 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Kohn v. Darlington Community Schools7/1/2005
xcluded classes of defendants who could be involved in such improvements. In other words, the principal objection to the precursors of § 893.89 was "the under-inclusiveness of the statute ." Funk, 148 Wis. 2d at 73 (emphasis added). Kallas held the statute unconstitutional because it failed to cover owners and occupiers and materialmen. Funk held the statute unconstitutional because, although it applied to material providers, it failed to cover the liability of owners and occupiers in relation to defects in the design and construction of the improvement.
To this extent, the present version of § 893.89 cures what the court in Kallas and Funk found objectionable. Rather than drawing arbitrary profession-based distinctions, as did the statutes at issue in Kallas and Funk, the current version of § 893.89 draws distinctions based on the conduct of certain individuals. The statute begins by broadly including within its protections "owner or occupier of the property or . . . any person involved in the improvement to real property" to the extent that a cause of action is based on "any deficiency or defect in the design, land surveying, planning, supervision or observation of construction of, the construction of, or the furnishing of materials for, the improvement to real property." Wis. Stat. § 893.89(2).
The statute then proceeds to exclude certain classes of defendants based on the type of conduct that gives rise to potential liability. Owners and occupiers are excluded from the statute's protections only if a cause of action is based upon "damages resulting from negligence in the maintenance, operation or inspection of an improvement to real property." Wis. Stat. § 893.89(4)(c). Thus, owners and occupiers are included within the protection of the statute so long as they are being sued for their conduct in improving the property. This class loses its protection when liability is based upon subsequent negligent maintenance, operation, or inspection of the improvement. Further, unlike the statute at issue in Funk, the liability of those who are involved in the improvement of property is not shifted to owners or occupiers. See Funk, 148 Wis. 2d at 74-75. Owners and occupiers are held liable only for their own negligent maintenance, inspection, or repair of the improvement once it is complete.
Likewise, the statute excepts those who provide material for an improvement if a suit is based on "any defect in any material used in an improvement to real property . . . ." Wis. Stat. § 893.89(2). Thus, material providers are included within the scope of the statute to the extent that a cause of action is based on "the furnishing of materials for" the improvement, § 893.89(2), and are excluded only when liability is based upon a defect in the material provided. In other words, material providers are included within the protections of the statute for their involvement in the improvement----furnishing materials----but are excluded based on their prior conduct of designing or manufacturing the material.
In sum, § 893.89 protects all persons involved in the improvement to real property but does not protect individuals whose liability arises based on conduct occurring prior to or subsequent to the improvement. These distinctions are rational because they are real, substantial distinctions that are germane to the purpose of the statute----to protect those involved in the improvement of real property. This statute is distinguishable from its predecessors because, as noted, the current statute immunizes all conduct related to the improvement after a period of ten years. It does not cover liability-forming conduct unrelated to the act of improving property, such as manufacturing defects, f
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Wisconsin Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|