COURT OF APPEALS

DECISION

DATED AND FILED

February 22, 2024

Samuel A. Christensen

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2022AP1772 Cir. Ct. No. 2021CV366

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT IV

BRADLEY J. HERING AND KERRY L. HERING,

 PLAINTIFFS-APPELLANTS,

CITY OF WATERTOWN, UNITED WISCONSIN INSURANCE COMPANY BY 

CLAIMS ADMIN. AF GROUP AND QUARTZ HEALTH BENEFIT PLANS 

CORPORATION,

 INVOLUNTARY-PLAINTIFFS,

 V.

RURAL MUTUAL INSURANCE COMPANY AND EDWARD BRUENIG,

 DEFENDANTS-RESPONDENTS.

APPEAL from an order of the circuit court for Jefferson County: 

BENNETT J. BRANTMEIER, Judge. Reversed and cause remanded for further 

proceedings. 

Before Blanchard, Graham, and Nashold, JJ.
No. 2022AP1772

2

Per curiam opinions may not be cited in any court of this state as precedent or 

authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 

¶1 PER CURIAM. Bradley Hering (“Hering”) and Kerry Hering

(collectively, “the Herings”) appeal a circuit court order that granted summary 

judgment in favor of Edward Bruenig and his insurer, Rural Mutual Insurance 

Company (“Rural Mutual”).

1 The Herings sued Bruenig for injuries that Hering 

sustained while descending the front steps of a private residence owned by 

Bruenig. The court dismissed the Herings’ claims because it concluded that the

claims were time barred by the statute of repose, WIS. STAT. § 893.89 (2021-22).

2

 

The Herings argue that the court erred because Bruenig failed to show on 

summary judgment that Hering’s injuries were caused by a “deficiency or defect 

in the design ... [or] construction of [an] improvement to real property,” as 

required to invoke the statute of repose. See § 893.89(2). We agree. Accordingly, 

we reverse the circuit court’s summary judgment order.

BACKGROUND

¶2 The following facts are derived from the parties’ summary judgment 

materials and are undisputed for purposes of summary judgment unless otherwise 

noted.

3

 

1

 We generally refer to Bruenig and Rural Mutual collectively as “Bruenig.” As should 

be clear from the context, we also sometimes use “Bruenig” to refer to Edward Bruenig 

individually. 

2

 All references to the Wisconsin Statutes are to the 2021-22 version.

3

 The respondents’ appellate brief does not comply with WIS. STAT.

RULE 809.19(8)(bm), which states that, when paginating briefs, parties should use “Arabic 

numerals with sequential numbering starting at ‘1’ on the cover.” This rule was amended in 

2021, see S. CT. ORDER 20-07 (eff. July 1, 2021), because briefs are now electronically filed in 

(continued)
No. 2022AP1772

3

¶3 Hering, while on duty as a firefighter, injured his knee while 

carrying a child out of a private residence and down the three concrete steps at the 

front of the residence. The bottom step was approximately 10 or 11 inches in 

height; in comparison, the top two steps were approximately 6.5 inches in height. 

The bottom step violated WIS. ADMIN. CODE § SPS 321.04(2)(b)2. (May 2022), 

which requires riser heights to not exceed eight inches. 

¶4 At the time of Hering’s injury, the residence was a rental property 

that Bruenig owned and that Rural Mutual insured. Bruenig bought the residence

in 2016 from Andrew Seeber, who owned the property when the residence was 

constructed in 1997. The concrete front steps were constructed at the same time 

that the residence was constructed. A concrete walkway leading to the steps was 

constructed in 1999, approximately two years after the residence was constructed. 

As discussed below, the walkway is relevant because the evidence shows that the 

height of the bottom step increased over time as the walkway leading up to the 

steps settled.

¶5 Following the injury, the Herings sued Bruenig, alleging negligence;

violation of Wisconsin’s safe place statute, WIS. STAT. § 101.01; and loss of 

society and companionship.

4

 The complaint alleges that Hering’s injuries were 

 

PDF format and are electronically stamped with page numbers when they are accepted for efiling. As our supreme court explained in amending the rule, the pagination requirement ensures 

that the numbers on each page the brief “will match ... the page header applied by the eFiling 

system, avoiding the confusion of having two different page numbers” on every page of a brief.

S. CT. ORDER 20-07.

4

 The Herings also allege that Rural Mutual violated WIS. STAT. § 628.46 by failing to 

timely pay the Herings’ insurance claim. Separately, we note that there are a number of 

involuntary plaintiffs, whose involvement is not relevant for purposes of this appeal. 
No. 2022AP1772

4

caused by the height of the bottom step—that is, the distance between the 

walkway and the top of that step.

¶6 Bruenig moved for summary judgment, arguing that the Herings’

claims are time barred by the statute of repose, WIS. STAT. § 893.89, because they 

were brought more than seven years after the walkway and steps were 

substantially completed and because any injuries that Hering sustained would have 

been caused by a structural defect of the steps or walkway. The circuit court 

granted Bruenig’s motion. The court did so based on three facts that it 

characterized as undisputed: that the walkway was constructed in 1999, that the 

walkway “existed through 2019 with no changes,” and that “the condition of the 

height of the risers of the steps and changes to a cement stoop step[] over time 

would be a settling, which would go to the construction of the steps at the time.” 

¶7 The Herings appeal.

DISCUSSION

I. Standard of Review.

¶8 This case was decided on summary judgment. “We review summary 

judgments independently, employing the same methodology as the trial court.” 

Rosario v. Acuity & Oliver Adjustment Co., 2007 WI App 194, ¶7, 304 Wis. 2d

713, 738 N.W.2d 608. Summary judgment is appropriate “if the pleadings, 

depositions, answers to interrogatories, and admissions on file, together with the 

affidavits, if any, show that there is no genuine issue as to any material fact and 

that the moving party is entitled to a judgment as a matter of law.” WIS. STAT.

§ 802.08(2). “[W]e draw all reasonable inferences from the evidence in the light 

most favorable to the non-moving party.” Pum v. Wisconsin Physicians Serv. 
No. 2022AP1772

5

Ins. Corp., 2007 WI App 10, ¶6, 298 Wis. 2d 497, 727 N.W.2d 346. The moving 

party “has the burden of establishing the absence of a factual dispute and 

entitlement to judgment as a matter of law.” Park Bancorporation, Inc. v. 

Sletteland, 182 Wis. 2d 131, 141, 513 N.W.2d 609 (Ct. App. 1994); see also Heck 

& Paetow Claim Serv., Inc. v. Heck, 93 Wis. 2d 349, 356, 286 N.W.2d 831 

(1980) (“The party moving for summary judgment must ... establish a record 

sufficient to demonstrate ... that there is no triable issue of material fact on any 

issue presented.”). 

¶9 This appeal also requires us to interpret WIS. STAT. § 893.89, which 

is a question of law we review de novo. Mair v. Trollhaugen Ski Resort, 2006 

WI 61, ¶15, 291 Wis. 2d 132, 715 N.W.2d 598.

II. Bruenig is not entitled to summary judgment because he did not 

establish that Hering’s injuries were caused by a deficiency or 

defect in the design or construction of the steps or walkway.

¶10 WISCONSIN STAT. § 893.89 “is a statute of repose that sets forth the 

time period during which an action for injury resulting from improvements to real 

property must be brought.” Kohn v. Darlington Cmty. Schs., 2005 WI 99, ¶13, 

283 Wis. 2d 1, 698 N.W.2d 794. Section 893.89(2) provides, in relevant part:

[N]o cause of action may accrue and no action may be 

commenced ... against the owner ... of the property ...

after the end of the exposure period, to recover damages ... 

for any injury to the person, ... arising out of any 

deficiency or defect in the design ... [or] the construction 

of ... the improvement to real property.

The statute defines “exposure period” as “the 7 years immediately following the 

date of substantial completion of the improvement to real property.” 

Sec. 893.89(1). Thus, as relevant here, the statute bars actions for injuries that 
No. 2022AP1772

6

arise out of deficiencies or defects in the design or construction of improvements 

to real property, when those actions are brought more than seven years after 

substantial completion of the improvements. However, § 893.89 does not apply to 

“[a]n owner or occupier of real property for damages resulting from negligence in 

the maintenance, operation or inspection of an improvement to real property.” 

Sec. 893.89(4)(c).

¶11 The parties do not dispute that the steps and the walkway are both 

“improvements to real property.” Nor do they dispute that this action was brought 

more than seven years after the substantial completion of the steps and the 

walkway. Rather, the parties dispute whether Hering’s injuries arose out of a 

deficiency or defect in the design or construction of either the steps or the 

walkway. The Herings argue that Bruenig is not entitled to summary judgment

because Bruenig did not establish that a design or construction deficiency or defect 

caused Hering’s injuries.

5

 We agree.

 

5

 The parties frame the issue as whether Bruenig showed on summary judgment that 

Hering’s injuries resulted from a “structural defect.” This language, however, does not come 

from WIS. STAT. § 893.89, but instead from case law that addresses the applicability of § 893.89 

to particular types of claims brought under Wisconsin’s safe place statute, WIS. STAT. § 101.11. 

See, e.g., Mair v. Trollhaugen Ski Resort, 2006 WI 61, ¶21, 291 Wis. 2d 132, 715 N.W.2d 598

(defining a “structural defect” as “‘a hazardous condition inherent in the structure by reason of its 

design or construction’” (quoting Barry v. Employers Mut. Cas. Co., 2001 WI 101, ¶28, 245 

Wis. 2d 560, 630 N.W.2d 517)). Although the Herings do allege that Bruenig violated the safe 

place statute, they also allege additional causes of action. Thus, for analytical clarity, we frame 

the issue, using § 893.89(2)’s language, as whether Hering’s injuries were caused by a deficiency 

or defect in the design or construction of the steps or the walkway. Relatedly, § 893.89(2) bars 

actions to recover for injuries arising out of a number of different types of “deficienc[ies] or 

defect[s].” In moving for summary judgment and on appeal, Bruenig does not specify the type of 

deficiency or defect that caused Hering’s injuries. Instead, he argues that they were caused by a 

“structural defect.” We assume that Bruenig’s “structural defect” language refers to the language 

in § 893.89(2) regarding a deficiency or defect “in the design” or “the construction” of the 

walkway or steps, and we frame the issue accordingly.
No. 2022AP1772

7

¶12 Critically, there is no genuine dispute about the fact that the 

walkway settled after it was constructed. To be sure, Bruenig does not explicitly 

concede that this is undisputed.6 However, the undisputed facts show that when 

the concrete walkway was constructed, the distance between the walkway and the 

bottom step was similar to the height of the other steps, and that the height of the 

bottom step relative to the walkway increased over time as the walkway settled. 

Photographs of the steps taken around the time that Hering was injured show a

light-colored, horizontal line running across the bottom riser, parallel to where the 

riser meets the walkway, a few inches above the walkway. Both Bruenig and 

Seeber, the prior property owner, testified in depositions that this line shows where 

the walkway originally met the steps when the walkway was constructed, and 

there is no evidence in the summary judgment materials that suggests otherwise.

In other words, there is no evidence to suggest that the height of the bottom step

relative to the walkway was the same at the time of the walkway’s construction as 

it was when Hering was injured.

¶13 The fact that the walkway settled is material because, as stated, the 

Herings allege that Hering’s injuries were caused by the height of the bottom step. 

Because it is not genuinely disputed that the height of the bottom step resulted 

from the walkway settling over time, to be entitled to summary judgment based on 

the statute of repose, Bruenig needed to identify evidence showing that the 

 

6

 Bruenig argues that “the stairs and walkway existed unmodified since their 

construction.” However, he appears to be arguing that the steps or walkway were not actively 

altered. To the extent that he intends to argue that the height of the bottom step relative to the 

walkway did not increase after the walkway’s construction, he provides no support for this 

argument. Moreover, we must draw all reasonable inferences from the evidence in the Herings’

favor, and the evidence supports a reasonable inference that the walkway settled after it was 

constructed. See Pum v. Wisconsin Physicians Serv. Ins. Corp., 2007 WI App 10, ¶6, 298 

Wis. 2d 497, 727 N.W.2d 346. 
No. 2022AP1772

8

walkway settled because of a deficiency or defect in its design or construction.7 

Bruenig did not do so.

¶14 Bruenig argues on appeal that, to the extent that the walkway settled, 

it did so “because of how it was supported; a condition inherent in its design and 

construction,” and “because it was designed or constructed without a sufficient 

foundation to prevent settlement.” Similarly, before the circuit court, he argued 

that “if the riser height was nonconforming because the [walkway] settled, it is 

because it lacked a good base or proper soil compaction at the time of its 

construction 25 years ago.” However, Bruenig does not point to any evidence in 

the summary judgment materials that shows, or from which one must infer, that 

the walkway was deficient or defective in its design or construction. Instead, 

Bruenig assumes, without explanation, that the only reasonable inference from the 

evidence in the summary judgment materials is that the walkway settled because it 

was deficiently or defectively designed or constructed. 

¶15 Bruenig’s assertions, without supporting evidence, are insufficient to 

entitle him to summary judgment. Bruenig does not direct us to any evidence in 

the summary judgment materials showing that the walkway settled because of a 

deficiency or defect in the walkway’s design or construction, and he thus has not 

shown that Hering’s injuries were caused by such deficiency or defect. As a 

result, he has not “establish[ed] a record sufficient to demonstrate ... that there is 

 

7

 Bruenig contends that the burden is on the Herings to present evidence supporting the 

application of WIS. STAT. § 893.89(4)(c)’s exception. However, as the party invoking an 

affirmative defense on summary judgment, the burden is on Bruenig to establish that § 893.89(2)

applies. See Transportation Ins. Co. v. Hunzinger Const. Co., 179 Wis. 2d 281, 290, 507 

N.W.2d 136 (Ct. App. 1993); see also Lambrecht v. Estate of Kaczmarczyk, 2001 WI 25, ¶22, 

241 Wis. 2d 804, 623 N.W.2d 751 (“If the defendant is the moving party the defendant must 

establish a defense that defeats the plaintiff’s cause of action.”).
No. 2022AP1772

9

no triable issue of material fact.” Heck, 93 Wis. 2d at 356. As summarized 

above, we must make all reasonable inferences in the Herings’ favor. The Herings

argue that “the evidence demonstrates [Hering’s] injuries were caused by 

Bruenig’s failure to maintain the walkway that was deteriorated by normal natural 

forces over the course of two decades in the extremes of Wisconsin weather.” In 

the absence of a showing from Bruenig as to what caused the walkway to settle, 

this is a reasonable inference that precludes summary judgment. See Schmidt v. 

Northern States Power Co., 2007 WI 136, ¶47, 305 Wis. 2d 538, 742 N.W.2d 294 

(“[I]f more than one reasonable inference can be drawn from the undisputed facts, 

summary judgment is not appropriate.”).8

¶16 Bruenig argues that our decision in Rosario compels the conclusion 

that the Herings’ claims are barred by the statute of repose. We disagree. 

¶17 In Rosario, the plaintiff was injured while negotiating a three-inchhigh step as she left an office building. Rosario, 304 Wis. 2d 713, ¶2. The step 

violated the Wisconsin Building Code, and Rosario sued the company that owned 

the building, alleging negligence and a violation of Wisconsin’s safe place statute, 

WIS. STAT. § 101.11. Rosario, 304 Wis. 2d 713, ¶¶2-3. The owner moved for 

summary judgment, arguing that WIS. STAT. § 893.89 barred Rosario’s safe place 

claim. Id., ¶4. Specifically, the owner relied on Mair. Rosario, 304 Wis. 2d 713, 

¶4. In Mair, our supreme court “conclude[d] that § 893.89 bars safe place claims 

 

8

 Bruenig points to evidence showing that the walkway settled within a couple years of 

being constructed. Although the timing of the settling might be relevant in determining whether 

design or construction deficiencies or defects could be inferred, Bruenig does not argue that this 

timing requires an inference that the settling resulted from construction or design deficiencies or 

defects. Instead, he argues that, because the settling occurred before Bruenig owned the property, 

Bruenig could not have prevented the settling. In any event, there is conflicting evidence on 

when the settling occurred, thereby creating a genuine dispute on this topic. 
No. 2022AP1772

10

resulting from injuries caused by structural defects, but not by unsafe conditions 

associated with the structure.” Mair, 291 Wis. 2d 132, ¶29. In Rosario, we relied 

on Mair to conclude that Rosario’s safe place claim was barred under the statute 

of repose “[b]ecause it [was] uncontroverted that the defectively designed and 

constructed front step to [the] building ha[d] been in an unchanged condition” 

since it was constructed 40 years before Rosario’s injury. Rosario, 304 Wis. 2d

713, ¶¶22-23.

¶18 Bruenig argues that “this case is exactly like” Rosario, and that

“complaints of an improper or nonconforming riser height allege a structural 

defect or deficiency inherent to the step itself and are subject to [WIS. STAT.

§ 893.89].”9 Rosario, however, is easily distinguishable on the material points. 

¶19 As mentioned, in Rosario, the height of the step had not changed 

since it was constructed. Rosario, 304 Wis. 2d 713, ¶¶22, 25. Therefore, it was 

self-evident in that case that the step was deficient or defective because of its 

design or construction and that WIS. STAT. § 893.89 thus applied. See id. As a 

result, we concluded that the undisputed facts “demonstrate[d] that Rosario’s 

injuries were caused by the defective structural design of the front step.” Id., ¶19.

Here, however, there is no genuine dispute that the walkway settled after it was 

 

9

 In contrast to Rosario v. Acuity & Oliver Adjustment Co., 2007 WI App 194, 304 

Wis. 2d 713, 738 N.W.2d 608, in which we specifically addressed WIS. STAT. § 893.89’s 

application to safe place claims, here, the Herings plead additional causes of action. Bruenig does 

not address this distinction and apparently assumes that if § 893.89 bars the Herings’ safe place 

claim, then it also bars any other claims arising from those same facts. We note that whether 

§ 893.89 applies depends on the cause of the alleged injury rather than on the legal claim pled, 

but we do not otherwise address this distinction: even assuming that Bruenig’s assumption is 

correct, Rosario is distinguishable.
No. 2022AP1772

11

constructed, and there is no evidence that this settling occurred due to deficient or 

defective design or construction. 

¶20 Bruenig also relies on our decision in Pauli v. Safeco Ins. Co. of 

Am., No. 2014AP2820, unpublished slip op. (WI App Aug. 19, 2015). Pauli is 

unpublished and thus not controlling. It is also distinguishable for the same reason 

that Rosario is. In Pauli, the plaintiff was injured while going down steps that had

uneven riser heights and that were not illuminated because there was no functional 

exterior light. Pauli, No. 2014AP2820, ¶¶16, 17, 20. Bruenig relies on our 

conclusion that “Pauli’s lawsuit could not be maintained, based upon the statute of 

repose, if the evidence showed that the defect in the stairs was the sole cause of 

Pauli’s injury.” Id., ¶23. Bruenig’s reliance on this language is misplaced. In 

Pauli, as in Rosario, and unlike here, there is no indication that the height of the

steps changed over time; rather, the steps in those cases had uneven riser heights 

since their construction. See Pauli, No. 2014AP2820, ¶7 (stating that the steps 

had not been modified since the late 1970s). In addition, we concluded that 

summary judgment in favor of the owners was not appropriate under WIS. STAT.

§ 893.89 because Pauli’s injuries could have been caused by the lack of proper 

lighting, which in turn could be considered negligent maintenance that would fall 

under § 893.89(4)(c)’s exception to § 893.89(2)’s time bar. Id., ¶23; see also

§ 893.89(4)(c) (providing an exception for negligent maintenance of real property 

improvements).

¶21 Bruenig further argues that he is entitled to summary judgment 

under the reasoning of Heintz v. Hanson, No. 2015AP1790, unpublished slip op. 

(WI App June 14, 2016), which the circuit court concluded was analogous. 

Heintz, like Pauli, is unpublished and therefore not controlling, and is readily 

distinguishable as well. In Heintz, a renter sued his landlord (among others) to 
No. 2022AP1772

12

recover for injuries that he sustained when a second-story deck attached to the 

duplex that he was renting collapsed. Heintz, No. 2015AP1790, ¶¶2-3. The 

landlord moved for summary judgment, contending that the renter’s action was 

barred by WIS. STAT. § 893.89. Id., ¶4. The circuit court granted summary 

judgment, which we affirmed. Id., ¶¶3, 8, 29. It was undisputed that the deck was 

structurally defective when it was built. Id., ¶¶18, 20. Specifically, the deck’s 

ledger board was attached to the residence using inadequate fasteners, it was 

attached on top of the siding rather than directly to the residence, and there was no 

flashing around the ledger board. Id., ¶¶5-7, 20. 

¶22 The renter argued that “a reasonable jury could [have] conclude[d] 

the defendants’ failure to discover and repair the deck’s rusted nails and rotting 

wood constituted negligent inspection and maintenance,” thus rendering WIS.

STAT. § 893.89(2) inapplicable. Id., ¶19. We disagreed, concluding that 

“structural defects rendered the deck unsafe from the date of construction, and the 

same defects also caused its condition to worsen over time.” Id., ¶20. We 

reasoned that “the defect and subsequent deterioration cannot be distinguished and 

analyzed separately for statute of repose purposes.” Id. 

¶23 Bruenig argues that here, “[i]f the walkway settled, it did so because 

of how it was supported; a condition inherent in its design and construction 

analogous to the faulty components used to attach the deck to the house in 

Heintz.” In Heintz, however, the landlord established on summary judgment that 

the deck deteriorated because of how it was constructed. For example, the

landlord’s expert witness testified at a deposition about the various structural 

defects that caused the deck to deteriorate and eventually collapse, summarized 

above, all of which led him to opine that the deck was a “failure waiting to 

happen.” Id., ¶5. As a result, in Heintz we concluded that it was “not a case in 
No. 2022AP1772

13

which a well-constructed deck deteriorated over time due to the defendants’

failure to inspect and maintain it.” Id., ¶20. In contrast, here, Bruenig does not 

direct us to evidence on summary judgment that shows that the walkway settled as 

a result of deficiencies or defects in its design or construction. 

¶24 In sum, Bruenig did not carry his burden on summary judgment. He 

did not establish that Hering’s injuries were caused by a deficiency or defect in the 

design or construction of the walkway or steps, and therefore he has not 

established as a matter of law that WIS. STAT. § 893.89 bars the Herings’ claims.10 

CONCLUSION

¶25 For the reasons stated, we conclude that Bruenig is not entitled to 

summary judgment on the Herings’ claims. Accordingly, we reverse the circuit 

court’s summary judgment order and remand for further proceedings.

By the Court.—Order reversed and cause remanded for further 

proceedings.

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5.

 

10

 The parties also dispute whether WIS. STAT. § 893.89(4)(c)’s exception to the statute 

of repose applies. Because we conclude that Bruenig has not established in the first place that the 

statute of repose bars the Herings’ claims, we need not reach that issue.