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Kohn v. Darlington Community Schools7/1/2005
REVIEW of a decision of the Court of Appeals. Reversed.
The plaintiffs, Elaine, Ronnie, and Lori Kohn (the Kohns), seek review of an unpublished per curiam court of appeals decision, Kohn v. Darlington Community Schools, No. 2003AP1067, unpublished slip op. (WiS.Ct. App. July 1, 2004). The court of appeals reversed an order of the Lafayette County Circuit Court, Daniel L. LaRocque, Judge, granting summary judgment to the defendant, Illinois Tool Works, Inc. (ITW).
I. FACTS
The following facts are undisputed. On September 29, 2000, Elaine Kohn and her then four-year-old daughter, Lori Kohn, attended the homecoming football game at Darlington High School. At approximately 2:30 p.m., Lori fell through the space at the foot of her seat in the home bleachers to the ground 15 feet below, sustaining injuries.
The bleachers in question were purchased by Darlington Community Schools (Darlington) in 1969 from Standard Steel Industries, Inc. (Standard) at a cost of $16,167. Standard agreed to ship the materials for the bleachers and supervise their construction.
The home bleachers are 15 rows tall and over 100 feet long. They contain nearly 1500 aluminum seats and a 50-inch-wide walkway elevated 30 inches above the ground. The bleachers are located on one side of the Darlington High School football stadium and track field. A press box and wheelchair accessible ramp were later added to the bleachers.
Darlington inspected the bleachers each year after construction and performed necessary repairs, including repainting, external improvements to the press box, and replacement of the walkway planks, footboards, and side rails. The bleachers were never moved or taken apart. The parties do dispute whether the bleachers are anchored into the ground.
II. PROCEDURAL POSTURE
On August 15, 2001, the Kohns filed suit against Darlington and its insurer, contending that Darlington violated its duty of care to the plaintiffs, that the bleachers were negligently designed, constructed, and/or maintained, and that the bleachers were inherently unsafe and posed a hazardous condition to frequenters of the premises. On April 15, 2002, the Kohns filed an amended complaint against ITW and its predecessors in interest. The Kohns alleged that the bleachers were in a dangerously defective condition when they left the control of Standard and that the product caused harm to the Kohns. The Kohns further alleged that as a result, Standard and its successors were subject to strict liability.
On August 2, 2002, ITW filed a motion for summary judgment seeking to dismiss the Kohns' action against it as time barred under Wis. Stat. § 893.89 (2001-02). In their brief in opposition, the Kohns argued that § 893.89 did not apply because their claim against ITW was a product liability claim, not a claim for improvement to real property. At the hearing on the motion, the Kohns also argued that the statute violated Article I, Section 9 of the Wisconsin Constitution, and the equal protection clauses of the federal and state constitutions.
The circuit court first ruled that the bleachers constituted an improvement to property as a matter of law, and that therefore the Kohns' claims against ITW were governed by the ten-year repose period set forth in § 893.89. Next, the circuit court held that the statute was not unconstitutional on equal protection grounds because the classifications within § 893.89 contained a rational basis. Finally, the circuit court ruled that the statute did not violate Article I, Section 9 of the Wisconsin Constitution, relying on this court's decision in Aicher v. Wisconsin Patients Compensation
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