Loose tiles not a structural defect

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"The Rizzutos offer no evidence that the granite tiles, as they were installed originally, were unsafe. Thus, they have presented no evidence that the tiles, as installed originally, constituted a ‘structural defect.’" Judge Ralph Adam Fine Wisconsin Court of Appeals

Where an elevator was renovated by attaching 20-pound granite tiles to the walls, and a tile fell, striking an occupant, the defect was not a structural one, but a "condition associated with the structure," the Wisconsin Court of Appeals held on Feb. 25.

As a result, the injured party was required to show that the owner of the building had notice of the defect in order to recover.

Jackson Street Real Estate, LLC, owns a building in which Kristin D. Rizzuto worked. On Aug. 14, 1998, Rizzuto was injured when a 20-pound granite tile fell from an elevator wall onto her head.

The tiles were not an original part of the building, but were installed during a reconstruction project in 1988, prior to Jackson Street purchasing the building. The tiles were att-ached only by adhesive.

Rizzuto brought suit against Jackson Street, and claimed she was not required to prove either actual or constructive notice on Jackson Street’s part, because the loose tile was a structural defect.

Milwaukee County Circuit Court Judge Thomas R. Cooper disagreed, and granted summary judgment in favor of Jackson Street. Rizzuto appealed, but the court of appeals affirmed in a decision by Judge Ralph Adam Fine.

Case Law

The owner of a public building can be liable for both structural defects and unsafe conditions associated with the structure of the building. For liability to exist for the latter, however, a plaintiff must show actual or constructive notice. For the former, notice is not required.

The court cited examples of each. "Structural defects" has been interpreted to include the failure to install a handrail along a staircase, a hole in a roof without a surrounding railing, and a false ceiling that did not support a worker’s weight.

"Unsafe conditions associated with the structure" has been interpreted to include improper lighting, a loose window screen, and a missing theater seat.

In assessing whether the loose tile was a structural defect or not, however, the court looked primarily to the case of Barry v. Employers Mutual Casualty Co., 2001 WI 101, 245 Wis.2d 560, 630 N.W.2d 517.

In Barry, the plaintiff was injured on a defective stairway. The stairway had originally been fully carpeted. As the carpet began to come loose, however, the owner installed vinyl strips, called nosings, on the front of each step. On the step on which Barry fell, the nosing was loose and partially detached from the step.

The Supreme Court held that the nosings were an unsafe condition associated with the structure of the building, and thus, proof of notice was required for the plaintiff to prevail. The court reasoned, "the accident was attributable to the failure to safely repair or maintain the steps rather than a defect in the original structural design or construction of the steps." Barry, 630 N.W.2d at 524.

Applying Barry to the case at bar, the court of appeals held that the tiles
were also conditions associated with the structure.

The court reasoned, "The Rizzutos offer no evidence that the granite tiles, as they were installed originally, were unsafe. Thus, they have presented no evidence that the tiles, as installed originally, constituted a ‘structural defect.’ Rather, the accident here was the result of an adhesive failure that occurred approximately 10 years after the tile was installed originally. As with the loose nosing in Barry, the loose tile that hit Kristin Rizzuto was arguably a result of Jackson Street’s failure to maintain the elevator in a safe condition. … Although both Barry and this case involve a renovation, here, unlike Barry, the remodeling was not undertaken to fix a potentially dangerous condition (loose carpeting), but was, rather, part of a general remodeling unconnected with any perceived or potential danger. But this superficial distinction is immaterial."

Building Code

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The court also rejected Rizzuto’s argument that notice was not required because the tiles were installed in violation of the Wisconsin building code.

Rizzuto submitted the report of an elevator consultant, stating, "if the granite tiles had been securely fastened and so supported that they would not loosen or become displaced while in ordinary service, … this incident would not have occurred."

However, the report was not submitted to the trial court except in Rizzuto’s response to Jackson Street’s reply brief. The court stated, "The Rizzutos never developed before the trial court their contention that Jackson Street was guilty of negligence per se, and, accordingly the trial court was unable to assess it without, essentially, first making their argument for them. We do not expect trial courts to decide issues that are not sufficiently developed."

Accordingly, the court affirmed.

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David Ziemer can be reached by email.