for ordinary building materials. The court further
reasoned that the Navy’s specifications, such as the
direction to put nameplates on the equipment showing, among
other things, the manufacturer’s name; to supply “a
switchgear with drawout (removable) circuit breakers”; to
provide equipment that is “established standard tested
products of the manufacturer, thoroughly coordinated and
integrated by the manufacturer [with] the ratings of all
equipment and components . . . guaranteed and published by
the manufacturer”; and “[t]o factory test and certify the
primary and secondary (circuit breaker portion) switchgear
sections” tended to remove the items in question from the
category of ordinary building materials.
4
The court stated that it was considering the
instruction manual solely for the fact that such a manual
existed because there had been other issues during the
trial regarding the manual.
5
We awarded Cooper this appeal on the following
assignments of error: (1) that the circuit court erred in
refusing to set aside the jury verdict because Melendez did
not establish a causal connection between the alleged
breach of warranty and his injuries; (2) that the court
erred in refusing to set aside the verdict because both
Melendez and the Navy misused the electrical gear; (3) that
the court erred in deciding that the statute of repose does
not bar Melendez’s action to recover for his bodily
injuries; (4) that the circuit court erred in refusing to
grant a mistrial when a juror responded “No” during the
poll of the jury because the responses showed that the
verdict was not unanimous; and (5) that the court erred in
denying Cooper’s motion for a mistrial because the court’s
instructions to the jury after the poll “in essence
required unanimity.”
FACTS
In accordance with well-established principles, we
recite the facts in the light most favorable to Melendez,
the prevailing party at trial. Rice v. Charles, 260 Va.
157, 161, 532 S.E.2d 318, 320 (2000). “The verdict of the
jury in favor of [Melendez], upon which the trial court
entered judgment, settles all conflicts of testimony in
[his] favor and entitles [him] to all just inferences
6
deducible therefrom. Fortified by the jury’s verdict and
the judgment of the court, [he] occupies the most favored
position known to the law.” Pugsley v. Privette, 220 Va.
892, 901, 263 S.E.2d 69, 76 (1980) (citing Tri-State Coach
Corp. v. Walsh, 188 Va. 299, 303, 49 S.E.2d 363, 365
(1948)).
In the late 1970’s, the Navy undertook a renovation of
its piers, including Pier 23, at its naval base in Norfolk.
With the advent of a nuclear-powered Navy, the existing
electrical services on the piers were not adequate to meet
the electrical demands of the changing fleet. That
renovation took place 17 years before the explosion at
issue in this case.
Pier 23, where the explosion occurred, originally
contained three electrical vaults referred to as “Vaults 1,
2, and 3.” During the renovation, three additional vaults
were added, and the switchgear in each of the existing
vaults was upgraded to match the switchgear being installed
in the new vaults. Those new vaults were numbered 20, 21,
and 22. Vault 21 contained the circuit breaker that
exploded.
The top of Pier 23 is a deck where trucks and
machinery can be driven and on which people can walk. One
of the Navy’s goals during the renovation was to remove any
7
obstructions on the deck in order to accommodate the
traffic on the pier needed to supply and maintain ships and
submarines. Thus, according to Cooper’s witness, Robert L.
Smith, a retired electrical engineer who prepared the
design drawings of the electrical system for the renovation
project, the plan was to remove switchgear from the top of
the pier’s deck and place it underneath the pier. 5
A switchgear, such at the one located in Vault 21, is
a large metal enclosure that contains many component parts,
including circuit breakers. Electrical power flows into
the switchgear through a circuit breaker and goes out via a
large cable on top of the pier to a submarine docked at the
pier. One end of the cable is plugged into a receptacle
located in a box, called a “turtle back,” that sits on the
deck, and the other end is connected to the submarine. The
purpose of this system is to enable a submarine to be
moored at the pier and draw electrical power from the shore
instead of having to run its engines and generators to
supply electrical power.
Cooper’s expert witness, Roger Bledsoe, agreed as to
the purpose of the electrical system. He testified at the
5
At the time of the renovation, Smith worked for an
engineering firm that had contracted with the Navy to
provide the design plans and specifications for the
renovation project.
8
hearing on the statute of repose that the switchgear in
this case was to provide electrical power “from the land”
to a submarine docked at the pier. When asked whether the
switchgear and circuit breaker served any function with
regard to the pier, Bledsoe responded, “That’s what it
sounds like. It sounds like it’s through the ship.”
John Kuzmack qualified as an expert on the subject of
circuit breakers at the hearing on the statute of repose.
He had previously worked for the manufacturer of the ITE K-
Don circuit breaker at issue in this case. Kuzmack
testified that a K-Don circuit breaker serves the same
basic function as a circuit breaker used in a house, except
that the K-Don breaker is significantly larger. The
circuit breaker at issue was a finished product, tested at
the factory before it left the manufacturer. Although the
circuit breaker and switchgear were normally shipped in
separate containers to the site where they would be used,
the circuit breaker had only to be plugged into a
compatible switchgear upon its arrival at that site.
The manufacturer of the K-Don circuit breaker did not,
however, select a specific breaker for its ultimate use.
According to Kuzmack, original equipment manufacturers,
such as Cooper, selected K-Don circuit breakers and other
component parts to use in assembling their respective
9
switchgear, which in his words was “an assembled product.”
The ITE K-Don circuit breaker could be used in different
manufacturers’ switchgear provided a cradle compatible to
the K-Don breaker had been installed in the switchgear.
Kuzmack also testified that ITE, the manufacturer of
the K-Don circuit breaker, provided an instruction bulletin
that was placed in the carton with each breaker. According
to Frederick C. Teufel, who had also worked for the
manufacturer of the K-Don circuit breakers for many years,
the instruction booklet advised customers to tell ITE if a
circuit breaker was going to be exposed to unusual service
conditions. 6 Based on a shop order, Teufel identified the
circuit breaker involved in the explosion as having been
manufactured by ITE. He further stated that the circuit
breakers listed on the shop order had no special
requirements, thus implying that they were not to be used
in unusual service conditions.
The vaults that housed the switchgear and circuit
breakers under the piers after the renovation were
specially designed because of the unusual service
6
Helmut Gunther Brosz, Melendez’s witness who was
qualified at trial as an expert in the field of electrical
engineering and equipment failures, defined the term
“[u]nusual service condition” as “those conditions which
involve any humidity, salt fog, dripping water, unusual
gases, high temperatures . . . .”
10
conditions in which the switchgear and circuit breakers
would be used. According to Smith, the special design of
the vaults included walls and a floor that were
monolithically cast, completely waterproof, and set in
place with cranes. In other words, the vaults were
designed to provide an indoor environment. Thus, Smith’s
design specifications provided for indoor switchgear and
circuit breakers for use in the vaults.
According to a Materials List prepared by Cooper, it
supplied switchgear and ITE K-Don circuit breakers to the
Navy for the renovation project, including the switchgear
and circuit breaker at issue in this case. Although the
Navy’s specifications allowed circuit breakers other than
those manufactured by ITE, Cooper utilized the ITE K-Don
circuit breaker. As required by the Navy’s contract
specifications, those circuit breakers were “draw-out”
breakers, meaning that they were designed to be “racked” or
installed in an energized switchgear.
Cooper’s Materials List also contained items such as
strip heaters and humidistats, which, according to
Melendez’s expert witness Helmut Brosz, indicated Cooper’s
awareness of the unusual service conditions in which the
switchgear and circuit breakers would be used by the Navy
in the piers. Thus, Brosz opined that Cooper should have
11
advised the manufacturer of the circuit breakers about the
unusual service conditions in which the breakers would be
used and that Cooper violated industry standards by failing
to do so.
In addition to providing information to the circuit
breaker manufacturer, Brosz testified that the switchgear
assembly manufacturer, in this case Cooper, also should
have communicated to the end user, i.e., the Navy and its
workers, that because of the unusual service conditions,
special tests should be carried out from time to time.
However, Brosz stated that Cooper did not provide any
instruction manual for the switchgear assembly with regard
to the unusual service conditions and the need for special
maintenance and testing. Thus, Brosz opined that the
switchgear assembly, as sold to the Navy without such a
manual, was an unreasonably dangerous product and defective
for use in the piers.
In 1993, the Navy commenced a project to overhaul and
retrofit the circuit breakers at its naval base in Norfolk,
including those in Pier 23. Westinghouse performed the
retrofit for the Navy, which included putting a new digital
line tripping system on the circuit breakers and then
testing the breakers. During the project, the circuit
breakers were removed from the switchgear and stored in a
12
building on the naval base where Westinghouse performed the
retrofit. While the circuit breakers were being
retrofitted, preventive maintenance was performed on the
piers, switchgear, and vaults.
Robert Shematek, an employee of Westinghouse during
the retrofitting project, testified that Westinghouse
conducted some instructional classes “for just about
everyone who worked” for the Navy with regard to the new
tripping system and maintenance of the circuit breakers.
However, the record does not contain evidence that Melendez
attended any of those classes. Shematek stated that the
instructions given during the classes, as well as those
contained in a booklet titled “Westinghouse Digitrip
Retrofit System,” included a warning not to install the
circuit breakers in an energized switchgear. Shematek also
stated that he gave a similar oral warning to Melendez’s
supervisor, Larry Dean Agee. However, Agee denied having
received such a warning from either Westinghouse or
Shematek. Shematek also testified that he told Agee that
Westinghouse would not permit Shematek to go down into the
vaults because the conditions in them were unsafe.
However, Shematek admitted that Westinghouse had a general
policy against his going into confined spaces “with live
gear.”
13
Agee testified that, on the day of the explosion, the
circuit breaker that later exploded was moved from the
storage building where Westinghouse had retrofitted and
tested it to Pier 23. 7 The preventive maintenance and
testing on Vault 21 had previously been completed, and Pier
23 had been energized for more than 24 hours. Part of the
maintenance work had been to dry out the vaults and
switchgear. Agee admitted that Pier 23 was one of the
piers having the greatest problem with water infiltration
in the vaults. He specifically remembered seeing
condensation and water on the switchgear in Vault 21.
Because the vaults had been subjected to moisture and
other adverse conditions for over a year during the
retrofit project, Shematek questioned whether they had been
properly dried out. Shematek testified that, despite such
concerns, Agee stated that he was going to do whatever was
necessary to get Pier 23 back in service within two weeks
as requested by the Navy. However, Agee disputed making
such a statement to Shematek.
Once the circuit breaker arrived at Pier 23, it was
lowered into Vault 21 through a manhole, using a rope and
winch. Melendez, Agee, and another co-worker were in the
7
According to a test sheet supplied by Westinghouse,
the circuit breaker at issue was tested on August 11, 1993.
14
vault to receive the circuit breaker, take off the rope,
and install the breaker in the switchgear. After the
circuit breaker was slid into its cubicle and “racked in,”
it exploded, sending out a fireball. Melendez testified
that he saw his co-worker with flames all over his body and
then realized that he was also on fire.
After the explosion, the Navy hired Brosz, through an
engineering firm, to investigate the accident. Brosz was
on the site within two days after the explosion. When he
went down into Vault 21 on Pier 23, Brosz found “an
electrical switchgear that was covered in soot, and . . .
evidence of electrical arcing at the bottom right-hand
circuit breaker . . . .” He testified that the cause of
the explosion was the absorption of moisture by the glass
fiber reinforced polyester insulation (GFRP) used in the K-
Don circuit breakers. The moisture caused the insulation
to degrade over a period of several years. The
degradation, meaning that the insulation had lost its
insulating power, in turn precipitated a short-circuit,
arcing, and the explosion. Brosz could find no other cause
for the explosion, and specifically stated that Melendez
did not do anything wrong on the day of the accident.
Brosz testified that the circuit breaker was designed to be
installed in an energized switchgear and that Melendez had
15
followed the practice used by electricians at the naval
base. However, Brosz acknowledged that, if the switchgear
had not been energized when Melendez installed the circuit
breaker, the explosion would not have occurred.
Cooper’s expert witness, Bledsoe, could not determine
the cause of the explosion. He did agree that the K-Don
circuit breaker was designed to be installed in an
energized switchgear and that he had done so “[p]lenty of
times.”
ANALYSIS
A. Proximate Causation and Misuse
Cooper argues that Melendez failed to prove “that
anything Cooper did or failed to do was the proximate cause
of his injuries” because Melendez’s expert witness, Brosz,
admitted that the accident would not have occurred if
Melendez had not installed the circuit breaker in an
energized switchgear. Continuing, Cooper points out that
Melendez and his co-workers had installed 20 to 30 circuit
breakers in switchgears that were not energized without any
incident, and that only when he and his supervisor decided
to “detour” the rules did the explosion ensue.
Acknowledging that the issues of proximate causation
and misuse are related in this case, Cooper also asserts
that Melendez’s decision to install the breaker in an
16
energized switchgear constituted a misuse of the circuit
breaker. Additionally with regard to the issue of misuse,
Cooper contends that the switchgear and circuit breakers
were intended for indoor use but that the Navy allowed
moisture to accumulate in the vaults, thereby subjecting
the switchgear and breakers to outdoor conditions. It was
this moisture that caused the GFRP insulation to degrade,
which in turn precipitated the short-circuit, arcing, and
explosion. Thus, Cooper argues that both Melendez and the
Navy misused the switchgear and circuit breakers, and that
such misuse bars Melendez’s breach of warranty claim.
A proximate cause of an event is that “‘act or
omission which, in natural and continuous sequence,
unbroken by an efficient intervening cause, produces the
event, and without which that event would not have
occurred.’” Sugarland Run Homeowners Ass’n v. Halfmann,
260 Va. 366, 372, ___ S.E.2d ___, ___, (2000) (quoting
Beale v. Jones, 210 Va. 519, 522, 171 S.E.2d 851, 853
(1970)). Generally, the question of proximate cause is an
issue of fact to be resolved by a jury. Jenkins v. Payne,
251 Va. 122, 128, 465 S.E.2d 795, 799 (1996).
As Cooper argues, proximate cause and misuse are
related in this case. There cannot be a recovery against a
manufacturer in a product liability case for breach of an
17
implied warranty when there has been an unforeseen misuse
of the article. Featherall v. Firestone Tire & Rubber Co.,
219 Va. 949, 964, 252 S.E.2d 358, 367 (1979); Layne-
Atlantic Co. v. Koppers Co., 214 Va. 467, 473, 201 S.E.2d
609, 614 (1974).
In the present case, the court instructed the jury
that Melendez had the burden of proof to establish that, if
Cooper breached an implied warranty of merchantability or
fitness for a particular purpose, such breach was a
proximate cause of the accident. The court also instructed
the jury that Melendez could not recover from Cooper for a
breach of warranty if “the product was misused in a way
that was not reasonably foreseeable by [Cooper], and . . .
that the misuse was the proximate cause of [Melendez’s]
injuries.” (Emphasis added.) Because these instructions
were not the subject of an assignment of error, they are
now the law of this case. 8 See King v. Sowers, 252 Va. 71,
77, 471 S.E.2d 481, 484 (1996). Thus, Melendez had to
prove only that Cooper’s alleged breach of warranty was a
proximate cause of the explosion; whereas, Cooper had to
prove that any misuse was the proximate cause.
8
We express no opinion regarding whether those
instructions are a correct statement of the law in this
Commonwealth.
18
As we previously stated, the jury verdict for Melendez
resolved all conflicts in the evidence in his favor and
entitled him to all just inferences fairly deducible from
the evidence. Pugsley, 220 Va. at 901, 263 S.E.2d at 76.
Applying these principles, we conclude that the issues of
proximate causation and misuse were questions to be decided
by the jury and that there is sufficient evidence to
support the verdict in favor of Melendez with regard to
those issues.
First, Melendez established through Brosz’s testimony
that the explosion was caused by the degradation of the
insulation used in the circuit breaker. The insulation
degraded because it absorbed moisture. Cooper selected the
K-Don circuit breaker knowing that it would be used by the
Navy in unusual service conditions, yet the evidence showed
that Cooper did not share its knowledge with the
manufacturer of the circuit breaker, nor did it warn the
Navy that the insulation in the circuit breakers could
degrade if exposed to moisture. Although Cooper argues
that the Navy allowed the vaults and switchgear to be
exposed to outdoor conditions during the year that the
circuit breakers were being retrofitted, Agee testified
that Vault 21 had been dried out and tested before it was
energized, approximately 24 hours prior to the explosion.
19
Next, no one disputed the fact that the K-Don circuit
breaker was known as a “draw-out” breaker, meaning that it
was designed to be installed in an energized switchgear.
In fact, many of the witnesses had performed such an
operation themselves. Thus, installation of the circuit
breaker in an energized switchgear was certainly a
foreseeable use and not a misuse. Although Cooper argues
that Melendez ignored instructions from Westinghouse that
the circuit breakers should not be installed in an
energized switchgear, and that the explosion would not have
occurred if he had followed those instructions after the
retrofit project, Brosz testified that Melendez did nothing
wrong and followed the installation procedure used at the
naval base for many years.
Furthermore, the evidence was in conflict with regard
to whether Melendez’s supervisor received such instructions
from either Westinghouse or Shematek. Based on Shematek’s
admission that the manual titled “Westinghouse Digitrip
Retrofit System” contained instructions regarding how to
install the new digital line tripping system that
Westinghouse had placed on the circuit breakers and was not
an instruction manual for the use of the circuit breakers,
the jury could have concluded that the manual did not
pertain to the task being performed by Melendez. Shematek
20
also admitted that he was not aware of any warning in the
ITE instruction manual that the breakers should not be
installed in an energized switchgear.
Finally, Cooper argues that Agee decided to “detour,”
i.e., deviate from, one of the procedures in the preventive
maintenance checklist by installing the circuit breaker in
an energized switchgear. However, Melendez correctly
points out that the preventive maintenance checklist did
not address the situation that existed on the day of the
explosion. During the retrofit of the circuit breakers, a
new cable had also been installed on Pier 23. In order to
keep that cable dry and prevent it from exploding, Agee
decided to energize the cable. Additionally, if the vault
had not been energized, then the very equipment designed to
keep it dry, such as the heaters and humidifiers, would not
have been operating.
Thus, we conclude that the circuit court did not err
in refusing to set aside the jury verdict either on the
ground that Melendez did not prove that Cooper’s breach of
warranty was a proximate cause of his injuries or on the
ground that the Navy and Melendez misused the circuit
breaker. The facts with regard to both of these issues
were disputed and thus subject to being resolved by the
jury. “The role of a jury is to settle questions of fact.”
21
Supinger v. Stakes, 255 Va. 198, 203, 495 S.E.2d 813, 815
(1998). The jury, as reflected by its verdict, resolved
those disputed facts in favor of Melendez and, on review,
we will not set aside those findings unless they are
clearly erroneous or without evidence to support them. See
Code § 8.01-680. When a jury’s verdict depends on the
weight to be given to credible evidence, that verdict
cannot be disturbed. Walrod v. Matthews, 210 Va. 382, 392,
171 S.E.2d 180, 187 (1969).
B. Statute of Repose
The dispositive question with regard to this issue is
whether the switchgear and its component parts, including
the circuit breakers, are ordinary building materials or
“equipment” within the meaning of Code § 8.01-250, a
statute of repose. 9 See Hess v. Snyder Hunt Corp., 240 Va.
49, 52, 392 S.E.2d 817, 819 (1990) (referring to Code
§ 8.01-250 as a statute of repose). That section provides,
in pertinent part, that no action shall be brought to
recover for bodily injury “arising out of the defective and
9
A statute of repose differs from a statute of
limitations in that the time limitation in a statute of
repose commences to run from the occurrence of an event
unrelated to the accrual of a cause of action. School Bd.
of the City of Norfolk v. U.S. Gypsum, 234 Va. 32, 37, 360
S.E.2d 325, 327 (1987). The limitation period in a statute
of limitations generally begins to run when the cause of
action accrues. Id., 360 S.E.2d at 327-28.
22
unsafe condition of an improvement to real property . . .
against any person performing or furnishing the design,
planning, surveying, supervision of construction, or
construction of such improvement to real property more than
five years after the performance of furnishing of such
services and construction.” However, the statute further
provides that the five-year limitation “shall not apply to
the manufacturer or supplier of any equipment or machinery
. . . installed in a structure upon real property.”
Based upon the legislative history of Code § 8.01-250,
this Court, in Cape Henry Towers, Inc. v. National Gypsum
Co., 229 Va. 596, 602, 331 S.E.2d 476, 480 (1985),
concluded that this section “perpetuate[s] a distinction
between . . . those who furnish ordinary building
materials, which are incorporated into construction work
outside the control of their manufacturers or suppliers, at
the direction of architects, designers, and contractors,
and, . . . those who furnish machinery or equipment.” The
five-year limitation in Code § 8.01-250 protects the former
category but not the latter one. Id.
We have utilized that distinction on three occasions
to determine into which category certain materials or
articles fell. First, in Cape Henry Towers, the materials
at issue were exterior panels of a building. Id. at 598,
23
331 S.E.2d at 478. Holding that the panels were ordinary
building materials, this Court pointed out that machinery
and equipment, unlike ordinary building materials, “are
subject to close quality control at the factory and may be
made subject to independent manufacturer’s warranties,
voidable if the equipment is not installed and used in
strict compliance with the manufacturer’s instructions.”
Id. at 602, 331 S.E.2d at 480.
Next, in Grice v. Hungerford Mechanical Corp., 236 Va.
305, 306, 374 S.E.2d 17, 17 (1988), the question was
whether an electrical panel box and its component parts
were ordinary building materials or equipment. The
defendant, who was an electrical subcontractor, had bought
the electrical panel box and its several component parts on
separate occasions. Id., 374 S.E.2d at 18. The
subcontractor then assembled and installed the unit as part
of an electrical system in a house pursuant to its contract
with the general contractor. Id. Additionally, the
quality and quantity of the component parts, as well as the
instructions for assembling and installing the electrical
panel box as a unit in a building, were provided by an
architect or other design professional. Id. at 309, 374
S.E.2d at 19. The manufacturer did not send any such
instructions. Id. Thus, this Court concluded that the
24
electrical panel box and its component parts were ordinary
building materials within the purview of Code § 8.01-250.
Id.
The third case was Luebbers v. Fort Wayne Plastics,
Inc., 255 Va. 368, 498 S.E.2d 911 (1998). There, the items
at issue were various structural component materials for
in-ground swimming pools, such as steel panels, braces, and
vinyl liners. Id. at 370, 498 S.E.2d at 911. A
distributor purchased these component parts in bulk from
the manufacturer and held them for resale to swimming pool
contractors as parts of swimming pool kits. Id., 498
S.E.2d at 912. In concluding that the steel panels,
braces, and vinyl liners were ordinary building materials
rather than equipment within the meaning of Code § 8.01-
250, this Court emphasized the following facts: (1) the
component parts at issue were interchangeable with other
component materials in swimming pool construction; (2)
distributors purchased the materials in bulk from the
manufacturer; (3) the manufacturer of the materials did not
oversee construction of the swimming pools, but merely
warranted the steel panels from defects of workmanship and
the vinyl liners from defective welding; and (4) although
the manufacturer sold specification guides and installation
manuals as general guides, the manuals did not address the
25
construction of the specific swimming pool involved in the
case. Id. at 372, 498 S.E.2d at 913. We concluded that
the swimming pool materials were “fungible components” of
the pool, and that they “[i]ndividually . . . served no
function other than as generic materials to be included in
the larger whole and [were] indistinguishable . . . from
the wall panels . . . addressed in Cape Henry Towers.” Id.
Relying on these cases, Cooper argues that the
switchgear and circuit breakers were generic items that
were “incorporated into the construction of the pier” and
were “essential to the existence of the piers,” similar to
the exterior panels in Cape Henry Towers and the electrical
panel box in Grice. Continuing, Cooper describes the
switchgear and circuit breakers as fungible items because
the Navy’s specifications authorized the use of several
brands of switchgears and circuit breakers in the
renovation project, and because the K-Don breakers
themselves were interchangeable. Thus, during the retrofit
project, the Navy and Westinghouse did not have to
designate out of which switchgear cubicle a particular
circuit breaker had been removed.
Cooper also points out that the Navy conceived the
pier renovation project in the 1970’s; the Navy’s agent
designed the project; the Navy’s subcontractor performed
26
the electrical work; and the Navy’s officer in charge of
construction supervised the project. According to Cooper,
it only supplied switchgears without any special warranties
and was not present at the piers during the renovation.
Finally, Cooper compares the switchgear to the electrical
panel box in Grice because it serves the same basic
purpose, although a switchgear is admittedly much larger
than an electrical panel box used in a residential
dwelling.
Well-established principles guide the resolution of
this issue. “[A] plea in bar is a defensive pleading that
reduces the litigation to a single issue,” Kroger Co. v.
Appalachian Power Co., 244 Va. 560, 562, 422 S.E.2d 757,
758 (1992), “which, if proven, creates a bar to the
plaintiff’s right of recovery.” Tomlin v. McKenzie, 251
Va. 478, 480, 468 S.E.2d 882, 884 (1996). The party
asserting a plea in bar carries the burden of proof. Id.
In the present case, the circuit court, over Melendez’s
objection, heard the evidence regarding the plea in bar and
decided the issue rather than submitting it to the jury.
“When the trial court hears the evidence ore tenus, its
findings are entitled to the weight accorded a jury
verdict, and these findings should not be disturbed by an
appellate court unless they are plainly wrong or without
27
evidence to support them.” Bottoms v. Bottoms, 249 Va.
410, 414, 457 S.E.2d 102, 104-05 (1995).
Using these principles, we are not persuaded by
Cooper’s arguments because they are premised on a
mischaracterization of the switchgear and circuit breakers
as “essential to the existence of the piers.” The
switchgear and circuit breakers were not part of the
electrical system of Pier 23; instead, they comprised the
electrical system for submarines docked at the pier so that
the submarines could receive electrical power from the
shore rather than having to operate their engines and
generators. The vaults that housed the switchgear and
circuit breakers were located underneath the deck of the
pier, and the switchgear was actually placed on rails six
inches above the floor of the vault.
Unlike the collection of unassembled parts in Grice,
the switchgear and circuit breakers were each self-
contained and fully assembled by their respective
manufacturers. Cooper manufactured the switchgear, and in
doing so, specified in its Materials List the use of K-Don
circuit breakers. When the circuit breakers left the
manufacturer, they had been tested at the factory and
needed only to be placed in a switchgear that contained a
compatible cradle. ITE supplied an instruction manual with
28
each circuit breaker, and the Navy required that the
switchgear and circuit breaker bear a nameplate containing
certain information, including the manufacturer’s name. As
the circuit court noted, the Navy also required that the
equipment “be established standard tested products of the
manufacturer, thoroughly coordinated and integrated by the
manufacturer.”
Contrary to Cooper’s arguments, the switchgear and
circuit breakers were not fungible or generic materials.
While the Navy specifications would have permitted the use
of circuit breakers from different manufacturers, once
Cooper specified the ITE K-Don breaker, another
manufacturer’s breaker could not have been used in Cooper’s
switchgear unless the cradle had also been changed. In the
words of Cooper’s expert witness, Bledsoe, the cradle and
circuit breaker were “mated component[s]” of the switchgear
assembly. Bledsoe also admitted that Cooper assembled the
switchgear and, in doing so, selected the component parts,
including the circuit breakers, though they were shipped in
separate containers to the end user. Thus, we conclude
that the circuit court did not err in finding that the
switchgear and circuit breakers are “equipment” as
29
contemplated by Code § 8.01-250. 10 Contrary to Cooper’s
argument, the court did not base its decision solely on the
size of the switchgear and circuit breaker.
C. Jury Poll
Because one juror answered “No” in open court during
the poll of the jury, Cooper contends that there was not a
unanimous verdict. Thus, Cooper argues that the circuit
court should have immediately declared a mistrial rather
then sending the jury back for further deliberations. In
other words, Cooper asks this Court to create a bright-line
rule that a trial court must declare a mistrial in a civil
case when a juror answers “No” during the court’s poll of
the jury. Such a bright-line rule would, according to
Cooper, preserve the sanctity of the jury room and insure
that jurors are not subjected to “outside influences,” as
Cooper suggests happened in this case. Cooper also
believes that the absence of a rule for civil trials,
10
We are not persuaded by the several cases cited by
Cooper from other jurisdictions because the relevant
statutes at issue in those cases are significantly
different from Code § 8.01-250. For example, in Hilliard
v. Lummus Co., Inc., 834 F.2d 1352, 1354 (7th Cir. 1987);
Mullis v. Southern Co. Serv., Inc., 296 S.E.2d 579, 583-84
(Ga. 1982); Neofotistos v. Metrick Electric Co., Inc., 577
N.E.2d 511 (Ill. App. Ct. 1991); and Kleist v. Metrick
Electric Co., Inc., 571 N.E.2d 819, 820 (Ill. App. Ct.
1991), the respective courts addressed whether a particular
item was an improvement to real estate, not whether the
item was ordinary building materials or equipment.
30
similar to Rule 3A:17 applicable to criminal trials, 11 is an
authoritative indication that a jury in a civil case should
not be allowed to deliberate further when a juror expresses
disagreement with the verdict during the polling of the
jury.
In discussing this issue, it is important to emphasize
that the circuit court did not record and enter judgment
upon a verdict that was not unanimous. Instead, the court
directed the jury to continue its deliberations when one
juror answered that the verdict that had been published in
open court was not his verdict. Shortly thereafter, the
jury returned with a verdict that was unanimous as
reflected by the court’s second poll of the jurors. We
agree that a verdict cannot be accepted and recorded if it
is not unanimous, and that a juror’s assent in open court
when the verdict is published is controlling. Thus, since
the circuit court did not accept a verdict that was not
unanimous, the cases cited by Cooper for the proposition
that the only verdict that counts is the one published and
affirmed in open court are not relevant to the issue in
this case. See e.g., Reed v. Kinnik, 132 A.2d 208, 210
11
Rule 3A:17(d) provides that a jury may be directed
to retire for further deliberations if, upon the poll, all
jurors do not agree.
31
(Pa. 1957); Sanders v. Charleston Consol. Ry. & Lighting
Co., 151 S.E. 438, 447 (S.C. 1930).
Instead, the issue we must address is whether it is
within a trial court’s exercise of discretion to direct a
jury to deliberate further when a juror answers “No” during
the poll of the jury or whether the court must always
declare a mistrial in that situation. We conclude that a
trial court is empowered, in the exercise of its
discretion, either to direct a jury to continue its
deliberations or to declare a mistrial. “There can be no
question of the right of a juror, when polled, to dissent
from a verdict to which he [or she] has agreed in the jury
room, and when this happens, the jury should either be
discharged or returned to their room for further
deliberation.” Bruce v. Chestnut Farms-Chevy Chase Dairy,
126 F.2d 224, 225 (D.C. Cir. 1942); accord Patterson v.
Rossignol, 245 A.2d 852, 855 (Me. 1968); Botta v. Brunner,
126 A.2d 32, 40-41 (N.J. Super. 1956); Norburn v. Mackie,
141 S.E.2d 877, 880 (N.C. 1965); State ex rel. Volkman v.
Waltermath, 156 N.W. 946, 946 (Wis. 1916). We find no
reason to create the bright-line rule urged by Cooper, nor
are we persuaded that such a rule is warranted merely
because we do not have a rule of civil procedure similar to
Rule 3A:17.
32
In the present case, we conclude that the circuit
court did not abuse its discretion by returning the jury to
its room for further deliberations. Some of the “outside
influences” that Cooper asserts were brought to bear upon
the jury in this case are Cooper’s characterizations of the
reactions of Melendez and others in the courtroom when the
verdict was announced and one juror then answered “No.”
However, the circuit court stated that it did not recall
all the events as having occurred exactly as described by
Cooper’s counsel. For instance, counsel for Cooper
described the juror who answered “No” as “very emotional
and resisting” when he came out of the jury room the second
time. In response, the court stated, “I don’t know about
resisting.” Later, when counsel asserted that some of the
jurors started yelling when the juror answered “No,” the
court stated that it remembered tension, but not any
yelling by the jurors. In sum, many of Cooper’s
contentions with regard to these “outside influences” are
not supported by the record in this case.
The circuit court was in a better position than this
Court to observe the demeanor of the jurors when they
returned to the courtroom and during each poll. We believe
that a trial court has the same ability and opportunity to
observe a juror’s demeanor during a poll of the jury as it
33
does during voir dire. In that latter situation, we have
said, “[b]ecause the trial judge has the opportunity, which
we lack, to observe and evaluate the apparent sincerity,
conscientiousness, intelligence, and demeanor of
prospective jurors first hand, the trial court’s exercise
of judicial discretion in deciding challenges for cause
will not be disturbed on appeal, unless manifest error
appears in the record.” Pope v. Commonwealth, 234 Va. 114,
123-24, 360 S.E.2d 352, 358 (1987). We conclude that the
same standard applies to a poll of the jury and a trial
court’s decision, based on that poll, either to declare a
mistrial or to direct the jury to deliberate further. In
the present case, the circuit court did not abuse its
discretion when it directed the jurors to return to the
jury room for further deliberations rather than declaring a
mistrial.
Cooper also argues that the circuit court’s
instructions to the jury immediately after the juror
answered “No” were coercive and prevented the jurors from
freely making their own decision. However, Cooper did not
at that time object to the content of the court’s
instructions to the jury. It moved for a mistrial solely
on the basis that the verdict was not unanimous, that the
court therefore had to declare a mistrial, and that the
34
jury had been subjected to “outside influences” in the
courtroom. Therefore, we will not consider this argument
on appeal. 12 Rule 5:25.
CONCLUSION
We recognize that the explosion in this case occurred
17 years after Cooper supplied the Navy with the switchgear
that utilized the K-Don circuit breaker that exploded.
That fact alone, however, does not absolve Cooper of its
liability for Melendez’s injuries. Thus, for the reasons
stated with regard to each of Cooper’s assignments of
error, we will affirm the judgment of the circuit court.
Affirmed.
12
Although we do not consider the merits of this
assignment of error, we believe that when a trial court
directs a jury to continue its deliberations in a situation
like the one presented in this case, the court should
instruct the jurors that they should not surrender their
individual consciences for the mere purpose of reaching a
verdict.
35