Rosario v. Acuity & Oliver Adjustment

Decision Date10 July 2007
Docket NumberNo. 2006AP2421.,2006AP2421.
Citation2007 WI App 194,738 N.W.2d 608
PartiesPatricia ROSARIO, Plaintiff-Appellant, LaMacchia Enterprises, Inc., Involuntary-Plaintiff, v. ACUITY AND OLIVER ADJUSTMENT CO., INC., Defendants-Respondents.
CourtWisconsin Court of Appeals

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Robert A. Levine and Nicholas E. Petty of Law Offices of Robert A. Levine, of Milwaukee.

On behalf of the defendants-respondents, the cause was submitted on the brief of Thomas J. Binder and Christine M. Rice of Simpson & Deardorff, S.C., of Milwaukee.



Patricia Rosario appeals from a summary judgment order dismissing her action against Oliver Adjustment Company (Oliver) and its insurer, Acuity, for negligence and safe place violations. Because Rosario's claim for injuries due to a fall was based upon a structural defect, subject to the barring provision of the statute of repose, and not caused by an unsafe condition associated with a structure, we affirm.


¶ 2 On June 16, 2004, Rosario visited an office building located at 4763 South Packard Avenue in Cudahy, Wisconsin. It was occupied and owned by Oliver, a company engaged in the collection business. The purpose of her visit was to transact some personal business. As she was leaving the premises and in the process of stepping out onto the sidewalk, while negotiating a step three inches in height, she fell and broke her foot. It is undisputed that the design of the step violated the Wisconsin Building Code, § 1003.2.7, which requires a sloped surface instead of a step for elevation changes less than twelve inches. At the time of the accident, there were no signs or makers posted indicating the presence of the step.

¶ 3 Rosario claimed that Oliver was negligent in failing to properly maintain the premises prior to her sustaining her injuries and to warn frequenters and visitors of the condition of the premises. Alternatively, she alleged a violation of the safe place statute, WIS. STAT. § 101.11 (2005-06),1 for failure to construct, repair, and maintain its place of employment so that the premises would be safe. She further alleged that Oliver "knew or should have known of the unsafe condition of the area for a substantial period of time prior to said injuries and had ample time to remedy it."

¶ 4 After discovery had been completed, Oliver moved for summary judgment based upon Mair v. Trollhaugen Ski Resort, 2006 WI 61, ¶ 2, 291 Wis.2d 132, 715 N.W.2d 598, which held WIS. STAT. § 893.89 bars safe place claims resulting from injuries caused by structural defects ten years after a structure is substantially completed. Here, it is undisputed that the small-step structural defect was completed during the construction of the building forty years ago, far beyond the ten-year exposure period of the statute of repose.

¶ 5 In opposing the summary judgment motion, Rosario claimed that the building step was an "unsafe condition associated with the structure, not a structural defect." She argued she does not rely on the inherent design of the step to constitute a defect. Instead, she proffers that the step was maintained in an unsafe manner because Oliver failed to mark the step. This condition left her without "proper visual clues" by which she could judge the height of the step and thus prevent the fall.

¶ 6 The trial court granted summary judgment. It ruled that Rosario's claim is not one based on an unsafe condition. Rather, the essence of her action is that the short step made it unsafe. It further ruled that even if an unsafe condition existed, such a phenomena required notice to the owner and "none has been shown on the record...." Rosario now appeals.

A. Summary Judgment.

¶ 7 We review summary judgments independently, employing the same methodology as the trial court. Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816 (1987). We shall affirm the trial court's decision granting summary judgment if the record demonstrates that there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. WIS. STAT. § 802.08(2). Summary judgment is appropriate when "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." Id.

B. Interpretation of Statutes.

¶ 8 This case also involves the interpretation of the statute of repose and the safe place statute. We review questions of statutory interpretation independently. State v. Sveum, 2002 WI App 105, ¶ 5, 254 Wis.2d 868, 648 N.W.2d 496.

C. Safe Place Statute.

¶ 9 Under WIS. STAT. § 101.11, every employer and owner of a public building is to provide a place that is safe for frequenters of that place, and every owner of a public building "shall so construct, repair or maintain such" public building as to render it safe. The law, however, "does not require an ... owner of a public building to be insurers of frequenters of the premises." Megal v. Green Bay Area Visitor & Convention Bureau, Inc., 2004 WI 98, ¶ 9, 274 Wis.2d 162, 682 N.W.2d 857.

¶ 10 The term "safe" is relative in nature. "Safe" does not mean completely free of any hazards. What constitutes "a safe place depends upon the facts and conditions present, and the use to which the place [is] likely to be put." Gross v. Denow, 61 Wis.2d 40, 47, 212 N.W.2d 2 (1973) (quotations omitted). Just because a place could be more safe, it does not necessarily follow that an owner has breached the duty of care established by WIS. STAT. § 101.11(1).

¶ 11 "The owner of a public building is liable for: (1) structural defects; and (2) unsafe conditions associated with the structure of the building." Rizzuto v. Cincinnati Ins. Co., 2003 WI App 59, ¶ 11, 261 Wis.2d 581, 659 N.W.2d 476. "The classification of the hazardous property condition is often crucial in safe place cases because of the differing notice requirements for each." Barry v. Employers Mut. Cas. Co., 2001 WI 101, ¶ 22, 245 Wis.2d 560, 630 N.W.2d 517. Classifying an unsafe condition as a "structural defect" or as an "unsafe condition associated with the structure" requires the interpretation and application of the safe place statute to the facts of the case, thereby presenting a question of law that we review independently. Id., ¶ 17, 630 N.W.2d 517. An unsafe condition associated with the structure arises when an originally safe structure is not properly repaired or maintained. Id., ¶¶ 25, 27, 630 N.W.2d 517. "[D]efects in the lighting or paint color or a lack of warning signs could be considered unsafe conditions associated with the structure." Mair, 291 Wis.2d 132, ¶ 12, 715 N.W.2d 598.

¶ 12 A property owner must have actual or constructive notice of the defect to be liable for an unsafe condition associated with the structure of the building. Pettric v. Gridley Dairy Co., 202 Wis. 289, 293, 232 N.W. 595 (1930).

The general rule is that constructive notice is chargeable only where the hazard has existed for a sufficient length of time to allow the vigilant owner ... the opportunity to discover and remedy the situation. The length of time viewed as sufficient varies according to the nature of the business, the nature of the defect, and the public policy involved.

May v. Skelley Oil Co., 83 Wis.2d 30, 36-37, 264 N.W.2d 574 (1978).


¶ 13 Rosario contends that the trial court erred in granting summary judgment for two basic reasons. First, the trial court erroneously analyzed her claim as one based upon a structural defect, and second, improperly dismissed her claim which was based upon the existence of an unsafe condition associated with a structure. The two bases proposed by Rosario to reverse the trial court's decision are interrelated, but for the purposes of clarity, we shall examine them separately.

¶ 14 Rosario first contends that the trial court erred when it concluded that her claim for injury was fundamentally based upon a structural defect and consequently barred by the ten-year statute of repose of WIS. STAT. § 893.89. Rather, she asserts her injuries resulted from Oliver's "failure to warn" of the small step outside of the building which constituted "an unsafe condition associated with the structure." We are not persuaded.

¶ 15 As noted above, an owner of a public building can be liable for two property conditions: (1) structural defects, or (2) unsafe conditions associated with the structure of the building. Rizzuto, 261 Wis.2d 581, ¶ 11, 659 N.W.2d 476. The latter classification arises from "`the failure to keep an originally safe structure in proper repair or properly maintained.'" Mair, 291 Wis.2d 132, ¶ 23, 715 N.W.2d 598 (emphasis added; citation omitted). The classification is crucial because of the different notice requirements for each category. Id., ¶¶ 22-23, 715 N.W.2d 598.

¶ 16 A structural defect has been defined as "`a hazardous condition inherent in the structure by reason of its design or construction.'" Id., ¶ 22, 715 N.W.2d 598. (citation omitted). A structural defect arises from materials used in the construction, improper layout of the structure or improper construction. Id. On the one hand, a property owner is liable for injuries caused by a structural defect regardless of whether it had notice of the defect. Id. On the other hand, a property owner is liable for any unsafe condition only when it had actual or constructive notice of the condition. Id., ¶ 23, 715 N.W.2d 598.

¶ 17 In Barry, our supreme court further amplified the distinction between the statutory duty to safely construct and the statutory duty to repair or maintain. A breach of the statutory duty to safely construct creates a structural defect; whereas the breach of the statutory duty to repair or...

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