Welch v. City of Appleton

Citation2003 WI App 133,265 Wis.2d 688,666 N.W.2d 511
Decision Date28 May 2003
Docket NumberNo. 02-3259-FT.,02-3259-FT.
PartiesJames R. WELCH and Linda L. Welch, Plaintiffs-Appellants, v. CITY OF APPLETON and ABC Insurance Company, Defendants-Respondents.
CourtCourt of Appeals of Wisconsin

On behalf of the plaintiffs-appellants, the cause was submitted on the brief of Charles D. Koehler and Herrling, Clark, Hartzheim & Siddall Ltd., of Appleton.

On behalf of the defendants-respondents, the cause was submitted on the brief of Christopher R. Behrens, assistant city attorney, of the City of Appleton. Before Cane, C.J., Hoover, P.J., and Peterson, J.

¶ 1. HOOVER, P.J.2

James and Linda Welch appeal a summary judgment granted to the City of Appleton. The trial court concluded that the City was entitled to governmental immunity under WIS. STAT. § 893.80(4) after an overflowing sewer caused the Welches' home to collapse to a point requiring total demolition. The Welches contend that the City created a nuisance and was negligent, breaching its ministerial duty to maintain the sewer. Both of the Welches' theories, if correct, preclude applying the immunity doctrine. The Welches also claim there are genuine issues of material fact to be resolved. While we sympathize with the Welches' situation, we reject their arguments and affirm the judgment.

Background

¶ 2. The Welches owned a home in Appleton. A City storm sewer runs under their property and at the time of this incident, a vertical drain pipe with an open grate was located approximately fifteen feet from the house's rear foundation. Sometime in 1995, the City extended the height of the pipe at the Welches' request.

¶ 3. On June 11, 2001, the City experienced an extraordinary rainstorm. At the peak of the storm's intensity, two inches of rain fell in ten minutes. There was so much water in the system that the resulting pressure created a twenty-foot geyser from the City's pipe in the Welches' yard. The geyser lasted about thirty minutes. Because the ground sloped downward from the pipe toward the house, the water naturally pooled against the foundation causing it to collapse, and bringing down most of the house as well. The collapsed home was irreparable and had to be demolished, although the site was re-excavated and the house rebuilt.

¶ 4. Following the event, the City sealed the pipe with concrete and relocated the drain on the property to an area of lower elevation than the home. The sewer system was also evaluated, but the City found no obstructions and all mechanical components were in working order.

¶ 5. The Welches sued the City, claiming that the City maintained a nuisance and that it was negligent.3 The City moved for summary judgment on grounds of governmental immunity in WIS. STAT. § 893.80(4). The court determined that the City was not liable for damages caused if the sewer "lacks the capacities under a single-event storm. ... The single-event episode is an exceeding-the-capacity case. The law says that governmental immunity applies to such a case." The court accordingly granted the City summary judgment. The Welches appeal.

Discussion

[1, 2]

¶ 6. We review a summary judgment decision using the well-known methodology that the circuit court also employs. See Policemen's Annuity & Benefit Fund v. City of Milwaukee, 2001 WI App 44, ¶ 9, 246 Wis. 2d 200, 630 N.W.2d 236

; Green Spring Farms v. Kersten, 136 Wis. 2d 304, 314-15, 401 N.W.2d 816 (1987). Whether immunity applies is a question of law that we resolve without deference to the trial court. Caraher v. City of Menomonie, 2002 WI App 184, ¶ 9, 256 Wis. 2d 605, 649 N.W.2d 344.

¶ 7. WISCONSIN STAT. § 893.80(4) states:

No suit may be brought against any ... political corporation, governmental subdivision or any agency thereof for ... intentional torts ... nor may any suit be brought against such corporation, subdivision or agency ... for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.[4]
I. Maintaining a Private Nuisance

[3]

¶ 8. The Welches first point out that the immunity doctrine is not a shield against a nuisance claim. This is correct—no statutory or common law immunity doctrine empowers a public body to maintain a private nuisance. Hillcrest Golf & Country Club v. City of Altoona, 135 Wis. 2d 431, 441, 400 N.W.2d 493 (Ct. App. 1986). However, the Welches' argument assumes that the sewer was a private nuisance. We conclude that it was not.

[4, 5]

¶ 9. The legal basis for a nuisance claim is a question of law we review without deference to the trial court. Stunkel v. Price Elec. Co-op., 229 Wis. 2d 664, 668, 599 N.W.2d 919 (Ct. App. 1999). In Menick v. City of Menasha, 200 Wis. 2d 737, 547 N.W.2d 778 (Ct. App. 1996), we repeated the criteria for a private nuisance claim. A plaintiff must demonstrate that the "actor's conduct is a legal cause of the invasion [by] showing that: (1) the invasion is intentional and unreasonable, or (2) unintentional and otherwise actionable under the rules governing liability for negligent, reckless, or ultrahazardous conduct." Id. at 747 (citation omitted). In Menick, as here, there is no allegation that the City's conduct was intentional.

¶ 10. We therefore turn to the second prong of the nuisance test. The Welches argue that under this standard, they can maintain a nuisance claim against the City if they can show the City (1) negligently operated and failed to maintain an adequate sewer system or (2) by its actions unreasonably and substantially interfered with the Welches' comfortable life, health, or safety. See Anhalt v. Cities & Villages Mut. Ins. Co., 2001 WI App 271, ¶¶ 26-27, 249 Wis. 2d 62, 637 N.W.2d 422

.

A. Negligent Operation and Maintenance

[6, 7]

¶ 11. Establishing negligence requires proof of causation. Menick, 200 Wis. 2d at 747. The plaintiff in Menick could not meet that burden, id. at 748, but the Welches claim they have. Regarding the operation and maintenance of the sewer, the Welches contend their expert, engineer John Davel, has offered proof of several ways in which the city was negligent. Davel contends that: (1) the ponding in the Welches' backyard was foreseeable; (2) flooding was foreseeable because the system was designed for a ten-year event at best; (3) the pipe in the Welches' yard could have been capped or relocated in 1995; (4) the lack of a safety valve may have contributed to the flood; and (5) the City should have done an evaluation of the water's escape plan in 1995.

¶ 12. In Anhalt, however, we clarified the proof required, stating that to prevail on the negligent operation and maintenance theory, the plaintiffs "must show that the system itself failed due to negligence." Id., ¶ 26. There we concluded that the record did not so demonstrate but, rather, "The city engineer ... confirmed that the sewer and the pumps were working." Id. We have the same situation in this case. The City's engineer averred that the system's components were functioning normally both before and after the storm. The system's problem was not mechanical. Rather, it was simply unable to keep pace with the extraordinary rainfall.

[8]

¶ 13. The Welches do not dispute that the sewers tested in working order. Moreover, they acknowledge that "during a heavy rainstorm, the storm sewer became surcharged with pressure causing storm water to exit the manhole drain...." (Emphasis added.) Yet they argue that Davel's opinions constitute "conflicting evidence regarding the cause of the problem...." Davel, however, has not proven that the existing system failed. He has only provided different design specifications.5 Approval of the design and construction of a sewer system are generally discretionary acts. See Menick, 200 Wis. 2d at 745

. But, cf., Bratonja v. City of Milwaukee, 3 Wis. 2d 120, 123-24, 87 N.W.2d 775 (1958). Even if the system is poorly designed, a municipal government is immune for this discretionary act. See Anhalt, 249 Wis. 2d 62, ¶ 12 (city installed one-year storm sewer and knew that it was likely to flood annually, but still had immunity) (quoting Allstate Ins. Co. v. Metropolitan Sewerage Comm'n, 80 Wis. 2d 10, 15-16, 258 N.W.2d 148 (1977)).6

B. Unreasonable or Substantial Interference

[9]

¶ 14. Absent a showing of negligence, a plaintiff could still allege nuisance by claiming the City engaged in an unreasonable activity that substantially interfered with the comfortable enjoyment of the life, health, or safety of the plaintiffs. Anhalt, 249 Wis. 2d 62, ¶ 27. To prevail in the context of this case, the Welches would have to show that this is a collected water case; in other words, that the flood waters were diverted from the sewer system onto their private property. See id.

¶ 15. Here, the trial court concluded that this was not a collected water case, but an "exceeding-the-capacity" case. While such a determination may generally be viewed as a factual issue, and potentially inappropriately determined on a summary judgment motion, we conclude as a matter of law that this case is an "exceeding-the-capacity" case and not a collected water case. Because of the sparse jurisprudence defining "collected water" and "exceeding-the-capacity" cases, we deem it appropriate to further discuss the issue.

¶ 16. The Welches emphasize that the sewer system collected the surface water and then diverted or discharged it onto their property. Their argument appears to be that any time a sewer gathers water and discharges it elsewhere it is a collected water case. An exceeding-the-capacity case, however, is one where the sewer is simply incapable of draining all the water from the ground surface, leaving the surface water to cause damage.

¶ 17. There are no formal definitions for either collected water or exceeding-the-capacity cases. However, our review of the case law leads us to conclude that collected water cases involve an element of the sewer's design, either intentionally or negligently...

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