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Kohn v. Darlington Community Schools7/1/2005
or any amount of time. Stated another way, the statute protects all who are involved in the actual improvement of real property to the extent they participated in improving the property. The only time individuals involved in the improvement of real property are held liable (after ten years) under the statute is when their liability arises from conduct that preceded or followed the actual improvement.
In Funk, the court held the 1979 statute unconstitutional because it continued to fail to cover owners and occupiers in relation to any liability based on design defects in the improvement or construction of the improvement, but held that the statute's inclusion of those who furnish materials cured the statute's under-inclusiveness in relation to materialmen:
We invalidated the predecessor of this statute [in Kallas] because no reasonable distinction could be found between the builders in the protected class and other like materialmen and owners who were not protected by the statute. As pointed out above, furnishers of materialsand land surveyorshave now been included in the protected class. No doubt, this reduces the under-inclusiveness of the statute, but owners or occupants who may be liable to suit by third parties as the result of design defects or construction errors or omission are not in the protected class.
Funk, 148 Wis. 2d at 73 (emphasis added). Here, the statute continues to apply to those who furnish materials. It simply does not cover those whose liability arises because of a defect in the material, as did the statute at issue in Funk. However, the current version of the statute now applies to owners and occupiers to the extent their liability is based on design defects or construction errors. They are held liable after ten years only for conduct that occurred after the construction of the improvement.
Owners and occupiers are protected to the extent they are involved in the actual improvement of the property. They are not protected for post-improvement conduct, such as negligent inspection or maintenance of the improvement. Likewise, material providers are protected in relation to their conduct in the improvement of the property----furnishing materials----but are not protected for conduct that occurred prior to the improvement, namely, producing defective materials. The statute applies with equal force to each member of the classes defined in the statute. The statute protects all those involved in the improvement of real property to the extent liability is based upon such involvement and does not foreclose addition to the numbers included in each class.
That the legislature has chosen not to protect individuals whose conduct precedes or follows the improvement of real property is completely rational, because the purpose of the statute is to protect individuals from liability based upon the actions that occur during their involvement in improving the property. As noted, part of the impetus behind amending ยง 893.89 was to encourage participation in state-sponsored construction projects. Thus, excluding owners and occupiers from protection from liability based on negligence in inspecting and maintaining the improvement is rational because the project is already completed at the time when these negligent acts occur.
Likewise, excluding material producers from protection from liability when liability is based on defects in material (as opposed to the furnishing of those materials) is rational because those defects will exist regardless of the use to which the material is put. That is, the act giving rise to liability----the defective design or manufacture of the materials----occurs prior to any involvement in the improvement to
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