MADISON, Wis. — A Wisconsin appellate court has reinstated personal injury claims by elementary school teachers against a building contractor, ruling that the trial court improperly dismissed the claims as time-barred instead of leaving that question to a jury. Caldwell v. J.H. Findorff & Son Inc., et al., No. 2004AP1157 (Wis. App., Dist. IV).

Sharon Caldwell and three other employees of Yahara Elementary School sued building contractor J.H. Findorff & Sons Inc., alleging they experienced respiratory and other illness as a result of mold intrusion at the school because of the company's negligent construction.

The building was completed in 1992 and underwent mold remediation in 2002. Two of the plaintiff teachers and the plaintiff custodian worked in the building from 1992 to 2002; a third teacher worked in the building from 1994 to 2001. All plaintiffs complained of symptoms soon after beginning work in the school.

Mold was discovered in the school during the 2001-2002 school year and an investigation revealed gaps between the outside wall and the roof along one side of the building that engineers believe was a major source of moisture in the building.

The Caldwell plaintiffs sued Findorff on Aug. 20, 2002, alleging defects in the original design and construction. Findorff moved for summary judgment, contending the claims were outside the three-year statute of limitations. The Dane County Circuit Court agreed.

In reversing, the Court of Appeals cited affidavits from plaintiffs that they were unaware of the cause of their injuries prior to the 2002 remediation project.

The Court of Appeals concluded that the date on which the plaintiffs discovered the cause of their injuries, and the issue of whether they exercised due diligence, are questions of fact for the jury.

The court did decide an issue of law, rejecting Findorff's statute-of-repose defense.

Findorff contended that the building was substantially completed on Aug. 15, 1992, when the school's teachers first used the building.

But the court concluded that the appropriate date of substantial completion was Aug. 26, 1992, the first day of classes, placing plaintiffs' complaint within the 10-year time period.

The court also rejected Findorff's reliance on a 'safe place' clause, mandating that owners of public buildings 'construct, repair or maintain such place of employment or public building as to render the same safe.'

Findorff argued that, as the general contractor, it did not have actual control of the allegedly defective portions of the building during construction, and was entitled to summary judgment on that basis.

The Court of Appeals held that '[a] general contractor supervises and inspects the work of its subcontractors, and therefore has 'control of the construction' for purposes of assigning liability for injuries resulting from permanent defects in construction,' the court concluded.

David W. Easton of Axley Brynelson in Columbus, Wis., represents the Caldwell plaintiffs.

Mark T. Budzinski, Barrett J. Corneille and David J. Pliner of the Corneille Law Group in Madison, Wis., represent J.H. Findorff & Son Inc.
 

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