Chapter 893

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.

893.93(1)(e) (e) An action under s. 895.444.

893.93(1m) (1m) The following actions shall be commenced within 3 years after the cause of action accrues or be barred:

893.93(1m)(a) (a) An action upon a liability created by statute when a different limitation is not prescribed by law.

893.93(1m)(b) (b) An action for relief on the ground of fraud. The cause of action in such case is not deemed to have accrued until the discovery, by the aggrieved party, of the facts constituting the fraud.

893.93(2) (2) The following actions shall be commenced within 2 years after the cause of action accrues or be barred:

893.93(2)(a) (a) An action by a private party upon a statute penalty, or forfeiture when the action is given to the party prosecuting therefor and the state, except when the statute imposing it provides a different limitation.

893.93(2)(b) (b) An action to recover a forfeiture or penalty imposed by any bylaw, ordinance or regulation of any town, county, city or village or of any corporation or limited liability company organized under the laws of this state, when no other limitation is prescribed by law.

893.93(3) (3) The following actions shall be commenced within one year after the cause of action accrues or be barred:

893.93(3)(a) (a) An action against a sheriff or other officer for the escape of a prisoner arrested or imprisoned on civil process.

893.93(3)(b) (b) An action under ch. 135.

893.93(4) (4) An action by a drainage board for damages under s. 88.92 (2) shall be commenced within 3 years after the drainage board discovers the fact, or with the exercise of reasonable diligence should have discovered the fact of the damage, whichever comes first, or be barred.

893.93 History History: 1979 c. 323; 1993 a. 98, 112, 456; 2005 a. 155; 2017 a. 235.

893.93 Note Judicial Council Committee’s Note, 1979: This section has been created to place in one location within restructured ch. 893 various miscellaneous statutes of limitation for easier reference and use. Sub. (1) (a) is previous s. 893.19 (4). Sub. (1) (b) is previous s. 893.19 (7). Sub. (1) (c) is previous s. 893.19 (9). Sub. (1) (d) is previous s. 893.19 (10). Sub. (2) (a) is previous s. 893.21 (1) with a comma placed after the word “penalty” in order to have the section accurately reflect the decision in Grengs v. 20th Century Fox Film Corporation, 232 F.2d 325 (1956). Sub. (2) (b) is previous s. 893.21 (4). Sub. (3) (a) is previous s. 893.22 (1). Sub. (3) (b) is previous s. 893.22 (3). [Bill 326-A]

893.93 Annotation If the complaint does not allege the requisite elements for a cause of action based on fraud, s. 893.19 (7) [now sub. (1m) (b)] does not apply. Demos v. Carey, 50 Wis. 2d 262, 184 N.W.2d 117 (1971).

893.93 Annotation A complaint alleging employment discrimination on the basis of sex and seeking back-pay damages is an action upon a liability created by statute, and, in the absence of any other applicable limitation, the six-year limitation of s. 893.19 (4) [now sub. (1m) (a)] applies. Yanta v. Montgomery Ward & Co., 66 Wis. 2d 53, 224 N.W.2d 389 (1974).

893.93 Annotation When unreasonable delay in bringing suit prejudices the defendant because of the death of a key witness, laches will bar suit even if the s. 893.19 (7) [now sub. (1m) (b)] statute of limitations does not. Schafer v. Wegner, 78 Wis. 2d 127, 254 N.W.2d 193 (1977).

893.93 Annotation Complaints under the open meetings law are not brought in the individual capacity of the plaintiff but on behalf of the state, subject to the two-year statute of limitations under sub. (2). State ex rel. Leung v. City of Lake Geneva, 2003 WI App 129, 265 Wis. 2d 674, 666 N.W.2d 104, 02-2747.

893.93 Annotation Sub. (1) (a) [now sub. (1m) (a)] does not apply to a professional disciplinary proceeding, the focus of which is to monitor and supervise the performance of a person who has been granted the privilege of a license in this state. Krahenbuhl v. Wisconsin Dentistry Examining Board, 2004 WI App 147, 275 Wis. 2d 626, 685 N.W.2d 591, 03-2864.

893.93 Annotation Claims for injury caused by an Archdiocese’s alleged fraudulent misrepresentation that the Archdiocese did not know that priests it assigned had histories of sexually abusing children and did not know the priests were dangerous to children were independent claims based on the Archdiocese’s alleged knowledge of the priests’ prior sexual molestation of children and the Archdiocese’s intent to deceive children and their families and not derivative of the underlying sexual molestations by the priests. The date of the accrual of the fraud claims was when the plaintiffs discovered or, in the exercise of reasonable diligence, should have discovered that the Archdiocese’s alleged fraud was a cause of their injuries. Doe v. Archdiocese of Milwaukee, 2007 WI 95, 303 Wis. 2d 34, 734 N.W.2d 827, 05-1945.

893.93 Annotation It is not necessary that a defrauded party have knowledge of the ultimate fact of fraud. What is required is that it be in possession of such essential facts as will, if diligently investigated, disclose the fraud. The burden of diligent inquiry is upon the defrauded party as soon as the party has such information as indicates where the facts constituting the fraud can be discovered. Doe v. Archdiocese of Milwaukee, 2007 WI 95, 303 Wis. 2d 34, 734 N.W.2d 827, 05-1945.

893.93 Annotation The six-year limitations period found in sub. (1) (a) [now sub. (1m) (a)] applies to actions under the Uniform Fiduciaries Act, s. 112.01. Willowglen Academy-Wisconsin, Inc. v. Connelly Interiors, Inc., 2008 WI App 35, 307 Wis. 2d 776, 746 N.W.2d 570, 07-1178.

893.93 Annotation The limitation period under sub. (1) (b) [now sub. (1m) (b)] was tolled when the victim had “sufficient knowledge to make a reasonable person aware of the need for diligent investigation.” Stockman v. LaCroix, 790 F.2d 584 (1986).

893.93 Annotation A cause of action under sub. (1) (b) [now sub. (1m) (b)] accrues on the discovery of the fraud. Discovery occurs when the party has knowledge that would cause a reasonable person to make sufficient inquiry to discover the fraud. Owen v. Wangerin, 985 F.2d 312 (1993).

893.93 Annotation Discovery occurs when the plaintiff has information that would constitute the basis for an objective belief as to the plaintiff’s injury and its cause. The degree of certainty that constitutes sufficient knowledge is variable, depending on the particular facts and circumstances of the plaintiff. With corporate players, a different quantum of expertise and knowledge is in play. Wisconsin courts have recognized that ignorance is a less compelling excuse for corporate enterprises in the context of the discovery rule. KDC Foods, Inc. v. Gray, Plant, Mooty, Mooty & Bennett, P.A., 763 F.3d 743 (2014).

893.93 Annotation Wisconsin courts have applied the two-year limitations period under sub. (2) (a) to actions that principally benefit the public at large, a “statute penalty,” and the six-year limitations period under sub. (1) (a) to actions that principally benefit the plaintiff at issue. Because a claim under s. 146.83 (3f) (b) is primarily private in nature and does not result in a statute penalty for the public’s benefit, the six-year limitations period of sub. (1) (a) applies. Although s. 146.84 (1) (b) and (bm) authorize exemplary damages, what matters is who, on balance, the cause of action benefits—the private individual or the general public. Smith v. RecordQuest, LLC, 989 F.3d 513 (2021).

893.93 Annotation Section 551.59 (5) applies to actions arising out of sales of securities under federal Securities and Exchange Commission rules, rather than s. 893.19 (7) [now sub. (1m) (b)]. Kramer v. Loewi & Co., 357 F. Supp. 83 (1973).

893.93 Annotation Section 893.21 (1) [now sub. (2) (a)] did not control an action by the federal Equal Employment Opportunity Commission charging discrimination in employment when the statute limited only acts brought by a “private party” and the commission is a federal agency enforcing public policy. Equal Employment Opportunity Commission v. Laacke & Joys Co., 375 F. Supp. 852 (1974).

893.93 Annotation Section 893.19 (4) [now sub. (1m) (a)] governs civil rights actions. Minor v. Lakeview Hospital, 421 F. Supp. 485 (1976).

893.93 Annotation Section 893.19 (4) [now sub. (1m) (a)] governed an action under federal law against an oil refiner for compensatory damages for alleged overcharges. Section 893.21 (1) [now sub. (2) (a)] governed an action for treble damages. U.S. Oil Co. v. Koch Refining Co., 497 F. Supp. 1125 (1980).

893.93 Annotation The defendant in a civil rights action was estopped from pleading the statute of limitations when its own fraudulent conduct prevented the plaintiff from timely filing suit. Bell v. City of Milwaukee, 498 F. Supp. 1339 (1980).

893.93 Annotation At a minimum, actions for contractual rescission based on negligent or strict responsibility misrepresentation sound in contract, not tort, at least under Wisconsin law, and are not actions “on the ground of fraud” under sub. (1) (b) [now sub. (1m) (b)]. If all misrepresentations—intentional, negligent, and strict responsibility—were “fraudulent,” there would be no need for the second category of “material” misrepresentations. CMFG Life Insurance Co. v. UBS Securities, 30 F. Supp. 3d 822 (2014).

893.94 893.94 Organized crime control; civil remedies. Any civil action arising under ss. 946.80 to 946.88 is subject to the limitations under s. 946.88 (1).

893.94 History History: 1981 c. 280; 1989 a. 121.

893.95 893.95 Unclaimed property; civil remedies. Any civil action to enforce ch. 177 is subject to the limitations under s. 177.0610.

893.95 History History: 1983 a. 408; 2021 a. 87.

893.96 893.96 Family leave and medical leave; civil remedies. Any civil action arising under s. 103.10 (13) (a) is subject to the limitations of s. 103.10 (13) (b).

893.96 History History: 1987 a. 287.