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Kohn v. Darlington Community Schools7/1/2005
urt's decision in Funk, the legislature amended Wis. Stat. § 893.89. A number of changes were made: owners and occupiers were included in the protected class and a number of exceptions were carved out. See § 893.89 (2001-02). What is critical here, however, is that the legislature excluded a key class:
This subsection does not affect the rights of any person injured as the result of any defect in any material used in an improvement to real property to commence an action for damages against the manufacturer or producer of the material.
Id.
This exclusion reflects the exact same problem identified by this court in Kallas 30 years ago: "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." Kallas, 66 Wis. 2d at 391-92 (emphasis added).
If it was ludicrous then, it is ludicrous now. Nothing has changed. Negligent designers cannot lawfully be granted "special and unusual immunities." Id. at 388. Because the legislature has made the same error, this court must strike down Wis. Stat. § 893.89 on equal protection grounds.
The majority minimizes this problem by attempting to rationalize a distinction between a "material producer" that designs or produces a defective material and places that material in the stream of commerce from one who merely installs an improvement. Majority op. at -71. " xcluding material producers from protection from liability when liability is based on defects in material is rational because those defects will exist regardless of the use to which the material is put." Id., . Further, the defective material "itself remains defective throughout the life of the project in which it is used." Id., .
The circumstances here indicate why this distinction is not rational. The majority has simply skated over the fact that ITW was not only the installer of the bleachers, it was also the designer of the bleachers. The Kohns have alleged that the bleachers were defectively designed. As such, the Kohns contend that the bleachers were "defective throughout the life of the project." There continues to be no rational distinction between protecting defective designers but not defective manufacturers. Our decisions in Kallas and Funk still directly control the outcome of this case, and I see no reason to abandon these precedents now.
II.
Based on the majority's own reasoning, this court should still strike down Wis. Stat. § 893.89 as violating equal protection.
The majority suggests that " ather 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." Majority op., . The majority asserts that Wis. Stat. § 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." Id., . On this basis, the majority states that the statute is constitutional.
That conclusion, however, again disregards what the Kohns have alleged here. Aside from claiming that the bleachers were negligently constructed, the Kohns specifically allege that the bleachers were "inherently unsafe" due to their "negligent design." The Kohns further allege that " ecause of the dangerously defective nature of the bleachers that existed when the product left the possession or control of the seller , the product caused harm." If conduct is the touchstone that s
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