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New Jersey’s statute of repose protects real estate contractors from suits more than 10 years after the work crews leave. But nowadays, when much of the work is done at a factory and hauled onto the site, is the manufacturer entitled to the same protection? That’s what the N.J. Supreme Court is mulling in Dziewiecki v. Bakula, a swimming-pool injury case. Janusz Dziewiecki, a 36-year-old guest at a Labor Day party in 1997, dove from the edge of an in-ground pool and hit its angled sides. He suffered severe spinal cord injuries and is now a quadriplegic. He sued his hosts, Wieslaw and Elizabeth Bakula, for negligence and asserted products liability and breach of warranty claims against the pool’s retailer, Grobels Inc., and its manufacturer, Fox Pools Inc. But a previous homeowner had put in the pool in 1972. Fox Pools sold it as a kit, containing galvanized steel walls, a vinyl liner, braces for behind the steel walls and other components. Grobels transported the pool kit from York, Pa., to the site, excavated the hole, installed the pool, poured a concrete apron around it and installed a perimeter fence. A Mercer County judge granted summary judgment to Fox Pools and Grobels under N.J.Statutes Annotated 2A:14-1.1, which says that no cause of action for injury from an unsafe condition of improvement to real property can arise more than 10 years after construction is completed. But last June, the Appellate Division reversed summary judgment for Fox Pools, finding that the case could survive as a failure-to-warn products liability suit if the pool is considered a product, not an improvement to real estate. The appellate judges cited earlier holdings that a seller or installer of a mass-produced product incorporated into a real-property improvement — but who is not involved in the design, planning and construction of the improvement itself — is not protected by the statute of repose. “We conclude that products liability principles apply to the manufacturer and/or seller of a defective product, even when the product is used to improve real property,” wrote Judge Ariel Rodriguez for a unanimous panel in Dziewiecki v. Bakula. “We also conclude that the SOR applies only to the party constructing or erecting an improvement to real property and only with respect to work on the improvement itself.” Thus, Grobels, which did all the installation, was protected. Nevertheless, the lawyer for Fox Pools told the justices that the Appellate Division’s ruling was all wet. “This was contrary to the clear intention of the Legislature,” said Gerard Quinn, a partner at Cooper Levenson April Niedelman & Wagenheim in Atlantic City. Quinn argued, in essence, that the prefabrication of the pool was exactly as though Fox Pools had constructed it on the site. “They made a pool kit,” said Quinn. “That is exactly the sort of design to be covered by the statute of repose.” Grobels’ attorney, Bernard Campbell Jr. of Trenton’s Destribats Campbell DeSantis & Magee, agreed. “This was clearly an improvement to real property,” he argued. Dziewiecki’s attorney, Bernard Hvozdovic Jr. of Lynch Martin, argued not only for affirmance of the Appellate Division ruling but also for extending it to Grobels. Since Grobels purchased the pool kit from Fox Pools, he said, it is part of the chain of distribution and subject to products liability standards. The case against the Bakulas settled out of court. This article originally appeared in the New Jersey Law Journal , a publication of American Lawyer Media.

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