Menick v. City of Menasha, 95-0185

Citation547 N.W.2d 778,200 Wis.2d 737
Decision Date06 March 1996
Docket NumberNo. 95-0185,95-0185
PartiesLisa MENICK, Plaintiff-Appellant, v. CITY OF MENASHA, Defendant-Respondent, State Farm Fire and Casualty Company, Defendant.
CourtCourt of Appeals of Wisconsin

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of John R. Monroe of DeForest.

On behalf of the defendant-respondent, the cause was submitted on the brief of Peter M. Farb of Gabert, Williams & Farb of Appleton.

Before ANDERSON, P.J., and NETTESHEIM and SNYDER, JJ.

SNYDER, Judge.

Lisa Menick appeals from an order granting summary judgment to the City of Menasha. Menick brought an action against the City after raw sewage from the city's sewer system had twice flooded her basement. In the complaint, Menick alleged that the City was responsible because the flooding was: (1) a taking under the Fifth Amendment of the United States Constitution; (2) a deprivation of property in violation of 42 U.S.C. § 1983; (3) a taking under Article I, Section 13 of the Wisconsin Constitution; (4) an interference with real property under § 844.01, STATS.; and (5) a private nuisance. We conclude that summary judgment was proper as to all theories of liability and affirm.

In June 1993, the city sewer system flooded several residents' homes with raw sewage, including Menick's. The flood damaged carpeting, flooring and walls in Menick's finished basement, as well as items of personal property. In spite of professional cleaning, a foul smell from the sewage persisted for weeks.

In July 1993, the previous flooding repeated itself. Menick filed a lawsuit against the City. She subsequently filed a motion for summary judgment which the City opposed, claiming that there existed genuine issues of material fact. After the denial of Menick's motion and following discovery, the City moved for summary judgment. Menick opposed that motion and renewed her earlier motion. The City was granted summary judgment as to all claims and this appeal followed.

The review of a grant of summary judgment is governed by the standard set out in § 802.08(2), STATS. Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401 N.W.2d 816, 820 (1987). Our review of a trial court's grant of summary judgment is de novo. See id. Summary judgment must be granted if there is no genuine issue as to any material fact, and the moving party is entitled to judgment as a matter of law. Id.

Menick first contends that as a result of the flooding, the City took her property without compensation in violation of the Fifth Amendment of the United States Constitution. She relies on Loretto v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 441, 102 S.Ct. 3164, 3179, 73 L.Ed.2d 868 (1982), in which the Supreme Court applied well-settled case law in determining that the installation of cable lines on privately-owned buildings was a permanent invasion, and thus was compensable as a taking. Menick contends that under Loretto, there is no constitutional difference between a permanent and a temporary physical occupation. We disagree. Loretto states:

[T]his Court has consistently distinguished between flooding cases involving a permanent physical occupation, on the one hand, and cases involving a more temporary invasion.... A taking has always been found only in the former situation.... [T]o be a taking, flooding must constitute an actual, permanent invasion of the land, amounting to an appropriation of, and not merely an injury to, the property.

Id. at 428, 102 S.Ct. at 3171 (citations and quotation omitted). The flooding of the basement was not a permanent physical occupation of Menick's property. The first episode occurred while Menick was away; by the time she returned home, the flooding had subsided. The second incident also spontaneously receded. Under the test required by Loretto, no taking occurred.

Menick next argues that the City violated her civil rights under 42 U.S.C. § 1983. A claim under this section must include a federal constitutional basis for the claim. See Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617-18, 99 S.Ct. 1905, 1915-16, 60 L.Ed.2d 508 (1979). It must also assert that there is an inadequate state remedy for the claim. See New Burnham Prairie Homes, Inc. v. Village of Burnham, 910 F.2d 1474, 1481 (7th Cir.1990). As to both requirements, Menick's claim fails.

The constitutional basis for Menick's claim is a taking contrary to the Fifth Amendment. As discussed above, that claim is without legal merit. Menick disputes the existence of adequate state remedies for her claims when she argues that "[t]he trial court granted summary judgment to Respondent on each of Appellant's state law claims. In effect, the court has ruled that there are no remedies to be had under state law." We do not agree that a finding that her state law claims lack merit can be translated as an absence of state law remedies. Menick's 42 U.S.C. § 1983 claim fails.

The third basis for asserting this claim is that the flooding constituted a taking under Article I, Section 13 of the Wisconsin Constitution. This constitutional provision was extensively addressed in Wisconsin Power & Light Co. v. Columbia County, 3 Wis.2d 1, 87 N.W.2d 279 (1958). There, the court noted that this section of the Wisconsin Constitution provides that "the property of no person shall be taken for public use without just compensation therefor without mention of damage." Id. at 6, 87 N.W.2d at 281-82 (quotations and citations omitted; second emphasis added).

This rule was restated more recently in Public Serv. Corp. v. Marathon County, 75 Wis.2d 442, 249 N.W.2d 543 (1977). There, the court succinctly stated, "Wisconsin compensates only a taking, not mere damage to the property." Id. at 447, 249 N.W.2d at 545. We conclude that the temporary flooding of Menick's basement cannot be claimed a taking under the Wisconsin Constitution. Mere damage is not compensable as a taking.

Menick's final two theories of liability are interrelated. She argues that she should be allowed to bring this action as the flooding was a private nuisance and was also in violation of § 844.01, STATS., termed the "nuisance statute" by the trial court. The City argues that § 844.01 is not available as a statutory cause of action, and even if it were, the City has immunity for this action under § 893.80, STATS.

While we conclude that the City cannot claim immunity against the assertion of a private nuisance action, we agree that § 844.01, STATS., does not confer a statutory basis for this claim. Furthermore, while there exists a cause of action in private nuisance, we conclude that Menick's failure to offer an expert's opinion as to the legal cause of the flooding defeats her claim.

Section 893.80(4), STATS., confers immunity "for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions." In Hillcrest Golf & Country Club v. City of Altoona, 135 Wis.2d 431, 434, 400 N.W.2d 493, 495 (Ct.App.1986), the claim was that a subdivision's sewer system which collected rainwater and discharged it onto the plaintiff's land, resulting in substantial erosion and rendering the land unusable, was actionable as a private nuisance. The municipality argued that the design, approval and construction of a sewer system are legislative functions, properly immunized under § 893.80(4). Hillcrest, 135 Wis.2d at 437, 400 N.W.2d at 496. In reaching a determination that the municipality was not immune to suit, the court noted:

The great weight of authority ... supports the view that legislative authority to install a sewer system carries no implication of authority to create or maintain a nuisance....

Id. at 438, 400 N.W.2d at 497. We conclude that while the decision to install and provide a sewer system in a community is a discretionary decision, there is no discretion as to maintaining the system so as not to cause injury to residents. The actions of the City in operating and maintaining the sewer system do not fall within the immunity provisions of § 893.80.

Having concluded that the City cannot claim municipal immunity, we next examine Menick's alternate theories of liability, statutory nuisance under § 844.01, STATS., or private nuisance.

The statutory nuisance claim is premised on § 844.01, STATS., which provides in relevant part:

Physical injury to, or interference with, real property. (1) Any person owning or claiming an interest in real property may bring an action claiming physical injury to, or interference with, the property or the person's interest therein; the action may be to redress past injury, to restrain further injury, to abate the source of injury, or for other appropriate relief.

A determination of whether this statute supports Menick's claim requires the interpretation of a statute. This presents a question of law which we decide without deference to the trial court. Ball v. District No. 4, Area Bd., 117 Wis.2d 529, 537, 345 N.W.2d 389, 394 (1984).

Menick contends that "[t]he statute authorizes a cause of action for physical injury to real property, and for interference with the use of real property." This is similar to a claim raised in Shanak v. City of Waupaca, 185 Wis.2d 568, 595, 518 N.W.2d 310, 320 (Ct.App.1994), in which it was claimed that " § 844.01, STATS., grants to any person claiming an...

To continue reading

Request your trial
29 cases
  • In re Lipitor (Atorvastatin Calcium) Mktg., Sales Practices & Prods. Liab. Litig.
    • United States
    • United States District Courts. 4th Circuit. United States District Court of South Carolina
    • January 3, 2017
    ...if the matter does not fall within the realm of ordinary experience and lay comprehension.’ ") (quoting Menick v. City of Menasha , 200 Wis.2d 737, 547 N.W.2d 778, 782 (Wis. App. 1996) ); City of Cedarburg Light & Water Comm'n v. Allis–Chalmers Mfg. Co ., 33 Wis.2d 560, 149 N.W.2d 661, 662 ......
  • Pinter v. Vill. of Stetsonville, 2017AP1593
    • United States
    • United States State Supreme Court of Wisconsin
    • June 20, 2019
    ...here proceeds under a theory of negligence. ¶62 "A showing of negligence requires proof of causation." Menick v. City of Menasha, 200 Wis. 2d 737, 747, 547 N.W.2d 778 (Ct. App. 1996) (citation omitted). "The party with the burden of proof on an element must establish that there is a genuine......
  • Thorp v. Town of Lebanon
    • United States
    • Court of Appeals of Wisconsin
    • March 11, 1999
    ...violates the federal equal protection clause? We conclude it is not. The respondents rely in part on Menick v. City of Menasha, 200 Wis.2d 737, 743, 547 N.W.2d 778, 780 (Ct.App.1996). There, after observing that a claim under 42 U.S.C. § 1983 "must include a federal constitutional basis for......
  • METROPOLITAN SEWERAGE DIS. v. Milwaukee, 02-2961.
    • United States
    • United States State Supreme Court of Wisconsin
    • January 27, 2005
    ...and then examine the notice issue. 1. Causation ¶ 64. With regard to causation, the court of appeals in Menick v. City of Menasha, 200 Wis. 2d 737, 747, 547 N.W.2d 778 (Ct. App. 1996), correctly noted that a negligence-based nuisance requires proof of causation, which may require expert tes......
  • Request a trial to view additional results

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT