2010AP1195 Wagner v. Cincinnati Casualty Co.

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Torts
Safe-place statute; structural defects

An exterior replacement window alleged to be hazardous due to faulty installation is a “structural defect” rather than “an unsafe condition associated with the structure” under the safe-place statute.

“From the guidance provided by Barry and the examples above, we conclude that the hazardous condition in this case most closely resembles the facts of the ‘structural defect’ cases. Under the view of the facts most favorable to the contractor for purposes of the summary judgment motion, the contractor created the window hazard through faulty installation, and not as part of a repair or maintenance effort. It is alleged that the window was prone to falling dangerously into the work place from the time of its installation. In this way, it resembles the too-low balcony railing in Frion and the too-weak false ceiling in Bellmann, both of which were hazards from the start. This contrasts with features of a structure, such as the stairs in Barry and the theater seat in Boutin, which were installed safely and then developed into a hazard (loose nosing, missing cushion).”

“The building owner contends that ‘the window that struck Ms. Wagner was added to the building as part of a remodeling project,’ like the ‘added’ nosing in Barry. However, the window in this case was not an addition to an existing feature of the building—it fully replaced the prior window. Bearing in mind the caution in Barry that general formulations in this context are not easily crafted, Barry, 245 Wis. 2d 560, ¶24, we note that, at least in some contexts, reliance on the concept of ‘addition’ is not helpful. It will often be difficult to distinguish between an addition that is part of a repair and an addition that adds an entirely new building element. This is because work on a building typically involves ‘additions’ (as well as subtractions) of items and materials. In any case, however, in this instance it could not reasonably be said that the window replacement was a repair-like addition to the structure, as opposed to a construction-like alteration of it.”
Reversed and Remanded.

Recommended for publication in the official reports.

2010AP1195 Wagner v. Cincinnati Casualty Co.

Dist. IV, Rock County, Dillon, J., Blanchard, J.

Attorneys: For Appellant: Kurth, Patti J., Milwaukee; Cabush, Thomas A., Milwaukee; Gehring, Jason P., Milwaukee; Harken, Nick D., Milwaukee; For Respondent: Laffey, John J., Milwaukee; Stanaszak, Steven F., Milwaukee

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