June 10, 2014 – Valentine Garrido-Crisanto’s foot was crushed while riding in a freight elevator that had no safety gate. However, a state appeals court recently ruled that his safe place and negligence claims were properly dismissed on summary judgment.

Garrido-Crisanto sued Heritage Relocation Services Inc., which owned the building. But in Garrido-Crisanto v. Heritage Relocation Services Inc., 2013AP1369 (June 10, 2014), a three-judge panel for the District I Court of Appeals ruled that the suit is barred.

The claims were premised on a structural defect, the appeals court explained, and therefore barred by Wis. Stat. section 893.89, the statute of repose.

The provision places a 10-year time limit on claims against real property owners for injuries “arising out of any deficiency or defect in the design” of an improvement to real property. The clock starts ticking when the improvement to real property is complete.

The appeals court refused to hook Heritage as a “subsequent owner” and declined to expand the law by allowing negligence claims if the real property owner fails to fix a structural defect from an improvement that was constructed more than 10 years prior.

Statute of Repose Applies

In 2010, Garrido-Crisanto was a temporary worker assigned to move carts and other equipment for a business that was leasing the building for storage. He was using the freight elevator to move the equipment between floors when his foot was crushed.

With no safety gate, Garrido-Crisanto’s foot was able to extend beyond the edge of the elevator, leaving his foot exposed. The Milwaukee building was built in 1909. The elevator was installed in the 1940s. Heritage bought the building in 1998.

In the 1950s, newly constructed buildings required safety gates for elevators, but older buildings weren’t required to install them. The older buildings were “grandfathered” in.

Garrido-Crisanto acknowledged that the improvement to real property, the addition of the elevator, was completed many years before in the 1940s. But he said the time limit did not apply, because Heritage was not involved in the improvement.

He also argued that Heritage waived its right to a defense based on the statute of repose, and Heritage knew of the unsafe condition and was required to fix it under section 893.89(4)(c). That provision says the time limit does not apply when damages result from negligence in maintaining, operating, or inspecting the improvement.

Garrido-Crisanto’s expert submitted a report that said poor maintenance of the elevator proximately caused his injuries and Heritage should have known that failing to maintain the elevator could have gravely dangerous consequences for those that used it.

The circuit court dismissed the claims as they related to the elevator’s structural defect, but suggested that his negligence action may be exempt from the statute. Garrido-Crisanto had not fully developed that argument, so it was dismissed.

On appeal, Garrido-Crisanto asked the appeals court to rule that the statute of repose was not a bar to his claims. However, the appeals court declined.

First, the three judge panel ruled that the statute of repose applies even if a subsequent owner of real property was not involved in the actual improvement to real property at issue. That is, the statute applied even though Heritage did not install the elevator.

“Having considered the question, we conclude that the statute of repose does apply to claims against subsequent owners, like Heritage, even if the subsequent owners were not involved in the improvement to real property,” Judge Kitty Brennan wrote.

The appeals court also ruled that section 893.89(4)(c) still bars Garrido-Crisanto’s negligence claims even if Heritage knew the elevator design was unsafe.

“He cites no authority for this proposition but argues that applying the statute of repose to claims for a structural defect of which the subsequent owner has notice would undermine traditional tort notions of negligence,” Brennan wrote. “[B]ecause we are bound by our prior precedent, we reject Garrido-Crisanto’s invitation to expand the law.”