Background
On December 17, 2018, Brooke Worzalla slipped and fell on wet, yellow painted pedestrian lines on a ramp in the parking garage attached to the U.S. Bank Center building in Milwaukee, injuring her ankle. U.S. Bank owned the garage; Interpark, LLC managed it; and Pentagon Property Services, LLC had painted the lines. Sentry Casualty Company, her employer’s workers’ compensation insurer, paid her benefits and notified Interpark, Pentagon, and their insurers of the loss.
Four days before the three-year statute of limitations expired, the Worzallas filed suit against U.S. Bank, Interpark, Pentagon, and their respective insurers. On March 28, 2022—after the limitations period had run—the Worzallas’ counsel first learned through discovery responses that Cushman & Wakefield U.S., Inc. had held managerial control over the garage on the date of the fall. The Worzallas amended their complaint to add Cushman in June 2022, relying on the discovery rule to toll the limitations period.
Cushman moved for summary judgment, arguing the claims were time-barred under Wis. Stat. § 893.54(1m)(a)’s three-year personal-injury limitations period. The Milwaukee County Circuit Court agreed, finding the Worzallas had not exercised reasonable diligence to identify Cushman before the deadline and that no genuine issue of material fact existed. The Worzallas and Sentry co-appealed.
The Court’s Holding
The Wisconsin Court of Appeals reversed the grant of summary judgment and remanded for further proceedings. The court held that the discovery rule—which delays accrual of a tort claim until the plaintiff discovers, or with reasonable diligence should have discovered, the identity of the alleged tortfeasor—applies here under Spitler v. Dean, 148 Wis. 2d 630 (1989). The court rejected Cushman’s argument that the rule was inapplicable, noting Cushman failed to develop any argument why Spitler specifically did not control or identify what constitutional right was purportedly violated by applying the rule.
On the reasonable-diligence question, the court found that multiple reasonable inferences could be drawn from the undisputed facts. While the Worzallas conducted no independent investigation and Cushman signage was posted on the building’s interior and exterior, the contract between U.S. Bank and Cushman was private and not publicly accessible, the signage appeared on the building but not in or on the garage itself, and the Worzallas had already identified an owner (U.S. Bank), a garage manager (Interpark), and a line-painter (Pentagon)—circumstances under which an ordinary person would not necessarily continue searching for yet another property manager. Because more than one reasonable inference could be drawn, summary judgment was inappropriate.
Key Takeaways
- Under Wisconsin’s discovery rule, a personal-injury claim does not accrue until the plaintiff knows, or with reasonable diligence should have known, the identity of the responsible defendant—even where other defendants were identified within the limitations period.
- Summary judgment on a statute-of-limitations defense is improper whenever the undisputed facts permit more than one reasonable inference about whether the plaintiff exercised reasonable diligence; that question must go to the factfinder.
- A private management contract not reflected in publicly available records cuts against a finding of lack of reasonable diligence—plaintiffs are not charged with discovering information that is not reasonably accessible without litigation.
- Signage identifying a property manager on a building does not automatically put a plaintiff on notice that the same entity managed an attached garage, particularly when no signage appeared in the garage itself.
Why It Matters
This decision reinforces that Wisconsin’s discovery rule can protect plaintiffs who timely sue the parties they reasonably could identify, even when a later-discovered defendant is added after the limitations period has run. For practitioners, it signals that courts must resist resolving reasonable-diligence disputes on summary judgment whenever the facts support competing inferences—a reminder that the inquiry is inherently fact-intensive and ill-suited to disposition as a matter of law absent a clear record.
The case also highlights a practical risk in premises-liability litigation: layered management arrangements—owner, operating manager, facilities manager, subcontractor—can obscure responsible parties, and plaintiffs’ counsel should pursue early discovery on the full chain of control. Defense counsel, conversely, should be prepared to show that the management structure was publicly knowable, not merely that signage existed somewhere on the property.