Tauscher v. Acuity, A Mut. Ins. Co.

• Decision Date: 26 January 2023
• Docket Number: 2022AP738
• Parties: Michelle Tauscher, Plaintiff-Appellant, v. Acuity, A Mutual Insurance Company, Defendant-Respondent. Quartz Health Plan Corporation, Involuntary-Plaintiff,
• Court: Wisconsin Court of Appeals

Michelle Tauscher, Plaintiff-Appellant,

Quartz Health Plan Corporation, Involuntary-Plaintiff,
v.
Acuity, A Mutual Insurance Company, Defendant-Respondent.

No. 2022AP738

Court of Appeals of Wisconsin, District IV

January 26, 2023

Not recommended for publication in the official reports.

APPEAL from an order of the circuit court for La Crosse County Cir. Ct. No. 2021CV172: GLORIA L. DOYLE, Judge. Reversed.

Before Kloppenburg, Fitzpatrick, and Graham, JJ.

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GRAHAM, J.

¶1 Michelle Tauscher appeals a circuit court order that granted summary judgment in favor of Acuity, A Mutual Insurance Company, and dismissed Tauscher's negligence claim, which sought damages for injuries she sustained on property Acuity insured. We reject Acuity's argument that Tauscher's negligence claim is time barred by the statute of repose found in Wis.Stat. § 893.89 (2019-20).^[1] That statute does not apply because Acuity has not shown that Tauscher's claim arises 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, [an] improvement to real property." See § 893.89(2). We also reject Acuity's arguments that Tauscher's negligence claim fails as a matter of law for other reasons. Accordingly, we reverse the circuit court's summary judgment order.

BACKGROUND

¶2 This appeal concerns injuries Tauscher sustained in December 2020, when she fell over an unlit exterior step at a private residence in Tomah, Wisconsin that was owned by Wayne Kling and insured by Acuity. The following facts, which are undisputed for purposes of summary judgment, are derived from the pleadings, depositions, and the parties' answers to interrogatories.

¶3 At Kling's residence, there is a concrete walk that traverses the front yard, connecting the front porch to the city sidewalk in front of the residence. At the end of the private front walk, there is a single step down to the city sidewalk

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six inches below. The front walk and step have been present and unchanged for decades and have not fallen into disrepair.

¶4 Tauscher was a guest at the Kling home on the night of her injury.After she left around 7:00 p.m., she followed the front walk toward the sidewalk and fell over the step at the end of the front walk, shattering her kneecap. It is undisputed that the cause of Tauscher's fall was that she did not see the step.

¶5 At the time Tauscher fell, it was dark outside but not pitch black. For purposes of summary judgment, Acuity concedes that Kling's front walk and step were not illuminated by any exterior light source, wired or otherwise, on the Kling property. It is undisputed that there has never been any wired light fixture on the exterior of the Kling home, that Kling has on occasion illuminated the front walk and step with solar light sticks, and that no solar light sticks were present to illuminate the front walk and step on the evening of Tauscher's fall.^[2]

¶6 Tauscher commenced this action by filing a complaint against Acuity, but not against Kling.^[3] Her complaint alleged that Kling was negligent in "fail[ing] to properly construct, erect, inspect, maintain, repair, safeguard, and

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warn [Tauscher] regarding the unsafe condition of the premises," and that his negligence caused her injuries.^[4] Despite this broad language in her complaint, Tauscher later disavowed any reliance on a theory of liability based on the construction of the front walk and step. She clarified that her negligence claim is not based on the physical condition of the front walk and step, and that it is based solely on the absence of exterior lighting on Kling's property that would have allowed Tauscher to see the step.

¶7 Following discovery, Acuity moved for summary judgment, arguing that Tauscher's claim is time barred by the "builder's statute of repose" in Wis.Stat. § 893.89. More specifically, Acuity appeared to argue that, to the extent Tauscher's negligence claim is based on the absence of exterior lighting, that absence is itself a deficiency or defect in the design of the front walk that is governed by the statute of repose. Acuity also argued that Tauscher's negligent failure to light claim is akin to a negligent failure to warn of a defective improvement claim. Therefore, following this court's analysis of a failure to warn claim in Rosario v. Acuity & Oliver Adjustment Co., 2007 WI.App. 194, 304 Wis.2d 713, 738 N.W.2d 608, Acuity argued that Tauscher's failure to light claim is likewise subject to the statute of repose. Tauscher opposed Acuity's motion,

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arguing that Kling's negligent failure to light the front walk is not a deficiency or defect in the design of the front walk.

¶8 The circuit court granted Acuity's motion for summary judgment, concluding that Acuity is entitled to judgment as a matter of law because Tauscher's claim is time barred by the statute of repose in Wis.Stat. § 893.89. The court stated that Tauscher's claim arises out of a deficiency or defect in the front walk and step, which "were in good repair and had been maintained unchanged for decades." It stated that this court's discussion of failure to warn claims in Rosario is "right on point" and controls the proper analysis of Tauscher's negligence claim. See Rosario, 304 Wis.2d 713. Finally, the circuit court concluded that, even if the statute of repose does not bar Tauscher's negligence claim, her claim should be dismissed for other reasons discussed in greater detail below. Tauscher appeals.

DISCUSSION

¶9 This case comes to us on appeal of the circuit court's grant of a motion for summary judgment. We review the circuit court's decision de novo, "employing the same methodology as the circuit court." Palisades Collection LLC v. Kalal, 2010 WI.App. 38, ¶9, 324 Wis.2d 180, 781 N.W.2d 503. Pursuant to Wis.Stat. § 802.08(2), summary judgment shall be granted "if 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 judgment as a matter of law." In conducting this analysis, "[w]e view the summary judgment materials in the light most favorable to the nonmoving party." Smaxwell v. Bayard, 2004 WI 101, ¶12, 274 Wis.2d 278, 682 N.W.2d 923. Summary judgment should not be granted in a

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defendant's favor "unless the facts presented conclusively show that the plaintiff's action has no merit and cannot be maintained." Id. (internal quotation omitted).

¶10 Acuity asserts that it is entitled to judgment as a matter of law because Tauscher's claim is time barred by the statute of repose in Wis.Stat. § 893.89 or, alternatively, because Tauscher cannot satisfy the elements of a negligence claim for other reasons identified by the circuit court. Whether Acuity is entitled to summary judgment turns on the interpretation and application of § 893.89, as well as the elements of a common law negligence claim, both of which are questions of law that we review de novo. See Nowell v. City of Wausau, 2013 WI 88, ¶19, 351 Wis.2d 1, 838 N.W.2d 852 (statutory interpretation); see generally Hoida, Inc. v. M & I Midstate Bank, Inc., 2006 WI 69, ¶¶22-26, 291 Wis.2d 283, 717 N.W.2d 17 (elements of negligence). We address Acuity's arguments in turn.

I. Acuity's Arguments Regarding Wis.Stat. § 893.89's Statute of Repose

¶11 Acuity's primary argument in favor of summary judgment is that Tauscher's negligence claim is time barred by Wis.Stat. § 893.89. Section 893.89 is a statute of repose that sets forth a seven-year "exposure period" during which an action for injury "arising out of" certain "deficiencies and defects" in "improvements to real property" must be commenced.^[5] If the statute of

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repose applies to an action and the seven-year exposure period has expired, the action is time barred and must be dismissed. See § 893.89(1)-(2).

¶12 Under the statute, an item is an "improvement to real property" if it is a "permanent addition to real property that enhances its capital value, involves the expenditure of labor and money, and was designed to make the property more useful or valuable." See Kohn v. Darlington Cmty. Schs., 2005 WI 99, ¶33, 283 Wis.2d 1, 698 N.W.2d 794. The parties agree that the improvement at issue in this case is the front walk leading from Kling's front porch, including the step down to the city sidewalk.

¶13 The statute's seven-year "exposure period" begins to run the date of an improvement's "substantial completion." Wis.Stat. § 893.89(1), (2). An improvement is "substantially completed" when, among other things, it is occupied for its intended purpose. Holy Family Catholic Congregation v. Stubenrauch Assoc., Inc., 136 Wis.2d 515, 523, 402 N.W.2d 382 (Ct. App. 1987). Here, the parties agree that the front walk and step were substantially

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completed decades ago, that they have remained unchanged for decades, and that they have not fallen into disrepair.

¶14 The text of Wis.Stat. § 893.89 distinguishes between different types of claims that relate to improvements in real property. Claims that "arise 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, [an] improvement to real property" are subject to the statute of repose.^[6] Such claims are time barred if they are commenced more than seven years after substantial completion of the improvement. See § 893.89(1)-(2). Other claims, including claims that "result from the negligent maintenance, operation, or inspection of an improvement," are not subject to the seven-year time bar. See § 893.89(4)(c).^[7]

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¶15 Wisconsin cases demonstrate that the key to determining whether a claim "arises" from a "deficiency or defect" in an improvement, and is thus subject...