The Interplay between the Safe Place Statute and the Statute of Repose Following Nooyen
Wisconsin’s construction statute of repose, Wis. Stat. § 893.89, is a valuable defense tool, particularly when dealing with alleged violations of the safe place statute, Wis. Stat. § 101.11. Wisconsin’s Court of Appeals recently added a new case to the landscape of appellate cases discussing the interplay between the two statutes: Nooyen v. Wisconsin Electric Power Company. The Nooyen court held that airborne pollutants generated by the use of building materials during new construction of an improvement to real property are properly classified as structural defects, not conditions associated with the premises. Persons injured by structural defects are barred from suing certain classes of entities involved in the construction of an improvement to real property under the construction statute of repose. In such situations, owners, architects, contractors, suppliers, and builders are relieved from responsibility for claims that are not brought during the exposure period set forth in the construction statute of repose, which has recently been reduced to from ten years to seven years.
II. History of the Safe Place Statute and the Construction Statute of Repose
a. Brief History of the Safe Place Statute
Wisconsin’s safe place statute, Wis. Stat. § 101.11, was enacted in 1911 and the original language applied only to employers and the conditions of employment they furnished. However, two years later the statute was amended to include owners of places of employment and public buildings. Today, the original protections of the safe place statute have been greatly expanded and often involve an intense factual analysis.
Under the safe place statute, owners and employers have the duty to construct, repair, and maintain safe places of employment or public buildings. This heightened duty of care focuses “on the property condition that caused the injury rather than on the duty that the property owner or employer breached.” Safe place violations involve either “structural defects” or “unsafe conditions.” Structural defects arise “by reason of the materials used in construction or from improper layout or construction.” In Barry v. Employers Mutual Casualty Company, the Wisconsin Supreme Court further defined structural defects as hazardous conditions which are “inherent in the structure by reason of its design or construction.”
While structural defects are present at the conclusion of any construction, unsafe conditions arise by the failure to keep a once safe structure properly maintained or in proper repair. Unsafe conditions are further broken down into two types: First, there are unsafe conditions associated with the structure, which occur when a structure is not maintained or repaired properly. Second, there are unsafe conditions that are unassociated with the structure which are conditions that may arise in an unsafe area.
The determination of whether an injury-causing condition is a structural defect or an unsafe condition is a critical classification in the analysis under both the safe place statute and the construction statute of repose, for different reasons. Under the safe place statute, the distinction amounts to either absolute liability (for structural defects) or liability only if the owner has actual or constructive notice of the condition (for conditions associated with the premises). Under the construction statute of repose, the determination is critical because it determines whether an owner or other member of a protected class is exposed to liability (if the injury is caused by a condition associated with the structure), or that entity qualifies for the protections of the construction statute of repose (if the injury is caused by a structural defect).
b. Brief History of the Construction Statute of Repose
Wisconsin’s construction statute of repose, Wis. Stat. § 893.89, limits the liability for certain protected classes for their involvement in improvements to real property during the statute’s “exposure period.” The number of protected classes has changed over time. Under the original 1973 version of the statute, the only protected class was builders, leaving all others involved in construction potentially on the hook for damages. Because the early version of the statute granted immunity to one class and discriminated against other classes, it was found to be unconstitutional in 1975 in Kallas Millwork Corporation v. Square D Company.
Following the Kallas case in 1975, the legislature did not immediately include owners and occupiers as a protected group. The reasoning at the time was that owners and occupiers were in a better position than any other group to continually improve and maintain structures and thus in a better position to accept liability if they chose not to correct issues.Although the statute needed to be amended post-Kallas, this reasoning led the legislature to make only minor changes to the statute, which did not include the addition of owners and occupiers. Ultimately, the failure to include owners and occupiers as a protected class led to another successful equal protection challenge in 1989.
In response, the legislature amended Wis. Stat. § 893.89 to include owners and occupiers of property on the condition that the injuries not be a result of negligent maintenance of the improvement. The Wisconsin Supreme Court held the statute in its current form to be constitutional in Kohn v. Darlington Community Schools. In Kohn, the court found that “[r]ather than drawing arbitrary profession-based distinctions,” like the old statute, the updated version “draws distinctions based on the conduct of certain individuals.”
The Kohn court noted that, currently, owners and occupiers are protected under the statute as long as a plaintiff is bringing suit stemming from an improvement. Moreover, even material providers are included under the current version of the statute, as long as they are furnishing materials for an improvement, and are excluded “only when liability is based upon a defect in the material provided.” Thus, Kohn stands for the idea that everyone listed in the statute gets the benefit of protection as long as the conduct does not stem from actions prior to or subsequent to improvements.
Since the changes to the construction statute of repose, only two revisions have been made, both of which deal with the “exposure period” mentioned above. The most recent revision in 2018 changed the “exposure period” from ten years to seven years. This recent change reflects the intent of the legislature to further constrict the amount of time plaintiffs have to bring claims against property owners and others.
III. Interplay between the Safe Place Statute and the Construction Statute of Repose
a. Mair v. Trollhaugen Ski Resort
It is well settled that the construction statute of repose “was intended to apply to at least certain safe place claims.”Safe place claims are not specifically excepted from the construction statute of repose, which extinguishes liability for “deficiencies or defects in the design or construction of improvements to real property . . . .” However, in Mair v. Trollhaugen Ski Resort, the Wisconsin Supreme Court specified that “§ 893.89 bars safe place claims resulting from injuries caused by structural defects, but not unsafe conditions.”
Mair involved a fall in a restroom at a ski resort, in which the only admissible evidence relevant to liability involved claims of negligence in the design and construction of the floor and floor drain. The plaintiff argued that other characteristics of the bathroom like lighting and paint color may have contributed to the fall but offered no admissible expert evidence that these conditions fell below the standard of care. The Mair court began its analysis by emphasizing that Wis. Stat. § 893.89(2) sets forth that causes of action within the scope of the statute of repose include deficiencies or defects “in the design” and “the construction of” improvements to real property. The court then notes that the duty to design or construct a safe place is breached when the improvement contains a structural defect, because only the structure may be considered to be an “improvement” to property, as the statute of repose requires.
Reasoning that because Wis. Stat. § 893.89(4)(c) excepts owners who negligently maintain property, the court held that the word “‘maintain’ correlates to an unsafe condition associated with the structure, and thus allegations of such defects do not fall under the purview of the [construction] statute of repose.”
Under Mair, in order to be shielded from liability for a safe place violation by the construction statute of repose, the injury-causing condition must have been a result of a structural defect caused by the design or construction of the improvement. Only then does the condition fall under the statute’s protections for “improvements to real property.”Unsafe conditions associated with the structure, and particularly those which exist due to negligence in maintaining the structure, are explicitly excepted by the construction statute of repose. Thus, it is essential for those seeking the application of the construction statute of repose to establish that the alleged injury stemmed from a structural defect in the construction or design, because structural defects protect owners, employers, and builders from liability after the expiration of the exposure period.
b. Nooyen v. Wisconsin Electric Power Company
On January 20, 2020, the Wisconsin Court of Appeals again addressed the interplay between the safe place statute and the construction statute of repose, this time in the context of injuries caused by the exposure to airborne asbestos released during the construction of two new nuclear power plants.
In Nooyen v. Wisconsin Electric Power Company, the parties stipulated to facts relating to construction projects in which the plaintiff was alleged to have been exposed to airborne asbestos dust. The parties stipulated that each of the Kohn factors for an improvement to real property had been satisfied. Both the trial court and the court of appeals agreed that the exposures occurred during construction projects that were correctly construed as improvements to real property.
The dispute in Nooyen concerned whether the owners of the power plants qualified for the protection of the construction statute of repose for exposures that occurred during construction. The resolution of the dispute rested on the classification of airborne asbestos dust during the pendency of a new construction project. The defendants took the position that the dust arose from the use of products during the activities of the construction of the improvement, and therefore were structural defects inherent in the improvement, and that the work done during the improvement and whatever conditions that resulted from that work were covered in the construction statute of repose’s definition of “defects” or “deficiencies” in the construction of the improvements. Plaintiff argued that the dust was a condition of the premises, citing several cases analyzing airborne dust in the context of a safe place claim.
The Nooyen court found that asbestos dust created during a building’s original construction period is properly classified as a structural defect, rather than an unsafe condition. The court reasoned that the dust is the result of a structural defect because it was created by the original construction process. To reach this conclusion, the court relied on the definitions of structural defects provided by the Wisconsin Supreme Court in Barry v. Employers Mutual Casualty Company.
In Barry, the Wisconsin Supreme Court analyzed the differences between structural defects and conditions associated with the premises in the context of the safe place statute. The court held that structural defects arise when a builder or employer breaches its duty to construct a safe building. A defect is considered “structural” if it is caused by the “materials used in construction or from improper layout or construction.” The Barry court then reasoned that because unsafe conditions arise over time, structural defects differ in that they are “hazardous condition[s] inherent in the structure by reason of its design or construction.”
The Nooyen court applied these definitions of “structural defect” and “unsafe condition” and concluded that the plaintiff alleged his injuries were caused by materials used in the initial construction period, the injuries arose from a structural defect. In other words, “the presence of airborne asbestos during the original construction . . . was a hazardous condition inherent in those structures by reason of their design or construction.”
The court examined Calewarts and Viola, cases in which the plaintiffs were exposed to airborne asbestos long after the completion of the improvement projects, during the repair or maintenance of the property. The court found that because the injuries in both of those cases resulted from exposure during repair or maintenance, they were distinguishable from Nooyen’s exposure. Because those plaintiffs were exposed to asbestos that was disturbed during repair or maintenance activities, those exposures would be classified as arising out of unsafe conditions associated with the structure, not structural defects.
The Nooyen court noted that it was bound by Mair, which foreclosed argument that the construction statute of repose may apply to unsafe conditions. For the time being, it appears that the construction statute of repose’s protected classes will be shielded from liability for injury-causing conditions that exist or arise during construction projects, as long as those conditions arise from the work done on those projects, during those projects, with the materials used to complete those projects, even when the injury is a latent one that may not manifest itself until years after the work is completed. Further, the Plaintiff in Nooyen chose not to appeal the decision to the Wisconsin Supreme Court.
Wisconsin’s construction statute of repose extinguishes the liability of an owner, employer, or builder after seven years when a defect stems from an improvement to real property. Nooyen is the most recent addition to the body of law addressing the application of the statue of repose, and the interplay between its protections and the duties imposed on owners by Wisconsin’s safe place statute. Nooyen supplements and further defines the concept of the structural defect set forth in Barry and discussed in Mair, to include injuries caused by environmental factors inherent to the design or construction of improvements to real property, when those factors are encountered during the construction of the improvement. Latent injuries caused by exposures to dusts or other pollutants created during and by the construction process are now categorized as structural defects, and the protected classes in the construction statute of repose are immune from liability for claims arising from those exposures. The case has been recommended for publication, and the time for appeal has expired.
Travis J. Rhoades is a shareholder at Crivello Carlson, S.C. His practice includes product and premises liability claims, and he has litigated in state and federal courts in 36 states. He recently completed his last term on the Board of Directors of the Wisconsin Defense Counsel.
Kylie M. Owens is in her third year at Marquette University Law School and will graduate in May of 2020. She is currently working as a law clerk at Crivello Carlson, S.C.
 Nooyen v. Wis. Elec. Power Co., 2020 Wis. App. LEXIS 32, 2020 WL 355914 (Wis. App. Jan 22, 2020) (final publication decision pending).
 Id. at ¶ 16.
 Wis. Stat. § 893.89(1).
 Delaney v. Supr. Inv. Co., 251 Wis. 374, 378, 29 N.W.2d 754 (1947).
 Id. at 379.
 Wis. Stat. § 101.11(1); Barry v. Employers Mut. Cas. Co., 2001 WI 101, ¶ 20, 245 Wis. 2d 560, 630 N.W.2d 517.
 Barry, 245 Wis. 2d 560 at ¶ 21.
 Mair v. Trollhaugen Ski Resort, 2006 WI 61, ¶ 21, 291 Wis. 2d 132, 715 N.W.2d 598.
 Barry, 245 Wis. 2d 560 at ¶ 28 (quoting Howard H. Boyle, Jr., Wisconsin Safe-Place Law Revised 139 (1980)).
 Barry, 245 Wis. 2d 560 at ¶ 27.
 Id. at ¶ 25 (citations omitted).
 See Id. at n. 4 (stating that “[a]n employer, but not an owner of a public building … may also be liable for ‘unsafe conditions unassociated with structure,’ a category that has been extrapolated from the employer’s duty to furnish ‘employment which shall be safe’ under Wis. Stat. § 101.11(1)”).
 Id. at 388.
 Kallas Millwork Corp. v. Square D Co., 66 Wis. 2d 382, 225 N.W.2d 454 (1975).
 Funk v. Wollin Silo & Equip., Inc., 148 Wis. 2d 59, 65, 435 N.W.2d 244 (1989).
 See id. at 64-67 (discussing all of the changes between the old statute of repose under Wis. Stat. § 893.155 (1979) and the renumbered one under Wis. Stat. § 893.89).
 Id. at 63.
 Kohn v. Darlington Comm’y Sch., 2005 WI 99, ¶ 43, 283 Wis. 2d 1, 698 N.W.2d 794.
 Id. at ¶ 65.
 Id. at ¶ 66.
 Id. at ¶ 67.
 Id. at ¶ 68.
 Mair, 291 Wis. 2d 132 at ¶ 28.
 See Wis. Stat. § 893.89(4) for the enumerated exceptions.
 Mair, 291 Wis. 2d 132 at ¶ 28.
 Id. at ¶ 29.
 Mair, 291 Wis. 2d 132 at ¶ 27.
 Id. at ¶ 28.
 Id. at ¶ 29.
 Wis. Stat. § 893.89(2); see also Kallas Millwork Corp., 66 Wis. 2d 382 at ¶ 17 (stating that an improvement to real property is “[a] permanent addition to or betterment of real property that enhances its capital value and that involves the expenditure of labor or money and is designed to make the property more useful or valuable as distinguished from ordinary repairs.”).
 Mair, 291 Wis. 2d 132 at ¶ 28.
 Nooyen, 2020 Wis. App. LEXIS 32, 2020 WL 355914, ¶ 12.
 See Kohn, 2005 WI at ¶ 22, 28 (stating that in order to be considered an “improvement” under the statute of repose, there must be a permanent addition that enhances its capital value).
 Id. at ¶ 16.
 Barry, 245 Wis. 2d 560.
 Id. at ¶ 28.
 Id. (internal citations omitted).
 Nooyen, 2020 Wis. App. LEXIS 32, 2020 WL 355914, ¶¶ 15-16.
 Id. at ¶ 16 (internal citations omitted).
 Calewarts v. CR Meyer & Sons Co., No. 2011AP1414, unpublished slip op. (July 3, 2012).
 Viola v. Wis. Elec. Pwr. Co., 2014 WI App 5, 352 Wis. 2d 541, 842 N.W.2d 515.
 Nooyen, 2020 Wis. App. LEXIS 32, 2020 WL 355914, ¶ 17.
 Wis. Stat. § 893.89.