2023 Wisconsin Statutes & Annotations › Chapter 893 - Limitations of commencement of actions and proceedings; procedure for claims against governmental units. › 893.89 - Action for injury resulting from improvements to real property.

893.89
Action for injury resulting from improvements to real property.
(1)
In this section, “exposure period" means the 7 years immediately following the date of substantial completion of the improvement to real property.
(2)
Except as provided in sub. (3), no cause of action may accrue and no action may be commenced, including an action for contribution or indemnity, against the owner or occupier of the property or against any person involved in the improvement to real property 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, arising out of any deficiency or defect in the design, land surveying, planning, supervision or observation of construction of, the construction of, or the furnishing of materials for, the improvement to real property. This subsection does not affect the rights of any person injured as the result of any defect in any material used in an improvement to real property to commence an action for damages against the manufacturer or producer of the material.
(3)
(a)
Except as provided in pars. (b) and (c), if a person sustains damages as the result of a deficiency or defect in an improvement to real property, and the statute of limitations applicable to the damages bars commencement of the cause of action before the end of the exposure period, the statute of limitations applicable to the damages applies.
(b)
If, as the result of a deficiency or defect in an improvement to real property, a person sustains damages during the period beginning on the first day of the 5th year and ending on the last day of the 7th year after the substantial completion of the improvement to real property, the time for commencing the action for the damages is extended for 3 years after the date on which the damages occurred.
(c)
An action for contribution is not barred due to the accrual of the cause of action for contribution beyond the end of the exposure period if the underlying action that the contribution action is based on is extended under par. (b).
(4)
This section does not apply to any of the following:
(a)
A person who commits fraud, concealment or misrepresentation related to a deficiency or defect in the improvement to real property.
(b)
A person who expressly warrants or guarantees the improvement to real property, for the period of that warranty or guarantee.
(c)
An owner or occupier of real property for damages resulting from negligence in the maintenance, operation or inspection of an improvement to real property.
(d)
Damages that were sustained before April 29, 1994.
(5)
Except as provided in sub. (4), this section applies to improvements to real property substantially completed before, on or after April 29, 1994.
(6)
This section does not affect the rights of any person under ch. 102.
History:  1975 c. 335; 1979 c. 323; 1993 a. 309, 311; 2017 a. 235.
“Substantial completion," the event that triggers the limitation period under former s. 893.89, 1977 stats., is ambiguous. The period begins to run when planners, designers, and contractors lose a significant amount of control over the improvement. A convenient and fair measure of the time when control over the improvement shifts from the builders to the owner is the date when construction is sufficiently completed so that the owner or the owner's representative can occupy or use the improvement for the use it was intended. Holy Family Catholic Congregation v. Stubenrauch Associates, Inc., 136 Wis. 2d 515, 402 N.W.2d 382 (Ct. App. 1987). See also Wascher v. ABC Insurance Co., 2022 WI App 10, 401 Wis. 2d 94, 972 N.W.2d 162, 20-1961.
Bleachers at a high school football stadium qualified as an “improvement to real property” for purposes of this section because they were a permanent addition to real property that enhanced its capital value, involved the expenditure of labor and money, and were designed to make the property more useful or valuable. That an improvement can be removed without harming the real property will not necessarily indicate that the item is not an improvement to real property. The more pertinent inquiry is whether the item can be readily dissembled and moved. Kohn v. Darlington Community Schools, 2005 WI 99, 283 Wis. 2d 1, 698 N.W.2d 794, 03-1067.
This section does not violate article I, section 9, of the Wisconsin Constitution, the right to remedy clause, nor the guarantees of equal protection in the federal and state constitutions. Kohn v. Darlington Community Schools, 2005 WI 99, 283 Wis. 2d 1, 698 N.W.2d 794, 03-1067.
This section bars safe place claims under s. 101.11 resulting from injuries caused by structural defects ten [now seven] years after a structure is substantially completed, as opposed to safe place claims resulting from injuries caused by unsafe conditions associated with the structure. Mair v. Trollhaugen Ski Resort, 2006 WI 61, 291 Wis. 2d 132, 715 N.W.2d 598, 04-1252.
The evident purpose of sub. (4) (b) is to give a party who has bargained for a warranty or guarantee the benefit of the warranty or guarantee period before the exposure period begins to run. The common council is the only entity authorized by statute to act on behalf of a city. Sub. (4) (b) does not need to explicitly state that a municipality must take “official action," because the only manner in which a municipality may lawfully act is already established by the statutes that govern it. Sub. (4) (b) does not extend to an “unofficial" warranty or guarantee that is unenforceable and does not provide an equitable estoppel exception to the running of the statute. Hocking v. City of Dodgeville, 2009 WI App 108, 320 Wis. 2d 519, 770 N.W.2d 761, 08-2812.
When the design and construction of city streets caused a water drainage problem, the city's failure to alter the streets to remedy the problem was a not failure to “maintain" the streets under sub. (4) (c). The applicable common meaning of “maintenance" in this context is the labor of keeping something in a state of repair. Here there was no factual submission showing that the city did or failed to do something with respect to keeping the streets in repair that caused the water damage. Hocking v. City of Dodgeville, 2009 WI App 108, 320 Wis. 2d 519, 770 N.W.2d 761, 08-2812.
The warranty specified in sub. (4) (b) is an express warranty; this means an implied warranty is not enough. City officials, such as employees and individual members of the common council, cannot, through representations that problems will be solved, bind the city to resolve those problems unless they act or make their representations with the authority to bind the city. Hocking v. City of Dodgeville, 2010 WI 59, 326 Wis. 2d 155, 785 N.W.2d 398, 08-2812.
When an improvement to real property creates a nuisance, a party has ten [now seven] years from the substantial completion of that improvement to bring suit. Sub. (4) (c) applies when an improvement to real property is completed, but the owner or occupier is negligent in the maintenance, operation, or inspection of it, thus causing damage. It does not apply to proper maintenance of an improvement when it is the improvement itself that causes injury. Hocking v. City of Dodgeville, 2010 WI 59, 326 Wis. 2d 155, 785 N.W.2d 398, 08-2812.
An easement agreement that expressly stated that the defendant sewer district agreed to construct and maintain an intercepting sewer in good order and condition and to indemnify and save harmless the plaintiff from all loss or injury to its property and persons due to such construction was an express warranty under  Hocking, 2010 WI 59. Cianciola, LLP v. Milwaukee Metropolitan Sewerage District, 2011 WI App 35, 331 Wis. 2d 740, 796 N.W.2d 806, 10-0087.
This section provides that persons involved in improvements to real property may not be sued more than ten [now seven] years after substantial completion of a project. The statute does not extend the time for bringing lawsuits that are otherwise time-barred by statutes of limitations. This section is a catch-all provision that imposes a time limit on many lawsuits relating to property improvements that are not otherwise time-barred within ten [now seven] years after substantial completion. If a cause of action is time-barred by a statute of limitations before it would be barred under this section, that statute of limitations applies. Kalahari Development, LLC v. Iconica, Inc., 2012 WI App 34, 340 Wis. 2d 454, 811 N.W.2d 825, 11-0643.
This section applies to claims against subsequent owners who were not involved in the actual improvement to the property. Expanding the class of claims exempt from the statute of repose under sub. (4) (c) to include not only unsafe conditions, but also structural defects of which an owner has notice, would effectively swallow the rule because every improvement that is negligently designed could be considered an ongoing nuisance that the owner or operator negligently maintains by failing to correct. Crisanto v. Heritage Relocation Services, Inc., 2014 WI App 75, 355 Wis. 2d 403, 851 N.W.2d 771, 13-1369.
“Damages" in sub. (4) (d) means legally actionable damages. Peter v. Sprinkmann Sons Corp., 2015 WI App 17, 360 Wis. 2d 411, 860 N.W.2d 308, 14-0923.
The purpose of this section is to protect contractors who are involved in permanent improvements to real property. Daily repairs are not improvements to real property as that phrase is used in this section. Peter v. Sprinkmann Sons Corp., 2015 WI App 17, 360 Wis. 2d 411, 860 N.W.2d 308, 14-0923.
Although the accident in this case occurred well after the ten-year [now seven-year] exposure period had expired, there was sufficient evidence in the record to support the trial court's findings that the defendant concealed and misrepresented changes in construction, thus triggering the fraud exception to the statute of repose. Wosinski v. Advance Cast Stone Co., 2017 WI App 51, 377 Wis. 2d 596, 901 N.W.2d 797, 14-1961.
The builder's statute of repose may not be avoided by arguing that a hazard such as an uneven floor or inclined surface should be discovered by a property owner and either fixed or marked. If that logic were followed, a duty to inspect and warn would render the statutory exposure period meaningless because a plaintiff could always allege that a defendant should have inspected its premises and either fixed or warned of any alleged defect. Soletski v. Krueger International, Inc., 2019 WI App 7, 385 Wis. 2d 787, 924 N.W.2d 207, 17-2063.
The mere fact that a plaintiff is engaged in general maintenance at a defendant's facility does not trigger the builder's statute of repose's maintenance exception under sub. (4) (c). An improvement to real property must have been negligently maintained to trigger the exception. Soletski v. Krueger International, Inc., 2019 WI App 7, 385 Wis. 2d 787, 924 N.W.2d 207, 17-2063.
A defect is structural if it arises by reason of the materials used in construction or from improper layout or construction. In this case, the presence of airborne asbestos during the original construction of the power plants was a hazardous condition inherent in those structures by reason of their design or construction. The plaintiff's safe place claims under s. 101.11 were therefore based on an injury caused by a structural defect, and the construction statute of repose barred the plaintiff's claims. Nooyen v. Wisconsin Electric Power Co., 2020 WI App 9, 390 Wis. 2d 687, 939 N.W.2d 621, 19-0289.
The maintenance exception under sub. (4) (c) applies when damages occur as the result of an owner or occupier's failure to maintain the improvement itself, not when the owner or occupier has failed to maintain a safe workplace. Nooyen v. Wisconsin Electric Power Co., 2020 WI App 9, 390 Wis. 2d 687, 939 N.W.2d 621, 19-0289.
A plaintiff alleging that the plaintiff developed mesothelioma as a result of exposure to asbestos does not have a legally cognizable claim until the plaintiff is actually diagnosed. Although the plaintiff in this case was allegedly exposed to asbestos between 1970 and 1973, the plaintiff was not diagnosed with mesothelioma until 2016 and therefore did not have a claim until that time. Accordingly, the circuit court properly applied the version of the statute that was in effect at the time of the plaintiff's diagnosis. Nooyen v. Wisconsin Electric Power Co., 2020 WI App 9, 390 Wis. 2d 687, 939 N.W.2d 621, 19-0289.
In this case, although the placement of stone cladding on the house may have hidden the mortar from view and obscured the fact that flashing had not been installed, there was no evidence to suggest that the defendants placed the stone on the home with the intent to conceal any alleged defects from the home owners. Absent such evidence of intent, the fact that the defendants' work was allegedly defective was not sufficient, in and of itself, to show that they engaged in fraud, concealment, or misrepresentation, as required by the exception under sub. (4) (a). Wascher v. ABC Insurance Co., 2022 WI App 10, 401 Wis. 2d 94, 972 N.W.2d 162, 20-1961.
Although the statute of repose under sub. (2) applies to actions “to recover damages," the statute of repose applied to the plaintiffs' claim for injunctive relief in this case. The plaintiffs sought an injunction ordering the defendants to perform remedial work at the plaintiffs' home, a request that was not aimed at preventing some future conduct by the defendants that would injure the plaintiffs or violate their rights. Rather, the request for injunctive relief was, at its core, remedial in nature—it sought to remedy allegedly deficient work that the defendants had already performed. Wascher v. ABC Insurance Co., 2022 WI App 10, 401 Wis. 2d 94, 972 N.W.2d 162, 20-1961.