The opinion of the court was delivered by: GASCH
GASCH, Senior District Judge.
This is a suit for damages allegedly sustained when the plaintiff fell after an elevator she entered dropped several inches. The plaintiff contends that the defendant, Schindler Elevator Corporation ("Schindler"), is liable on grounds of negligence, strict liability, express and implied warranties, for its installation and maintenance of the elevator.
Currently before the Court is defendant's motion to dismiss or for summary judgment.
In this motion, Schindler argues that, because it has had no involvement with the elevator at issue since 1959, plaintiff's claims are time-barred by the applicable statutes of repose and limitations.
On January 7, 1983, Serena Britt attempted to enter elevator number 25 on the fourth floor of the State Department Building. Plaintiff was at that time using a wheelchair. As she entered the elevator car, the entire car allegedly dropped several inches. Plaintiff asserts that the sudden drop caused her wheelchair to tip forward, throwing her onto the floor of the elevator and causing numerous injuries.
Plaintiff's complaint raises four grounds for defendant's liability: negligence, strict liability, express warranty and implied warranty of merchantability. All of these grounds rely on the contention that Schindler designed, manufactured, sold, installed, inspected and maintained the elevator at issue. Schindler, however, asserts that it has not had any involvement with this particular elevator since 1959. Defendant submitted an affidavit by William Partridge, its District Sales Manager, which states that Schindler's predecessor in interest, Haughton Elevator Company, contracted with the federal government in 1959 to "modernize" the elevators located in the State Department. Schindler, however, has offered no clarification of what was entailed in this modernization project.
A. Count One -- Negligence
Schindler contends that count one is barred by D.C.Code § 12-310 (1981), a statute of repose. That statute provides that claims involving personal injury caused by defective or unsafe improvements to real property are barred unless the injury occurred within ten years from the date the improvement was substantially completed. The applicability of D.C.Code § 12-310 in this case depends upon whether (1) Schindler's modernization of the elevator in 1959 constituted an improvement to real property, (2) Schindler is entitled to protection under the statute, and (3) the statute is unconstitutional on equal protection and due process grounds.
No cases have specifically included the installation or construction of elevators as an improvement under Section 12-310. The D.C. Court of Appeals, however, has held that installation of a heating system and its component switches was an improvement under Section 12-310 since it "was an integral part of the building, without which the structure could not have been used for business." J.H. Westerman Co. v. Fireman's Fund Ins., 499 A.2d 116, 119 (D.C.App.1985). The Court has no difficulty in concluding that elevators are an "integral part" of any multi-story building, so that work performed on an elevator constitutes an "improvement" under Section 12-310. Cf. Adair v. Koppers Co., Inc., 541 F. Supp. 1120 (N.D.Ohio 1982), aff'd, 741 F.2d 111 (6th Cir.1984); Pacific Indemnity Co. v. Thompson-Yeager, Inc., 260 N.W.2d 548 (Minn.1977).
The D.C. Court of Appeals' decision in Westerman also indicates that Schindler should be included in the class of persons protected by Section 12-310. According to Westerman, the statute broadly covers, inter alia, architects, engineers, contractors, builders and suppliers. 499 A.2d at 120. Schindler submitted an affidavit, undisputed by plaintiff, that it contracted to modernize ...