Hocking v. City of Dodgeville

• Citation: 2009 WI 70,768 N.W.2d 552
• Decision Date: 09 July 2009
• Docket Number: No. 2007AP1754.,2007AP1754.
• Parties: Glen D. HOCKING and Louann Hocking, Plaintiffs-Appellants, v. CITY OF DODGEVILLE, Laurence E. Schmit, Wallace Rogers, Shaun Sersch, Wendy Sersch and Germantown Mutual Insurance Company, Defendants, Charles C. O'Rourke, Joan R. O'Rourke, American Family Mutual Insurance Company and Amy Crubaugh-Shrank, Defendants-Respondents.
• Court: United States State Supreme Court of Wisconsin

768 N.W.2d 552

2009 WI 70

Glen D. HOCKING and Louann Hocking, Plaintiffs-Appellants, v. CITY OF DODGEVILLE, Laurence E. Schmit, Wallace Rogers, Shaun Sersch, Wendy Sersch and Germantown Mutual Insurance Company, Defendants Charles C. O'Rourke, Joan R. O'Rourke, American Family Mutual Insurance Company and Amy Crubaugh-Shrank, Defendants-Respondents.

No. 2007AP1754.

Supreme Court of Wisconsin.

Argued April 15, 2009.

Decided July 9, 2009.

For the plaintiffs-appellants there was a brief (in the court of appeals) and a reply brief filed by Sheila S. Kelley, Matthew Allen, Tyler T. Kieler, Christopher D. Stombaugh, and Kopp, McKichan, Geyer, Skemp & Stombaugh, LLP, Platteville, and oral argument by Christopher D. Stombaugh.

For the defendants-respondents, Charles C. O'Rourke, Joan R. O'Rourke, and American Family Mutual Insurance Company, there was a brief by Patricia J. Epstein, Amy B.F. Tutwiler, and Bell, Geirhart & Moore, S.C., Madison, and oral argument by Amy B.F. Tutwiler and Patricia J. Epstein.

For the defendant-respondent, Amy Crubaugh-Schrank, there was a brief (in the court of appeals) by Rick J. Mundt and Winner, Wixson & Pernitz, Madison, and oral argument by Rick J. Mundt.

An amicus curiae brief was filed by Carl A. Sinderbrand, Timothy M. Barber, and Axley Brynelson, LLP, Madison, on behalf of the Wisconsin Builders Association.

An amicus curiae brief was filed by Paul G. Kent and Anderson & Kent, S.C., Madison, on behalf of the Wisconsin REALTORS® Association.

¶ 1 ANNETTE KINGSLAND ZIEGLER, J

This case is before the court on certification by the court of appeals pursuant to Wis. Stat. § (Rule) 809.61 (2007-08).¹ Glen and Louann Hocking (hereinafter, "the Hockings") brought an action against the City of Dodgeville and a number of individuals for negligence, unlawful taking, and creating and maintaining a nuisance. Relevant to this appeal is the allegation of negligent maintenance of a nuisance against defendants Charles and Joan O'Rourke and Amy Crubaugh-Schrank (collectively hereinafter "the defendants").² The circuit court concluded that no liability could arise because these defendants did not owe a duty to the Hockings under these circumstances. The Hockings appealed, and the court of appeals certified this case to the supreme court, which we accepted.

¶ 2 The issue presented to us for review is whether the defendants in this case, who are or were uphill landowners from the Hockings, are liable to the Hockings for damages allegedly caused by surface water, i.e., storm water, running from the defendants' property to the Hockings' property. We conclude that the defendants are not liable because, under the circumstances, the defendants have no duty to abate the alleged nuisance.

I. BACKGROUND

¶ 3 The Hockings purchased their home in 1978, and at that time there were no neighbors nearby. In 1989, Wallace Rogers purchased the land adjacent to the Hockings. Rogers hired Laurence Schmit, a professional engineer, to develop the property as a residential subdivision. In 1991, the land surrounding the Hockings' home, which would include the land uphill from the Hockings, and the streets around the Hockings' property, were developed by Rogers. As a result of Rogers' development, the Hockings' property is now at the bottom of a bowl. Prior to Rogers' development, the Hockings never had water leakage into their basement, but since this development the Hockings have had significant water problems. The increased water flow allegedly has caused problems with the Hockings' foundation and led to mold. Due to these problems, the Hockings have had to move out of their home.

¶ 4 A civil engineer consultant, Greg Stauder, inspected the Hockings' property and concluded that the increased storm water runoff flowing over the Hockings' property was due to the way in which Rogers developed the land. Because of Rogers' development, the grading around the property has been altered and the land was converted from absorptive agriculture to impervious surfaces, but storm sewers were not installed. The manner in which Rogers developed the land allegedly caused the Hockings' problems.

¶ 5 On February 16, 2007, the Hockings filed an amended complaint³ against the City of Dodgeville, Wallace Rogers, Laurence E. Schmit and the defendants in this case. The complaint alleged, in part, negligent maintenance of a nuisance. Relevant to this appeal are the defendants who live or once lived at 1104 Roelli Street, Dodgeville, Wisconsin. The 1104 Roelli Street property is adjacent to and directly uphill from the Hockings' property and is one home in the 1991 development of the land surrounding the Hockings' property. Defendant Crubaugh-Schrank lived at 1104 Roelli Street beginning in 1999 and defendants O'Rourke moved to 1104 Roelli Street in 2004. These defendant landowners did not modify the property in any way that could affect water drainage onto the Hockings' property.

¶ 6 The defendants moved the circuit court for summary judgment asserting that they had no duty to abate this nuisance. The circuit court concluded that, as a matter of law, the defendants could not be liable to the Hockings. It reasoned that the defendants had no duty to abate this nuisance because they were merely "possessors and titleholders in portions of upgrade property from the Hockings." Therefore, no duty to abate this nuisance arose. In addition, the circuit court concluded that even if a duty was owed and the defendants were negligent, liability should be precluded by the application of public policy factors. The Hockings appealed the circuit court's decision. The court of appeals certified the appeal to this court, which we accepted.⁴

II. STANDARD OF REVIEW

¶ 7 "Whether the circuit court properly granted summary judgment is a question of law that this court reviews de novo." Schmidt v. N. States Power Co., 2007 WI 136, ¶ 24, 305 Wis.2d 538, 742 N.W.2d 294. This court applies the same standards as those used by the circuit court, and these standards are set forth in Wis. Stat. § 802.08. Id. Whether a duty under the circumstances exists and the scope of such a duty are questions of law that we decide de novo. Hoida, Inc. v. M & I Midstate Bank, 2006 WI 69, ¶ 23 n. 12, 291 Wis.2d 283, 717 N.W.2d 17.

III. ANALYSIS

¶ 8 The Hockings assert that these defendants are liable for negligently maintaining a nuisance, which has allegedly damaged the Hockings' property. The Hockings argue that the circuit court erred by conducting a duty analysis because under Wisconsin law a duty is owed to the world at large, and thus, the defendants owe a duty to the Hockings because they are landowners. In addition, the Hockings also assert that public policy factors do not preclude liability in this case. The defendants on the other hand, argue that a public policy analysis is unnecessary because the circuit court's duty analysis was appropriate. The defendants, relying primarily on Hoida, reason that duty is and always has been a prerequisite to negligence, and as a result, duty is a relevant determination in this case. We agree with the defendants and therefore affirm the circuit court's decision with respect to the defendants having no duty to the Hockings to abate this nuisance under the circumstances of this case.

¶ 9 To prevail on their claim of negligent maintenance of a nuisance, the Hockings must first show that the defendants were negligent, which requires that defendants failed to act when they had a duty to act. See Wis JI—Civil 1920; see also Restatement (Second) of Torts §§ 822, 824, 839 (1979) (discussing nuisance actions and providing that to prevail, the nuisance must be "otherwise actionable" and the defendant must have a positive duty to act). The analysis of this case centers on duty under the circumstances herein presented.⁵

A. Negligence

¶ 10 We first consider whether the Hockings can satisfy the fundamental elements of negligence. "Wisconsin courts have engaged a four-element analysis to determine whether an actionable claim for negligence has been stated." Hoida, 291 Wis.2d 283, ¶ 23, 717 N.W.2d 17. The four elements are as follows: "`(1) the existence of a duty of care on the part of the defendant, (2) a breach of that duty of care, (3) a causal connection between the defendant's breach of the duty of care and the plaintiff's injury, and (4) actual loss or damage resulting from the [breach].'" Id. (citing Gritzner v. Michael R., 2000 WI 68, 235 Wis.2d 781, ¶ 19, 611 N.W.2d 906).

1. Duty under Wisconsin law

¶ 11 Duty has always been a relevant element in Wisconsin's negligence analysis even though cases have more often been limited by the application of public policy factors. Nichols v. Progressive N. Ins. Co., 2008 WI 20, ¶ 36, 308 Wis.2d 17, 746 N.W.2d 220; see also Behrendt v. Gulf Underwriters Ins. Co., 2009 WI 71, ___ Wis.2d ___, ___ N.W.2d ___ (Roggensack, J., concurring) (discussing duty under Wisconsin negligence law). The prevalence of a public policy factor analysis, however, does not eliminate consideration of the four elements of negligence. See Hoida, 291 Wis.2d 283, ¶ 23 n. 12, 717 N.W.2d 17 (reaffirming that there are four elements to a negligence analysis). Our focus in this case centers on the first element of "duty." Under the first element, "duty, involves two aspects: (1) the existence of a duty of ordinary care; and (2) an assessment of what ordinary care requires under the circumstances." Id., ¶ 27 (citing Hatleberg v. Norwest Bank Wis., 2005 WI 109, ¶¶ 17-18, 283 Wis.2d 234, 700 N.W.2d 15).

¶ 12 While Wisconsin has adopted the minority view from Palsgraf v. Long Island Railroad Co., 248 N.Y. 339, 162 N.E. 99 (1928), which established that everyone owes a duty to the world at large, the duty owed to the world is not unlimited but rather is restricted to what is reasonable under the circumstances. Hoida, 291 Wis.2d 283, ¶¶ 30-32, 717 N.W.2d 17. As a result, Wisconsin courts have in the past precluded...