Resort in Wisconsin benefits from statute of repose.

Byline: Jack Zemlicka

In 2001, Julie Mair fractured her right femur in a women's restroom at the Trollhaugen Ski Resort after she lost her footing on a slightly depressed drain and fell onto the concrete floor. She filed suit against the resort, but the trial court and two appellate reviews, including the Wisconsin Supreme Court, ruled in favor of Trollhaugen. The Supreme Court decision, which was filed on June 6, 2006, upheld the trial court and court of appeals rulings that the drain was a structural defect and not an unsafe condition associated with the structure, thus barring coverage by Wisconsin's safe place statute sec. 101.11. Wis. Stat. sec. 893.89 superceded Mair's claim and Trollhaugen was protected under the 10-year statute of repose because the drain's condition had not been structurally altered since its construction in 1976. "I was keenly disappointed in the decision at first, but after reviewing the wording, I am less worried about the status of our safe place law," said attorney William C. Gleisner III, who spoke on the decision at the Wisconsin Academy of Trial Lawyers (WATL) Tort and Technique Update Seminar on Oct. 13. Gleisner, in conjunction with WATL had filed an amicus curiae brief with the Supreme Court which outlined concern that "safe place law will be seriously subverted if safety violations are allowed to go unaddressed because of a statute of repose." The belief was that the state's 100-year-old safe place law provides protection for members of the public in public buildings whether a "structural defect" or a "defect associated with a structure" if the defect endangers public safety, regardless of how or when it was created. Mair's case was constructed on that belief, but ultimately lacked enough evidence to support a negligence claim. "Their strategy seemed to focus more on the legal argument rather than the facts," said attorney Todd Joseph Koback, who defended Trollhaugen. "I think the expert for the plaintiff painted the case into a small and narrow corner," Koback said during an interview. No allegations were made that Trollhaugen did not maintain the bathroom facilities and according to Koback, detailed records and documents from the resort allowed him to defend closely to sec. 893.89. "I essentially took words right from the statute and although the result may have been harsh, I thought I was right," said Koback, who also noted that he has lost other cases using the same defense. Gleisner concurred that...