PRESENT: Hassell, C.J., Lacy, Keenan, Kinser, Lemons, and Agee,
JJ., and Carrico, S.J.
DOUGLAS B. BAKER, AS PERSONAL
REPRESENTATIVE OF THE ESTATE
OF VIRGINIA GRAEME BAKER
OPINION BY
v. Record Number 052371 JUSTICE G. STEVEN AGEE
November 3, 2006
POOLSERVICE COMPANY, ET AL.
FROM THE CIRCUIT COURT OF FAIRFAX COUNTY
Jonathan C. Thacher and Marcus D. Williams, Judges
Douglas B. Baker, personal representative of the estate of
Virginia Graeme Baker, appeals from the judgments1 of the Circuit
Court of Fairfax County, which sustained the demurrer of
Poolservice Company (“Poolservice”) and the plea in bar of
Hayward Pool Products, Inc. (“Hayward”) in a wrongful death
action filed by Baker, and dismissed the case with prejudice.
At issue in this appeal is whether the trial court erred as to
either judgment. For the reasons set forth below, we will
affirm the judgments of the trial court.
I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW
The facts underlying this case are tragic: Seven-year-old
Virginia Graeme Baker (“Virginia”) drowned on June 15, 2002
after becoming pinned underwater by suction to the drain cover
of an outdoor spa. A few days before a party, the owners of the
1
Judge Thacher presided over the hearing and issued the
order regarding Poolservice’s demurrer. Judge Williams presided
over the hearing and issued the order regarding Hayward’s plea
in bar. We will refer to the actions of both judges as that of
the “trial court.”
spa hired Poolservice to perform routine annual maintenance and
cleaning of the spa and its adjoining pool, and to determine why
the spa was “not working to [its] full functional capacity.” In
the course of this maintenance, Poolservice returned the spa’s
pump to its normal working condition by eliminating a clog
created by hair and other foreign matter. Poolservice’s repair
work did not involve the drain cover and it was not hired to
perform a safety inspection of the spa or to retrofit any of its
parts.
Douglas B. Baker filed a wrongful death action as
Virginia’s personal representative against Poolservice and
Hayward, the manufacturer of the drain cover used in the spa.
Baker’s amended motion for judgment alleged negligence and
willful, wanton and reckless misconduct against Poolservice.
Baker also alleged a breach of implied warranty of
merchantability; breach of implied warranty of fitness;
negligence; and willful, wanton, and reckless misconduct against
Hayward.
Poolservice filed a demurrer asserting that the amended
motion for judgment “fail[ed] to state [claims] for which relief
can be granted” as it sought to impose duties on Poolservice to
“retro-fit an existing spa or hot tub which it neither
manufactured, installed or sold” and to “initiate campaigns for
safety.” At the hearing on Poolservice’s demurrer, Baker
2
acknowledged “[t]here’s no specific case on point” that would
impose “a duty upon a repair person to advise the owner of a
danger.” Baker also conceded that Poolservice was not negligent
in its performance of the actual repairs of the spa: “they
didn’t breach the contract. They did exactly what the contract
called for. They fixed the pump.”
The trial court sustained Poolservice’s demurrer in an
order issued August 19, 2005. In its bench ruling, the trial
court explained it did so because it “could find no authority
whatsoever that imposes upon a repair person a duty to warn.”
Hayward filed a plea in bar to the amended motion for
judgment, asserting the five-year statute of repose in Code
§ 8.01-250 barred Baker’s action because the drain cover was
manufactured and installed more than five years prior to
Virginia’s death.2 At the evidentiary hearing on the plea in
bar, argument centered on whether the flat drain cover
manufactured by Hayward was “an ordinary building material which
would fall within the protections of the Statute of Repose, or
whether it was machinery, equipment, or some other related
article which would not enjoy the benefit of the Statute of
2
The drain cover was manufactured in 1989 and installed in
the spa on or prior to 1991, when the current property owner
took possession.
3
Repose.”3 On August 25, 2005, the trial court entered an order
granting Hayward’s plea in bar and dismissed the claims against
it with prejudice. From the bench, the trial court explained
that
[t]he characteristics of this drain cover would
indicate that it is fungible and interchangeable with
other similar products. And while it looks like it’s
portable and so forth, it appears that it is part and
parcel of the filtration system that is in the Jacuzzi
spa.
Furthermore, the evidence is unequivocal that the
manufacturer of this drain cover does nothing but
simply package it and then sell it to distributors
who, in turn, resell it to installers and contractors
who then would incorporate it into a finished Jacuzzi
spa. There appear to be no particular instructions
for a particular project that may go with it . . . .
The Supreme Court [of Virginia] has indicated that
ordinary building materials do enjoy the benefit of
the Statute of Repose in Code § 8.01-250, and the
evidence would seem to indicate that this would be
such an ordinary building material under the current
standards set by our court. And accordingly, it would
appear also that as an ordinary building material,
that it is subject to the Statute of Repose, and
therefore, the Plea in Bar should be granted.
We awarded Baker this appeal.
II. ANALYSIS
Baker assigns error to the judgments of the trial court
sustaining Poolservice’s demurrer, granting Hayward’s plea in
bar, and dismissing Baker’s claims with prejudice. We address
each ruling in turn.
3
Baker agreed at the plea in bar hearing that the spa was
an improvement to the real property, but contended that the
spa’s drain cover was not itself an improvement.
4
A. Poolservice’s Demurrer
Baker argues the trial court erred in sustaining
Poolservice’s demurrer because the amended motion for judgment
pled claims against Poolservice for breaching two legal duties:
(1) “a duty not to create or exacerbate a risk of physical harm
in the course of making repairs to the spa” and (2) “a duty to
make use of the company’s superior knowledge to warn the
homeowners about that risk.”
Baker contends Poolservice breached the former duty when it
repaired the pump system in the spa, thereby “increas[ing] the
risk of suction entrapment and consequent physical injury beyond
the level of risk that existed before the repairs were made.”
Citing § 324A of the Restatement (Second) of Torts,4 Baker
contends “a repairman who makes [a] requested repair[,] but
whose work nevertheless creates or exacerbates a dangerous
condition is liable for injuries that result from the dangerous
4
Section 324A of the Restatement (Second) of Torts states:
One who undertakes . . . to render services to another
which he should recognize as necessary for the protection
of a third person or his things, is subject to liability to
the third person for physical harm resulting from his
failure to exercise reasonable care to protect his
undertaking, if
(a) his failure to exercise reasonable care
increases the risk of such harm, or
(b) he has undertaken to perform a duty owed by
the other to the third person, or
(c) the harm is suffered because of the reliance
of the other or the third person upon the
undertaking.
5
condition.” Baker posits that because Poolservice knew that a
“fully-functioning pump would increase the risk of suction
entrapment” in the spa, it breached its duty “not [to] make
repairs that it knew would increase the risk of entrapment.”
Baker claims that Featherall v. Firestone Tire & Rubber
Co., 219 Va. 949, 252 S.E.2d 358 (1979), in which the Court
applied § 388 of the Restatement (Second) of Torts,5 recognizes
that a repairman is subject to liability for physical injuries
resulting from “knowingly return[ing] property to its owner in a
dangerous condition [without] warn[ing] the owner about that
condition.” Baker also claims that under Hegwood v. Virginia
Natural Gas, Inc., 256 Va. 362, 505 S.E.2d 372 (1998),
Poolservice had a legal duty to “warn the occupants of the
5
Section 388 of the Restatement (Second) of Torts
states:
One who supplies directly or through a third person a
chattel for another to use is subject to liability to
those whom the supplier should expect to use the
chattel with the consent of the other or to be
endangered by its probable use, for physical harm
caused by the use of the chattel in the manner for
which and by a person for whose use it is supplied, if
the supplier
(a) knows or has reason to know that the chattel
is or is likely to be dangerous for the use for
which it is supplied, and
(b) has no reason to believe that those for
whose use the chattel is supplied will realize
its dangerous condition, and
(c) fails to exercise reasonable care to inform
them of its dangerous condition or of the facts
which make it likely to be dangerous.
6
premises of the known dangerous defect,” the risk of suction
entrapment.
Poolservice responds that the trial court did not err in
sustaining its demurrer because Poolservice had none of the
duties Baker alleged. Poolservice contends its repairs “did
nothing beyond returning the spa to its normal operating
condition” and “did not alter the product to make it more
dangerous [or] increase the risk of harm.” Poolservice
distinguishes the case at bar from the principle espoused in
§ 324A of the Restatement (Second) of Torts, because unlike
situations where repair work created a dangerous condition,
Poolservice’s repairs merely restored the spa to its original
and intended operating condition. Poolservice likewise asserts
that it did not create the dangerous condition because any
danger from the functioning spa “existed long before Poolservice
ever serviced” it.
Poolservice also argues the duty Baker seeks to impose on
repairmen to warn individuals of product defects would
“transform the repairer into the insurer of products
manufactured by others[,] a position which has no support under
Virginia law.” And it asserts that Featherall and § 388 of the
Restatement (Second) of Torts are inapplicable because “the
repairs performed by Poolservice did not render the product
dangerous” and Featherall applied § 388 only in the context of
7
the manufacturer of a product. Poolservice distinguishes
Hegwood based on the utility work involving an inherently
dangerous substance, as compared to the “variety of services on
pools and spas” that it, as a maintenance company, provides. We
agree with Poolservice.
“A demurrer tests the legal sufficiency of facts alleged in
pleadings, not the strength of proof.” Glazebrook v. Board of
Supervisors, 266 Va. 550, 554, 587 S.E.2d 589, 591 (2003)
(citations omitted). We are thus called upon to determine
whether the “amended motion for judgment alleged sufficient
facts to constitute a foundation in law for the judgment
sought.” Hubbard v. Dresser, Inc., 271 Va. 117, 122, 624 S.E.2d
1, 4 (2006). On appeal, we undertake this review using a de
novo standard, accepting “as true all facts properly pleaded in
the bill of complaint and all reasonable and fair inferences
that may be drawn from those facts.” Glazebrook, 266 Va. at
554, 587 S.E.2d at 591.
Virginia law does not impose upon Poolservice the legal
duties Baker alleged in his amended motion for judgment. While
no decision has been cited by the parties or located by this
Court determining the extent to which § 324A of the Restatement
(Second) of Torts may be applicable as a matter of Virginia law,
it is clear that even if the doctrine there set forth were
8
deemed to be applicable in the Commonwealth, it would not apply
to the situation presented in the case at bar.
Baker admits that Poolservice was not negligent in
performing the repairs on the spa. Poolservice did precisely
what the homeowners hired it to do: return the spa to its
normal, working condition. Poolservice thus did not create an
unsafe condition through its repairs because any allegedly
unsafe condition existed when the spa operated as intended, and
had been present since the spa was manufactured and installed.
Returning the spa to its normal, working condition is not a
basis of liability for a repairman absent a specific undertaking
to do otherwise, which is wholly absent in this case.
Baker’s reliance on Featherall and § 388 of the Restatement
(Second) of Torts to argue Poolservice owed a duty to warn is
similarly misplaced. In Featherall, we applied § 388 in the
context of a manufacturer’s duty to warn of latent defects in a
product. 219 Va. at 962, 252 S.E.2d at 366. We observed “[t]he
duty to warn stems from the view that the manufacturer should
have superior knowledge of his product.” Id. This principle
has no application in this case because Poolservice was not the
manufacturer of the spa or any of its component parts. Nor was
it hired to perform any work associated with the drain cover.
The principle espoused in Hegwood is also distinguishable
from the legal duty Baker seeks to impose on Poolservice. In
9
Hegwood, a gas utility worker restored the gas supply to a home,
checked the gas-fired appliances throughout the house, and shut
off supply to two appliances that were not working properly.
Even though the repairman warned the resident of the unsafe
condition and placed warning tags on the appliances to prevent
them from being turned on, one or both of the appliances were
turned on by an unidentified individual, causing carbon monoxide
poisoning. Hegwood, 256 Va. at 365-66, 505 S.E.2d at 374-75.
The Court held:
[W]hen a company has actual knowledge of a dangerous
defect in a customer’s equipment or appliance, it has
a duty to exercise reasonable care to shut off the
service to such equipment or appliance. The company
also has a duty to warn the occupants of the premises
of the known dangerous defect.
Id. at 369, 505 S.E.2d at 377 (citations omitted).
Unlike the repair work provided by Poolservice, the utility
serviceman’s check of the gas-fired appliances in Hegwood was a
general safety check performed as part of the utility’s
resumption of services supplying natural gas, an inherently
dangerous substance, to the resident. The warning given by the
serviceman was part of a duty the utility assumed in the
performance of the general safety check. In contrast, the spa
owner requested Poolservice only to perform seasonal maintenance
and did not hire Poolservice to perform a general safety check
of the spa, or to perform any work on the drain cover.
10
Poolservice competently performed the requested repair work and
returned the spa to its normal functioning capacity and was
under no duty to warn of any potential dangers unrelated to its
specific undertaking. Poolservice assumed no duties outside the
parameters of those for which it had been contracted.
Baker’s amended motion for judgment thus failed to allege
any cognizable theory under which Poolservice had any duty that
could create liability for Virginia’s death. Accordingly, the
trial court did not err in sustaining Poolservice’s demurrer.
B. Hayward’s Plea in Bar
Baker also contends the trial court erred in granting
Hayward’s plea in bar because it found Baker’s action was barred
by the five-year statute of repose in Code § 8.01-250. The
statute provides, in relevant part:
No action to recover for . . . bodily injury or
wrongful death, arising out of the defective and
unsafe condition of an improvement to real property
. . . shall be brought 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 or furnishing of such services
and construction.
The limitation prescribed in this section shall
not apply to the manufacturer or supplier of any
equipment or machinery or other articles installed in
a structure upon real property . . . .
Baker contends that under the statute’s plain language,
Code § 8.01-250 is inapplicable to claims, such as his, against
manufacturers of defectively-designed products that are
11
installed in improvements to real property. Baker further
contends the Court’s “extra-statutory ‘ordinary building
materials’ doctrine” does not follow the text of Code § 8.01-250
and has caused considerable confusion. Consequently, Baker
urges the Court to reconsider the “ordinary building materials”
doctrine applied in Cape Henry Towers, Inc. v. National Gypsum
Co., 229 Va. 596, 331 S.E.2d 476 (1985), and later cases, which
Baker asserts has expanded the provisions of Code § 8.01-250 to
persons not expressly covered by the text of the statute.
In the alternative, Baker argues that even under the
Court’s “ordinary building materials” doctrine, Code § 8.01-250
does not apply to Hayward. Baker asserts the Cape Henry Towers
line of cases affords manufacturers the benefit of Code § 8.01-
250 “when the product at issue has been designed, not by the
manufacturer itself, but by a member of the class of defendants
identified in the statute.” In so much as “Hayward alone,
without any input from the architect or engineer of the spa,
designed the flat drain cover” at issue here, Baker contends the
ordinary building materials doctrine does not cover Hayward.
In addition, Baker asserts the Cape Henry Towers line of
cases affords manufacturers the benefit of Code § 8.01-250 when
the product at issue is “‘incorporated into’ the structure of an
improvement to real property [as opposed to] merely [being]
affixed to a structure.” Baker distinguishes “Hayward’s drain
12
cover[, which] was not a structural component of the spa;
[instead,] the spa was a freestanding, completed structure
before the drain cover was attached to its floor.”
Hayward responds that the trial court properly applied Code
§ 8.01-250 and this Court’s decisions in Cape Henry Towers and
its progeny, to determine the drain cover was an “ordinary
building material” and thus covered by the statute of repose.
It contends that Baker’s limited interpretation of Code § 8.01-
250 would require this Court to “overrule or radically restrict”
two decades of this court’s jurisprudence interpreting the
statute. Furthermore, Hayward claims “from Cape Henry Towers
forward, the Court has consistently held that manufacturers of
‘ordinary building materials’ are part of the ‘class of
defendants’ protected by the statute of repose.” Hayward thus
asserts the trial court did not err in finding the statute of
repose applied to Hayward because the drain cover was a fungible
component, mass-produced as a generic material to be included in
swimming pools and spas and was therefore an ordinary building
material. We agree with Hayward.
“A plea in bar is a defensive pleading that reduces the
litigation to a single issue, which if proven, creates a bar to
the plaintiff’s right of recovery.” Cooper Industries, Inc. v.
Melendez, 260 Va. 578, 594, 537 S.E.2d 580, 590 (2000) (quoting
Kroger Co. v. Appalachian Power Co., 244 Va. 560, 562, 422
13
S.E.2d 757, 758 (1992); Tomlin v. McKenzie, 251 Va. 478, 480,
468 S.E.2d 882, 884 (1996)). The party asserting the plea in
bar bears the burden of proof. Id. When, as here, the trial
court heard evidence ore tenus and the trial court decided the
issue rather than submitting it to a jury, the trial court’s
“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 evidence to support
them.” Id. at 595, 537 S.E.2d at 590.
Our jurisprudence applying Code § 8.01-250 traces back over
two decades, from shortly after the General Assembly enacted the
statute in its present form. The arguments now advanced by
Baker as to the construction of Code § 8.01-250 were analyzed
and rejected in Cape Henry Towers. 229 Va. at 600-03, 331
S.E.2d at 479-81. We have approved the ordinary building
materials doctrine in three unanimous decisions since Cape Henry
Towers: Grice v. Hungerford Mechanical Corp., 236 Va. 305, 374
S.E.2d 17 (1988); Luebbers v. Fort Wayne Plastics, Inc., 255 Va.
368, 498 S.E.2d 911 (1998); and Cooper Industries.
Under the principle of stare decisis, we reject Baker’s
argument that the Court should not follow its well-settled
approach to examining whether a particular material falls within
the protections provided by Code § 8.01-250. The doctrine of
stare decisis “plays a significant role in the orderly
14
administration of justice by assuring consistent, predictable,
and balanced application of legal principles. And when a court
of last resort has established a precedent, after full
deliberation upon the issue by the court, the precedent will not
be treated lightly or ignored, in the absence of flagrant error
or mistake.” Selected Risks Ins. Co. v. Dean, 233 Va. 260, 265,
355 S.E.2d 579, 581 (1987). What we said nearly a century ago
in Kelly v. Trehy, 133 Va. 160, 112 S.E. 757 (1922), is as valid
now as when it was written:
It is to the interest of the public that there should
be stability in the laws by which they regulate their
conduct. It may be that this [C]ourt, as at present
constituted, would not, as an original proposition,
have construed [the statute] as it was construed in
the cases cited, but the construction of statutes
ought not to vary with every change in the personnel
of the appellate court. The construction was a fair
and reasonable one, made after full deliberation by
courts of very able judges, for whose opinion and
judgment we entertain the highest respect. [T]his
construction [has been] repeated three times by a
unanimous court . . . and cannot now be repudiated by
this [C]ourt.
Id. at 169, 112 S.E. at 760. We see no flagrant error or
mistake in the ordinary building materials doctrine and
consider it part of the settled jurisprudence of the
Commonwealth.
The Cape Henry Towers line of cases recognizes that the
statute applies to “those who furnish ordinary building
materials, which are incorporated into construction work outside
15
the control of their manufacturers or suppliers.” Luebbers, 255
Va. at 372, 498 S.E.2d at 913 (quoting Cape Henry Towers, 229
Va. at 602, 331 S.E.2d at 480). The equipment exclusion
contained in the second paragraph of Code § 8.01-250 is
distinguished from ordinary building materials on the
ground that “unlike ordinary building materials, . . .
equipment [is] 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. (quoting Cape Henry Towers, 229 Va. at 602, 331 S.E.2d at
480). Based on these principles, we held in Cape Henry Towers
that “exterior wall panels used in the construction of
condominium units were ordinary building materials and not
equipment within the meaning of Code § 8.01-250.” Id. And in
Grice, we held that “an electrical panel box and its component
parts received from the manufacturer without instructions for
their use and installation were ordinary building materials and
not equipment within the meaning of the statute.” 236 Va. at
308-09, 374 S.E.2d at 18-19. Most recently, we held in
Luebbers, that steel panels, braces, and vinyl liners used in
the construction of a swimming pool were ordinary building
materials and not equipment under Code § 8.01-250. In Luebbers,
we explained that the pre-fabricated structural component
materials were “clearly fungible . . . . [i]ndividually, these
items served no function other than as generic materials to be
16
included in the larger whole and are indistinguishable, in this
context, from the wall panels we addressed in Cape Henry
Towers.” 255 Va. at 373, 498 S.E.2d at 913.
The evidence before the trial court clearly supported the
finding that the drain cover at issue is indistinguishable from
the materials found to be ordinary building materials in our
prior cases. Baker does not contest that the spa to which the
drain is affixed was an “improvement to real property” under
Code § 8.01-250. Hayward mass-produced the drain cover for
installation into swimming pools and spas. It sold the drain
cover primarily, if not exclusively, to distributors. Hayward
had no role designing the swimming pools and spas into which the
drain covers were installed, nor did it participate in the
installation of the drain cover. The drain cover was as much
incorporated into the spa as an improvement to real estate as
were the wall covers in Cape Henry Towers and the pool liner in
Luebbers. Indeed, the drain cover in the case at bar is
indistinguishable from the fungible component parts of the
swimming pool found to be ordinary building materials in
Luebbers.
Here, as in Cape Henry Towers, the material[]
manufactured by [Hayward] and incorporated into the
finished [spa is] clearly [a] fungible component of
that [spa]. Individually, [the drain cover] served no
function other than as generic material[] to be
included in the larger whole and [is]
indistinguishable, in this context, from the wall
17
panels we addressed in Cape Henry Towers. As such,
these materials were ordinary building materials and
not “equipment” within the meaning of Code § 8.01-250.
Luebbers, 255 Va. at 373, 498 S.E.2d at 913.
Lastly, we reject Baker’s claim that Code § 8.01-250 only
applies to manufacturers “when the product at issue has been
designed, not by the manufacturer . . . but by” an individual
who “perform[ed] or furnish[ed] the design, planning, surveying,
supervision of construction, or construction of” the improvement
to real property. All of the products we have found to be
ordinary building materials in the Cape Henry Towers line of
cases were designed by someone other than the designer of the
improvement into which those products were incorporated. Thus,
Code § 8.01-250 applies to manufacturers even when the
manufacturer, rather than a person identified in the statute,
designs the ordinary building material in question.
As a fungible component part of an improvement to real
property, the drain cover is “ordinary building material” and is
not excluded from the protection of Code § 8.01-250 as
“equipment or machinery or other articles.” Hayward is thus
entitled to the protection of the statute of repose.
Accordingly, we hold the trial court did not err in granting
Hayward’s plea in bar.
III. CONCLUSION
18
The trial court did not err in sustaining Poolservice’s
demurrer because Baker’s amended motion for judgment alleged
Poolservice owed duties that are not recognized in Virginia law.
Similarly, the trial court did not err in granting Hayward’s
plea in bar because Baker’s motion for judgment was filed after
the expiration of the five-year period provided in Code § 8.01-
250. Accordingly, we will affirm the judgments of the trial
court sustaining Poolservice’s demurrer, granting Hayward’s plea
in bar, and dismissing the claims against both parties with
prejudice.
Affirmed.
19