Anhalt v. CITIES AND VILLAGES MUTUAL INS. CO.
| Decision Date | 24 October 2001 |
| Docket Number | No. 00-3551.,00-3551. |
| Citation | 2001 WI App 271,637 N.W.2d 422,249 Wis.2d 62 |
| Parties | Roger and Donna ANHALT, Floyd W. (dec'd) and Sharon J. Bartlett, James and Lynn Batzner, Larry J. and Lori A. Bubb, Anna Castellan, Johnand Libi Churchill, Richard and Kristine Cvetan, Allan J. and Linda K. Dekker, Ralph and Jill Dekker, Kevin S. and Gail M. Dickfoss, Mary Ann Dickfoss, Edwin L. and Joyce Fritz, Donald and Gloria Gerk, Ronald and Judy Glaeser, John and Patricia Green, Kevin and Andrea Haen, Herbert and Edna Heiden, James and Cathy Kehn, Eugene and Gail Kissinger, David and Bonnie Krom, Allan and Barbara Krueger, Karen Lardinois, Richard and Shirley Ledeboer, Peter J. and Mary E. Loewen, Mary Mannchen, Thomas R. and Madelyn Y. Mlada, Joan B. Pittner, Frank and Carol Race, Karl F. Riem, Marion Russell, Leroy and Sandy Seefeldt, Jeffrey A. and Jane H. Shea, Allen and Marsha L. Sherven, John and Carol Sneen, Scott and Julie Thomas, Raymond L. Uphoff, Michael E. and Jana L. Wagner, David and Kim Warden and Thomas W. and Kathryn E. Zummallen, Plaintiffs-Appellants, v. CITIES AND VILLAGES MUTUAL INSURANCE COMPANY and City of Sheboygan, Defendants-Respondents, GENERAL CASUALTY INSURANCE COMPANY, Sentry Insurance Company, State Farm Insurance Company, Farmers Insurance Company, Allstate Insurance Company and Kemper Insurance Company, Defendants. Sharon L. KUNSTMAN, n/k/a Sharon L. Romenesko, Donald, Marion and Lori Ladiges, James and Kathleen Saladino, J.C. and Julie Schultz, Patricia J. Swoboda and Douglas and Patricia Wrensch, Plaintiffs-Appellants, v. CITIES AND VILLAGES MUTUAL INSURANCE COMPANY and City of Sheboygan, Defendants-Respondents, SENTRY INSURANCE COMPANY, Safeco Insurance Company and Sheboygan Falls Mutual Insurance Company, Defendants. Ashton E. WICK, D.D.S as trustee and income beneficiary of the Ashton E. Wick Trust and Ashton E. Wick Trust, Plaintiffs-Appellants, v. CITIES AND VILLAGES MUTUAL INSURANCE COMPANY and City of Sheboygan, Defendants-Respondents, PRINCIPAL LIFE INSURANCE COMPANY, Defendant. |
| Court | Wisconsin Court of Appeals |
On behalf of the plaintiffs-appellants, the cause was submitted on the briefs of and oral argument by Randall L. Nash of O'Neil, Cannon & Hollman, S.C. of Milwaukee.
On behalf of the defendants-respondents Cities and Villages Mutual Insurance Company and City of Sheboygan, the cause was submitted on the brief of Joseph J. Voelkner and James O. Conway of Olsen, Kloet, Gunderson & Conway of Sheboygan. There was oral argument by James O. Conway.
Before Nettesheim, P.J., Brown and Snyder, JJ.
¶ 1.
Eighty residents of the City of Sheboygan appeal from an order granting summary judgment to the City. The residents, representing forty-six properties, brought this action against the City after sustaining substantial damage of their homes and personal property due to flooding. The residents allege that the City is responsible for the flooding based on claims of: (1) negligence, (2) private nuisance, (3) inverse condemnation, (4) waste, and (5) deprivation of property in violation of 42 U.S.C. § 1983 (2001). We conclude that summary judgment was proper as to all theories of liability and affirm.
¶ 2. The residents live in an area of Sheboygan served by the Second Creek storm sewer system. The City engineer's office designed the sewer system that was approved and implemented by the City of Sheboygan in 1944.
¶ 3. Following abnormally heavy rainstorms in 1986, the City of Sheboygan authorized a study of the Second Creek sewer system by McMahon Associates, Inc. The McMahon Associates' report evaluated the system for conveying stormwater drainage under 5-year, 10-year, and 100-year return frequency rainfall events. The rains of 1986 were 100-year and in excess of 100-year return frequency events according to the McMahon report. Yet, the 1-year original design criteria were adequate to convey the runoff from a 2-year return frequency rainfall event. The report concluded that Extensions onto the Second Creek system continued to use the 1-year recurrence event criteria that was currently in use.
¶ 4. The City authorized a second study of the Second Creek system in 1988. This study, conducted by Donahue & Associates, utilized documentation from the McMahon report and made further recommendations to the City regarding the sewer system. In particular, it recommended implementing improvements for 100-year recurrence interval flood protection for the area served by the Second Creek system.
¶ 5. After these studies were completed, the City entered into easements with several of those residents being served by the Second Creek system. These easements granted the City the right "to construct, install, maintain, and repair a storm sewer ... including constructing, changing, repairing, controlling and removing said storm sewer." In return for the granting of the easement, "[i]t is understood ... that the [City of Sheboygan] shall be responsible for any wrongful or negligent act or omission of the [City] or its agents or employees in the course of their employment." ¶ 6. The area served by the Second Creek system continued to be subject to flooding.2 On August 6, 1998, there was an unusual and abnormally heavy rain in the City of Sheboygan. The destruction to personal and real property is well documented in the record. In some instances, the foundations of homes collapsed inward, with basement walls giving way causing the earth to slide into the basements. In one case, the home collapsed entirely.
¶ 7. The residents commenced this litigation following the August 1998 rain event. As we noted, the claims against the City include negligence, private nuisance, inverse condemnation, waste, and violation of 42 U.S.C. § 1983. The trial court ordered summary judgment in favor of the City on the grounds that the design and approval of the sewer system is a legislative function protected by governmental immunity.
[1, 2]
¶ 8. The review of a grant or denial of summary judgment is de novo, using the same methodology as the trial court. M&I First Nat'l Bank v. Episcopal Homes Mgmt., Inc., 195 Wis. 2d 485, 496, 536 N.W.2d 175 (Ct. App. 1995). Summary judgment is appropriate where there is no genuine issue of material fact and the moving party is entitled to judgment as a matter of law. WIS. STAT. § 802.08(2) (1999-2000).3 We will uphold a decision granting summary judgment unless the record reveals that one or more genuine issues of material fact are in dispute or the moving party is not entitled to judgment as a matter of law. Strasser v. Transtech Mobile Fleet Serv., Inc., 2000 WI 87, ¶ 30, 236 Wis. 2d 435, 613 N.W.2d 142.
¶ 9. The thrust of the residents' negligence claims is that the City failed to design, construct, maintain and operate a storm sewer system with sufficient capacity to drain storm water. They also assert that the City was negligent in failing to follow the recommendations of their consultants who advised implementing a system to handle a 100-year storm event. In support, the residents offer the affidavit of an engineer, William Painter, who avers that had the City adhered to the recommendations made in the Donahue report, the homeowners would not have suffered property damage as a result of the rainfall in 1998.
¶ 10. The City responds that even if these allegations are true, the City is immune from liability because the acts of designing, planning and implementing a sewer system are legislative acts protected under the doctrine of governmental immunity. The City further argues that, contrary to the assertion of the residents, the easements do not expressly waive governmental immunity.
[3]
¶ 11. The doctrine of governmental immunity is stated in WIS. STAT. § 893.80(4):
No suit may be brought against any [governmental entity] or any agency thereof for the intentional torts of its officers, officials, agents, or employees nor may any suit be brought against such [governmental entity] ... or against its officers, officials, agents, or employees for acts done in the exercise of legislative, quasi-legislative, judicial, or quasi-judicial functions.
The terms legislative, quasi-legislative, judicial and quasi-judicial are collectively referred to as discretionary acts. Envirologix Corp. v. City of Waukesha, 192 Wis. 2d 277, 288, 531 N.W.2d 357 (Ct. App. 1995). Thus, a governmental body is immune from suit when the act complained of is discretionary as opposed to merely ministerial. The doctrine of immunity affords no protection for ministerial acts. Id. at 288-89.
[4]
¶ 12. We are persuaded by Allstate Insurance Co. v. Metropolitan Sewerage Commission of the County of Milwaukee, 80 Wis. 2d 10, 258 N.W.2d 148 (1977), that the acts of designing, planning and implementing a sewer system are discretionary acts protected under WIS. STAT. § 893.80(4). In Allstate, insurance companies sued governmental entities for contribution alleging negligent placement of a manhole in the sewer system. Allstate, 80 Wis. 2d at 13. The court held that the governmental entities had discretionary immunity, stating:
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.... Where, when and how to build sewer systems are legislative determinations imposed upon a governmental body. 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.
Id. at 15-16 (footnotes omitted). We find this language to be dispositive and conclude that the City's decision to implement and maintain a sewer system with a capacity to handle...
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