PRESENT: Hassell, C.J., Lacy, Keenan, Kinser, Lemons, and Agee, 

JJ., and Carrico, S.J. 

DOUGLAS B. BAKER, AS PERSONAL 

REPRESENTATIVE OF THE ESTATE 

OF VIRGINIA GRAEME BAKER 

 OPINION BY 

v. Record Number 052371 JUSTICE G. STEVEN AGEE 

 November 3, 2006 

POOLSERVICE COMPANY, ET AL. 

FROM THE CIRCUIT COURT OF FAIRFAX COUNTY 

Jonathan C. Thacher and Marcus D. Williams, Judges 

 Douglas B. Baker, personal representative of the estate of 

Virginia Graeme Baker, appeals from the judgments1

 of the Circuit 

Court of Fairfax County, which sustained the demurrer of 

Poolservice Company (“Poolservice”) and the plea in bar of 

Hayward Pool Products, Inc. (“Hayward”) in a wrongful death 

action filed by Baker, and dismissed the case with prejudice. 

At issue in this appeal is whether the trial court erred as to 

either judgment. For the reasons set forth below, we will 

affirm the judgments of the trial court. 

I. BACKGROUND AND MATERIAL PROCEEDINGS BELOW 

 The facts underlying this case are tragic: Seven-year-old 

Virginia Graeme Baker (“Virginia”) drowned on June 15, 2002 

after becoming pinned underwater by suction to the drain cover 

of an outdoor spa. A few days before a party, the owners of the 

 1

 Judge Thacher presided over the hearing and issued the 

order regarding Poolservice’s demurrer. Judge Williams presided 

over the hearing and issued the order regarding Hayward’s plea 

in bar. We will refer to the actions of both judges as that of 

the “trial court.” 
2

spa hired Poolservice to perform routine annual maintenance and 

cleaning of the spa and its adjoining pool, and to determine why 

the spa was “not working to [its] full functional capacity.” In 

the course of this maintenance, Poolservice returned the spa’s 

pump to its normal working condition by eliminating a clog 

created by hair and other foreign matter. Poolservice’s repair 

work did not involve the drain cover and it was not hired to 

perform a safety inspection of the spa or to retrofit any of its 

parts. 

Douglas B. Baker filed a wrongful death action as 

Virginia’s personal representative against Poolservice and 

Hayward, the manufacturer of the drain cover used in the spa. 

Baker’s amended motion for judgment alleged negligence and 

willful, wanton and reckless misconduct against Poolservice. 

Baker also alleged a breach of implied warranty of 

merchantability; breach of implied warranty of fitness; 

negligence; and willful, wanton, and reckless misconduct against 

Hayward. 

Poolservice filed a demurrer asserting that the amended 

motion for judgment “fail[ed] to state [claims] for which relief 

can be granted” as it sought to impose duties on Poolservice to 

“retro-fit an existing spa or hot tub which it neither 

manufactured, installed or sold” and to “initiate campaigns for 

safety.” At the hearing on Poolservice’s demurrer, Baker 
3

acknowledged “[t]here’s no specific case on point” that would 

impose “a duty upon a repair person to advise the owner of a 

danger.” Baker also conceded that Poolservice was not negligent 

in its performance of the actual repairs of the spa: “they 

didn’t breach the contract. They did exactly what the contract 

called for. They fixed the pump.” 

The trial court sustained Poolservice’s demurrer in an 

order issued August 19, 2005. In its bench ruling, the trial 

court explained it did so because it “could find no authority 

whatsoever that imposes upon a repair person a duty to warn.” 

Hayward filed a plea in bar to the amended motion for 

judgment, asserting the five-year statute of repose in Code 

§ 8.01-250 barred Baker’s action because the drain cover was 

manufactured and installed more than five years prior to 

Virginia’s death.2

 At the evidentiary hearing on the plea in 

bar, argument centered on whether the flat drain cover 

manufactured by Hayward was “an ordinary building material which 

would fall within the protections of the Statute of Repose, or 

whether it was machinery, equipment, or some other related 

article which would not enjoy the benefit of the Statute of 

 2

 The drain cover was manufactured in 1989 and installed in 

the spa on or prior to 1991, when the current property owner 

took possession. 
4

Repose.”3 On August 25, 2005, the trial court entered an order 

granting Hayward’s plea in bar and dismissed the claims against 

it with prejudice. From the bench, the trial court explained 

that 

[t]he characteristics of this drain cover would 

indicate that it is fungible and interchangeable with 

other similar products. And while it looks like it’s 

portable and so forth, it appears that it is part and 

parcel of the filtration system that is in the Jacuzzi 

spa. 

 Furthermore, the evidence is unequivocal that the 

manufacturer of this drain cover does nothing but 

simply package it and then sell it to distributors 

who, in turn, resell it to installers and contractors 

who then would incorporate it into a finished Jacuzzi 

spa. There appear to be no particular instructions 

for a particular project that may go with it . . . . 

The Supreme Court [of Virginia] has indicated that 

ordinary building materials do enjoy the benefit of 

the Statute of Repose in Code § 8.01-250, and the 

evidence would seem to indicate that this would be 

such an ordinary building material under the current 

standards set by our court. And accordingly, it would 

appear also that as an ordinary building material, 

that it is subject to the Statute of Repose, and 

therefore, the Plea in Bar should be granted. 

 We awarded Baker this appeal. 

II. ANALYSIS 

 Baker assigns error to the judgments of the trial court 

sustaining Poolservice’s demurrer, granting Hayward’s plea in 

bar, and dismissing Baker’s claims with prejudice. We address 

each ruling in turn. 

 3

 Baker agreed at the plea in bar hearing that the spa was 

an improvement to the real property, but contended that the 

spa’s drain cover was not itself an improvement. 
5

A. Poolservice’s Demurrer 

 Baker argues the trial court erred in sustaining 

Poolservice’s demurrer because the amended motion for judgment 

pled claims against Poolservice for breaching two legal duties: 

(1) “a duty not to create or exacerbate a risk of physical harm 

in the course of making repairs to the spa” and (2) “a duty to 

make use of the company’s superior knowledge to warn the 

homeowners about that risk.” 

 Baker contends Poolservice breached the former duty when it 

repaired the pump system in the spa, thereby “increas[ing] the 

risk of suction entrapment and consequent physical injury beyond 

the level of risk that existed before the repairs were made.” 

 Citing § 324A of the Restatement (Second) of Torts,4

 Baker 

contends “a repairman who makes [a] requested repair[,] but 

whose work nevertheless creates or exacerbates a dangerous 

condition is liable for injuries that result from the dangerous 

 4

 Section 324A of the Restatement (Second) of Torts states: 

One who undertakes . . . to render services to another 

which he should recognize as necessary for the protection 

of a third person or his things, is subject to liability to 

the third person for physical harm resulting from his 

failure to exercise reasonable care to protect his 

undertaking, if 

(a) his failure to exercise reasonable care 

increases the risk of such harm, or 

(b) he has undertaken to perform a duty owed by 

the other to the third person, or 

(c) the harm is suffered because of the reliance 

of the other or the third person upon the 

undertaking. 
6

condition.” Baker posits that because Poolservice knew that a 

“fully-functioning pump would increase the risk of suction 

entrapment” in the spa, it breached its duty “not [to] make 

repairs that it knew would increase the risk of entrapment.” 

 Baker claims that Featherall v. Firestone Tire & Rubber 

Co., 219 Va. 949, 252 S.E.2d 358 (1979), in which the Court 

applied § 388 of the Restatement (Second) of Torts,5

 recognizes 

that a repairman is subject to liability for physical injuries 

resulting from “knowingly return[ing] property to its owner in a 

dangerous condition [without] warn[ing] the owner about that 

condition.” Baker also claims that under Hegwood v. Virginia 

Natural Gas, Inc., 256 Va. 362, 505 S.E.2d 372 (1998), 

Poolservice had a legal duty to “warn the occupants of the 

 5

 Section 388 of the Restatement (Second) of Torts 

states: 

One who supplies directly or through a third person a 

chattel for another to use is subject to liability to 

those whom the supplier should expect to use the 

chattel with the consent of the other or to be 

endangered by its probable use, for physical harm 

caused by the use of the chattel in the manner for 

which and by a person for whose use it is supplied, if 

the supplier 

(a) knows or has reason to know that the chattel 

is or is likely to be dangerous for the use for 

which it is supplied, and 

(b) has no reason to believe that those for 

whose use the chattel is supplied will realize 

its dangerous condition, and 

(c) fails to exercise reasonable care to inform 

them of its dangerous condition or of the facts 

which make it likely to be dangerous. 
7

premises of the known dangerous defect,” the risk of suction 

entrapment. 

 Poolservice responds that the trial court did not err in 

sustaining its demurrer because Poolservice had none of the 

duties Baker alleged. Poolservice contends its repairs “did 

nothing beyond returning the spa to its normal operating 

condition” and “did not alter the product to make it more 

dangerous [or] increase the risk of harm.” Poolservice 

distinguishes the case at bar from the principle espoused in 

§ 324A of the Restatement (Second) of Torts, because unlike 

situations where repair work created a dangerous condition, 

Poolservice’s repairs merely restored the spa to its original 

and intended operating condition. Poolservice likewise asserts 

that it did not create the dangerous condition because any 

danger from the functioning spa “existed long before Poolservice 

ever serviced” it. 

 Poolservice also argues the duty Baker seeks to impose on 

repairmen to warn individuals of product defects would 

“transform the repairer into the insurer of products 

manufactured by others[,] a position which has no support under 

Virginia law.” And it asserts that Featherall and § 388 of the 

Restatement (Second) of Torts are inapplicable because “the 

repairs performed by Poolservice did not render the product 

dangerous” and Featherall applied § 388 only in the context of 
8

the manufacturer of a product. Poolservice distinguishes 

Hegwood based on the utility work involving an inherently 

dangerous substance, as compared to the “variety of services on 

pools and spas” that it, as a maintenance company, provides. We 

agree with Poolservice. 

 “A demurrer tests the legal sufficiency of facts alleged in 

pleadings, not the strength of proof.” Glazebrook v. Board of 

Supervisors, 266 Va. 550, 554, 587 S.E.2d 589, 591 (2003) 

(citations omitted). We are thus called upon to determine 

whether the “amended motion for judgment alleged sufficient 

facts to constitute a foundation in law for the judgment 

sought.” Hubbard v. Dresser, Inc., 271 Va. 117, 122, 624 S.E.2d 

1, 4 (2006). On appeal, we undertake this review using a de 

novo standard, accepting “as true all facts properly pleaded in 

the bill of complaint and all reasonable and fair inferences 

that may be drawn from those facts.” Glazebrook, 266 Va. at 

554, 587 S.E.2d at 591. 

 Virginia law does not impose upon Poolservice the legal 

duties Baker alleged in his amended motion for judgment. While 

no decision has been cited by the parties or located by this 

Court determining the extent to which § 324A of the Restatement 

(Second) of Torts may be applicable as a matter of Virginia law, 

it is clear that even if the doctrine there set forth were 
9

deemed to be applicable in the Commonwealth, it would not apply 

to the situation presented in the case at bar. 

Baker admits that Poolservice was not negligent in 

performing the repairs on the spa. Poolservice did precisely 

what the homeowners hired it to do: return the spa to its 

normal, working condition. Poolservice thus did not create an 

unsafe condition through its repairs because any allegedly 

unsafe condition existed when the spa operated as intended, and 

had been present since the spa was manufactured and installed. 

Returning the spa to its normal, working condition is not a 

basis of liability for a repairman absent a specific undertaking 

to do otherwise, which is wholly absent in this case. 

 Baker’s reliance on Featherall and § 388 of the Restatement 

(Second) of Torts to argue Poolservice owed a duty to warn is 

similarly misplaced. In Featherall, we applied § 388 in the 

context of a manufacturer’s duty to warn of latent defects in a 

product. 219 Va. at 962, 252 S.E.2d at 366. We observed “[t]he 

duty to warn stems from the view that the manufacturer should 

have superior knowledge of his product.” Id. This principle 

has no application in this case because Poolservice was not the 

manufacturer of the spa or any of its component parts. Nor was 

it hired to perform any work associated with the drain cover. 

 The principle espoused in Hegwood is also distinguishable 

from the legal duty Baker seeks to impose on Poolservice. In 
10

Hegwood, a gas utility worker restored the gas supply to a home, 

checked the gas-fired appliances throughout the house, and shut 

off supply to two appliances that were not working properly. 

Even though the repairman warned the resident of the unsafe 

condition and placed warning tags on the appliances to prevent 

them from being turned on, one or both of the appliances were 

turned on by an unidentified individual, causing carbon monoxide 

poisoning. Hegwood, 256 Va. at 365-66, 505 S.E.2d at 374-75. 

The Court held: 

[W]hen a company has actual knowledge of a dangerous 

defect in a customer’s equipment or appliance, it has 

a duty to exercise reasonable care to shut off the 

service to such equipment or appliance. The company 

also has a duty to warn the occupants of the premises 

of the known dangerous defect. 

Id. at 369, 505 S.E.2d at 377 (citations omitted). 

 Unlike the repair work provided by Poolservice, the utility 

serviceman’s check of the gas-fired appliances in Hegwood was a 

general safety check performed as part of the utility’s 

resumption of services supplying natural gas, an inherently 

dangerous substance, to the resident. The warning given by the 

serviceman was part of a duty the utility assumed in the 

performance of the general safety check. In contrast, the spa 

owner requested Poolservice only to perform seasonal maintenance 

and did not hire Poolservice to perform a general safety check 

of the spa, or to perform any work on the drain cover. 
11

Poolservice competently performed the requested repair work and 

returned the spa to its normal functioning capacity and was 

under no duty to warn of any potential dangers unrelated to its 

specific undertaking. Poolservice assumed no duties outside the 

parameters of those for which it had been contracted. 

 Baker’s amended motion for judgment thus failed to allege 

any cognizable theory under which Poolservice had any duty that 

could create liability for Virginia’s death. Accordingly, the 

trial court did not err in sustaining Poolservice’s demurrer. 

B. Hayward’s Plea in Bar 

 Baker also contends the trial court erred in granting 

Hayward’s plea in bar because it found Baker’s action was barred 

by the five-year statute of repose in Code § 8.01-250. The 

statute provides, in relevant part: 

No action to recover for . . . bodily injury or 

wrongful death, arising out of the defective and 

unsafe condition of an improvement to real property 

. . . shall be brought 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 or furnishing of such services 

and construction. 

 The limitation prescribed in this section shall 

not apply to the manufacturer or supplier of any 

equipment or machinery or other articles installed in 

a structure upon real property . . . . 

 Baker contends that under the statute’s plain language, 

Code § 8.01-250 is inapplicable to claims, such as his, against 

manufacturers of defectively-designed products that are 
12

installed in improvements to real property. Baker further 

contends the Court’s “extra-statutory ‘ordinary building 

materials’ doctrine” does not follow the text of Code § 8.01-250 

and has caused considerable confusion. Consequently, Baker 

urges the Court to reconsider the “ordinary building materials” 

doctrine applied in Cape Henry Towers, Inc. v. National Gypsum 

Co., 229 Va. 596, 331 S.E.2d 476 (1985), and later cases, which 

Baker asserts has expanded the provisions of Code § 8.01-250 to 

persons not expressly covered by the text of the statute. 

 In the alternative, Baker argues that even under the 

Court’s “ordinary building materials” doctrine, Code § 8.01-250 

does not apply to Hayward. Baker asserts the Cape Henry Towers

line of cases affords manufacturers the benefit of Code § 8.01-

250 “when the product at issue has been designed, not by the 

manufacturer itself, but by a member of the class of defendants 

identified in the statute.” In so much as “Hayward alone, 

without any input from the architect or engineer of the spa, 

designed the flat drain cover” at issue here, Baker contends the 

ordinary building materials doctrine does not cover Hayward. 

 In addition, Baker asserts the Cape Henry Towers line of 

cases affords manufacturers the benefit of Code § 8.01-250 when 

the product at issue is “‘incorporated into’ the structure of an 

improvement to real property [as opposed to] merely [being] 

affixed to a structure.” Baker distinguishes “Hayward’s drain 
13

cover[, which] was not a structural component of the spa; 

[instead,] the spa was a freestanding, completed structure 

before the drain cover was attached to its floor.” 

 Hayward responds that the trial court properly applied Code 

§ 8.01-250 and this Court’s decisions in Cape Henry Towers and 

its progeny, to determine the drain cover was an “ordinary 

building material” and thus covered by the statute of repose. 

It contends that Baker’s limited interpretation of Code § 8.01-

250 would require this Court to “overrule or radically restrict” 

two decades of this court’s jurisprudence interpreting the 

statute. Furthermore, Hayward claims “from Cape Henry Towers

forward, the Court has consistently held that manufacturers of 

‘ordinary building materials’ are part of the ‘class of 

defendants’ protected by the statute of repose.” Hayward thus 

asserts the trial court did not err in finding the statute of 

repose applied to Hayward because the drain cover was a fungible 

component, mass-produced as a generic material to be included in 

swimming pools and spas and was therefore an ordinary building 

material. We agree with Hayward. 

 “A plea in bar is a defensive pleading that reduces the 

litigation to a single issue, which if proven, creates a bar to 

the plaintiff’s right of recovery.” Cooper Industries, Inc. v. 

Melendez, 260 Va. 578, 594, 537 S.E.2d 580, 590 (2000) (quoting 

Kroger Co. v. Appalachian Power Co., 244 Va. 560, 562, 422 
14

S.E.2d 757, 758 (1992); Tomlin v. McKenzie, 251 Va. 478, 480, 

468 S.E.2d 882, 884 (1996)). The party asserting the plea in 

bar bears the burden of proof. Id. When, as here, the trial 

court heard evidence ore tenus and the trial court decided the 

issue rather than submitting it to a jury, the trial court’s 

“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.” Id. at 595, 537 S.E.2d at 590. 

 Our jurisprudence applying Code § 8.01-250 traces back over 

two decades, from shortly after the General Assembly enacted the 

statute in its present form. The arguments now advanced by 

Baker as to the construction of Code § 8.01-250 were analyzed 

and rejected in Cape Henry Towers. 229 Va. at 600-03, 331 

S.E.2d at 479-81. We have approved the ordinary building 

materials doctrine in three unanimous decisions since Cape Henry 

Towers: Grice v. Hungerford Mechanical Corp., 236 Va. 305, 374 

S.E.2d 17 (1988); Luebbers v. Fort Wayne Plastics, Inc., 255 Va. 

368, 498 S.E.2d 911 (1998); and Cooper Industries. 

 Under the principle of stare decisis, we reject Baker’s 

argument that the Court should not follow its well-settled 

approach to examining whether a particular material falls within 

the protections provided by Code § 8.01-250. The doctrine of 

stare decisis “plays a significant role in the orderly 
15

administration of justice by assuring consistent, predictable, 

and balanced application of legal principles. And when a court 

of last resort has established a precedent, after full 

deliberation upon the issue by the court, the precedent will not 

be treated lightly or ignored, in the absence of flagrant error 

or mistake.” Selected Risks Ins. Co. v. Dean, 233 Va. 260, 265, 

355 S.E.2d 579, 581 (1987). What we said nearly a century ago 

in Kelly v. Trehy, 133 Va. 160, 112 S.E. 757 (1922), is as valid 

now as when it was written: 

It is to the interest of the public that there should 

be stability in the laws by which they regulate their 

conduct. It may be that this [C]ourt, as at present 

constituted, would not, as an original proposition, 

have construed [the statute] as it was construed in 

the cases cited, but the construction of statutes 

ought not to vary with every change in the personnel 

of the appellate court. The construction was a fair 

and reasonable one, made after full deliberation by 

courts of very able judges, for whose opinion and 

judgment we entertain the highest respect. [T]his 

construction [has been] repeated three times by a 

unanimous court . . . and cannot now be repudiated by 

this [C]ourt. 

Id. at 169, 112 S.E. at 760. We see no flagrant error or 

mistake in the ordinary building materials doctrine and 

consider it part of the settled jurisprudence of the 

Commonwealth. 

 The Cape Henry Towers line of cases recognizes that the 

statute applies to “those who furnish ordinary building 

materials, which are incorporated into construction work outside 
16

the control of their manufacturers or suppliers.” Luebbers, 255 

Va. at 372, 498 S.E.2d at 913 (quoting Cape Henry Towers, 229 

Va. at 602, 331 S.E.2d at 480). The equipment exclusion 

contained in the second paragraph of Code § 8.01-250 is 

distinguished from ordinary building materials on the 

ground that “unlike ordinary building materials, . . . 

equipment [is] 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. (quoting Cape Henry Towers, 229 Va. at 602, 331 S.E.2d at 

480). Based on these principles, we held in Cape Henry Towers

that “exterior wall panels used in the construction of 

condominium units were ordinary building materials and not 

equipment within the meaning of Code § 8.01-250.” Id. And in 

Grice, we held that “an electrical panel box and its component 

parts received from the manufacturer without instructions for 

their use and installation were ordinary building materials and 

not equipment within the meaning of the statute.” 236 Va. at 

308-09, 374 S.E.2d at 18-19. Most recently, we held in 

Luebbers, that steel panels, braces, and vinyl liners used in 

the construction of a swimming pool were ordinary building 

materials and not equipment under Code § 8.01-250. In Luebbers, 

we explained that the pre-fabricated structural component 

materials were “clearly fungible . . . . [i]ndividually, these 

items served no function other than as generic materials to be 
17

included in the larger whole and are indistinguishable, in this 

context, from the wall panels we addressed in Cape Henry 

Towers.” 255 Va. at 373, 498 S.E.2d at 913. 

 The evidence before the trial court clearly supported the 

finding that the drain cover at issue is indistinguishable from 

the materials found to be ordinary building materials in our 

prior cases. Baker does not contest that the spa to which the 

drain is affixed was an “improvement to real property” under 

Code § 8.01-250. Hayward mass-produced the drain cover for 

installation into swimming pools and spas. It sold the drain 

cover primarily, if not exclusively, to distributors. Hayward 

had no role designing the swimming pools and spas into which the 

drain covers were installed, nor did it participate in the 

installation of the drain cover. The drain cover was as much 

incorporated into the spa as an improvement to real estate as 

were the wall covers in Cape Henry Towers and the pool liner in 

Luebbers. Indeed, the drain cover in the case at bar is 

indistinguishable from the fungible component parts of the 

swimming pool found to be ordinary building materials in 

Luebbers. 

Here, as in Cape Henry Towers, the material[] 

manufactured by [Hayward] and incorporated into the 

finished [spa is] clearly [a] fungible component of 

that [spa]. Individually, [the drain cover] served no 

function other than as generic material[] to be 

included in the larger whole and [is] 

indistinguishable, in this context, from the wall 
18

panels we addressed in Cape Henry Towers. As such, 

these materials were ordinary building materials and 

not “equipment” within the meaning of Code § 8.01-250. 

Luebbers, 255 Va. at 373, 498 S.E.2d at 913. 

 Lastly, we reject Baker’s claim that Code § 8.01-250 only 

applies to manufacturers “when the product at issue has been 

designed, not by the manufacturer . . . but by” an individual 

who “perform[ed] or furnish[ed] the design, planning, surveying, 

supervision of construction, or construction of” the improvement 

to real property. All of the products we have found to be 

ordinary building materials in the Cape Henry Towers line of 

cases were designed by someone other than the designer of the 

improvement into which those products were incorporated. Thus, 

Code § 8.01-250 applies to manufacturers even when the 

manufacturer, rather than a person identified in the statute, 

designs the ordinary building material in question. 

 As a fungible component part of an improvement to real 

property, the drain cover is “ordinary building material” and is 

not excluded from the protection of Code § 8.01-250 as 

“equipment or machinery or other articles.” Hayward is thus 

entitled to the protection of the statute of repose. 

Accordingly, we hold the trial court did not err in granting 

Hayward’s plea in bar. 

III. CONCLUSION 
19

 The trial court did not err in sustaining Poolservice’s 

demurrer because Baker’s amended motion for judgment alleged 

Poolservice owed duties that are not recognized in Virginia law. 

Similarly, the trial court did not err in granting Hayward’s 

plea in bar because Baker’s motion for judgment was filed after 

the expiration of the five-year period provided in Code § 8.01-

250. Accordingly, we will affirm the judgments of the trial 

court sustaining Poolservice’s demurrer, granting Hayward’s plea 

in bar, and dismissing the claims against both parties with 

prejudice. 

Affirmed.