Cooper Industries, Inc. v. Melendez

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