Wisconsin Court of Appeals
Torts — premises liability — statute of repose
Claims based upon the lack of a safety gate on an elevator are subject to the ten-year statute of repose set forth in sec. 893.89.
“The circuit court only dismissed Garrido-Crisanto’s claims to the extent that they were based on the single fact that the elevator did not have a safety gate. The circuit court specifically ruled that his claims based on negligent maintenance and repair as supported by Bertz’s expert report were not protected by the statute of repose. Garrido-Crisanto contends that although the failure to include a safety gate on the elevator is a design defect, that is, a structural defect that traditionally falls squarely within the statute of repose, the exemption set forth in WIS. STAT. § 893.89(4)(c) should apply because Heritage was negligent “for failing to inspect/repair/replace an unsafe elevator by adding a simple safety gate” and because Heritage knew the elevator was unsafe. However, like in Hocking, such a conclusion would create an exception that swallows the rule ‘because every improvement that is negligently designed could be considered an ongoing nuisance that the owner or operator negligently maintains by failing to correct.’ See id., 326 Wis. 2d 155, ¶47. Consequently, like the circuit court, we reject Garrido-Crisanto’s assertion that we should apply § 893.89(4)(c)’s exception ‘for damages resulting from negligence in the maintenance, operation or inspection of an improvement to real property’ to Garrido-Crisanto’s claims that the elevator should have had a safety gate.”
Recommended for publication in the official reports.
Dist. I, Milwaukee County, Pocan, J., Brennan, J.
Attorneys: For Appellant: Harding, Victor C., Milwaukee; For Respondent: Pytlik, Paul J., Waukesha; Tenebruso, Evan, Waukesha