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Kohn v. Darlington Community Schools7/1/2005
rther concludes that § 893.89 does not violate the equal protection clauses of the federal and state constitutions. Id. For the reasons stated by this court in Kallas Millwork Corp. v. Square D Co., 66 Wis. 2d 382, 225 N.W.2d 454 (1975), and Funk v. Wollin Silo & Equipment, Inc., 148 Wis. 2d 59, 435 N.W.2d 244 (1989), I disagree. I therefore respectfully dissent from that portion of the decision.
I.
Twice before this court has struck down predecessors to Wis. Stat. § 893.89. A careful review of those cases reveals that Wis. Stat. § 893.89 remains unconstitutional.
In Kallas, this court determined that the predecessor statute to Wis. Stat. § 893.89, Wis. Stat. § 893.155 (1971), violated constitutional guarantees of equal protection under the United States and Wisconsin Constitutions. Kallas, 66 Wis. 2d at 391, 393. The issue was whether there were "any real differences to distinguish the favored class----those persons who perform and furnish the 'design, planning supervision of construction or construction' of improvements to real property----from other classes, such as materialmen, who are ignored by the statute, and owners and occupants, who are specifically excepted." Id. at 389. This court concluded there were not. It was unreasonable to provide "special and unusual immunities" to those persons "performing or furnishing the design, planning, supervision of construction or construction of such improvement to real property." Id. at 388, 391. As the Kallas court concluded: "it is ludicrous to permit a recovery against a manufacturer of a negligently formulated mortar or adhesive, but to deny a recovery against an architect who negligently designed a cornice or façade so that its fall was inevitable." Id. at 391-92.
Months after this court's decision in Kallas, the legislature scrambled to revise Wis. Stat. § 893.155 and eventually created Wis. Stat. § 893.89 (1979-80). In an attempt to bypass Kallas, the legislature included "surveyors" and "material suppliers" (that is, those who merely furnish materials) to the protected class and deleted the sentence that excluded "owners and occupiers." See Funk, 148 Wis. 2d at 66, 73.
The statute was again challenged, and in Funk, this court again struck down the statute as violating equal protection. Id. at 77. The Funk court observed that the legislature attempted to justify its distinction between persons who had a hand in planning, design, and construction of improvements against those who subsequently own and occupy the property by noting that the former lacked control "over other forces, uses and intervening causes" that caused strain on the improvements. Id. at 66-67. "'Control,'" this court wrote, "is irrelevant to the fundamental problem the statute purportedly addresses, 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. In the end, this court noted that the protected persons would never be liable for negligence arising from the owner's and occupier's failure to adequately control the property. Id. at 75. If the legislature was actually concerned with protecting those without "control," then this court noted that "component parts manufacturers" should also be protected. Id. at 76.
Thus, while the legislature purported to cure the under-inclusiveness that invalidated the statute in Kallas, this court in Funk concluded that "it failed to do so in a meaningful way." Id. Because " he statute still affords its protection and favors without a reasonable and rational basis," this court concluded the statute violated equal protection. Id. at 77.
Following this co
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