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Kohn v. Darlington Community Schools7/1/2005
ovement to real property even though it was not specifically manufactured for Swanson's property. Thus, Swanson is not controlling here because it dealt with a different issue and a different statute. To the extent it is relevant, Swanson stands opposed to the Kohns' assertion that the materials utilized in an addition to property must be specifically manufactured for that property in order for the addition to be an improvement.
Therefore, we hold that the bleachers at Darlington High School constitute an "improvement to real property" for purposes of § 893.89. The bleachers qualify as an "improvement to real property" because they are a permanent addition to Darlington's real property that enhance its capital value, involved the expenditure of labor and money, and were designed to make the property more useful or valuable. Kallas, 66 Wis. 2d at 386.
B. Constitutionality of § 893.89
The Kohns argue that even if the bleachers constitute an improvement to real property under § 893.89, the statute is nonetheless inapplicable because it is unconstitutional. They argue that the statute violates Article I, Section 9 of the Wisconsin Constitution and the equal protection clauses of the state and federal constitutions.
Before addressing each argument, we set forth the deferential standard under which we review the constitutional validity of legislative enactments:
Statutes are presumptively constitutional. [Riccitelli v. Broekhuizen, 227 Wis. 2d 100, 119, 595 N.W.2d 392 (1999)]. The court indulges every presumption to sustain the law if at all possible, and if any doubt exists about a statute's constitutionality, we must resolve that doubt in favor of constitutionality. State ex rel. Hammermill Paper Co. v. La Plante, 58 Wis. 2d 32, 46-47, 205 N.W.2d 784 (1973).
To overcome this strong presumption, the party challenging a statute's constitutionality must demonstrate that the statute is unconstitutional beyond a reasonable doubt. State v. Hezzie R., 219 Wis. 2d 848, 863, 580 N.W.2d 660 (1998). It is not sufficient for the challenging party merely to establish doubt about a statute's constitutionality, and it is not enough to establish that a statute probably is unconstitutional. Hammermill Paper Co., 58 Wis. 2d at 46-47.
The presumption of statutory constitutionality is the product of our recognition that the judiciary is not positioned to make the economic, social, and political decisions that fall within the province of the legislature. See State ex rel. Carnation Milk Prods. Co. v. Emery, 178 Wis. 147, 160, 189 N.W. 564 (1922). The duty of the court is only to determine if the legislation clearly and beyond doubt offends a provision of the state constitution that specifically circumscribes legislative action. Hammermill Paper Co., 58 Wis. 2d at 46-47; Chicago & N.W. Ry. Co. v. La Follette, 27 Wis. 2d 505, 521, 135 N.W.2d 269 (1965).
Aicher, 237 Wis. 2d 99, -20 (emphasis added).
1. Article I, Section 9
The Kohns set forth two arguments why § 893.89 violates Article I, Section 9 of the Wisconsin Constitution. First, they argue that " ather than recognizing the Kohns' entitlement to a remedy at law for [Lori's] injuries, § 893.89 has the direct effect of extinguishing any remedy as of way back in 1979 . . . ." Plaintiffs' Br. at 31. They contend that the statute "irrationally deprives [them] of a remedy for an already existing right." Id. at 34. Second, the Kohns argue that unlike the statute of repose at issue in Aicher, § 893.89 is irrational and poor public policy. They argue that there is no rational basis for cutting off their remedy for injuries caused by ITW's negligence.
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