Decision Date30 September 2003
Docket NumberNo. 02-2961.,02-2961.
Citation671 N.W.2d 346,2003 WI App 209,267 Wis.2d 688
CourtWisconsin Court of Appeals

On behalf of the plaintiff-appellant, the cause was submitted on the briefs of Michael J. McCabe and James H. Petersen, of the Milwaukee Metropolitan Sewerage District.

On behalf of the defendant-respondent, the cause was submitted on the brief of Grant F. Langley, city attorney, and Susan E. Lappen, assistant city attorney.

Before Wedemeyer, P.J., Schudson and Curley, JJ.

¶ 1. CURLEY, J.

Milwaukee Metropolitan Sewerage District appeals the grant of summary judgment to the City of Milwaukee in its suit claiming that the City engaged in negligence and created a nuisance. The District seeks to recoup $700,000, the cost of rebuilding a metropolitan interceptor sewer that it contends was destroyed when a City water main collapsed. The District argues that the trial court erred: (1) in concluding that the City was entitled to either actual or constructive notice before it could be held liable for creating a nuisance; (2) in finding that no notice was given to the City concerning the condition of its water main; (3) in finding that the City was immune from suit under WIS. STAT. § 893.80(4) (2001-02)2; (4) in ruling that, at trial, the District could not avail itself of the res ipsa loquitor doctrine; and (5) in awarding the City costs for its photocopies. Because the District's allegations form the basis for a claim of private nuisance, no notice was required, and WIS. STAT. § 893.80(4) does not shield the City from liability for nuisances. We also conclude that the trial court prematurely decided whether the evidence supported the use of the res ipsa loquitor doctrine at trial and mistakenly permitted photocopying costs to be charged against the City. Therefore, we reverse.


¶ 2. Early in the morning of December 9, 1999, a City of Milwaukee water main, located under the roadway near the intersection of North 40th Street and West Bluemound Road, collapsed. The authorities were first alerted to the collapse when an area resident noticed two to three feet of water rushing into her basement. Directly below the water main, but twenty feet deeper, was a District metropolitan interceptor sewer that ran parallel to the water main. The sewer also collapsed, but the District contends that the sewer's cave-in happened as a direct result of the water main collapse.3 The foundation for the District's theory is the statement of a District employee who claimed to have seen the sewer functioning twelve hours after the water main broke, proof that the water main collapsed first causing the sewer to collapse later. The District sued the City to recoup its losses in rebuilding the sewer.

¶ 3. The District's complaint alleged negligence, nuisance and unjust enrichment. In its complaint, the District stated that the City was negligent because it failed "to properly maintain and operate the water main ... in that it did not properly monitor the volume of water through the pipeline, did not properly inspect the pipeline, did not notice unusual water flows ... and did not properly repair/replace the City's water main in the vicinity...." With respect to the nuisance claim, the District alleged that the City "permitted a nuisance condition to exist, to wit: the existence of a broken water main, which nuisance caused the collapse of the District's MIS."4

¶ 4. The City brought a summary judgment motion. In its motion, the City reasoned that because: (1) it had no notice of the water main break and notice was required; (2) it had immunity for both the negligence and nuisance claims pursuant to WIS. STAT. § 893.80(4); and (3) in any event, the doctrine of res ipsa loquitor did not apply to the facts presented here, it was entitled to summary judgment. The trial court agreed. A dispute also arose concerning the City's photocopying costs. The trial court ruled that the City's photocopying costs were properly taxed as costs to the District.



¶ 5. In an appeal from the entry of summary judgment, this court reviews the record de novo, applying the same standard and following the same methodology required of the trial court under WIS. STAT. § 802.08. Green Spring Farms v. Kersten, 136 Wis. 2d 304, 315, 401 N.W.2d 816 (1987); Wright v. Hasley, 86 Wis. 2d 572, 579, 273 N.W.2d 319 (1979).

¶ 6. In Preloznik v. City of Madison, 113 Wis. 2d 112, 116, 334 N.W.2d 580 (Ct. App. 1983), we set out the methodology to be applied in evaluating a summary judgment motion.

Under that methodology, the court, trial or appellate, first examines the pleadings to determine whether claims have been stated and a material factual issue is presented. If the complaint ... states a claim and the pleadings show the existence of factual issues, the court examines the moving party's affidavits for evidentiary facts admissible in evidence or other proof to determine whether that party has made a prima facie case for summary judgment. To make a prima facie case for summary judgment, a moving defendant must show a defense [that] would defeat the claim. If the moving party has made a prima facie case for summary judgment, the court examines the affidavits submitted by the opposing party for evidentiary facts and other proof to determine whether a genuine issue exists as to any material fact, or reasonable conflicting inferences may be drawn from the undisputed facts, and therefore a trial is necessary.
Summary judgment methodology prohibits the trial court from deciding an issue of fact. The court determines only whether a factual issue exists, resolving doubts in that regard against the party moving for summary judgment.

Id. (citations omitted).

A. Notice is not a requirement for a nuisance claim of the type alleged.


¶ 7. The trial court ruled that the District's nuisance claim failed because the City had neither actual nor constructive notice of the broken water main. The District submits that the trial court "improperly engrafted a notice requirement upon a claim of `nuisance by invasion of property interests.'" We agree.

¶ 8. The brief submitted in opposition to the City's summary judgment motion included a report of an expert witness, hired by the District, who opined that the water main in question had been leaking for between .8 and 2.6 years. The District also documented that the broken water main, installed in 1926, was made of gray cast iron, a material no longer used by the City because of its tendency to break. The City conceded that the pipe also had no casing or gravel surrounding it, unlike the current standard for buried pipes. Further, this pipe had a history of breaking; it had broken twice before in the general vicinity of the break that occurred here. In 1992-93, the City installed a larger pipe, lower in the ground, at the intersection near where the break occurred. The District theorized that this stressed the eight-inch water main and eventually caused it to break. The District also filed records that indicated that, after the 1992-93 construction, the City intended to inspect the water mains in the area, but never did so because it ceased pressure testing as a cost-cutting measure. The District noted that the City's current maintenance program only consists of fixing and replacing water mains as they break, and it does no testing of any kind to identify weakened pipes, despite the fact that many of the water mains are extremely old.


¶ 9. In Physicians Plus Insurance Corp. v. Midwest Mutual Insurance Co., 2002 WI 80, ¶ 21, 254 Wis. 2d 77, 646 N.W.2d 777, the supreme court set forth the distinctions between a public and a private nuisance.

In Schiro, this court quoted with approval the following language defining a private nuisance: "As commonly used, [nuisance] connotes a condition or activity which unduly interferes with the use of land or of a public place. Conduct which interferes solely with the use of a relatively small area of private land is tortious but not criminal and is called a private nuisance."

Id., ¶ 21, n.14 (citing Schiro v. Oriental Realty Co., 272 Wis. 537, 546, 76 N.W.2d 355 (1956)). "A public nuisance is a condition or activity which substantially or unduly interferes with the use of a public place or with the activities of an entire community." Id., ¶ 21 (footnote omitted).


¶ 10. The RESTATEMENT (SECOND) OF TORTS § 821B (1979), defines a public nuisance and lists factors to consider:

(1) A public nuisance is an unreasonable interference with a right common to the general public.
(2) Circumstances that may sustain a holding that an interference with a public right is unreasonable include the following:
(a) Whether the conduct involves a significant interference with the public health, the public safety, the public peace, the public comfort or the public convenience, or
(b) whether the conduct is proscribed by a statute, ordinance or administrative regulation, or
(c) whether the conduct is of a continuing nature or has produced a permanent or long-lasting effect, and, as the actor knows or has the reason to know, has a significant effect upon the public right.

Thus, a nuisance can be either private or public. The trial court expressed the opinion that the nuisance law is confusing; the trial court's confusion is understandable. In Physicians Plus, the supreme court acknowledged that considerable confusion exists in the law over the meaning of a nuisance:

As this court has recognized, nuisance is a "slippery term," and often the best way to determine whether a nuisance exists is by determining whether or not there is liability for the activity or condition. Wisconsin Power & Light Co. v. Columbia County, 3 Wis. 2d 1, 10, 87 N.W.2d 279 (1958); see also Schiro v. Oriental Realty Co., 272 Wis. 537, 545, 76

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