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Kohn v. Darlington Community Schools7/1/2005
We reject both arguments.
Article I, Section 9 of the Wisconsin Constitution provides:
Every person is entitled to a certain remedy in the laws for all injuries, or wrongs which he may receive in his person, property, or character; he ought to obtain justice freely, and without being obligated to purchase it, completely and without denial, promptly and without delay, conformably to the laws.
As we recognized in Aicher, "art. I, § 9 confers no legal rights." Aicher, 237 Wis. 2d 99, (emphasis added). The provision "applies only when a prospective litigant seeks a remedy for an already existing right." Id.
A statute of repose "limits the time period within which an action may be brought based on date of the act or omission." Id., . A statute of repose may therefore bar an action before the injury is discovered or before the injury even occurs. Id. " y definition, a statute of repose cuts off a right of action regardless of the time of accrual." Tomczak v. Bailey, 218 Wis. 2d 245, 277, 578 N.W.2d 166 (1998)(emphasis added). As such, when the legislature enacts a statute of repose, it "expressly cho se not to recognize rights after the conclusion of the repose period ." Wenke v. Gehl, 2004 WI 103, , 274 Wis. 2d 220, 682 N.W.2d 405 (citing Aicher, 237 Wis. 2d 99, ). In other words, a statute of repose does not merely extinguish a party's remedy, it extinguishes the right of recovery altogether. Therefore, statutes of repose do not violate the right to remedy provision of Article I, Section 9 because any right of recovery is extinguished at the end of the repose period and the right for which the litigant seeks a remedy no longer exists. Aicher, 237 Wis. 2d 99, .
Here, § 893.89(2) provides, in part: " o cause of action may accrue and no action may be commenced . . . 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 . . . ." The "exposure period" is defined in § 893.89(1) as "10 years immediately following the date of substantial completion of the improvement to real property." It is undisputed that the bleachers were substantially completed in 1969. Thus, the exposure period ended in 1979. As such, as of 1979, the Kohns possessed no right of recovery against ITW. Therefore, because Article I, Section 9 guarantees a remedy only for existing rights, and the Kohns possessed no right of recovery when they brought their action against ITW, § 893.89 does not violate the constitutional guarantee in Article I, Section 9.
However, the Kohns also argue that the statute violates Article I, Section 9 because it is poor public policy and that unlike the statute of repose at issue in Aicher, there is no legitimate reason to deny a right to recovery in this instance when they could not have even discovered the injury at the end of the exposure period. The Kohns misread our decision in Aicher. Our decision to uphold the statute at issue in Aicher under Article I, Section 9, was not premised on our agreement with the policy choice made by the legislature in that instance; rather, it was based on our recognition that statutes of repose represent policy decisions the legislature is entitled to make and our deference to those policy decisions.
In Aicher, we recognized that " courts may shudder at the unfairness visited by statutes of repose, but we generally acknowledge the policies underlying these limiting statutes. . . . The question of what the statute of limitations or the statute of repose for a particular action should be is a fundamental question of public policy." Aicher, 237 Wis. 2d 99, -46.
Further, we stated:
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