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Cyrus v. Henes8/18/1993
REECE, Judge.
On February 6, 1989, plaintiff-appellant, Edward Cyrus, was seriously injured at the He's Not Here Bar in Lorain, Ohio. On that day, the bar's owner, Mary Henes, asked Cyrus to assist her in lighting the pilot of the bar's furnace. While reaching into the combustion chamber to light the pilot, Cyrus told Henes to turn on the gas valve. In doing so, the main burner of the furnace-ignited, burning the upper portion of Cyrus' body.
It is undisputed that the furnace was originally designed-to burn coal. By affidavit, the previous owner of the property testified that sometime between 1954 and 1956, a conversion unit was installed to allow the furnace to burn natural gas. This conversion gas burner, model Z-200, was manufactured in the 1950s by the Henry Furnace Company, a subsidiary of C.A. Olsen Manufacturing Company, also known as Luxaire, Inc., which is a subsidiary of Westinghouse Electric Corp. (hereinafter referred to collectively as "Westinghouse").
Cyrus commenced this lawsuit on February 5, 1991, against numerous defendants, including Henes, East Ohio Gas Company and Westinghouse. All but Westinghouse have been voluntarily dismissed. On April 9, 1992, Westinghouse moved for summary judgment contending that Cyrus' action was barred by the statute of repose under R.C. 2305.131. The trial court agreed, granting summary judgment in favor of Westinghouse on October 6, 1992. It is from this judgment that Cyrus appeals, asserting a single assignment of error with four subparts:
"The trial court erred in granting defendant-appellees['], the Westinghouse defendants', motion for summary judgment.
"(A) The existence of genuine issues of material fact precludes the granting of summary judgment in this case.
"(B) Ohio Revised Code Section 2305.131 does not apply to materialmen who do not perform construction services or install an improvement to real property.
"(C) Genuine issues of material fact exist as to the nature of the conversion.
"(D) Ohio Revised Code Section 2305.131 is unconstitutional."
The central issue in this case is whether the statute of repose found in R.C. 2305.131 applies to the gas conversion unit designed, manufactured and sold by Westinghouse. R.C. 2305.131 provides that:
"No action to recover damages for any injury to property, real or personal, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained as a result of said injury, shall be brought against any person performing services for or furnishing the design, planning, supervision of construction, or construction of such improvement to real property, more than ten years after the performance or furnishing of such services and construction. * * *"
Unlike other statutes of limitation, the ten-year repose period of R.C. 2305.131 begins to run, not upon the accrual of the cause of action, but from the completion of the "improvement" to real property. Sedar v. Knowlton Constr. Co. (1990), 49 Ohio St.3d 193, 197, 551 N.E.2d 938, 942. As originally enacted (130 Ohio Laws 648, effective Sept. 10, 1963), R.C. 2305.131 was limited to architects and engineers. As amended in 1971, the General Assembly broadened the scope of the statute to include "any person performing services for or furnishing the design, planning, supervision of construction, or construction of such improvement to real property." Accordingly, the only question is whether the gas conversion unit manufactured and sold by Westinghouse is "an improvement to real propert
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