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Kohn v. Darlington Community Schools7/1/2005
the property. The material is defective when it is designed or produced and remains defective regardless of the acts of third parties related to the improvement in which it is used. Notably, the current version of ยง 893.89, with regard to materialmen, is almost identical to the statute at issue in Funk in that it covers those who furnish materials for an improvement, but not those responsible for defects in the material. The court in Funk explicitly held that in relation to materialmen, the statute was no longer underinclusive because it applied to "furnishers of materials[.]" Funk, 148 Wis. 2d at 73.
Additionally, because materials are often designed without regard to the specific projects in which they will be incorporated, a defectively designed material will affect a large number of projects and individuals. Further, the material will continue to be defective until its design or manufacturing process is changed. Thus, when a manufacturer defectively designs a material, such as aluminum, that aluminum will be placed in the stream of commerce and will affect every project in which it is utilized. The aluminum that rolls off the assembly lines will continue to be defective until the manufacturer changes the design. As such, when material is defective, it will affect a large number of people and there will be numerous individuals who can testify as to its defective condition.
In contrast, when an improvement is designed or constructed, any tortious acts are confined to the limited time during which the improvement is being planned and constructed and are directed to the specific project under construction. As such, the number of witnesses who can testify as to such tortious conduct is limited to those involved in that specific improvement. Thus, the legislature may reasonably have concluded it would be much more difficult to prove or disprove wrongful conduct, due to the lack of witnesses, faded memories, etc., in relation to a specific improvement, than it would be to prove or disprove wrongful conduct in relation to the defective design of the material utilized in that improvement. It is reasonable to conclude that after ten years it would be much more difficult to prove or disprove tortious conduct in relation to the design or construction of a set of bleachers than it would to prove the raw material utilized in those bleachers was defectively designed.
While there may be instances in which a material provider specifically designs a material for a particular improvement project or custom manufactures the material for that project, there is still a rational basis to distinguish this class of defendant from those protected under the statute. A material producer that designs or produces a defective material places that material in the stream of commerce and has the ability to change a defective design. Further, the material itself remains defective throughout the life of the project in which it is used. For instance, had Standard produced defective aluminum for use in the seats in the bleachers, that aluminum would have remained defective regardless of any subsequent modifications to the bleachers.
In contrast, an individual who merely installs an improvement completes his work upon the installation of the improvement. That improvement may then be subsequently modified by the owner or occupier. The contactor who installed the improvement has no right to ensure that his work is properly inspected and maintained throughout the life of the improvement. Thus, in contrast to the material supplier, the installer's work may be subsequently modified by another party. Therefore, the contractor who installs an improvement may face potential liability for conduct of others
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