Court of Appeals Holds That a Business Owner Is Not Liable for a Structural Defect Due to the Statute of Repose

August 1, 2007

In Rosario v. Acuity and Oliver Adjustment Co., Inc., a recent Wisconsin Court of Appeals decision, the court refused to hold a building owner liable for a structural defect that had existed for more than ten years. The court also held that a business owner was not liable for an unsafe condition associated with the structure of the building if he did not have actual or constructive notice.

The action arose due to an improperly designed step at the entrance of a building that caused a woman to trip and break her foot. It was not disputed that the design of the step violated the Wisconsin Building Code. The step had remained unchanged since it was originally constructed in 1965.

The woman alleged a violation of Wisconsin’s “safe place” statute for failure to construct, repair or maintain a place of employment so that the premises would be safe for frequenters and visitors. She also alleged that the business owner knew or should have known of the unsafe condition and failed to properly warn visitors or remedy the situation.

The Court of Appeals noted that Wisconsin’s “safe place” statute makes the owner of a building liable for (1) structural defects and (2) unsafe conditions associated with the structure of a building. The statutory duty to safely construct creates liability for structural defects while the duty to repair or maintain creates liability for unsafe conditions associated with the structure. A building owner needs no notice to breach his duty to safely construct. However, he must have actual or constructive notice to breach the duty to repair or maintain.

In opposing the woman’s claims, the defendant business owner argued that the Wisconsin statute of repose bars safe place claims resulting from injuries caused by structural defects ten years after a structure is substantially completed. The business owner argued that the action was based on the nature of the step being unsafe, a structural defect.

The Court of Appeals agreed with the defendant business owner. The court held that the woman’s injuries were caused by a defective structural design and therefore were subject to the statute of repose. Because the step had remained in an unchanged state for more than ten years, the statute of repose barred the claim.

The court also held that the defendant, who had owned the building for only five years, did not have actual or constructive notice of the unsafe condition. Therefore, he could not have breached his duty to repair or maintain the step.

The bottom line is that if your building has a structural defect that has existed for more than ten years and you have no notice of an unsafe condition, Wisconsin courts will not find you liable.

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For more information about "Court of Appeals Holds That a Business Owner Is Not Liable for a Structural Defect Due to the Statute of Repose," contact Buck V. Sweeney at csweeney@axley.com or 608.283.6743.