William J. Szulc, Jr. v. Siciliano Plumbing & Heating, Inc., & others, Mass. App. (2021) (wrongful death & statute of repose)

Officially released on June 10, 2021

Key Points: Personal representative of the Plaintiff’s estate alleged that the Plaintiff’s death was caused by the Defendant’s negligent installation of water heaters in a residential property. The Defendant’s motion for summary judgment was allowed under G.L. c. 260, s. 2B which provides a six-year statute of repose for certain actions arising out of improvements to real property.

In September of 2012, the Defendant, a licensed plumber, was hired by a property owner to install seven new water heaters in a residential building in Springfield and to perform all related piping work to connect the new heaters to the individual units.

On September 17, 2012, a city inspector affixed a tag to each gas meter indicating that the work was “approved.”

On October 11, 2012, the city issued a certificate of occupancy for the building.

On May 25, 2016, the decedent suffered a seizure while showering in a unit connected to one of the installed water heaters. He was found slumped in the bathtub in several inches of “steaming hot water,” which caused second to third degree burns over much of his body. He later died from his burns.

On May 24, 2019, the Plaintiff filed a wrongful death action in which he claimed the Defendant’s negligent installation of the water heaters caused the decedent’s injuries and death.

A Superior Court judge found in favor of the Defendant on its motion for summary judgment and the Plaintiff appealed.

The Appellate Court affirmed.

A statute of repose eliminates a cause of action at a specified time. General Laws c. 260, s. 2B provides an absolute six-year time limit on “actions of tort for damages arising out of any deficiency or neglect in the design, planning, construction or general administration of an improvement to real property.”

The Plaintiff did not argue that the work involved improvement on real property. Rather, the Plaintiff argued that a “mere installation” was not covered under the statute. However, the Court found that the Defendant in this case did design and install the piping system necessary to maximize hot water reaching each of the units. That work, which required individualized expertise, did bring him within the statute of repose.

The Court was also unconvinced by the Plaintiff’s alternative argument that his claim did not focus on the piping, but only the defendant’s negligent installation of a single water heater or negligence in calibrating a single shower. The Court found that the Defendant performed a single project with multiple parts and that a Plaintiff cannot get around the statute of repose by simply recharacterizing his claim to only cover certain parts of a project. The court concluded that the totality of the project was covered under the statute.

As such, under G.L. c. 260, s. 2B, the Plaintiff was required to bring his claim, at the latest, by October 2018 – six years after the date that the city issued the certificate of occupancy for the building. The complaint, filed seven months later, was correctly dismissed as untimely.

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