(h) Architects and Builders

Conversion Table Wis. 2d or Wis. to N.W. 2d or N.W.

123. Laws 1913 c. 588 amended the safe-place statute by adding thereto the words "every architect shall so prepare the plans for the construction of such place of employment or public building, as to render the same safe."; and amended the definition of "owner" at sec. 101.01(2)(i) by addition of the following italicized words: "The term 'owner' shall mean and include every person, firm, corporation, state, county, town, city, village, manager, representative, officer, or other person having ownership, control or custody of any place of employment or public building, or of the construction, repair or maintenance of any public building, or who prepares plans for the construction of any place of employment of (sic) public building. Said sections 2394-41 [present 101.01] to 2394- 71 [present 101.25] inclusive, shall apply, so far as consistent, to all architects." Laws 1957 c.120, which had been introduced at the request of the attorney representing the Wisconsin Architects Association (and which was identical to Bill #327S which had been defeated by the 1955 legislature) removed the reference to architects from the safe-place statute [then sec. 101.06], but not from the section which defined "owner".

Statute of limitations applicable to the safe-place liability of architects and builders is contained in sec. 893.155, Stats., to-wit: "No action to recover damages for any injury to property, or for an injury to the person, or for bodily injury or wrongful death, arising out of the defective and unsafe condition of an improvement to real property, nor any action for contribution or indemnity for damages sustained on account of such injury, shall be brought against any person performing or furnishing the design, land surveying, planning, supervision of construction, materials or construction of such improvement to real property, more than 6 years after the substantial completion of construction. If the injury or defect occurs or is discovered more than 5 years but less than 6 years after the substantial completion of construction, the time for bringing the action shall be extended 6 months."

Architects and builders statute of limitations set out at sec. 893.89, Stats. (formerly 893.155) is of doubtful constitutional standing.

In Kallas Millwork Corp. v. Square D Co., 66 Wis. 2d 382 (1975), the Supreme Court declared the 1975 version of such statute to be unconstitutional, at 383, "... because it grants immunities to the class of defendants protected therein on a classification basis that is unreasonable and denies other possible defendants equal protection of the laws, under the Constitution of the United States. In addition, the statute deprives a plaintiff of a remedy for a wrong that is recognized by the laws of the State. The statute is therefore also unconstitutional under art. I, sec. 9 of the Wisconsin Constitution". The Court further stated, at 393, "While we find arguable merit in the argument ... that sec. 893.155, Stats., denies a remedy for a legislatively recognized right under art. I, sec. 9, of the Wisconsin Constitution, we do not rest our decision on that aspect of possible unconstitutionality. Nevertheless, it would appear that, were sec. 893.155 otherwise constitutional, a plaintiff similarly situated to the plaintiffs herein would be foreclosed from any redress before any injury had occurred ... sec. 893.155 appears to abrogate a remedy for a very real wrong".

Forthwith after the Kallas holding, the Legislature by ch. 335, Laws of 1975 reenacted sec. 893.155 in a manner calculated to remove the equal protection objection (but not the remedy for wrongs objection). As preface to such reenactment, the Legislature declared:

"Sec. l (a) Subsequent to the completion of construction, persons involved in the planning, design and construction of improvements to real estate lack control over the determination of the need for, the undertaking of and the responsiblity for maintenance, and lack of control over other forces, uses and intervening causes which causes stress, strain, wear and tear to the improvements and in most cases have no right or opportunity to be made aware of or to evaluate the effect of these forces on a particular improvement or to take action to overcome the effect of these forces.

"Sec. 1 (b) It is in the public interest to set a point in time following the substantial completion of the project after which no action may be brought for errors and omissions in the planning, design and construction of improvements to real estate, whether these errors and omissions have resulted or may result in injury or not. This legislation is determined to be in the public interest and in the interest of equating the rights to due process between prospective litigants in the area of planning, design and construction ofimprovements to real property in an equitable manner".

The Supreme Court has had the reenacted statute before it in Hunter v. Schl. Dist. Gale-Ettrick-Trempealeau, 97 Wis. 2d 435 (1980) and in United States Fire Ins. Co. v. E. D. Wesley Co., 105 Wis. 2d 305 (1982). In each instance the Court was able to dispose of the issues without going into the matter of constitutionality. However, language in both cases indicates continuing concern about the remedy-for-wrong question. (Court of Appeals decisions which were reviewed and reported at 90 Wis. 2d 523, and 100 Wis. 2d 59, respectively.)

124. Sec. 101.01(2)(i), Stats. Holcomb v. Sczymczyk, 186 Wis. 99, 105 (1925): "If an architect devises or prepares plans and specifications for construction which- render a public building safe within the meaning of the statute the statute is complied with

125. Ruppa v. American State Ins. Co., 91 Wis. 2d 628, 643 (1979): "Although the statutory definition of 'owner' of a public building appears broad enough to include agents or representatives of the club who may have been in actual custody or control of the building [sec. 101.01(2)(i)], this court has consistently refused to construe the statute to apply to agents or supervisory personnel of the principal owner or employer." See also Wasley v. Kosmatka, 50 Wis. 2d 738, 744, 746 (1971); Pitrowski v. Taylor, 55 Wis. 2d 615, 627 (1972); Anderson v. Green Bay Hockey, Inc., 56 Wis. 2d 763, 769 (1973).

Architects involved in the following cases: Luterbach v. Mochon etc., Inc., 84 Wis. 2d 1 (1978); Hortman v. Becker Constr. Co., Inc., 92 Wis. 2d 210 (1979); Kaltenbrun v. City of Port Washington, 156 Wis. 2nd 634, 457 N.W. 2nd 527, 531-32 (Ct. App. 1990)