Safe Place Case Analysis

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The decision creates an absurd disincentive on the part of owners and occupiers of property against keeping buildings in line with modern concepts of safety, something the court acknowledged, even though it found that its interpretation is “necessary for the statute of repose to serve its intended purpose.”

Even if a property owner is told by a building safety expert that a particular part of the structure is unsafe, the owner has no incentive to have it redone.

As long as the structural defect is part of a construction project that was “substantially completed” more than 10 years earlier, the owner or occupier is immune from suit for any injuries that may result.

If the owner remedies the structural defect, then he loses immunity for the next 10 years.

Nor does it appear to matter whether the structural defect is serious enough to violate any state building codes. In this case, it was undisputed that there was no such violation, only expert testimony that the design would not meet modern industry standards.

However, nothing in the court’s discussion suggests that there is even an arguable basis for drawing such a distinction.

The court’s interpretation of the legislative history is also noteworthy.

Two previous versions of the statute were struck down by the Supreme Court on equal protection grounds, because the statute provided immunity to builders, but not to owners and occupiers.

From this, the court concludes that the legislative purpose in enacting the current statute was to include owners and occupiers within the scope of the statute.

A more plausible, if somewhat cynical, interpretation is that the intent was to continue to exclude owners and occupiers to whatever extent they could be excluded, without running afoul of the Equal Protection Clause.

Under this interpretation, owners and occupiers would never be included in the statute of repose, unless their exclusion from it on the facts in the case would create an equal protection problem.

That the court viewed the legislative history in the light it did could have ramifications in other cases.

	Related Links Wisconsin Court System Related Article Statute of repose bars safe places claim

For example, consider the medical malpractice caps in sec. 893.55. The previous caps were held unconstitutional in Ferdon v. Wis. Patients Compensation Fund, 2005 WI 125, 284 Wis.2d 573, 701 N.W.2d 440.

The Legislature responded by passing slightly higher caps, but the governor vetoed the bill. The Legislature then passed still higher caps, which the governor approved.

The cynical, yet most reasonable, interpretation of that legislative history is that the intent was to pass the lowest caps that can survive constitutional scrutiny.

However, if one were to employ the rationale of the court in the case at bar, the conclusion would be that the Legislature intended to be generous to plaintiffs.

– David Ziemer

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David Ziemer can be reached by email.