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COOPER INDUSTRIES, INC., et al. v. MELENDEZ



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COOPER INDUSTRIES, INC.,
et al.

v.

MELENDEZ


November 3, 2000

Record No. 992957

Present: All the Justices

COOPER INDUSTRIES, INC., ET AL.

v.

ANDRES MELENDEZ


OPINION BY JUSTICE CYNTHIA D. KINSER

FROM THE CIRCUIT COURT OF THE CITY OF NORFOLK

Johnny E. Morrison, 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 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?"

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."

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.

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 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
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 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 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 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
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 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."

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 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
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 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 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.

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.

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
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." 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 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,
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
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 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 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 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 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 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, 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 (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.

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 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 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.

FOOTNOTES:

[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.

[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]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] 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.

[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
. . . ."

[7] According to a test sheet
supplied by Westinghouse, the circuit breaker at issue was tested
on August 11, 1993.

[8] We express no opinion
regarding whether those instructions are a correct statement of
the law in this Commonwealth.

[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.

[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.

[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.

[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.

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