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Kohn v. Darlington Community Schools7/1/2005
e statute was not protected. Id.
Subsequently, the legislature repealed and renumbered Chapter 893 of the statutes. § 28, ch. 323, Laws of 1979. Section 893.155 (1975), as amended by § 2, ch. 335, Laws of 1975, was renumbered as § 893.89. § 28, ch. 323, Laws of 1979.
Following the renumbering of the statute, this court in Funk, 148 Wis. 2d at 61, held that § 893.89 (1979-80) violated the equal protection clauses of the federal and state constitutions. The court in Funk found that " he revised statute now appearing as sec. 893.89 suffers from substantially the same deficiencies as the earlier one[,]" id. at 64, in that it continued to exclude owners and occupiers. Id. at 73. The court reasoned:
The substantive effect of the change, insofar as classification is concerned, is merely to add surveyors and material suppliers to the protected class. Owners and occupiers of land are still in the non-protected class. This deficiency alone places the new statute within the proscription of Kallas. Although the body of the statute no longer specifically excepts owners or occupants, the attached Finding (2)(b) states that any omitted classifications are not protected by the statute.
Id. at 66-67.
However, the revised statute at issue in Funk, just like the current statute, applied to individuals "'furnishing . . . materials . . . of such improvement.'" Id. at 64 (quoting Wis. Stat. § 893.89 (1979)). The court specifically noted that, as opposed to the statute at issue in Kallas, the 1979 version applied to individuals furnishing materials. Id. at 66. When analyzing whether the 1979 statute violated the equal protection clause, the court stated in regard to material providers: " urnishers of materials . . . have now been included in the protected class. No doubt, this reduces the under-inclusiveness of the statute . . . ." Id. at 73 (emphasis added). Thus, the 1979 statute in Funk was found unconstitutional only because it did not apply to owners and occupiers, as it did not mention this class of individuals. Id. Notably the statute at issue in Funk, although providing immunity to "material providers," made no mention of those responsible for defects in the material, and thus did not apply to them.
The court in Funk specifically stated that the overall purpose of the statute----limiting the long-term liability of those who improve real property----was a legitimate policy objective:
Thus, there is a rationale expressed that might tend to justify some special protection to tortfeasors whose liability, under ordinary tort rules, could potentially exist for decades. . . . However, laudable the general public purpose might be, it is the means used to effect that public purpose that is under scrutiny . . . ."
Id. at 70-71 (emphasis added). That is, while the Funk court found the purpose of the statute to be legitimate, it took issue with the classifications that that statute drew.
The court stated that the legislative findings that distinguished between those who improve property and those who own or occupy that property based on their control over the property was "a distinction without a relevant difference." Id. at 67. Specifically, the court found the "control" rationale to be unpersuasive because the statute, in attempting to limit the liability of those involved in the improvement of property, nonetheless protected some classes of defendants involved in the improvement of property and not others:
Both owners and tenants unprotected by the statute . . . may be subject to long-term liability for harms that result from the torts of the protected class. Liability is not terminated when it is
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