Mair v. Trollhaugen Ski Resort

• Citation: 715 N.W.2d 598,2006 WI 61
• Decision Date: 06 June 2006
• Docket Number: No. 2004AP1252.,2004AP1252.
• Parties: Julie MAIR, Plaintiff-Appellant-Petitioner, v. TROLLHAUGEN SKI RESORT and American Home Assurance Company, Defendants-Respondents.
• Court: Wisconsin Supreme Court

715 N.W.2d 598

2006 WI 61

Julie MAIR, Plaintiff-Appellant-Petitioner, v. TROLLHAUGEN SKI RESORT and American Home Assurance Company, Defendants-Respondents.

No. 2004AP1252.

Supreme Court of Wisconsin.

Argued March 14, 2006.

Decided June 6, 2006.

COPYRIGHT MATERIAL OMITTED

For the plaintiff-appellant-petitioner there were briefs by Michael J. Brose, Anne E. Schmiege, and Doar, Drill & Skow, S.C., New Richmond, and oral argument by Michael J. Brose.

For the defendants-respondents there was a brief by Todd Joseph Koback and Terwilliger, Wakeen, Piehler & Conway, S.C., Wausau, and oral argument by Todd Joseph Koback.

An amicus curiae brief was filed by William C. Gleisner, III, and Law Offices of William C. Gleisner, III, Milwaukee, on behalf of the Wisconsin Academy of Trial Lawyers, and there was oral argument by William C. Gleisner.

An amicus curiae brief was filed by Thomas M. Pyper, Steven W. Keane, and Whyte Hirschboeck Dudek S.C., Milwaukee, on behalf of the Wisconsin Builders Association, Associated Builders and Contractors of Wisconsin, Inc., Associated General Contractors of Wisconsin, Inc., American Institute of Architects — Wisconsin Chapter, and American Council of Engineering Companies of Wisconsin, Inc., and there was oral argument by Steven W. Keane.

¶ 1 JON P. WILCOX, J

The petitioner, Julie Mair (Mair), seeks review of a published decision of the court of appeals affirming a summary judgment order of the Polk County Circuit Court, Molly E. GaleWyrick, Judge, that dismissed her safe place claim against Trollhaugen Ski Resort, more properly known as Trollhaugen, Inc. (Trollhaugen), and American Home Assurance Company (American Home). See Mair v. Trollhaugen Ski Resort, 2005 WI App 116, 283 Wis.2d 722, 699 N.W.2d 624.

¶ 2 Mair contends that the circuit court erred in applying the ten-year statute of repose in Wis. Stat. § 893.89 (2003-04)¹ to bar her claim brought under the safe place statute, Wis. Stat. § 101.11. We disagree and conclude that ten years after a structure is substantially completed, § 893.89 bars safe place claims resulting from injuries caused by structural defects, as opposed to safe place claims resulting from injuries caused by unsafe conditions associated with the structure. Because the undisputed material facts demonstrate that Mair's fall was caused by alleged defects in the location, depth, and slope of the floor drain that existed since the building's construction, her injury was caused by an alleged structural defect and not an unsafe condition associated with the structure. Accordingly, we affirm the decision of the court of appeals.

I

¶ 3 On January 23, 2001, Mair fractured her right femur in a women's bathroom located in the chalet of the ski resort. She entered the bathroom wearing her ski boots and walked across the floor to the cubicle. After exiting the cubicle, she stepped into a floor drain with her right foot, lost her footing and fell. The fall fractured her right thigh.

¶ 4 The bathroom where Mair fell was constructed in 1976 with a concrete floor. Neither the configuration of the bathroom nor the floor drain has been modified since the original construction. The recessed area around the drain is an oval shape, not more than 24 to 30 inches in length the long direction. The drain cover itself was depressed approximately half an inch from the bottom of the slope and at a maximum depth of two inches below the plane of the bathroom floor. Routine daily maintenance measures, including inspection, mopping, and cleaning of the bathroom floors, are taken to ensure the safety of the bathroom. The floor is not highly polished, waxed or slippery, and boot scrapers are provided outside the bathroom door.

¶ 5 Mair commenced this suit on December 16, 2002, alleging common-law negligence and violation of the safe place statute, Wis. Stat. § 101.11, against Trollhaugen and its insurer, American Home.² She based her negligence claim against Trollhaugen on an assertion that her injury "was proximately caused by the negligence of employees and/or agents of Trollhaugen Ski Resort." She also claimed Trollhaugen was liable under the safe place statute, Wis. Stat. § 101.11, for its failure "to design, construct, or maintain the premises in as safe a condition as the nature thereof reasonably permitted."

¶ 6 On December 3, 2003, Trollhaugen moved for summary judgment, arguing that Mair's claims were time-barred by the builder's statute of repose, Wis. Stat. § 893.89. This statute reads, in pertinent part, as follows:

[N]o cause of action may accrue and no action may be commenced . . . 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 the person. . . 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. . . .

Wis. Stat. § 893.89(2). For purposes of the statute, "exposure period" means the "10 years immediately following the date of substantial completion of the improvement to real property." Wis. Stat. § 893.89(1).

¶ 7 In her response brief to Trollhaugen's summary judgment motion, Mair conceded that Wis. Stat. § 893.89 barred her common-law negligence claim and summary judgment was appropriate on that claim. However, she disputed that § 893.89 also barred her safe place claim. Mair also conceded that the safe place statute did not create a distinct cause of action under Wisconsin law, but argued that the safe place statute imposed an ongoing duty to modify or make an existing structure safe if it was unsafe at the time of construction. The circuit court agreed that the safe place statute does not create a distinct cause of action, but simply establishes a higher standard of care than an ordinary negligence claim. It found, therefore, that if a common-law negligence claim is time-barred, any negligence claim as modified by the safe place statute would also be barred.

¶ 8 The circuit court also noted that safe place cases distinguish between property conditions causing injury that are "structural defects" and those that are "unsafe conditions associated with the structure." The court determined that if Mair's cause of action arose from an unsafe condition associated with the structure, it might not fall within the statute of repose and there could potentially be liability against the property owner.

¶ 9 To determine whether the property condition at issue was a structural defect or an unsafe condition associated with the structure, the court considered the deposition of Larry Seiberlich (Seiberlich), Mair's liability expert. Seiberlich opined to a reasonable degree of professional certainty that the design, location, and construction of the recessed floor drain caused or contributed to Mair's injury. He also stated that the location, depth, and slope of the recess did not offend any Wisconsin building codes, only what he considered industry standards.

¶ 10 Seiberlich was also asked whether he believed that the bathroom lighting or the color of the bathroom walls or floor may have caused or contributed to the fall. He stated that the lighting was appropriate and that the red color of the bathroom wall "may have been" a factor in Mair's fall, but he could not state such an opinion to a reasonable degree of professional certainty.

¶ 11 Mair's answers to Trollhaugen's interrogatories also spoke to a structural defect rather than an unsafe condition associated with the property as the cause for her fall. For example, in response to her basis for the allegations of negligence, Mair responded as follows:³

My fall resulted from the placement of an unmarked recessed drain in the exit path from the toilet cubicle in the bathroom facility. This was of sufficient depth to result in my unfooting and injury. Nothing had been done to highlight this hazard either directly or in the form of any warning signs at entry or inside. This incident occurred in a facility supposedly designed for the use of visitors to the center and the placement of the recess in a high traffic area which shows a lack of appreciation of foreseeable risk in the provision of such facilities. The depth of the depression is sufficient to be a major contributor to a fall but insufficient to draw immediate attention to itself without some form of visual enhancement or hazard warning sign, neither of which were present. The failure of Dalco Enterprises Inc. [sic] their Agents or Employees to highlight the above hazard resulted in my jeopardy and injury. They have failed to provide a facility for public use which one could regard as a Safe Place, either from a statutory point of view or in my own reality.

Furthermore, at Mair's deposition, counsel for Trollhaugen asked her, "[i]s it fair to say that there was nothing about the condition of the floor other than the dip that caused or contributed to cause your fall?" To this, Mair answered, "[a]s far as I was concerned, it was the dip that made me fall."

¶ 12 The circuit court concluded that the defects in the location, depth, and slope of the floor drain, which Seiberlich opined were the cause of Mair's accident, were structural defects. Although defects in the lighting or paint color or a lack of warning signs could be considered unsafe conditions associated with the structure, Mair did not present sufficient evidence necessary to survive summary judgment that these were potential causes of her fall. Because the undisputed material facts demonstrated that the sole potential cause of Mair's fall was an alleged structural defect, the court granted Trollhaugen's motion for summary judgment and dismissed Mair's complaint in a written decision entered on March 9, 2004.

¶ 13 The court of appeals affirmed. Mair, 283 Wis.2d 722, 699 N.W.2d 624. It first...