Chapter 893

893.83 Annotation When an accumulation of ice is created by natural conditions, a municipality has three weeks to address the problem. Actions based on artificial accumulations are actionable without the three-week requirement. To be an artificial condition, grading must be part of a drainage design plan or be shown to divert water from other sources onto the sidewalks. If not, grading, by itself, does not create an artificial condition on land even if the municipality had notice that a hazardous condition existed. Gruber v. Village of North Fond du Lac, 2003 WI App 217, 267 Wis. 2d 368, 671 N.W.2d 692, 03-0357.

893.83 Note NOTE: The above annotations cite to s. 81.15, the predecessor statute to this section.

893.83 Annotation The first sentence of this section grants municipalities a period of absolute immunity for claims based on snow and ice accumulations that have existed less than three weeks. The second sentence clarifies that immunity is not absolute if the snow or ice accumulation has existed for three weeks or more—under such circumstances, a claim is subject to s. 893.80, like any other tort claim against a municipality. Knoke v. City of Monroe, 2021 WI App 6, 395 Wis. 2d 551, 953 N.W.2d 889, 19-2003.

subch. IX of ch. 893 SUBCHAPTER IX

STATUTES OF LIMITATION; ACTIONS BY THE STATE, STATUTORY LIABILITY AND MISCELLANEOUS ACTIONS

893.85 893.85 Action concerning old-age assistance lien.

893.85(1) (1) An action to collect an old-age assistance lien filed under s. 49.26, 1971 stats., prior to August 5, 1973, must be commenced within 10 years after the date of filing of the required certificate under s. 49.26 (4), 1971 stats.

893.85(2) (2) No claim under s. 49.25, 1971 stats., may be presented more than 10 years after the date of the most recent old-age assistance payment covered by the claim.

893.85 History History: 1977 c. 385; 1979 c. 323.

893.85 Note Judicial Council Committee’s Note, 1979: This section is previous s. 893.181 renumbered for more logical placement in restructured ch. 893. [Bill 326-A]

893.86 893.86 Action concerning recovery of legal fees paid for indigents. An action under s. 757.66 to recover an amount paid by a county for legal representation of an indigent defendant shall be commenced within 10 years after the recording of the claim required under s. 757.66 or be barred.

893.86 History History: 1979 c. 323; 1993 a. 301.

893.87 893.87 General limitation of action in favor of the state. Any action in favor of the state, if no other limitation is prescribed in this chapter, shall be commenced within 10 years after the cause of action accrues or be barred. No cause of action in favor of the state for relief on the ground of fraud shall be deemed to have accrued until discovery on the part of the state of the facts constituting the fraud.

893.87 History History: 1979 c. 323.

893.87 Note Judicial Council Committee’s Note, 1979: This section is previous s. 893.18 (6) renumbered for more logical placement in restructured ch. 893. [Bill 326-A]

893.87 Annotation This section applies only if the action is of a type that does not fall under any other statute of limitations. State v. Holland Plastics Co., 111 Wis. 2d 497, 331 N.W.2d 320 (1983).

893.87 Annotation When every day of violation of a statute constitutes a separate violation, a cause of action accrues on each day of an alleged violation. State v. Chrysler Outboard Corp., 219 Wis. 2d 130, 580 N.W.2d 203 (1998), 96-1158.

893.88 893.88 Paternity actions. Notwithstanding s. 990.06, an action for the establishment of the paternity of a child shall be commenced within 19 years of the date of the birth of the child or be barred.

893.88 History History: 1971 c. 21; 1979 c. 323, 352; 1979 c. 355 s. 225, 231; 1979 c. 357; Stats. 1979 s. 893.88; 1983 a. 447.

893.88 Annotation This section did not revive a time-barred paternity action. State v. D.B., 137 Wis. 2d 57, 403 N.W.2d 434 (1987).

893.88 Annotation This section is constitutional. James A.O. v. George C.B., 182 Wis. 2d 166, 513 N.W.2d 410 (Ct. App. 1994).

893.88 Annotation This section, limiting only an action for the establishment of paternity, does not preclude a motion for the purpose of determining paternity in a probate proceeding. DiBenedetto v. Jaskolski, 2003 WI App 70, 261 Wis. 2d 723, 661 N.W.2d 869, 01-2189.

893.89 893.89 Action for injury resulting from improvements to real property.

893.89(1) (1) In this section, “exposure period” means the 7 years immediately following the date of substantial completion of the improvement to real property.

893.89(2) (2) Except as provided in sub. (3), no cause of action may accrue and no action may be commenced, including an action for contribution or indemnity, against the owner or occupier of the property or against any person involved in the improvement to real property after the end of the exposure period, to recover damages for any injury to property, for any injury to the person, or for wrongful death, arising 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, the improvement to real property. This subsection does not affect the rights of any person injured as the result of any defect in any material used in an improvement to real property to commence an action for damages against the manufacturer or producer of the material.

893.89(3) (3) 

893.89(3)(a) (a) Except as provided in pars. (b) and (c), if a person sustains damages as the result of a deficiency or defect in an improvement to real property, and the statute of limitations applicable to the damages bars commencement of the cause of action before the end of the exposure period, the statute of limitations applicable to the damages applies.

893.89(3)(b) (b) If, as the result of a deficiency or defect in an improvement to real property, a person sustains damages during the period beginning on the first day of the 5th year and ending on the last day of the 7th year after the substantial completion of the improvement to real property, the time for commencing the action for the damages is extended for 3 years after the date on which the damages occurred.

893.89(3)(c) (c) An action for contribution is not barred due to the accrual of the cause of action for contribution beyond the end of the exposure period if the underlying action that the contribution action is based on is extended under par. (b).

893.89(4) (4) This section does not apply to any of the following:

893.89(4)(a) (a) A person who commits fraud, concealment or misrepresentation related to a deficiency or defect in the improvement to real property.

893.89(4)(b) (b) A person who expressly warrants or guarantees the improvement to real property, for the period of that warranty or guarantee.

893.89(4)(c) (c) An owner or occupier of real property for damages resulting from negligence in the maintenance, operation or inspection of an improvement to real property.

893.89(4)(d) (d) Damages that were sustained before April 29, 1994.

893.89(5) (5) Except as provided in sub. (4), this section applies to improvements to real property substantially completed before, on or after April 29, 1994.

893.89(6) (6) This section does not affect the rights of any person under ch. 102.

893.89 History History: 1975 c. 335; 1979 c. 323; 1993 a. 309, 311; 2017 a. 235.

893.89 Annotation “Substantial completion,” the event that triggers the limitation period under former s. 893.89, 1977 stats., is ambiguous. The period begins to run when planners, designers, and contractors lose a significant amount of control over the improvement. A convenient and fair measure of the time when control over the improvement shifts from the builders to the owner is the date when construction is sufficiently completed so that the owner or the owner’s representative can occupy or use the improvement for the use it was intended. Holy Family Catholic Congregation v. Stubenrauch Associates, Inc., 136 Wis. 2d 515, 402 N.W.2d 382 (Ct. App. 1987). See also Wascher v. ABC Insurance Co., 2022 WI App 10, 401 Wis. 2d 94, 972 N.W.2d 162, 20-1961.

893.89 Annotation Bleachers at a high school football stadium qualified as an “improvement to real property” for purposes of this section because they were a permanent addition to real property that enhanced its capital value, involved the expenditure of labor and money, and were designed to make the property more useful or valuable. That an improvement can be removed without harming the real property will not necessarily indicate that the item is not an improvement to real property. The more pertinent inquiry is whether the item can be readily dissembled and moved. Kohn v. Darlington Community Schools, 2005 WI 99, 283 Wis. 2d 1, 698 N.W.2d 794, 03-1067.

893.89 Annotation This section does not violate article I, section 9, of the Wisconsin Constitution, the right to remedy clause, nor the guarantees of equal protection in the federal and state constitutions. Kohn v. Darlington Community Schools, 2005 WI 99, 283 Wis. 2d 1, 698 N.W.2d 794, 03-1067.

893.89 Annotation This section bars safe place claims under s. 101.11 resulting from injuries caused by structural defects ten [now seven] years after a structure is substantially completed, as opposed to safe place claims resulting from injuries caused by unsafe conditions associated with the structure. Mair v. Trollhaugen Ski Resort, 2006 WI 61, 291 Wis. 2d 132, 715 N.W.2d 598, 04-1252.

893.89 Annotation The evident purpose of sub. (4) (b) is to give a party who has bargained for a warranty or guarantee the benefit of the warranty or guarantee period before the exposure period begins to run. The common council is the only entity authorized by statute to act on behalf of a city. Sub. (4) (b) does not need to explicitly state that a municipality must take “official action,” because the only manner in which a municipality may lawfully act is already established by the statutes that govern it. Sub. (4) (b) does not extend to an “unofficial” warranty or guarantee that is unenforceable and does not provide an equitable estoppel exception to the running of the statute. Hocking v. City of Dodgeville, 2009 WI App 108, 320 Wis. 2d 519, 770 N.W.2d 761, 08-2812.

893.89 Annotation When the design and construction of city streets caused a water drainage problem, the city’s failure to alter the streets to remedy the problem was a not failure to “maintain” the streets under sub. (4) (c). The applicable common meaning of “maintenance” in this context is the labor of keeping something in a state of repair. Here there was no factual submission showing that the city did or failed to do something with respect to keeping the streets in repair that caused the water damage. Hocking v. City of Dodgeville, 2009 WI App 108, 320 Wis. 2d 519, 770 N.W.2d 761, 08-2812.

893.89 Annotation The warranty specified in sub. (4) (b) is an express warranty; this means an implied warranty is not enough. City officials, such as employees and individual members of the common council, cannot, through representations that problems will be solved, bind the city to resolve those problems unless they act or make their representations with the authority to bind the city. Hocking v. City of Dodgeville, 2010 WI 59, 326 Wis. 2d 155, 785 N.W.2d 398, 08-2812.

893.89 Annotation When an improvement to real property creates a nuisance, a party has ten [now seven] years from the substantial completion of that improvement to bring suit. Sub. (4) (c) applies when an improvement to real property is completed, but the owner or occupier is negligent in the maintenance, operation, or inspection of it, thus causing damage. It does not apply to proper maintenance of an improvement when it is the improvement itself that causes injury. Hocking v. City of Dodgeville, 2010 WI 59, 326 Wis. 2d 155, 785 N.W.2d 398, 08-2812.

893.89 Annotation An easement agreement that expressly stated that the defendant sewer district agreed to construct and maintain an intercepting sewer in good order and condition and to indemnify and save harmless the plaintiff from all loss or injury to its property and persons due to such construction was an express warranty under Hocking, 2010 WI 59. Cianciola, LLP v. Milwaukee Metropolitan Sewerage District, 2011 WI App 35, 331 Wis. 2d 740, 796 N.W.2d 806, 10-0087.

893.89 Annotation This section provides that persons involved in improvements to real property may not be sued more than ten [now seven] years after substantial completion of a project. The statute does not extend the time for bringing lawsuits that are otherwise time-barred by statutes of limitations. This section is a catch-all provision that imposes a time limit on many lawsuits relating to property improvements that are not otherwise time-barred within ten [now seven] years after substantial completion. If a cause of action is time-barred by a statute of limitations before it would be barred under this section, that statute of limitations applies. Kalahari Development, LLC v. Iconica, Inc., 2012 WI App 34, 340 Wis. 2d 454, 811 N.W.2d 825, 11-0643.

893.89 Annotation This section applies to claims against subsequent owners who were not involved in the actual improvement to the property. Expanding the class of claims exempt from the statute of repose under sub. (4) (c) to include not only unsafe conditions, but also structural defects of which an owner has notice, would effectively swallow the rule because every improvement that is negligently designed could be considered an ongoing nuisance that the owner or operator negligently maintains by failing to correct. Crisanto v. Heritage Relocation Services, Inc., 2014 WI App 75, 355 Wis. 2d 403, 851 N.W.2d 771, 13-1369.

893.89 Annotation “Damages” in sub. (4) (d) means legally actionable damages. Peter v. Sprinkmann Sons Corp., 2015 WI App 17, 360 Wis. 2d 411, 860 N.W.2d 308, 14-0923.

893.89 Annotation The purpose of this section is to protect contractors who are involved in permanent improvements to real property. Daily repairs are not improvements to real property as that phrase is used in this section. Peter v. Sprinkmann Sons Corp., 2015 WI App 17, 360 Wis. 2d 411, 860 N.W.2d 308, 14-0923.

893.89 Annotation Although the accident in this case occurred well after the ten-year [now seven-year] exposure period had expired, there was sufficient evidence in the record to support the trial court’s findings that the defendant concealed and misrepresented changes in construction, thus triggering the fraud exception to the statute of repose. Wosinski v. Advance Cast Stone Co., 2017 WI App 51, 377 Wis. 2d 596, 901 N.W.2d 797, 14-1961.

893.89 Annotation The builder’s statute of repose may not be avoided by arguing that a hazard such as an uneven floor or inclined surface should be discovered by a property owner and either fixed or marked. If that logic were followed, a duty to inspect and warn would render the statutory exposure period meaningless because a plaintiff could always allege that a defendant should have inspected its premises and either fixed or warned of any alleged defect. Soletski v. Krueger International, Inc., 2019 WI App 7, 385 Wis. 2d 787, 924 N.W.2d 207, 17-2063.

893.89 Annotation The mere fact that a plaintiff is engaged in general maintenance at a defendant’s facility does not trigger the builder’s statute of repose’s maintenance exception under sub. (4) (c). An improvement to real property must have been negligently maintained to trigger the exception. Soletski v. Krueger International, Inc., 2019 WI App 7, 385 Wis. 2d 787, 924 N.W.2d 207, 17-2063.

893.89 Annotation A defect is structural if it arises by reason of the materials used in construction or from improper layout or construction. In this case, the presence of airborne asbestos during the original construction of the power plants was a hazardous condition inherent in those structures by reason of their design or construction. The plaintiff’s safe place claims under s. 101.11 were therefore based on an injury caused by a structural defect, and the construction statute of repose barred the plaintiff’s claims. Nooyen v. Wisconsin Electric Power Co., 2020 WI App 9, 390 Wis. 2d 687, 939 N.W.2d 621, 19-0289.

893.89 Annotation The maintenance exception under sub. (4) (c) applies when damages occur as the result of an owner or occupier’s failure to maintain the improvement itself, not when the owner or occupier has failed to maintain a safe workplace. Nooyen v. Wisconsin Electric Power Co., 2020 WI App 9, 390 Wis. 2d 687, 939 N.W.2d 621, 19-0289.

893.89 Annotation A plaintiff alleging that the plaintiff developed mesothelioma as a result of exposure to asbestos does not have a legally cognizable claim until the plaintiff is actually diagnosed. Although the plaintiff in this case was allegedly exposed to asbestos between 1970 and 1973, the plaintiff was not diagnosed with mesothelioma until 2016 and therefore did not have a claim until that time. Accordingly, the circuit court properly applied the version of the statute that was in effect at the time of the plaintiff’s diagnosis. Nooyen v. Wisconsin Electric Power Co., 2020 WI App 9, 390 Wis. 2d 687, 939 N.W.2d 621, 19-0289.

893.89 Annotation In this case, although the placement of stone cladding on the house may have hidden the mortar from view and obscured the fact that flashing had not been installed, there was no evidence to suggest that the defendants placed the stone on the home with the intent to conceal any alleged defects from the home owners. Absent such evidence of intent, the fact that the defendants’ work was allegedly defective was not sufficient, in and of itself, to show that they engaged in fraud, concealment, or misrepresentation, as required by the exception under sub. (4) (a). Wascher v. ABC Insurance Co., 2022 WI App 10, 401 Wis. 2d 94, 972 N.W.2d 162, 20-1961.

893.89 Annotation Although the statute of repose under sub. (2) applies to actions “to recover damages,” the statute of repose applied to the plaintiffs’ claim for injunctive relief in this case. The plaintiffs sought an injunction ordering the defendants to perform remedial work at the plaintiffs’ home, a request that was not aimed at preventing some future conduct by the defendants that would injure the plaintiffs or violate their rights. Rather, the request for injunctive relief was, at its core, remedial in nature—it sought to remedy allegedly deficient work that the defendants had already performed. Wascher v. ABC Insurance Co., 2022 WI App 10, 401 Wis. 2d 94, 972 N.W.2d 162, 20-1961.

893.895 893.895 Real estate appraisers; limitations of actions.

893.895(1) (1) In this section:

893.895(1)(a) (a) “Appraisal report” has the meaning given in s. 458.01 (3).

893.895(1)(b) (b) “Client” means a person for whom an appraisal report is prepared.

893.895(2) (2) Except as provided in subs. (3) and (4), an action to recover damages based on tort, contract, or other legal theory against a real estate appraiser licensed or certified under ch. 458 for an act or omission in the performance of real estate appraisal services shall be commenced within 5 years after the date the real estate appraiser submits the appraisal report to the client for whom the services are performed or be barred.

893.895(3) (3) If a person sustains damages covered under sub. (2) and the statute of limitations applicable to those damages bars commencement of the cause of action before the end of the period specified in sub. (2), then that statute of limitations applies.

893.895(4) (4) This section does not apply to a real estate appraiser who commits fraud or concealment in the performance of real estate appraisal services.

893.895 History History: 2021 a. 194.

893.90 893.90 Bond; campaign financing; lobbying.

893.90(1) (1) An action by the state or any of its departments or agencies or by any county, town, village, city, school district, technical college district or other municipal unit to recover any sum of money by reason of the breach of an official bond or the breach of a bond of any nature, whether required by law or not, given by a public officer or any agent or employee of a governmental unit shall be commenced within 3 years after the governmental unit receives knowledge of the fact that a default has occurred in some of the conditions of the bond and that it was damaged because of the default or be barred.

893.90(2) (2) Any civil action arising under ch. 11, subch. III of ch. 13 or subch. II of ch. 19 shall be commenced within 3 years after the cause of action accrues or be barred.

893.90 History History: 1979 c. 323; 1981 c. 335; 1993 a. 399.

893.90 Note Judicial Council Committee’s Note, 1979: This section is previous ss. 893.20 and 893.205 (3) renumbered for more logical placement in restructured ch. 893. [Bill 326-A]

893.91 893.91 Action for expenses related to a forest fire. An action by a state or town under s. 26.14 (9) (b) to recover expenses incurred in the suppression of a forest fire shall be commenced within 2 years of the setting of the fire or be barred.

893.91 History History: 1979 c. 323.

893.91 Note Judicial Council Committee’s Note, 1979: This section has been created to place into ch. 893 the statute of limitation for an action to recover expenses related to fighting a forest fire. See the note following s. 26.14 (9) (b). [Bill 326-A]

893.92 893.92 Action for contribution. An action for contribution based on tort, if the right of contribution does not arise out of a prior judgment allocating the comparative negligence between the parties, shall be commenced within one year after the cause of action accrues or be barred.

893.92 History History: 1979 c. 323.

893.92 Note Judicial Council Committee’s Note, 1979: This section is previous s. 893.22 (4) renumbered for more logical placement in restructured ch. 893. [Bill 326-A]

893.92 Annotation A claim for contribution accrues when payment is made. Milwaukee Mutual Insurance Co. v. Priewe, 118 Wis. 2d 318, 348 N.W.2d 585 (Ct. App. 1984).

893.925 893.925 Action for certain damages related to mining.

893.925(1) (1) A claim against the mining damage appropriation under s. 107.31 to recover damages for mining-related injuries shall be brought within 3 years of the date on which the death occurs or the injury was or should have been known.

893.925(2) (2) 

893.925(2)(a) (a) An action to recover damages for mining-related injuries under s. 107.32 shall be brought within 3 years of the date on which the death or injury occurs unless the department of safety and professional services gives written notice within the time specified in this subsection that a claim has been filed with it under sub. (1), in which case an action based on the claim may be brought against the person to whom the notice is given within one year after the final resolution, including any appeal, of the claim or within the time specified in this subsection, whichever is longer.

893.925(2)(b) (b) In this subsection “date of injury” means the date on which the evidence of injury, resulting from the act upon which the action is based, is sufficient to alert the injured party to the possibility of the injury. The injury need not be of such magnitude as to identify the causal factor.

893.925 History History: 1979 c. 353 s. 7; Stats. 1979 s. 893.207; 1979 c. 355 s. 227; Stats. 1979 s. 893.925; 1995 a. 27 ss. 7214, 9116 (5); 2011 a. 32.

893.93 893.93 Miscellaneous actions.

893.93(1) (1) The following actions shall be commenced within 6 years after the cause of action accrues or be barred:

893.93(1)(c) (c) An action upon a claim, whether arising on contract or otherwise, against a decedent or against a decedent’s estate, unless probate of the estate in this state is commenced within 6 years after the decedent’s death.

893.93(1)(cm) (cm) An action under s. 218.0125 (7) or 218.0126.

893.93(1)(d) (d) An action under s. 968.31.