Baugh v. City of Milwaukee

• Decision Date: 16 June 1993
• Docket Number: No. 88-C-1230.,88-C-1230.
• Citation: 823 F. Supp. 1452
• Parties: Albert BAUGH, individually, Lue Ethel Roby, individually, Albert Baugh and Ethel Huffman, as special co-administrators of the estates of Tremain Baugh, Sharonda Baugh, Shatoya Baugh, Tyrone Baugh (hereinafter the deceased minor Baugh children), and Varnessa Baugh (hereinafter the deceased mother/spouse or daughter), Annie Ruth Phillips, individually and as special administrator of the estates of Shanika Dacas and Lashawanda Dacas (hereinafter the deceased minor Dacas children), and Angela Von Jefferson Woods, individually and as special administrator of the estates of Sharina Woods, Shawonda Woods, and Randy Woods (hereinafter the deceased minor Woods children), Plaintiffs, v. The CITY OF MILWAUKEE, a municipal corporation at 200 East Wells Street, Milwaukee, WI 53203, John Norquist, in his official capacity as mayor of the City of Milwaukee, Lee C. Jensen, individually and officially as Commissioner of Building Inspections, Inspector Carol Maglio, individually, and Thomas Donegan, in his official capacity only as president of the Common Council, City of Milwaukee, and (for those sued in an official capacity) all successors and agents in office, Defendants.
• Court: U.S. District Court — Eastern District of Wisconsin

823 F. Supp. 1452

Albert BAUGH, individually, Lue Ethel Roby, individually, Albert Baugh and Ethel Huffman, as special co-administrators of the estates of Tremain Baugh, Sharonda Baugh, Shatoya Baugh, Tyrone Baugh (hereinafter the deceased minor Baugh children), and Varnessa Baugh (hereinafter the deceased mother/spouse or daughter), Annie Ruth Phillips, individually and as special administrator of the estates of Shanika Dacas and Lashawanda Dacas (hereinafter the deceased minor Dacas children), and Angela Von Jefferson Woods, individually and as special administrator of the estates of Sharina Woods, Shawonda Woods, and Randy Woods (hereinafter the deceased minor Woods children), Plaintiffs, v. The CITY OF MILWAUKEE, a municipal corporation at 200 East Wells Street, Milwaukee, WI 53203, John Norquist, in his official capacity as mayor of the City of Milwaukee, Lee C. Jensen, individually and officially as Commissioner of Building Inspections, Inspector Carol Maglio, individually, and Thomas Donegan, in his official capacity only as president of the Common Council, City of Milwaukee, and (for those sued in an official capacity) all successors and agents in office, Defendants.

No. 88-C-1230.

United States District Court, E.D. Wisconsin.

June 16, 1993.

COPYRIGHT MATERIAL OMITTED

Gregory Victor, Adorno & Zeder, Miami, FL, for plaintiffs.

Maurita Houren, Asst. City Atty., Milwaukee, WI, for defendants.

TERENCE T. EVANS, Chief Judge.

This civil rights case arises from a tragic fire that consumed a house at 1738 North 23rd Street in Milwaukee on September 30, 1987. Twelve people, including ten children, perished in the fire. The exact cause of the fire has never been established, although an officer from the Milwaukee Police Department's Bomb and Arson Squad concluded that the fire originated near a couch in a first floor room and that traces of gasoline were found in that area. The estates of ten of the deceased persons and certain relatives of the deceased have brought this lawsuit under 42 U.S.C. §§ 1981 and 1983, alleging that the City of Milwaukee and several of its officials (sometimes collectively referred to as "the City") violated the deceased persons' civil rights by discriminating against them because they were black. The following facts are undisputed unless noted otherwise.

The City of Milwaukee Building Inspection Department ("Department") administers and enforces chapters 200 to 290 of the Milwaukee Code of Ordinances, entitled "Revised Building and Zoning Code of 1986" ("Code"). In 1987, the Department was divided into five sections. One of those sections was responsible for code enforcement. The code enforcement section was further divided into a residential division and a commercial division. In 1987, the Department employed about 58 inspectors, with about half in the residential division and half in commercial. Each inspector was responsible for an assigned geographical area within the city.

In 1987, Wisconsin Statute § 101.14(2)(b) and the Code placed upon the Department the responsibility of providing yearly fire inspections of all buildings, premises, structures, and public thoroughfares, except the interior of private dwellings. Only commercial buildings and residential properties with three or more family units required and received regular fire inspections.

Although not legally required, one- and two-family residences were inspected upon request. A request usually was made by a tenant, owner, neighbor, or alderperson's office. When requested by a citizen, the inspection was referred to as a citizen complaint inspection. If the source of the request was an alderperson's office, the inspection was referred to as an aldermanic referral inspection. Although denominated separately, aldermanic referrals were essentially citizen complaints because they were usually triggered by a citizen calling his or her alderperson rather than the Department.

Inspections of single-family or duplex properties could also occur in a few other situations. For example, if properties adjacent to a residence being inspected showed conditions warranting the issuance of orders, an inspector could perform a self-initiated inspection. If the inspector was looking at one unit of a duplex, he or she was encouraged to attempt access to the other unit for a self-initiated inspection. Also, certain properties had to be inspected at the time of sale, for condemnation purposes, or in conjunction with a government-sponsored rehabilitation loan program.

On September 2, 1987, tenant Annie Phillips requested by telephone that her single-family residence at 1738 North 23rd Street be inspected by a city building inspector. A citizen's complaint form was completed by the inspection department and Ms. Phillips' claims were noted as follows: "ceiling leaking on 2NFL., toilet leaks, mice and other violations."

On September 8, the inspector for that area of the city, Carol Maglio, visited the premises.¹ Upon Ms. Maglio's questioning, Ms. Phillips stated that she lived in the house with her children and that Ms. Phillips' sister and her children were staying there temporarily while visiting from Florida. Ms. Maglio inspected the interior and exterior of the premises and reported twenty-three violations against the property. An "Order to Correct Condition of Premises" was served on Emmet Echols, the owner of the property, on September 16, 1987. Mr. Echols had 60 days to comply with the order.

Twenty-two days after the inspection, the fatal fire erupted at the house. The plaintiffs do not allege that any violation that Ms. Maglio failed to detect or that any conduct of the defendants actually caused the fire. This lawsuit focuses instead on smoke detectors and the responsibility for their installation.

In 1987, section 250-12 of the Milwaukee Code of Ordinances required the occupant of a one- or two-family residence to install at least one smoke detector. In a non-owner occupied one- or two-family residence, then, the tenant rather than the owner had the responsibility to install the smoke detector.

Whether or not a smoke detector was installed in the house on either the date of the inspection or the date of the fire is disputed. In testimony during a separate action arising from the same facts, Mr. Echols testified that smoke detectors had been installed, and a gas company employee testified that when he visited the premises on September 13, 1987, he saw a smoke detector lying on the floor. Ms. Phillips, though, has stated that there were no smoke detectors in the house.

It is clear that Ms. Phillips was not cited for any smoke detector or other code violation. But, assuming a smoke detector was not present, whether Ms. Maglio informed or counseled Ms. Phillips about the requirement is a disputed fact. In their amended complaint, the plaintiffs claim that Ms. Maglio failed to note "the absence of smoke detectors and she did not inform Phillips or the building owner of the requirement mandating their installation." Amended complaint at ¶ 40. Although Ms. Maglio cannot recall whether she actually counseled Ms. Phillips on September 8, 1987, about the requirement, she states that her normal procedure was to so advise the occupant if there was no smoke detector.

Presently pending before me is the City's motion for summary judgment, which was filed back in December 1991. After several intervening discovery disputes and extensions of time, the briefing is now complete and the motion ripe for resolution. Further facts will be discussed in the remainder of this opinion.

Motions to Strike

Two preliminary matters must be addressed. Each party has filed a motion to strike some of the opponent's affidavits. The defendants moved to strike the affidavits and exhibits of experts James H. Johnson and Michael Slifka, which were filed with the plaintiffs' opposition brief. The plaintiffs have moved to strike the supplemental affidavits and attached exhibits of Mary Stott, Schuyler Seager, and attorney Stuart S. Mukamal, which were filed with the reply brief. Because the Seager affidavit also supports the defendants' motion to strike, I will deal with the latter motion first.

The plaintiffs' motion to strike is based on a hypertechnical reading of Federal Rules of Civil Procedure 6(d) and 56(e) and local rule 6.01. Their argument is a version of the maxim "Expressio unius est exclusio alterius."² The pertinent portion of rule 6(d) reads:

When a motion is supported by affidavit, the affidavit shall be served with the motion; and, except as otherwise provided in Rule 59(c) dealing with a motion for a new trial, opposing affidavits may be served not later than 1 day before the hearing, unless the court permits them to be served at some other time.

Although rule 6(d) addresses supporting and opposing affidavits, it is silent as to the submission of reply affidavits, Litton Industries, Inc. v. Lehman Bros. Kuhn Loeb, Inc., 767 F.Supp. 1220, 1235 (S.D.N.Y.1991), rev'd on other grounds, 967 F.2d 742 (2d Cir.1992), or the submission of any briefs whatsoever.

Local rule 6.01 states that:

(a) Every motion shall set forth the rule pursuant to which it is made and shall be accompanied by (1) a supporting brief and, when necessary, affidavits or other documents....

....

On motions for summary judgment, the opposing party shall serve an answering brief and affidavits or other documents within 30 days of the service of the motion; the movant may serve a reply brief within 15 days of the answering brief.³

Further, a "reply brief shall be limited to matters in reply." Local rule 6.01(c). Although the local rule provides for briefing, again nothing at all is said about reply affidavits.

The plaintiffs also point to Fed.R.Civ.P. 56(e), which discusses only affidavits in support of or in opposition to a motion for summary judgment and states (emphasis added) that the judge "may permit affidavits to be supplemented." Since these rules do not provide for...