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Kohn v. Darlington Community Schools7/1/2005
shifted to another class whose ability to compensate for injuries is questionable. . . . "'"It is not at all inconceivable that the owner or person in control of such an improvement might be held liable for damage or injury that results from a defective condition for which the architect or contractor is in fact responsible."'"
Id. at 74-75 (quoting Kallas, 66 Wis. 2d at 389 (quoting Skinner v. Anderson, 231 N.E.2d 588 (Ill. 1967))). Further, the court stated:
"Control" as a standard to justify the under-inclusiveness of the statute is unrelated to the fundamental purpose for which the statute was intended. It is a meaningless distinction.
The arbitrary non-inclusion of property owners and tenants was not cured by the addition of land surveyors and materialmen to the protected class. 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.
Id. at 77 (emphasis added).
Following our decision in Funk, the legislature created 1993 Wis. Act 309, which amended § 893.89. As explained in the legislative history of 1993 Wis. Act 309, the amendments to § 893.89 were passed out of a concern that groups were reluctant to participate in state-sponsored construction projects because of the limited period of protection offered by state-purchased insurance coverage and the potential for unlimited tort liability past the end of such coverage. See LRB Drafting File, 1993 Wis. Act 309. The legislature also expressed concern that:
a major property owner, the State has a loss exposure for anyone injured in a State building. Due to the court ruling [in Funk], the State could be deemed liable even though maintenance was proper and the building designed and constructed to meet code. . . . Since this bill pertains only to building improvements, it would not prevent recovery where the State negligence in the maintenance of buildings was shown.
Id.
Thus, it is clear that the purpose of § 893.89 is to provide protection from long-term liability for those involved in the improvement to real property. This purpose has been recognized as legitimate by this court: "' here are public policy reasons that might justify a limitations period that takes into consideration those who are engaged in the construction business . . . .'" Funk, 148 Wis. 2d at 70 (quoting Kallas, 66 Wis. 2d at 391). In other words, the legislature is entitled to address "the long-term liability----the 'long tail of liability'----that accompanies torts of commission or omission in the construction of durable buildings." Id. at 74.
Given that the purpose behind § 893.89 is legitimate, we do not consider whether the legislature made a wise policy decision in choosing to protect those involved in the improvement of real property versus other individuals or whether other groups of individuals deserve protection. Our review is limited to whether the classifications drawn in the statute are rationally related to the purpose of protecting those involved in the improvement of real property from long-term tort liability.
This court in both Kallas and Funk invalidated the different iterations of the statute of repose for improvements to real property because the distinctions the respective statutes drew between classes of defendants did not relate to the purpose of the statute----to limit liability after a certain point in time for damages caused from improvements to real property. Both the statute at issue in Kallas and the statute at issue in Funk purported to be concerned with protecting those involved in the improvement of real property but e
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