Allstate Ins. Co. v. Metropolitan Sewerage Commission of Milwaukee County
| Decision Date | 04 October 1977 |
| Docket Number | No. 75-426,75-426 |
| Citation | 258 N.W.2d 148,80 Wis.2d 10 |
| Parties | ALLSTATE INSURANCE COMPANY, a Foreign Corporation, and the Travelers Indemnity Company, a Foreign Corporation, Plaintiffs-Respondents, v. METROPOLITAN SEWERAGE COMMISSION OF the COUNTY OF MILWAUKEE, a Municipal Corporation, the Sewerage Commission of the City of Milwaukee, a Municipal Corporation, and the Sewerage District of the County of Milwaukee, a Municipal Corporation, Defendants-Appellants. |
| Court | Wisconsin Supreme Court |
This is an action for contribution for damages arising out of an automobile accident. The trial court overruled the demurrer to the complaint. The defendants appeal.
Robert Arthur Melin and Patrick B. McDonnell, Asst. City Atty., Milwaukee (argued), for appellants; Ewald L. Moerke, Jr., and Schroeder, Gedlen, Riester & Moerke, Milwaukee, on brief for Metropolitan Sewerage Com'n of County of Milwaukee and The Sewerage Dist. of County of Milwaukee; and James B. Brennan, City Atty., on brief for Sewerage Com'n of City of Milwaukee.
Brian J. Henderson, Milwaukee (argued), for respondents; Riordan, Crivello, Sullivan & Carlson, Milwaukee, on the brief.
The automobile accident giving rise to this action took place on December 23, 1969, on West Brown Deer Road in the Village of River Hills, Milwaukee county, Wisconsin.
A truck owned by Behling Excavating Company was discharging effluent into a manhole in the traveled portion of the street. The manhole is a part of the sewage system maintained and operated by the defendant Sewerage Commission of the City of Milwaukee (City Commission). The Behling Company employee was discharging the effluent pursuant to permit issued to Behling by the City Commission and the defendant Metropolitan Sewerage Commission of the County of Milwaukee (Metropolitan Commission).
At approximately 1 p. m., a car driven by Bonnie J. Nelson came upon the truck which partially blocked her eastbound lane. She crossed into the westbound lane to avoid the truck and struck a car driven by Alice S. Wilson in the westbound lane. As a result, various injuries and resulting damages were sustained by Alice S. Wilson and her husband Kenneth Wilson.
The Allstate Insurance Company insured Bonnie J. Nelson, and the Travelers Indemnity Company insured Behling. A settlement of $100,000 was reached, with each insurance company paying $50,000 to the Wilsons.
This action for contribution was subsequently commenced by the two insurance companies against the Metropolitan Commission, the City Commission and the Sewerage District of the County of Milwaukee (Metropolitan District) alleging these defendants were concurrently negligent with Bonnie J. Nelson and Behling.
The City Commission was organized under ch. 608, Laws of 1913 and subsequent amendments. It has the authority to build and operate sewer lines and treatment plants in the City of Milwaukee and to build intercepting sewer lines in the city which connect to collection systems from outside the city proper. The City Commission also operates and maintains the entire system within the Milwaukee County District after the lines and other facilities have been built, accepted and put in operation. The Metropolitan Commission has the authority to build sewers within the district but only outside the city limits of the City of Milwaukee. After the sewer systems outside the City of Milwaukee have been completed and accepted they are then operated by the City Commission. The Metropolitan District owns all the property acquired by both commissions and both commissions are agents of the Metropolitan District.
The Metropolitan District is empowered to promulgate reasonable rules and regulations concerning use, protection and supervision of the system under sec. 59.96(6)(i), Stats. 1 Ch. 336, Laws of 1957, also empowers the City Commission to so act and the two commissions must act jointly. 2
The amended complaint alleges that the Metropolitan Commission was negligent in designing and placing the manhole when it knew or should have known that it would require users, such as Behling, to block the eastbound lane, and in failing to require users to employ equipment which would not necessitate blocking the lane, to require users not to block the lane, to place warning signs or barricades, and to enact rules on safe operation of the system.
Negligence is charged against the City Commission for approving the plan when it knew or should have known of the danger, and for the failures paralleling those charged against the Metropolitan Commission. The charge against the Metropolitan District incorporates the allegations against the commissions on the basis that they act as agents of the Metropolitan District.
The demurrer by the defendants is upon the ground the amended complaint does not state facts sufficient to state a cause of action. The order appealed from overruled the demurrer.
The briefs and arguments by counsel for the defendants set forth several reasons why, in their belief, the demurrer should be sustained. We believe the dispositive issue is whether the doctrine of municipal tort immunity applies to the defendants so as to relieve them from liability. We conclude it does and that demurrer should be sustained.
In Holytz v. Milwaukee, 17 Wis.2d 26, 40, 115 N.W.2d 618, 625 (1962), this court abrogated the doctrine of municipal immunity from tort liability but with the reservation that:
"This decision is not to be interpreted as imposing liability on a governmental body in the exercise of its legislative or judicial or quasi-legislative or quasi-judicial functions."
This reservation has been codified by the legislature in sec. 895.43(3) of the statutes as follows:
All three defendants are municipal and government bodies authorized and created by virtue of state legislation to perform a public function.
We conclude that the decisions of the Metropolitan Commission in planning and designing the system in question, including the placement of the manhole, were legislative acts 3 performed in response to its authority to plan and construct sewer systems outside the corporate limits of the City of Milwaukee but within the Metropolitan District. Where, when and how to build sewer systems are legislative determinations imposed upon a governmental body. 4 It is not for the court to be judge or jury to "second guess" them in these determinations nor to find they are liable for negligence.
The City Commission in approving the plans, if not acting in a legislative capacity, was acting in a quasi-judicial capacity and is likewise immune from liability.
The complaint, in substance, alleges that in the construction of the sewer lines it was negligence to place the manhole in the street as it was when it knew or should have known such placement would create a danger to users of the highway when use of the manhole would block the highway.
The complaint does not allege that the placement of the manhole was not in compliance with the plans.
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