METROPOLITAN SEWERAGE DIS. v. Milwaukee

• Citation: 2005 WI 8,691 N.W.2d 658,277 Wis.2d 635
• Decision Date: 27 January 2005
• Docket Number: No. 02-2961.,02-2961.
• Parties: MILWAUKEE METROPOLITAN SEWERAGE DISTRICT, Plaintiff-Appellant, v. CITY OF MILWAUKEE, Defendant-Respondent-Petitioner.
• Court: United States State Supreme Court of Wisconsin

277 Wis.2d 635

2005 WI 8

691 N.W.2d 658

MILWAUKEE METROPOLITAN SEWERAGE DISTRICT, Plaintiff-Appellant, v. CITY OF MILWAUKEE, Defendant-Respondent-Petitioner.

No. 02-2961.

Supreme Court of Wisconsin.

Oral Argument September 10, 2004.

Decided January 27, 2005.

For the defendant-respondent-petitioner there were briefs by Grant F. Langley, Susan E. Lappen, Rudolph M. Konrad, and Anne Berleman Kearney, Milwaukeé, and oral argument by Rudolph M. Konrad.

For the plaintiff-appellant there was a brief by Michael J. McCabe and James H. Petersen, Milwaukee, and oral argument by James H. Petersen.

An amicus curiae brief was filed by Claire Silverman, Madison, on behalf of the League of Wisconsin Municipalities.

¶ 1. JON P. WILCOX, J.

The City of Milwaukee (the City) appeals from a published court of appeals decision, Milwaukee Metropolitan Sewerage District v. City of Milwaukee, 2003 WI App 209, 267 Wis. 2d 688,671 N.W.2d 346, reversing a Milwaukee County Circuit Court order, Mel Flanagan, Judge, that granted the City's motion for summary judgment.

I. PROCEDURAL POSTURE

¶ 2. On December 13, 2000, Milwaukee Metropolitan Sewerage District (MMSD) filed a complaint in Milwaukee County Circuit Court to recover sums related to the repair and replacement of its metropolitan interceptor sewer (MIS) at North 40th Street and West Bluemound Road in Milwaukee, which allegedly collapsed on December 9, 1999, due to the rupture and collapse of the City's nearby water main.

¶ 3. MMSD's complaint alleged both negligence and nuisance. The complaint averred, relative to the negligence claim, that the City "did not properly monitor the volume of water through the pipeline, did not properly inspect the pipeline, did not notice the unusual water flows in the vicinity, and did not properly repair/replace the City's water main in the vicinity of North 40th Street and West Bluemound Road." With regard to the alleged nuisance, MMSD averred: "The City has, upon information and belief, permitted a nuisance condition to exist, to wit: the existence of broken water main, which nuisance caused the collapse of the District's MIS." MMSD also stated a cause of action for unjust enrichment, arising from its repair of the City's water main.

¶ 4. Following a stipulation of the parties, on May 8, 2002, the circuit court dismissed MMSD's claim for unjust enrichment. Shortly thereafter, the City filed a motion for summary judgment, seeking a dismissal of MMSD's remaining claims. In its motion, the City argued: 1) It had no notice of any alleged defect regarding the water main; 2) It was not negligent because it did not breach any duty it owed to MMSD and did not cause MMSD's damages; 3) It was entitled to statutory immunity relative to both the nuisance and negligence claim; and 4) There was no nuisance. After briefing, a hearing was held on the motion in which the circuit court ruled: 1) The City did not have notice regarding the alleged defective condition, and such lack of notice was a viable defense to both the negligence and nuisance claims; 2) The City was entitled to immunity from the negligence and nuisance claims based on Wis. Stat. § 893.80(4) (1999-2000)¹ and related case law; and 3) MMSD's theory of res ipsa loquitur was not supported by the undisputed facts. Thus, on September 19, 2002, the circuit court entered judgment in favor of the City, thereby dismissing MMSD's remaining claims. Following a dispute concerning photocopying costs, the circuit court entered an amended judgment on October 22, 2002. MMSD appealed both the judgment and amended judgment.

¶ 5. The court of appeals reversed the circuit court, concluding notice was not required to prevail on a claim of private nuisance. Milwaukee Metro. Sewerage Dist.,267 Wis. 2d 688, ¶¶ 14-16. The court of appeals stated that MMSD was alleging that the City created a nuisance. Id., ¶ 11. The court of appeals also concluded that the City was not entitled to immunity from a nuisance suit based on Winchell v. City of Waukesha, 110 Wis. 101, 109, 85 N.W. 668 (1901), and several court of appeals decisions relying on Winchell. Milwaukee Metro. Sewerage Dist.,267 Wis. 2d 688, ¶¶ 18-21. The court of appeals also concluded that under Wis. Stat. § 893.80(4), "while a cause of action alleging negligence is immunized, a nuisance created by negligent conduct is not protected. . . ." Id., ¶ 22. Also, the court of appeals rejected the City's argument that public policy should limit liability. Id., ¶ 23. Further, the court of appeals concluded that the circuit court's ruling regarding res ipsa loquitur was premature, although the court of appeals ultimately left it to the circuit court's discretion whether to give a jury instruction on the doctrine. Id., ¶¶ 26-28. Finally, the court of appeals ruled that the circuit court erred in awarding photocopying costs to the City. Id., ¶ 29.

¶ 6. For the reasons discussed below, we affirm the ultimate decision of the court of appeals that summary judgment should not have been granted, although we do so based on an entirely different rationale. We hold that in order to establish a prima facie case for liability for a nuisance, there must be proof of the nuisance, proof of the underlying tortious conduct giving rise to the nuisance, and proof that the tortious conduct was the legal cause of the nuisance. The alleged nuisance in this case is the City's interference with MMSD's property interest in its sewer.

¶ 7. We conclude that under the law governing liability for nuisance based on intentional conduct, the pleadings and record do not support any claim that the City intentionally created a nuisance. We conclude that the only actionable tortious act giving rise to the nuisance in this case is the City's alleged negligence in failing to repair its leaky water main before it burst. We reaffirm our existing case law that when a nuisance is predicated on negligence, all the usual rules and defenses applicable to negligence claims apply. Thus, when a nuisance is predicated on a negligent failure to act, there must be proof that the defendant's conduct constituted actionable negligence, including proof of notice, regardless of whether the alleged nuisance is public or private.

¶ 8. Moreover, we hold that under § 893.80(4), and Wisconsin's immunity jurisprudence since Holytz v. City of Milwaukee, 17 Wis. 2d 26, 115 N.W.2d 618 (1962), a municipality may be immune from nuisance suits depending on the nature of the tortious acts giving rise to the nuisance. A municipality is immune from suit for nuisance if the nuisance is predicated on negligent acts that are discretionary in nature. A municipality does not enjoy immunity from suit for nuisance when the underlying tortious conduct is negligence and the negligence is comprised of acts performed pursuant to a ministerial duty.

¶ 9. Decisions concerning the adoption, design, and implementation of a public works system are discretionary, legislative decisions for which a municipality enjoys immunity. Thus, the City is immune from suit relating to its decisions regarding the adoption of a waterworks system, the selection of the specific type of pipe, the placement of the pipe in the ground, and the continued existence of such pipe. In contrast, the City may be liable for its negligence in failing to repair the leaky water main. However, since there exists a material issue of fact as to whether the City had notice of the leaking water main, we cannot determine whether the City was under a ministerial duty to repair its water main prior to the break. Thus, we cannot determine whether the City is immune under § 893.80(4) from liability predicated upon a negligent failure to repair the water main before it burst.

¶ 10. Finally, viewing the summary judgment materials in a light most favorable to MMSD, we conclude that there are at least two disputed issues of material fact. In addition to the disputed issue of fact regarding whether the City had notice of the leaking water main prior to the break, there exists a disputed issue of fact as to what caused MMSD's sewer to collapse. Therefore, we affirm the decision of the court of appeals, reversing the circuit court's grant of summary judgment in favor of the City.

II. FACTUAL BACKGROUND

¶ 11. The following is a brief summary of the facts giving rise to the complaint. Further facts will be set forth later in the opinion. On December 9, 1999, at approximately 4:45 a.m., a City of Milwaukee Waterworks employee responded to a call that water was entering the basement of a home near 40th Street and Bluemound Road. Shortly thereafter, City employees turned off two main gate valves in order to stop the flow of water. A City employee testified that the water main break was severe and that it caused substantial damage to the roadway above the water main. However, the water was not surfacing on the street. It was later discovered that a 12-to-15 foot section of the water main had completely snapped off and fell into the MIS. Another City employee testified that the MIS was sucking water and debris down into it, creating a large sloping cone-shaped hole in the ground. The broken water main was taken offline at 5:59 a.m. on December 9, 1999, and, following the installation of a gate valve, service was restored at 9:33 p.m.

¶ 12. The water main located at 40th and Bluemound was made of 8-inch diameter pit cast iron pipe, which was installed in 1926. The water main was buried approximately 12 feet into the ground. The MIS, also known as the Menomonee Special Sewer, was constructed out of brick in the 1880s. It was 60 inches in diameter and was located below the City's water main. The MIS was buried approximately 23 feet into the ground and carried waste flowage from Miller Brewing Company. The MIS was not originally built as a sanitary sewer; it was originally designed as a "flushing line" to carry river water.

¶ 13. Mark Scheller, the Water Mains Design Engineer for the Milwaukee...