On certification to the Superior Court, Appellate Division, whose opinion is reported at 361 N.J. Super. 90 (2003).
(This syllabus is not part of the opinion of the Court. It has been prepared by the Office of the Clerk for the convenience of the reader. It has been neither reviewed nor approved by the Supreme Court. Please note that, in the interests of brevity, portions of any opinion may not have been summarized).
In this personal injury action, the Court considers whether the persons responsible for performing or furnishing the services enumerated in the New Jersey Statute of Repose (SOR), N.J.S.A. 2A:14-1.1, include manufacturers and suppliers of mass-produced products such as pool kits for residential in-ground swimming pools.
In 1997, during a Labor Day get-together at the home of defendants Wieslaw and Elizabeth Bakula, Janusz Dziewiecki was seriously injured after diving from the side of a residential in-ground swimming pool and hitting the opposite, sloped wall. It is undisputed that in 1972, twenty-five years before Dziewiecki's accident, the previous owners of the Bakula property had purchased a pool kit from Grobels, Inc. (Grobels), which was a franchise dealer for Fox Pools, Inc. (Fox), the manufacturer of the pool kit. Grobels transported the pool kit to New Jersey and installed it with certain on-site additions, i.e., a concrete apron and fencing. The pool had three warning signs but no means of separating the shallow from the deep end or of indicating water depth on the pool walls.
Dziewiecki asserted a product liability claim against Grobels and Fox, arguing that his injuries were proximately caused by the inadequate location of warning signs placed around the pool. Grobels and Fox moved for summary judgment raising the SOR's ten-year bar to litigation. The Law Division found that the pool was an improvement to real property as required by the SOR and dismissed Dziewiecki's claims against Grobels and Fox.
The Appellate Division reversed. 361 N.J. Super. 90 (2003). The panel agreed that the pool was an improvement to real property. Finding that the SOR applies only to the party constructing or erecting an improvement to real property, however, the panel concluded that Fox and Grobels, acting in their respective roles as manufacturer and distributor of the pool kit, did not fall within the SOR's protected class. On the other hand, the panel found that any claims based on the installation or construction of the pool were precluded by the SOR.
HELD: Fox Pools, Inc. and Grobels, Inc., acting in their respective roles as manufacturer and distributor of the pool kit, do not fall within the class of persons or entities protected by the New Jersey Statute of Repose (SOR), N.J.S.A. 2A:14-1.1. To the extent that claims against Grobels, Inc. are based on the installation or construction of the installed pool, however, those claims are precluded by the SOR. When a person or entity undertakes activities covered by the SOR and the product liability statute, responsibility is allocated.
1. Under the plain language of N.J.S.A. 2A:14-1.1a, in order to invoke the SOR's bar on litigation brought more than ten years after construction or installation, Fox and/or Grobels must demonstrate that 1) the injury sustained by plaintiff resulted from a defective and unsafe condition of an improvement to real property; 2) Fox and/or Grobels were responsible for performing or furnishing the design, planning, surveying, supervision of construction, or construction of the improvement; and 3) the injury occurred more than ten years after the performance or furnishing of the services. (Pp. 3 - 4).
2. The Court agrees with the Appellate Division that the in-ground swimming pool installed on the Bakulas' property with a cement apron around it was an improvement to real property. The SOR clearly states that the protection applies to"person[s] performing or furnishing the design, planning, surveying, supervision of construction or construction." That list does not include manufacturers and sellers of products; rather, manufacturers and sellers are covered by the statute of limitations applicable to the New Jersey Products Liability Act, N.J.S.A. 2A:58C-1 to - 11, which, in relevant part, permits suit up to two years from accrual of a cause of action. Although Fox"designed" the pool kit, in the same sense that"products" are"designed," the Court does not believe that those who design products for manufacturers and suppliers of standardized items were intended to be covered by the SOR. As such, Fox does not come under the SOR. (Pp. 4 -- 6).
3. Grovels, however, was a seller/distributor and, also, the installer of the pool kit. As the Appellate Division stated, claims based on the installation or construction of the improvement to real property, i.e., the installed pool, are precluded, whereas claims sounding in product liability, i.e., a defective pool kit, would be allowed to proceed.
This Court adds only that the Appellate Division has opined in other cases that a person who participated to any extent in activities covered by the SOR is entitled to its protection. This Court rejects that approach and holds that when a person in effect wears"two hats" (undertakes activities covered by the SOR and comes under the product liability statute), and the cause of injury is attributable to both, the responsibility should be allocated between the two. That portion of liability that relates to activities that fall within the SOR would not after ten years be actionable, and that portion of the liability that derives from a product liability cause of action would be covered by the limitations period set forth in N.J.S.A. 2A:14-2. (Pp. 6 -- 8).
The judgment of the Appellate Division is AFFIRMED.
CHIEF JUSTICE PORITZ and JUSTICES VERNIERO, LaVECCHIA, ZAZZALI, ALBIN and WALLACE join in the Court's opinion. ...