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Kohn v. Darlington Community Schools7/1/2005
that occurred after the improvement was installed and may encounter proof problems that a material producer does not.
Conversely, an individual who merely installs an improvement is distinguished from an owner or occupier who negligently maintains or repairs an improvement because the former's duty to properly install the improvement ends at the time the improvement is completed, whereas an owner or occupier has a continuing duty to properly maintain and repair the improvement. A contractor who installs an improvement may thus face liability long after any negligent conduct has occurred, whereas the owner or occupier who continually negligently maintains an improvement faces liability for recent acts of negligence. With regard to these two classes, the legislature could have reasonably determined that:
"' he lapse of time between completion of an improvement and initiation of suit often results in the unavailability of witnesses, memory loss and a lack of adequate records. Another problem particularly critical is the potential application of current improved state-of-the-art standards to cases where the installation and design of an improvement took place many years ago.'"
Krull v. Thermogas Co. of Northwood, 522 N.W.2d 607, 615 (Iowa 1994)(quoted source omitted).
An owner or occupier engaged in continuous acts of negligent maintenance, inspection, and repair clearly does not face the same concerns. Moreover, such acts are in no way related to the act of completing the improvement. Further, as previously stated, owners and occupiers are held liable only for their own post-improvement negligence; the statute eliminates any shift of liability from those improving the property to those who own or operate the property.
These real and substantial distinctions suggest the propriety of different legislation governing: 1) those involved in the improvement of real property who produce defective materials; 2) those who negligently inspect, maintain, and repair improvements; and 3) those who merely design, survey, supervise, or construct the improvement.
Therefore, we cannot conclude that § 893.89 is patently arbitrary or bears no rational relationship to a legitimate governmental interest. The classifications within § 893.89 rationally serve the legitimate purpose of limiting the long-term liability of those who are involved in the improvement of real property. The distinctions drawn by the statute are based on real and substantial distinctions, are germane to the purpose of the law, are not based on existing circumstances only, apply equally to all the members of each respective class, and suggest the propriety of different legislation for each class. Thus, we hold that § 893.89 does not violate the equal protection clauses of the state or federal constitution.
VI. SUMMARY
We hold that the bleachers in question constitute an improvement to real property for purposes of § 893.89. Further, we hold that § 893.89 does not violate Article I, Section 9 of the Wisconsin Constitution. Finally, we hold that § 893.89 does not violate the guarantee of equal protection in the federal and state constitutions.
By the Court.--The decision of the court of appeals is reversed.
LOUIS B. BUTLER, JR., J. (dissenting). The majority concludes that the home bleachers at Darlington High School purchased in 1969 constitute an "improvement to real property" for purposes of Wis. Stat. § 893.89 (2001-02), and that § 893.89 does not violate Article I, Section 9 of the Wisconsin Constitution. Majority op., . I agree, and join the majority's opinion with respect to its decision on these issues. The majority fu
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