Products Liability Law Daily Wrap Up, STATUTES OF LIMITATIONS AND REPOSE—BUILDING AND CONSTRUCTION—Wis. App.: Wisconsin Court of Appeals clarifies statute of repose application in structural defect case, (Aug 22, 2025)

By Wendy Biddle, J.D.

A negligent causation claim that is not premised on negligent failure to modify a structural defect is not barred by the statute of repose.

The plaintiff in this case slipped and fell on some ice at a business due to a downspout depositing water onto pavement, causing a freezing hazard. A state trial court granted summary judgment to the defendants based on the statute of repose. The Wisconsin Court of Appeals affirmed summary judgment dismissing the plaintiff's safe place statute claim but reversed the trial court's dismissal of his common law negligence claim, finding the lower court applied the statute of repose too broadly (Larimore v. Midland Plastics Inc., No. 2024AP543 (Wis. App. Aug. 21, 2025)).

Background. The plaintiff sustained a fractured ankle in January 2021 when he slipped on ice while approaching a loading dock at a Monona commercial building leased by Midland Plastics from Rohde Enterprises. The ice formation resulted from a downspout that discharged roof water directly onto the pavement near the loading area, creating a recurring freezing hazard.

The downspout had been installed years before Rohde Enterprises purchased the building in 2002 and remained unmodified since installation. On the day of the plaintiff's fall, none of the defendants—Midland Plastics, Rohde Enterprises, or snow removal contractor Kittleson Concrete Construction—had applied salt or sand to the loading area.

The plaintiff's expert witness, a snow removal contractor, testified that the downspout's design was defective because it created ice in a high-traffic pedestrian area. The expert opined that the hazard could have been eliminated by rerouting the downspout to discharge water into an adjacent grassy area using materials costing less than $20.

Procedural history. The plaintiff filed claims under Wisconsin's safe place statute and common law negligence theories. The defendants moved for summary judgment based on Wisconsin Statute § 893.89, the statute of repose governing improvements to real property. The statute bars claims arising from design defects in real property improvements after a seven-year exposure period following substantial completion.

The Dane County Circuit Court granted summary judgment for all defendants, concluding that the plaintiff's injury arose directly from the downspout's structural defect and therefore fell within the statute of repose's scope.

The plaintiff appealed.

Safe place claims. The court noted that the safe place claims focused on unsafe property conditions rather than the defendants' negligent acts. Wisconsin recognizes two categories of unsafe conditions: structural defects and unsafe conditions associated with structures.

Structural defects are hazardous conditions inherent in the structure by reason of its design or construction, while unsafe conditions associated with structures arise from the failure to keep an originally safe structure properly maintained.

The distinction was important because the statute of repose bars safe place claims premised on structural defects but contains a maintenance exception for unsafe conditions associated with structures that develop over time.

Applying this framework, the court determined that the ice accumulation constituted a hazard flowing directly from the downspout's defective original design. Because the downspout had not fallen into disrepair and the hazard stemmed from its original configuration rather than maintenance failures, the plaintiff's safe place claim was properly barred by the statute of repose.

Common law negligence claims. The plaintiff advanced two distinct causation theories for his negligence claims: failure to modify the downspout's design and failure to remediate the ice hazard through salting or sanding.

The court concluded that the negligent failure to alter the downspout theory fell squarely within the statute of repose. The court noted that the plaintiff alleged that his injury arose out of the defect in the design of the downspout, and more specifically, the defendants' failure to correct that defect, which was barred by the statute of repose.

However, the plaintiff’s second theory was more successful. The court distinguished between causation theories based on structural defect modification and those based on independent negligent conduct. The court found that a jury could reasonably determine that some or all of the defendants breached their duty of reasonable care by failing to inspect for and remediate ice on the property, and that their negligence was a “substantial factor” in the plaintiff’s injury. The court found that failure to inspect for and remediate ice constituted actionable negligence independent of any duty to correct the downspout's design defect. Because a theory of negligent causation is not premised on a failure to use reasonable care with regard to the construction or design of an improvement to real property, the court concluded the claim was not barred by the statute of repose.

The defendants argued that the statute of repose should bar all claims related to the plaintiff's injury because the fall would not have occurred absent the downspout's defective design. The court rejected this expansive interpretation, concluding it would "broadly immunize all sorts of negligent conduct beyond the scope of the legal protections set forth in the statute of repose."

The court distinguished the unpublished Heintz v. Hanson (No. 2015AP1790, unpublished slip op. (Wis. App. June 14, 2016)), which defendants cited for the proposition that property owners have no duty to ameliorate hazards traceable to structural defects. The court clarified that Heintz merely established that the failure to discover and correct original design defects does not constitute negligent maintenance under the statute's exception.

The appeals court affirmed the trial court's dismissal of the plaintiff's safe place claim but reversed the dismissal of his negligence claim, remanding for further proceedings.

The case is No. 2024AP543.

Judge: Graham, R.

Attorneys: Bruce M. Davey (Davey & Goldman Law Firm) for William B. Larimore. Paul D. Curtis (Axley Brynelson, LLP) for Midland Plastics Inc. Thomas Smith (Smith & Rowen, S.C.) for Rohde Enterprises, David O. Rohde and Shirley C. Rohde. Rick J. Mundt (von Briesen & Roper, s.c.) for Kittleson Concrete Construction, Inc.

Companies: Midland Plastics Inc. Rohde Enterprises; Kittleson Concrete Construction, Inc.

Cases: CourtDecisions SofLReposeNews BuildingConstructionNews DesignManufacturingNews WisconsinNews