Statute of repose bars safe places claim

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Ten years after a structure is completed, sec. 839.89 bars safe place claims from injuries caused by structural defects, the Wisconsin Supreme Court held on June 6.

In 2001, Julie Mair fractured her right femur in a women’s bathroom located in the chalet of the Trollhaugen Ski Resort. She fell when she stepped on a recessed floor drain.

The bathroom had been constructed in 1976, and neither the configuration of the bathroom, nor the floor drain, had been modified since the original construction.

According to an expert retained by Mair, the drain should be level with the floor if it is in a walkway, but the recess does not violate any state building codes.

Mair brought suit against Trollhaugen, alleging negligence and violation of the safe place statute, sec. 101.11.

Polk County Circuit Court Judge Molly E. GaleWyrick granted summary judgment in favor of Trollhaugen, and the court of appeals affirmed in a published decision, Mair v. Trolhaugen Ski Resort, 2005 WI App 116, 283 Wis.2d 722, 699 N.W.2d 624.

The Supreme Court accepted review, but also affirmed, in a unanimous decision by Justice Jon P. Wilcox.

Safe Places Claim

Mair had not appealed the dismissal of her negligence claim, but only the safe place claim, based on sec. 101.11, which requires that premises be designed, constructed, and maintained in as safe a condition as the nature thereof reasonably permits.

Despite the defect, the court held that the claim was barred by the builders’ statute of repose, sec. 893.89, which provides, in pertinent part:

“[N]o cause of action may accrue and no action may be commenced … against the owner or occupier of the property or against any person involved in the improvement to real property after the end of the [ten-year] exposure period, to recover damages … for any injury to the person … arising out of any deficiency or defect in the design, land surveying, planning, supervision or observation of construction of, the construction of, or the furnishing of materials for, the improvement to real property…”

Because the alleged defect is a structural one, rather than an unsafe condition associated with the structure, the court held that the action was time-barred.

A structural defect arises by reason of the materials used in construction or from improper layout or construction, and under the safe place statute, a property owner is liable for injuries caused by structural defects, regardless of whether he knew or should have known of the defect.

An unsafe condition associated with the structure arises from the failure to keep an originally safe structure in proper repair or properly maintained. An action based on an unsafe condition requires proof of actual or constructive notice.

The court held that the recessed drain was a structural defect, because it was undisputed that the floor and drain were in their original condition since construction decades earlier.

The court reasoned, “there is no allegation that Trollhaugen allowed the bathroom floor to fall into disrepair or did not maintain it in a safe manner. … there is no dispute that the floor and drain were in their original condition since the initial construction of the ski resort approximately 30 years ago, and Mair’s allegations are based on an alleged failure to safely construct the bathroom.”

Mair argued that the failure to modify the drain to comply with modern safety standards created an unsafe condition associated with the structure, but the court rejected the distinction.

The court reasoned, “Because the design and placement of the floor drain and the condition of the surrounding floor have nothing to do with a failure to repair or maintain the property, they can be classified only as structural defects rather than unsafe conditions associated with the structure.”

No Exception

Finally, the court rejected Mair’s argument that her claim fell within the exception created in sec. 893.89(4)(c) for claims brought against “[a]n owner or occupier of real property for damages resulting from negligence in the maintenance, operation or inspection of an improvement to real property.”

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The court concluded that the “essence” of Mair’s claim was failure to design and construct a safe building, rather than failure to maintain one.

Before concluding, the court supported its decision by citation to legislative history. Twice, the legislature enacted a builders’ statute of repose that applied only to builders, but excluded owners and occupants. And twice, the Supreme Court held that the statute violated the Equal Protection Clause.

The current version provides protection for owners and occupiers to the extent they were involved in the original design and construction, but not for negligence in maintenance or repair. In Kohn v. Darlington Cmty. Schs., 2005 WI 99, 283 Wis.2d 1, 698 N.W.2d 794, this distinction withstood constitutional challenge.

Finding that application of the statute to safe place claims is consistent with the history, the court observed, “the legislature was forced to choose between forgoing the statute of repose altogether or including owners and occupiers within its scope.”

Accordingly, the court affirmed.

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David Ziemer can be reached by email.