Relation-back statute won’t save plaintiff’s slip and fall claim against building owner

By Joe Forward, Legal Writer, State Bar of Wisconsin

Nov. 22, 2011 – In some circumstances, Wisconsin’s relation-back statute allows parties to skirt statutes of limitations in making claims against parties not known when the original complaint is filed. Recently, a state appeals court clarified the analysis in deciding that issue.

In 2006, Verdia Wiley slipped and fell on the icy parking lot at Butler Skateland, Inc., a roller rink for kids. She claimed Butler Skateland negligently maintained the premises and violated Wisconsin’s safe place statute, Wis. State section 101.11.

Wiley filed an amended complaint to add M.M.N Laufer Family Partnership (MMN), owner of the building that houses Butler Skateland, more than a year after the statute of limitations ran, alleging that MMN was negligent because it owned, operated, and managed Butler Skateland.

Wiley said the claim, though barred by the statute of limitations, related back to the original complaint under the relation-back statute. Under section 802.09(3), an amendment “relates back” to the original pleading date, if the claim asserted in the amended pleading arose out of same transaction, occurrence, or event set forth in the original pleading.

Pursuant to an interrogatory request from Butler Skateland, Wiley thought Martin Laufer, general partner of MMN, owned the building. In actuality, MMN owned the building. However, Wiley never made a claim against Laufer or MMN in the original complaint.

Under 802.09(3), the added party (here, MMN) must have known, or should have known that, “but for a mistake concerning the proper party, the action would have been brought against such party.” Id. Wiley argued that MMN should have known an action would have been commenced against it but for a mistake as to the proper owner of the building.

But the District I Wisconsin Court of Appeals in Wiley v. M.M.N. Laufer Family Limited Partnership, 2010AP2789 (recommended for publication, Nov. 22, 2011), upheld summary judgment in favor of MMN, ruling that Wiley could not satisfy the relation-back statute.

“M.M.N. should not have expected to be added as a defendant in this case because M.M.N. is merely the building owner; it has no role in owning, operating, or managing the business of Skateland; and Wiley’s original complaint asserts no claim against any owner or alleged owner of the building,” wrote Presiding Judge Patricia Curley.

The court noted that Wiley should have sought to add an additional defendant the moment she learned the business owner and the business operator were separate entities. That occurred before the statute of limitations ran out on MMN as potential defendant.