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Kohn v. Darlington Community Schools7/1/2005
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(a) A person who commits fraud, concealment or misrepresentation related to a deficiency or defect in the improvement to real property.
(b) A person who expressly warrants or guarantees the improvement to real property, for the period of that warranty or guarantee.
(c) An owner or occupier of real property for damages resulting from negligence in the maintenance, operation or inspection of an improvement to real property.
(d) Damages that were sustained before April 29, 1994.
(Emphasis added.) The Kohns' equal protection challenge focuses on the distinctions the statute draws between those who are involved in the improvement of real property, those who manufacturer or produce defective material utilized in the improvement, and owners or occupiers whose negligence in maintaining, operating, or inspecting the improvement results in damages.
Before discussing the classifications in § 893.89, it is necessary to understand the history of the statute. Section 893.89 represents the legislature's latest incarnation of a statute of repose governing improvements to real property. Two of the previous versions were found unconstitutional by this court.
In Kallas, 66 Wis. 2d at 384, this court struck down Wis. Stat. § 893.155 (1973), as unconstitutional on equal protection grounds. The statute provided a six-year statute of repose for actions arising out of the improvement of real property against "any person performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property[.]" Wis. Stat. § 893.155 (1973). However, the statute exempted from its protection "any person in actual possession and control as owner, tenant or otherwise, of the improvement at the time the defective and unsafe condition of such improvement constitutes the proximate cause of the injury for which it is proposed to bring an action." Wis. Stat. § 893.155 (1973).
The court in Kallas concluded that the statute, by protecting those involved in the design, planning, supervision of construction or construction of real property but not owners and occupants or materialmen, drew unreasonable distinctions between these groups. Kallas, 66 Wis. 2d at 389-91. The court ruled that there was no justification for "the special immunity accorded to the protected class but denied to others similarly situated." Id. at 392. Further, it stated: "While there are public policy reasons that might justify a limitations period that takes into consideration those who are engaged in the construction business, there appears no reason why only a very restricted class of those thus occupied is protected by the statute." Id. at 391.
The legislature promptly amended the statute by virtue of § 2, ch. 335, Laws of 1975, which deleted the exception for owners and occupiers and included surveyors and material providers within the statutory protection. In addition, § 1, ch. 335, Laws of 1975, contained extensive legislative findings and intent in order to justify the protection afforded in the statute. Specifically, the legislature stated that after completion of an improvement, those involved in its construction lack control over the real estate and have no opportunity or right to be made aware of any subsequent changes in the improvement, and no right to modify the improvement or ensure proper maintenance is conducted. § 1, ch. 335, Laws of 1975. The legislature also stated that it was in the public interest to set a point in time to limit liability for errors and omissions relating to the planning, design, and construction of improvements. Id. However, the findings also stated that any class not listed in th
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