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Kohn v. Darlington Community Schools7/1/2005
e v. City of Duluth, 425 N.W.2d 858 (Minn. Ct. App. 1988), to conclude that the bleachers here were not an improvement to property.
In Kallas, this court set forth the following test, based on a dictionary definition, for determining whether a given item qualifies as an improvement to real property: "' permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinary repairs.'" Kallas, 66 Wis. 2d at 386 (quoted source omitted). See also U.S. Fire Ins. Co. v. E.D. Wesley Co., 105 Wis. 2d 305, 309, 313 N.W.2d 833 (1982)(accord). Applying this definition, the Kallas court concluded that a "high-pressure water pipe designed for fire protection, as a matter of law, was 'an improvement to real property' . . . ." Kallas, 66 Wis. 2d at 386.
While the Kohns spend much time comparing the bleachers here to the water pipe in Kallas, the appropriate question is whether the bleachers satisfy the test set forth in Kallas. The test first requires a "permanent addition to or betterment of real property." The parties disagree as to whether the word "permanent" modifies both "addition to" and "betterment of" such that a non-permanent betterment qualifies under the first part of the definition. However, we need not decide whether a non-permanent betterment satisfies the first part of the test for an improvement to real property because we conclude that the bleachers here are permanent.
The Kohns contend that the bleachers are not permanent because they are not anchored into the ground. While there may be a disputed issue of fact as to whether the bleachers are anchored into the ground, we conclude that this fact is not material to the question of whether the bleachers are "permanent" in this case. That is, we conclude that the bleachers here qualify as "permanent" regardless of whether they are anchored into the ground.
We disagree with the Kohns that "the degree of physical annexation" of the alleged improvement is dispositive. While the law of fixtures may focus on the degree of annexation of a chattel to land, see All City Communication, 263 Wis. 2d 394, ; Black's Law Dictionary 652 (7th ed. 1999), courts, applying a commonsense definition to the term "improvement to real property," have "viewed the term 'improvement' as having broader significance than 'fixture' and ha indicated that the term comprehends all additions and betterments to the freehold, including everything that permanently enhances the value of the premises." 63B Am. Jur. 2D Products Liability § 1631 (2d ed. 1997). Therefore, a given item need not be actually physically annexed to the land in order to constitute a permanent addition to or betterment of property.
In assessing the permanency of property, it is appropriate to consider the nature of the alleged improvement and the intention of the party making the alleged improvement. 63B Am. Jur. 2D Products Liability § 1631 (2d ed. 1997); Garner v. Kinnear Mfg. Co., 37 F.3d 263, 267 (7th Cir. 1994)(noting that Illinois courts have provided the following criteria for determining whether an item constitutes an "improvement to real property": "whether the addition was intended to be permanent or temporary, whether it became an integral component of the overall system and whether the value and use of the property was enhanced.")(emphasis added). See also The American Heritage Dictionary of the English Language 1348 (3d ed. 1992)(defining "permanent" as " ot expected to change in status, condition, or place").
We conclude that the bleachers at Darlington High School constitut
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