Statute of repose has seen several renovations

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In March of this year, a piece of cornice fell from the Milwaukee County Courthouse, which was built in 1931.

No one was injured. If someone had been hurt, though, it seems clear that any fault for the injury would lie with how the county has maintained the structure, not how it was built nearly 80 years ago.

When someone is injured, though, and the building is newer, it often is a legitimate question whether the structure was negligently built, or negligently maintained. Over the last several decades, the Wisconsin Legislature and courts have had a tug of war over who can and can’t be held liable when the problem is the original construction, rather than the maintenance.

The Legislature has tried to create a rule that those involved in the construction are immune from liability after passage of a certain amount of time, while anyone who is responsible for maintaining the property is potentially liable. The courts, however, have repeatedly thwarted those efforts.

Arguably, the current interpretation actually hurts those in the construction industry, the intended beneficiaries of the statute. If a building owner hires a contractor to update an old building, he exposes himself to a fresh ten years of potential liability, should the job be done poorly.

Yet if the owner does nothing at all to improve an unsafe condition that was part of the original construction, he enjoys the same immunity from lawsuits as the original contractors.

Thus, he has an incentive to leave it as is and a disincentive to modernization.

But some attorneys doubt that the statute discourages renovation in practice. Buck Sweeney, a construction lawyer with Axley Brynelson in Madison, said, “When an owner wants to remodel a building, the questions are ‘does he have the money to do it?’ and ‘is the return on the investment there?’ They don’t worry about this statute.”

TIMELINE:

1975

Originally, Wisconsin had a statute, codified as sec. 893.155, which provided that no lawsuit could be brought against “any person performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property, more than six years after the performance or furnishing of such services and construction.”

Thus, the statute is what is called a statute of repose, in contrast to a statute of limitation. A statute of repose gives a defendant immunity from liability after passage of a certain amount of time that begins to run at the time of the defendant’s action. A statute of limitation, in contrast, does not start running until the plaintiff is injured.

1989

Again, the statute was struck down by the Supreme Court — this time because it did not protect property owners and tenants from suit.

The Court explained, “Although the Legislature purported to cure the under-inclusiveness which invalidated the statute considered in Kallas, it failed to do so in a meaningful way.” Funk v. Wollin Silo & Equipment, Inc., 148 Wis.2d 59, 77 (1989)

The Wisconsin Supreme Court strikes the statute down as unconstitutional, for two reasons.

1

Because it could eliminate any cause of action by an injured party before the person was even injured. The court held that this violated the right to remedy in the state constitution.

2

Second, the court held that the statute violated the Equal Protection Clause, concluding, “it is ludicrous to permit a recovery against a manufacturer of a negligently formulated mortar or adhesive, but to deny a recovery against an architect who negligently designed a cornice or façade so that its fall was inevitable.” Kallas Millwork Corp. v. Square D Co., 66 Wis.2d 382, 391-392 (1975).

The Legislature fired back by amending the statute to include material suppliers and land surveyors within its protection, renumbering it sec. 893.89.

1993:

The Legislature amends the statute to provide that the statute of repose does not apply to “An owner or occupier of real property for damages resulting from negligence in the maintenance, operation or inspection of an improvement to real property (emphasis added).” The statute of repose was also extended to 10 years from six.

2005:

Any doubts about the constitutionality of this version of the statute were finally laid to rest by the Supreme Court. In Kohn v. Darlington Community Schools, 283 Wis.2d 1 (2005), the court held that it violated neither the right to remedy nor the Equal Protection Clause.

2006:

The statute’s amended language created a new problem — how to reconcile the statute with sec. 101.11, the Safe Place Statute.

The Supreme Court resolved that question in Mair v. Trollhaugen Ski Resort, 715 N.W.2d 598 (2006), holding that the statute of repose trumps the Safe Place Statute.

The case arose after a woman was injured in the bathroom of a ski resort in 2001 by tripping on a recessed floor drain. The bathroom had been built 25 years earlier, and had never been modified. Evidence was presented that it violated industry standards to place a recessed drain in a pathway.

Nevertheless, the court held the ski resort was protected from liability. The court acknowledged that its holding “limits the duty of owners and occupiers to bring existing buildings in line with modern concepts of safety.” Mair, at 609.

But the court held that, because it was undisputed that the defects in the floor drain had existed since the building’s construction, the Safe Place Statute did not apply, and the builder’s statute of repose gave the owner immunity from liability.

What is ironic is that it is clear from the statute’s strange history that the only reason the statute protects property owners is because the court has repeatedly held it would be unconstitutional not to include them in its protection.

Yet, the court concluded in Mair that property owners must be protected from liability for unsafe conditions, because it “is necessary for the statute of repose to serve its intended purpose.” Id.