Butler v. Advanced Drainage Systems, Inc.
| Decision Date | 13 July 2006 |
| Docket Number | No. 2004AP1991.,2004AP1991. |
| Citation | 2006 WI 102,717 N.W.2d 760 |
| Parties | Thomas G. BUTLER, Mary J. Butler, Steven J. Grundahl, Nancy J. Grundahl, James A. Gallop, Maureen Gallop, Greg Kittelsen, Edith Kittelsen, Duane Schwartz, Joan Schwartz, Dewey Mullikin, Juanita Mullikin, Helen Brekke, Phillip Jones, Susan Jones, Allen Hall, Florence Hall, Michael Singer, Noel Singer, H. James Jacobsen, Debby Jacobsen, Scott Blanck, Dana Blanck, Larry Kinney and Karen Kinney, Plaintiffs-Appellants-Petitioners, Albert Kempf, Pat Kempf, Dale E. Johnson, Joan L. Johnson, Harold M. Flolid, Karen A. Flolid, Carolyn Ousdigian, Ted Ousdigian, Jeremy Ferris, June Ferris, Suzanne Meland, Michael T. Meland, Estate of Maxine Lenz, Daryl Erdman, Audrey Erdman, Lawrence J. Jarvela, Patricia D. Jarvela, Joann Yohn, Stephen Yohn, Jerry Greeley, Karen Greeley, Niel R. Petersen, Marlys J. Petersen, Karen Ek, Bill Ek, Charles Peterson, Douglas J. Gallop, Shirley Gallop, Mike Evavold, Mark R. Parks, Art Kosieradzki, Jeanne Kosieradzki, Gary C. Boyum, Eleanor Kay Boyum, Beverly Gallop and Bud Gallop, Intervening-Plaintiffs-Appellants-Petitioners, Thomas E. Ferris and Joy Linda Ferris, Intervening-Plaintiffs, v. ADVANCED DRAINAGE SYSTEMS, INC., Daniel Kling and ECG, Inc., Defendants-Respondents, City of Shell Lake, Defendant, Cincinnati Insurance Company and Gulf Underwriters Insurance Company, Intervening-Defendants-Respondents, Bob Thompson & Sons and Thompson Sand & Gravel, Defendants-Third-Party Plaintiffs-Respondents, v. Hoffman Construction Company and Wausau Insurance Companies, Third-Party Defendants-Respondents. |
| Court | Wisconsin Supreme Court |
For the plaintiffs-appellants-petitioners and the intervening plaintiffs-appellants-petitioners, there were briefs by Steven B. Goff, Tracy N. Tool, and Bye, Goff & Rohde, Ltd., River Falls; Matthew A. Biegert, Michael J. Brose, and Doar, Drill & Skow, S.C., New Richmond, and oral argument by Matthew A. Biegert.
For the defendants-third-party plaintiffs-respondents and the third-party defendants-respondents, there was a brief by Patrick H. O'Neill, Jr. and O'Neill & Murphy, LLP, Saint Paul, MN; J. David Rice and Rice, Heitman & Davis, S.C., Sparta; Timothy J. Muldowney and LaFollette Godfrey & Kahn, Madison, and oral argument by J. David Rice.
For the defendants-respondents, Daniel Kling and ECG, Inc., there was a brief by Thomas J. Graham, Jr., Christine A. Gimber, and Weld, Riley, Prenn & Ricci, S.C., Eau Claire.
For the defendant-respondent, Advanced Drainage Systems, Inc., there was a brief by William J. Katt, Mark D. Malloy, and Leib & Katt, S.C., Milwaukee.
For the intervening defendant-respondent, Gulf Underwriters Insurance Company, there was a brief by Mark Rattan, James P. Odda, and Litchfield Cavo LLP, Brookfield.
An amicus curiae brief was filed by Daniel D. Barker, James K. Pease, Jr., Jack D. Walker, Philip J. Bradbury, and Melli, Walker, Pease & Ruhly, S.C., Madison, on behalf of Associated Builders & Contractors of Wisconsin, Inc., AGC of Wisconsin, Inc., and Wisconsin Transportation Builders Association.
¶ 1
The circuit court granted summary judgment of dismissal to the defendants on the plaintiffs' negligence and nuisance claims.1 The court of appeals affirmed. Because we conclude that the plaintiffs' negligence and nuisance claims are precluded by public policy and were properly dismissed, we affirm the court of appeals, albeit on different grounds than those employed by the court of appeals.
¶ 2 This action arises out of a project to design and install a system to lower the water level (the Project) of Shell Lake (the Lake). The Lake is a bowl-shaped lake, covering approximately 2500 acres. It is located entirely within the boundaries of the City of Shell Lake, Wisconsin (the City). There are more than 400 properties abutting the Lake. The plaintiffs and intervening plaintiffs (collectively, plaintiffs) own properties on the Lake.
¶ 3 The surface water elevation of the Lake has fluctuated significantly over the past century. In the most recent several decades, the water level of the Lake has been rising. As a result, in 1977, the City entered into an agreement with the Wisconsin Department of Natural Resources (DNR) to raise the ordinary high water mark of the Lake. This agreement was developed to aid the City with adoption and administration of a shoreland zoning ordinance, with the understanding that a surface water drain would be installed in order to maintain the water level at or below the ordinary high water mark set by the DNR.
¶ 4 In the meantime, property development surrounding the Lake continued. The water level continued to rise. In 1987-1988, the United States Army Corps of Engineers conducted an investigation of the problem and issued a report that suggested plans for water diversion and associated costs. The report showed that the water level had risen in the 1980s and 1990s, and predicted that the water level would continue to rise. It noted a drop in water level from 1986-1987 due to record low precipitation, but it noted:
Realizing the potential for flooding of their properties, area residents continue to be concerned despite the fact that the lake level has dropped during the past year. Accordingly, city officials continue to express a need for the development of measures to alleviate the flooding problem.
United States Army Corps of Engineers, Reconnaissance Report Flood Control 205, p. 11.
¶ 5 The 1988 report ultimately concluded:
The level of Shell Lake is presently down from the [ ] high level of elevation 1221.99 feet msl reached in 1986. However, historical accounts indicate that the lake has the potential for rising to much higher levels. With the return of normal precipitation or precipitation at levels experienced during the period 1977-1986, rising lake levels can once again be expected. Any appreciable rise in the lake level above the high recorded in 1986 could result in catastrophic losses to existing developments.
¶ 6 The water level appeared to stabilize in the years immediately following the Army Corps of Engineers report, and plans to install a drain were put on hold. By 1994, the surface water drain that was to have been installed as a result of the 1977 agreement between the DNR and the City was not in place. The DNR investigations of the water level determined that the ordinary high water mark, based on erosion and analyses of vegetation changes, had risen again. Accordingly the DNR declared an even higher ordinary high water mark. The DNR's report noted that a substantial amount of development had occurred on the Lake in low areas, with much of the development occurring below the 100-year floodplain boundary.
¶ 7 In 1997, after the water level had reached 1222.24 feet, mean sea level (msl), then a record high, the City petitioned the DNR to divert water into Sawyer Creek. However, the DNR denied the City's permit application because of the expected negative ecological effects the proposed plan would have on Sawyer Creek.
¶ 8 In 2000, the City met with the DNR staff to review several new options for water diversion. In 2001, the City applied to the DNR for a new permit, this time to divert lake water into the Yellow River. The Project involved placing structures on the bed of the Lake and in the Yellow River that would facilitate the diversion. The Project also called for the construction and installation of drainage pipe along an approximately 4.5 mile route from the Lake to the Yellow River. The intent of the Project was to maintain the Lake near the ordinary high water mark set in 1994. The DNR granted the City's petition for the Project. The estimated cost exceeded $1,600,000. The City intended to fund the project, in part, through $650,000 of special assessments on riparian property owners. In the meantime, emergency pumping was undertaken to temporarily lower the water level.
¶ 9 The City contracted with engineer Daniel Kling (Kling) and his company, Envirosystems Consulting Group, Inc. (Envirosystems), for design and engineering; with Advanced Drainage Systems, Inc. (Advanced Drainage) for the supply of pipes; and with Bob Thompson & Sons and Thompson Sand & Gravel (Thompson) for installation and general contractor services.
¶ 10 Envirosystems created the plans and specifications for the Project. The plans called for 24,000 feet of light-weight high-density polyethylene pipe rated to withstand 10.8 pounds per square inch (psi) of pressure. Other types of high-density pipe that could withstand more pressure were considered, but ultimately were rejected.
¶ 11 The Project construction proceeded in the late summer and fall of 2002 when the water level ranged between 1223.91 and 1224.44 feet msl.2 When the pipeline opened for the first time in November 2002, leaks immediately developed and it was shut down for repair. Subsequently, Advanced Drainage found that gaskets on the pipeline had been displaced and that dirt and debris had entered the pipeline. Six attempts were made at a minimum flow rate, and all failed. From November of 2002 to June of 2003, Envirosystems, Advanced Drainage, and Thompson attempted to repair the pipeline.
¶ 12 While the attempted repair was underway, the City hired an engineering firm to investigate the Project and to propose solutions. The resulting report concluded that the pipeline's failure stemmed from design and material defects, failure to test the materials and problems with installation. The report suggested several alternative solutions to appropriately accommodate the water pressure, including reconstruction of the pipeline, the use of new types of piping made of different materials, and the insertion of a "slip-line" within the existing pipe.
¶ 13 The City ultimately chose to insert a slip-line of solid wall 80 psi pipe. By March 2004, after...
To continue reading
Request your trial
-
Webber v. Armslist LLC
...law. However, "[p]roof that the underlying conduct was tortious is necessary to liability predicated on nuisance." Butler v. Advanced Drainage Sys., Inc. , 2006 WI 102, ¶ 29, 294 Wis. 2d 397, 717 N.W.2d 760. Because the Court concludes that Plaintiff has failed to adequately state a claim f......
-
Bauer v. Armslist, LLC
...the court must determine "whether the complained of conduct was a cause of creating the nuisance." Butler v. Advanced Drainage Systems, Inc., 294 Wis. 2d 397, 417, 717 N.W.2d 760 (Wis. 2006) (citations omitted). "Proof that the underlying conduct was tortious is necessary to liability predi......
-
Eichenseer v. Madison County Tavern League
...methodology as the circuit court but benefiting from the analyses of both the circuit court and the court of appeals. Butler v. Advanced Drainage Sys., Inc., 2006 WI 102, ¶ 17, 294 Wis.2d 397, 717 N.W.2d 760. The summary judgment statute provides that the judgment sought shall be rendered w......
-
Murphy v. Columbus McKinnon Corp.
...as the circuit court, although we benefit from the decisions of both the circuit court and the court of appeals. Butler v. Advanced Drainage Sys., Inc., 2006 WI 102, ¶17, 294 Wis. 2d 397, 717 N.W.2d 760.B. Development of Wisconsin's Product Liability Law¶16 In resolving the issues raised in......