 |
 |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|
|
|
|
Kohn v. Darlington Community Schools7/1/2005
ught. It provides, in pertinent part:
(1) In this section, "exposure period" means the 10 years immediately following the date of substantial completion of the improvement to real property.
(2) Except as provided in sub.
(3), no cause of action may accrue and no action may be commenced, including an action for contribution or indemnity, against the owner or occupier of the property or against any person involved in the improvement to real property after the end of the exposure period, to recover damages for any injury to property, for any injury to the person, or for wrongful death, arising out of any deficiency or defect in the design, land surveying, planning, supervision or observation of construction of, the construction of, or the furnishing of materials for, the improvement to real property. 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.
Wis. Stat. § 893.89.
No one disputes that the installation of the bleachers at Darlington High School was substantially completed in 1969. The question is whether the bleachers constitute an "improvement to real property" under the statute. If they do, then the "exposure period" ended in 1979, and the Kohns' claims against ITW failed to accrue. Wis. Stat. § 893.89(1)-(2).
The parties dispute whether the bleachers are permanently anchored to the ground and whether this makes a difference in the analysis. The Kohns contend that the bleachers are not an improvement to real property because they are not anchored in the ground and are portable. The Kohns, like the court of appeals, rely on the "degree of physical annexation" of the bleachers to support their argument. Plaintiffs' Br. at 12. The Kohns further contend that very little effort or expenditure was required to place the bleachers on the ground. They argue that the bleachers are simply "personal property resting upon the real estate " and are not "integral" to the usefulness of the property. Plaintiffs' Br. at 18. Finally, relying on this court's decision in Swanson Furniture Co. v. Advance Transformer Co., 105 Wis. 2d 321, 313 N.W.2d 840 (1982)[hereinafter "Swanson"], the Kohns assert that the bleachers are not an improvement to real property because they were not specifically designed or manufactured for use at Darlington High School.
ITW, in contrast, argues that the bleachers are an improvement to real property because the photographs in the record demonstrate that they are anchored into the ground. ITW also contends that even if there is insufficient evidence to conclude that the bleachers are anchored into the ground, they still constitute an improvement to real property. ITW argues that the bleachers are permanent as their permanency is a function of their purpose. ITW emphasizes that in the 30 years since they were erected, the bleachers have not been moved, and there is no evidence that they were ever intended to be moved. ITW also focuses on the size of the bleachers and the fact that they enhance the value and usefulness of the property. ITW states that it is significant that the bleachers are specifically adapted to the purpose for which the property is devoted. ITW also argues that the fact that the bleachers theoretically could be disassembled and moved is not dispositive, as most improvements to real estate, including the Eiffel Tower, can be disassembled and moved. Finally, ITW argues that the court of appeals inappropriately relied on All City Communication Co. v. DOR, 2003 WI App 77, 263 Wis. 2d 394, 661 N.W.2d 845, and Massi
Page 1 2 3 4 5 6 7 8 9 10 11 12 13 14 15 16 17 18 19 20 Wisconsin Personal Injury Attorneys
Personal Injury Lawyers
|
| |
to fill out a simple form to connect to Personal Injury Lawyers in your area.
|
|