*1 Sewerage Metropolitan District, Milwaukee Plaintiff-Appellant,
v. Defendant-Respondent- Milwaukee,
Petitioner. Supreme Court 10, argument September 2004. Decided No. 02-2961. Oral January
(the of appeals court from published City) appeals v. District Sewerage decision, Metropolitan Milwaukee *10 City App Milwaukee, 209, 688, 2003 WI 267 Wis. 2d reversing County 346, 671 N.W.2d a Milwaukee Circuit Flanagan, Judge, granted order, Court City's Mel the summary judgment. motion for I. PROCEDURAL POSTURE 13, 2000, 2. On December Milwaukee Metro- (MMSD) politan Sewerage complaint District filed a County Milwaukee Circuit Court to recover sums re- repair replacement metropolitan lated to the and of its (MIS) interceptor sewer at North 40th Street and West allegedly Milwaukee, Bluemound Road which col- lapsed rupture on 9, 1999, December due to the and collapse City's nearby water main. complaint alleged negligence
¶ 3. MMSD's both complaint and nuisance. The averred, relative to the negligence City properly claim, that the "did not moni- through pipeline, the tor properly inspect volume of water the did not pipeline, the did not notice unusual vicinity, properly water flows in the repair/replace and not did City's vicinity water main in the 40th Street and North West Bluemound Road." With regard alleged to the nuisance, MMSD averred: "The City upon permitted has, belief, information and a exist, nuisance condition to to wit: the existence of collapse main, broken water which nuisance caused the of the District's MIS." MMSD also stated a cause of unjust arising repair action for enrichment, from its City's water main. Following stipulation parties, May ¶ 4. of on 2002, the circuit court dismissed MMSD's claim for unjust Shortly City thereafter, enrichment. filed a summary judgment, seeking motion a dismissal of remaining City MMSD's In motion, claims. its 1) argued: any alleged It had no notice of defect 2) negligent regarding It main; was the water any duty it owed to MMSD it did not breach because 3) damages; It entitled was did not cause MMSD's and immunity statutory the nuisance and relative to both 4) negligence After There no nuisance. claim; and was hearing briefing, in which the held on the motion 1) The did not have notice circuit court ruled: alleged regarding such lack condition, defective negligence both the of notice was viable defense to 2) immunity claims; The was entitled to negligence and nuisance claims based Wis. from the *11 893.80(4) (1999-2000)1 § law; and and related case Stat. 3) theory ipsa sup- loquitur was not MMSD's of res September ported by undisputed Thus, 19, on facts. judgment in favor of the 2002, court entered the circuit remaining City, thereby dismissing MMSD's claims. photocopying Following concerning dispute costs, the a judgment October an amended on circuit court entered appealed judgment and both the 22, MMSD 2002. judgment. amended appeals
¶ circuit of reversed the 5. The court required prevail concluding on notice was court, Sewerage private Metro. nuisance. Milwaukee a claim of appeals ¶¶ of Dist., 688, 14-16. The court 2dWis. alleging a that the created was stated that MMSD appeals Id., ¶ 11. The also concluded court of nuisance. immunity from a not entitled to was that City Waukesha, v. based Winchell nuisance suit (1901), and several court 101, 109, 85 N.W. Wis. relying appeals Milwaukee decisions on Winchell. Sewerage ¶¶ Dist., 18-21. The 2d 267 Wis. Metro. appeals that Wis. Stat. concluded under court of also are to to the Statutes subsequent All references Wisconsin noted. unless otherwise the 1999-2000 version 893.80(4), alleging negligence "while a of action cause by negligent a immunized, nuisance created conduct protected. ..Id., is not appeals Also, court
rejected City's argument public policy liability. Id., ¶ should limit 23. Further, the court of appeals ruling regard- concluded that the circuit court's ing ipsa loquitur premature, although res was the court appeals ultimately left it to the circuit court's discre- give jury tion whether to instruction on the doctrine. Finally, appeals Id., ¶¶ 26-28. the court of ruled that awarding photocopying the circuit court erred in costs City. Id., ¶ to the
¶ 6. For the below, reasons discussed we affirm appeals the ultimate decision of the court of summary judgment granted, should not have been although entirely we do so on an based different ratio- prima nale. We hold that in order to establish facie liability proof nuisance, case for there must be proof underlying the nuisance, of the tortious conduct giving proof nuisance, rise to the that the tortious legal alleged conduct cause nuisance. The City's nuisance in case this is the interference with property MMSD's interest its sewer. governing 7. We conclude that under the law
liability for nuisance based on conduct, intentional the pleadings support any and record do not claim that the City intentionally a created nuisance. We conclude that only giving
the actionable act tortious rise to the alleged City's negligence in nuisance this case is the in failing repair leaky to its water main before it burst. We existing reaffirm our case law that a when nuisance is predicated negligence, all the usual rules and de- applicable negligence apply. fenses to Thus, claims predicated negligent when a nuisance is on a failure to proof act, there must be that the defendant's conduct negligence, including proof of actionable constituted alleged regardless nuisance is notice, whether the private. public or 893.80(4), §
¶ hold that under Moreover, 8. we Holytz immunity jurisprudence v. since and Wisconsin's City Milwaukee, 17 Wis. 2d N.W.2d may (1962), municipality be from immune giving depending on the nature of the tortious acts suits municipality A is from the nuisance. immune rise to predicated on if the nuisance is suit for nuisance negligent discretionary A mu- acts that are nature. immunity enjoy nicipality from for nui- does not suit underlying negli- is sance when the gence tortious conduct negligence comprised performed acts and the duty. pursuant ato ministerial adoption, design, concerning Decisions the public system implementation are works
discretionary, legislative decisions for which a munici- City enjoys immunity. pality Thus, from the is immune relating regarding adoption of a the suit its decisions system, specific type of of the the selection waterworks ground, pipe pipe, placement the of the City pipe. In contrast, of such continued existence may negligence failing repair liable for its be leaky However, a mate- since there exists water main. City had of fact whether the notice rial issue as to leaking main, determine whether water we cannot duty repair its water under a ministerial prior cannot determine Thus, main to the break. we 893.80(4) from immune under whether the repair negligent liability predicated upon failure to main it before burst. water viewing summary judgment Finally, ma- light MMSD, favorable to we conclude terials in a most disputed material are two issues of that there at least *13 disputed regarding In fact. addition to the of fact issue leaking whether the had notice water main prior disputed break, to the there exists a issue of fact collapse. Therefore, as to what caused MMSD's sewer to appeals, reversing we affirm the decision of the court grant summary judgment the circuit court's favor City. II. FACTUAL BACKGROUND following summary ¶ 11. a The is brief of the facts giving complaint. rise to the will Further facts be set opinion. forth later in the approximately On December City 1999, at a.m., 4:45 a of Milwaukee Water- employee responded works call to a water was entering the basement of home near 40th Street and Shortly City employees thereafter, Bluemound Road. gate stop turned off main two valves in order to the flow City employee A water. testified the water main damage break was severe and that it caused substantial roadway to the above However, the water main. surfacing water was not on the street. It was later discovered that 12-to~15 foot section of the water completely snapped main had off and fell into the MIS. City employee Another testified that the MIS was sucking creating large it, water and debris down into sloping cone-shaped ground. hole The broken water main taken was offline at a.m. 5:59 on December following gate 9, 1999, and, valve, installation of a p.m. service was at restored 9:33 ¶ 12. The water main at located 40th and Blue- pit pipe, mound was made of 8-inch diameter iron cast which was installed 1926. The water main was approximately ground. buried 12 feet into the MIS, The Special also known Sewer, as Menomonee constructed out brick in the 1880s. It was 60 inches *14 City's in and was below the water diameter located approximately feet into The MIS was buried 23 main. flowage ground Miller waste from the carried Brewing Company. originally not as The MIS was built originally designed sanitary sewer; a ing it as a "flush- was carry line" to river water. Design En- Scheller, Mark the Water Mains
gineer Waterworks, that the for the Milwaukee testified City approximately pit operates iron 1300 miles of cast pipe, majority of was laid before 1963.2 Pit the which industry prior to 1945.3 cast iron was the standard City pipe. In 1963, the utilized ductile iron Since has City currently industry addition, the utilizes modern joints, practices such as mechanical limestone rubber wrap polyethylene the risk of backfill, and reduce pipes. in the corrosion City Mr. Scheller that the does testified plan systematic replacing mains. for water
have replaced on break Rather, mains are based their water City quality, history, The and other variables. water and tracks on water main breaks records data database such information. maintains searchable and rank The a section a main is able isolate majority of in his affidavit Mr. Scheller stated pipe iron was laid after main breaks occur in cast water centrifugally These constructed from World War II. mains were ("spun and were installed between pipe pipe"), cast iron and 1963. affidavit, relayed history Scheller brief In his Mr. pipe cast iron pipes. iron Mr. Scheller stated that
use of cast Dillenburg Castle. Germany in in 1455 at first installed aof XIV of France ordered the construction Apparently, Louis pipeline France 1664 that is still 15-mile cast iron iron have cast today. Several cities in the United States service years. that have been in service at least water mains history. Depart- it The based its break Waterworks replaces many given can, ment mains as it as funds every year. Thus, allocated to it when a water main replaces breaks, the the break area and not the replacing The entire service line. estimated cost of each City's $1,000,000. mile of cast main iron Given the pipe, replace iron 1300 miles of cast cost to system entire at $1,300,000,000. estimated Because high replacing main, cost of an entire water such replaced only they mains are when have suffered a problems. sufficient number of breaks and attendant *15 III. STANDARDOF REVIEW grant ¶ 15. This court reviews a circuit court's summary judgment independently, apply but we methodology same as the circuit court. Smaxwell v. Bayard, ¶ 101, 2004 274 12, 278, WI Wis. 2d 682 802.08(2), N.W.2d 923. Pursuant to Wis. Stat. sum mary judgment pleadings, be "shall rendered if the depositions, interrogatories, answers to and admissions together any, file, with the if affidavits, show that genuine any there no issue as to material fact and moving party judgment that the is entitled to a as a "[sjummary judgment Thus, matter law." should not granted, presented conclusively be 'unless facts plaintiffs show that the action has no merit and cannot Smaxwell, ¶ be maintained.'" 278, Wis. 2d (quoting City Milwaukee, Goelz v. 491, Wis. 2d (1960)). 495, 103 N.W.2d551 "[w]e summary judg-
¶ addition, In view light ment materials in the nonmoving party." most favorable to the dispute concerning If Id. no there is solely presented the material this facts, court is with a legal question for a there is basis of law. Id. Whether subject question to de novo of law nuisance claim is Coop., 664, 2d Elec. 229 Wis. Stunkel v. Price review. 1999). (Ct. App. 559 N.W.2d IV ANALYSIS contrary City argues to the court The that appeals' involve the creation decision, this case does not City main was asserts that its water of a nuisance. The an and that old water a nuisance when installed not pipe long as the useful not constitute a nuisance so does City expired. explains pipe that The life of the has of a nuisance. claim is one for maintenance MMSD's alleged complaint, City in its MMSD The notes that City "permitted condition to exist." a nuisance that the City argues in order to further 18. The nuisance, for maintenance of on a claim succeed prove do so and that it cannot must causation MMSD given addition, In record in this case. incorrectly appeals concluded the court of
asserts that of notice. to raise a defense it was not entitled City, part According of a notice an essential to the *16 City stipulated not have that the did has that MMSD pipe. any Further, in leak or defect its actual notice of City it had no evidence that that there is the states a condition. constructive notice of such argues City ¶ that the court Moreover, the 19. incorrectly appeals entitled to that it was not concluded 893.80(4). discretionary immunity and under case law immunity any City for to The that it is entitled asserts design placement regarding and the decisions immunity pipe. it has In it maintains that addition, replacement relating repair the and to decisions system updating the main water water mains because legislative Finally, City act. the asserts that it should any liability public policy be relieved of based grounds. argues City contrast, 20. In MMSD that the
intentionally by failing inspect created a nuisance to its adopting whereby system merely water mains and repairs it pipes history breaking. obsolete argues that have City intentionally MMSD the that to continues quality they use inferior longer water mains until no can repaired economically. be MMSD states that there is a material issue of to MMSD fact as causation. prerequisite liability also asserts notice is that not a property when a claim involves the invasion of negligence interests. further MMSD maintains that prerequisite liability private not a in a nuisance case liability because is based on the violation of an absolute duty. argues
¶ 21. MMSD if that even notice were a prerequisite liability, prima it has established a facie City case for notice. MMSD asserts that once system pressure testing utilized a water it mains that has since In addition, abandoned. MMSD notes that the history question breaking, water main in has a itas ruptured previously had Further, emphasizes MMSD that the record indicates that a project directly construction occurred in 1992-93 above question City the water main that documents problems indicate that due to some construction that may damaged City have main, water to inspect main the water but did never so. by Moreover, MMSD contends that
1970s the was aware water main question was constructed with inferior material and nothing did to alleviate risk the main might provides break. MMSD also a number of statis- *17 City's relating water mains the break rate of tics to system and from the contends the rate of water loss City almost certain to was that a break was aware pipes. replaced cast its old iron occur unless it argues ¶ MMSD that the court Furthermore, City correctly appeals determined that the immunity either the common law entitled to under 893.80(4). § a min- that the had MMSD contends they duty maintain water mains so that to its isterial argues damage property. MMSD cause other did not municipal immunity law that that it is well-established Finally, MMSD for nuisance. does not extend to claims holding policy supports argues public that property invade the interests liable for nuisances that of others. Nuisance
A.
Defined: Private
Public
Nuisance
step
any
analysis
is to
24. The first
nuisance
Physi
actually
exists.
determine whether
nuisance
Corp.
Co.,
v.
Ins.
2002 WI
Plus Ins.
Midwest Mut.
cians
2d
It has been
27,
77,
¶ nuisance, between a nuisance and for liability a as it is have a possible to nuisance no A yet liability. nuisance is more than a nothing particular type of harm suffered; liability depends upon the existence of under- lying tortious acts that cause the harm. The Restate- (Second) ment of illustrates Torts this point: [F]or a nuisance to exist there must be harm to another interest, or the invasion of an need but there not be for conduct is not liability it. If of defendant of subjects kind that liability. him to .. nuisance exists, but he is not liable it. (Second) §
Restatement of Torts c 821A cmt. (emphasis added).4
4
explicitly adopted
Wisconsin has
private
the definition of
(Second)
nuisance
Torts,
found
the Restatement
of
§ 821.
Vogel Grant-Lafayette
Coop.,
v.
Elec.
416,
423,
201
2dWis.
548
Maretti,
(1996);
Prah v.
N.W.2d
223, 231,
829
2d
108 Wis.
321
(1982).
N.W.2d 182
public
Wisconsin's definition of
nuisance
(Second)
comports
also
with
§
Restatement
Torts
82 IB.
Co.,
Physicians Plus
Corp.
Ins.
v.Midwest
Mut. Ins.
WI 80,
2002
77,
n.15,
21
254
Wis. 2d
In addition,
N.W.2d 777.
(Second)
adopted
Wisconsin has
§
Restatement
of Torts
Vogel,
Mgmt.
428;
Corp.
CEW
v. First Fed. Sav.
201 Wis. 2d at
Ass'n,
&
Loan
631,
633,
(1979);
Wis. 2d
¶ varieties, and 27. two Nuisances come by distinguished private, the nature of the which are private "The of a nuisance is essence interest invaded. enjoyment of and land." with the use an interference § also 87, at See Prosser and Keeton Torts Krueger Mitchell, 733 88, 103, 112 2d 332 N.W.2d v. Wis. (Second) § (1983); 821D; of Restate Torts Restatement (Second) private § cmt. c. 822 Since ment Torts any "broadly defined to include disturbance nuisance property[,]" enjoyment Maretti, Prah v. (1982), an action 223, 232, 2d 321 N.W.2d Wis. See, e.g., governing nuisances. of the Restatement sections (Second) of (applying 2d at 423-32 Restatement Vogel, Wis. 840). 825, §§ Torts damages private may brought
recover nuisance be by property rights privileges those who "have respect enjoyment use and affected," the land including possessors of the land and owners of ease- (Second) § ments. Restatement of Torts 821E. "[a] public In contrast, nuisance is a condi- activity substantially unduly
tion or which interferes public place with the of a use or with the activities an community." Physicians Plus, entire Wis. 2d "[a] public words, 21. In other nuisance is an unrea- right gen- sonable interference with a common to the (Second) public." § eral Restatement of Torts 821B. See (accord). § also Prosser and Keeton on Torts 86, at 618 public Therefore, the interest involved nuisance is private broader than that public in a nuisance because "a necessarily nuisance does not involve interfer- enjoyment ence with use and of land." Restatement (Second) of Torts IB82 cmt. h.
¶ 29.
It
be
should
stressed
distinction
private
public
between a
"not
*20
persons injured
number of
injury
but the character
of
right impinged upon."
and
Costas v.
of
of
Lac,
Fond du
409, 414,
Wis. 2d
this case is the invasion MMSD's City's main line. The fact that water its sewer may comprised pipes, system be of older as a whole history leaking breaking, some which have a germane to the of whether nuisance exists issue City's here not the this The actionable nuisance case. "system"; rather, nuisance is the actionable water main City's sewer, which was interference with MMSD's the allegedly by leaky main at water located 40th
caused Having set forth the definition and Bluemound. this case involves
nuisance and determined that *21 659 private nuisance, we next examine the elements neces- sary private an hold actor liable for nuisance. B. Elements of a Private Nuisance Claim (Second) provides 32. The Restatement of Torts following liability private elements for for nui- sance: subject liability private
One is if, for a nuisance but only if, legal his conduct is a cause of an invasion of private another's interest in the enjoyment use and land, invasion is either (a) unreasonable, intentional and or (b) unintentional and otherwise actionable under controlling liability negligent. rules for .. conduct.... (Second) § Restatement of Torts 822.5 See also Wis Therefore, JI-Civil 1920. after it is established that a step analysis exists, nuisance determining the next a nuisance any liability-forming whether there is con underlying duct. Proof of the tortious conduct is an analysis. Stunkel, essential element in a nuisance ("[W]e private Wis. 2d at 671 conclude that no claim for may underlying prereq be made without being proved."). Physi uisite conduct As we stated "[Liability wrongful cians Plus: is 'founded on the act creating [the maintaining Physi nuisance].'" in ... (quoting Plus, cians 2d 77, Wis. Brown v. Ry. Co., Milwaukee 575, 589, Terminal 199 Wis. (1929)). N.W.385
5 The liability Restatement also allows based upon the governing rules or abnormally dangerous reckless conduct (Second) conditions. Restatement of Torts 822. Neither of these two types present conduct are in the case at bar. *22 may upon Liability ¶ for a nuisance be based 33. Physicians negligent or conduct. either intentional Schiro, 546; 77, 20; 272 Wis. at Plus, 254 2dWis. (Second) § Torts 822. Much of the of Restatement parties' dispute from the confusion in this case results City "created a nuisance" or "main- the over whether differing of liabil- standards tained nuisance" ity 589, Brown, In 199 Wis. at for each classification. may for nuisance noted that one be liable this court creating maintaining Brown, In or the nuisance. either "[i]n is where the nuisance that those cases we stated negligence by question no or defendant, created ordinary at As we care involved." Id. 589. want of applies explained "a Brown, in cases such as this rule tannery slaughter-house the midst of a residen- or a using plant creates mere act of area, tial where liability" rest cases, 'does not Id. In these the nuisance." question degree presents a used, of care for that on the degree danger existing negligence, even on the but omitted). (quoted In Id. source best of care.'" with the "engaged in intentional the defendant is cases where neighbor's peaceful severely affect[s] that conduct enjoyment property[,]" Stunkel, 229 of their use and finding "[a] unreason- 670, of intentional but 2d at Wis. though lawful, to meet is sufficient conduct, even able requirements under subsection of the Restatement (a)." Id. contrast, noted a "class cases In Brown do conduct of the defendant the acts or
which damage necessarily Brown, at to others." Wis. cause benign changes otherwise 589. Such cases involve objects develop harmful, time and become over object. through Id. at of the owner no fault liability predicated upon 589-90. In cases, these defendant's failure remove the harmful condition after he has notice of its existence. Id. at (Second)
¶ 35. The Restatement Torts using "creating" "maintaining," while not the terms or provides an individual is an liable for "act" "failure to act" that results in a nuisance. Restatement *23 (Second) § Brown, of Torts 824. Consistent with the (Second) provides Restatement of Torts that when liability predicated act," is on a to "failure there must be proof duty positive that the actor a was "under to take prevent action to or abate the interference with the public private or interest the invasion the interest." liability dependent upon Id. Thus, for a nuisance is the type underlying tortious conduct that causes the nuisance, be it an act or failure to act in circumstances duty Mgmt. Corp. a where there is to act. CEW v. First Ass'n, Fed. &Sav. Loan 88 631, 634-36, Wis. 2d (1979)("In any liability tort, N.W.2d766 the tortfeasor's follows from either his act or a failure to act when he so."). duty a has to do labeling involving Therefore, as case one
the "creation" of nuisance or "maintenance" of a one before has examined whether the tortious causing negligent acts the nuisance were or intentional begs question. Schiro, See at Wis. 546-47 (noting liability by for nuisance is determined governing liability underlying rules for the tortious plaintiff places conduct and not the label on a cause action). such, As order determine whether one is a nuisance, liable for it must be determined whether any underlying liability-forming there is tortious con- negli- duct and whether such conduct is intentional or Only may gent. as one the case be classified then involving "mainte- of a nuisance" or the the "creation nance of nuisance." City may whether the be now examine 37. We alleged on the rules nuisance based
liable for negligent liability governing either intentional or in the another's interest An interference with conduct.6 enjoyment "intentional" of land deemed be use and is (b) "(a) causing purpose it, or for the if the actor acts resulting substantially certain to is or is knows that it (Second) of Torts result from his conduct." Restatement intentional conduct a nuisance is based on Thus, through malice, ill intends will defendant, when defendant, if without interference or to cause the knowledge any harm, nonetheless has desire to cause causing enterprise legal harm or otherwise that his substantially issue. the invasion at certain cause Coop., Vogel Grant-Lafayette 201 Wis. 2d Elec. v. (1996).
430-31, 548 N.W.2d *24 clarify important nui- when a to that 38. It is category alleged of the second to fall under sance is "knowledge" requirement re- conduct, the intentional activity knowledge the condition fers that causing in the interest use harm to another's
6 regarding the arguments to its numerous In addition 17-20, 23-24, brief, Petr's Br. at City's conduct its intentional specifically argued argument, counsel for MMSD at oral remanded, proceed either was free to be it should the case Thus, it is neces negligent nuisance. theory of intentional or an liability for both for sary prerequisites address nuisance. negligence-based and a intentional nuisance 7 (Second) of previously applied has Restatement This court 2d at 430-31. Vogel, § Torts Wis.
enjoyment Vogel, (noting of land. 2d at Wis. that "the invasion under the Restatement be in must enjoyment land, another's interest the use and land"). merely Vogel, an Thus, invasion in the a case involving stray voltage alleged damaged have cows, farmer's this court it stated that was not suffi- stray voltage cient that the defendant knew that some proof required land; rather, invaded the farmer's was that the defendant knew that unreasonable levels of the stray voltage causing plaintiffs were harm to the cows. Id. at 432-33. absolutely Here, evidence, there no nor allege, City
does MMSD that the installed the water purpose interfering main in 1926 for the with enjoyment MMSD's use and of its easement or with knowledge substantially that such interference was certain to In addition, occur.8 there is no evidence that City inspect pipes purposes failed to its for the interfering with MMSD’s Also, sewer. because MMSD knowledge has conceded had no actual any point interceptor leak at the where MMSD's sewer was located, there is no evidence that actually being damaged aware that MMSD's sewer was substantially damaged by or was certain to be it water main. we While discuss the issue of constructive notice opinion, purposes present later in the discus- enough "[i]t sion, is not to make an invasion intentional that the actor realizes or should realize that his conduct causing involves serious risk or likelihood (Second) invasion." Restatement of Torts 825 cmt. c. Rather, in order for an invasion to intentional, be knowledge "It is the that at actor has the time he acts or fails to act that determines whether the invasion resulting from his conduct is intentional or unintentional." Restatement *25 (Second) of Torts 825 cmt. c. causing purpose or for the it "must either act
actor substantially resulting to is certain that it is know conduct." Id. result from his City sum, In there no evidence that the
intentionally is, an interfer- created a nuisance —that enjoyment This and of its sewer. with MMSD's use ence by is created a where the nuisance condition is not case opera- very activities and nature of the defendant's slaughterhouse a or tan- as with tions, such the case allegations present nery. are in the case Rather, the analogous in to the second class of cases identified more regarding provisions a and the Restatement's Brown generally are to act. mains beneficial failure property Water through only time, when, It over owners. negli- City's process and the natural of corrosion the gence maintaining repairing in mains that the and its pipes a condition that leak, break, or otherwise create private enjoyment prop- with the use interferes erty. complaint plaintiffs Indeed, the own estab- allegations in involve the this case
lishes that complaint negligent The to act. failure permitted "[t]he specifically alleges ... [a] exist, to wit: the existence of condition to collapse main, nuisance caused the which broken water added.) (Emphasis act The initial MIS." of the District's give laying not rise to cause main did water City's alleged negligence action; it is the rather failing repair main that act and leak in water gave ultimately damaged rise to the MMSD's sewer Mgmt., at 88 Wis. 2d 635-36 of action. See CEW cause give (illustrating rise defendant's actions did an conduct resulted until such a claim for nuisance plaintiffs property). Thus, the court with interference *26 appeals concluding in erred that this case involved the intentional creation a nuisance. Having
¶ 42. determined that the nuisance in this premised City's alleged negligence is on case failing repair leaky its water is, main —that failure to req- abate turn nuisance —we now and examine liability uisite elements for for a nuisance based on negligent supra, conduct. As noted failure distin- guish wrongful between nuisance and the conduct necessary liability to establish for the nuisance has resulted in much confusion the area of nuisance law. particular, In there been has much confusion surround- ing relationship negligence. between nuisance and Physicians Plus, In this court noted the confusion regarding concepts sought clarify these two and relationship Physicians Plus, the two. between 254 Wis. ¶77, 2d 20. Physicians recognized
¶
Plus,
In
we
that the
concepts
negligence
overlap
and nuisance
when a
predicated
negligent
nuisance
id.,
conduct,
2d 77, 27,
Wis.
but nonetheless stressed that the two
"
concepts
point
are distinct:
'The
is that
is a
nuisance
negligence
Id., ¶
result
is a cause....'"
27 n.22
(quoting
v.
Co.,
Culwell Abbott
Constr.
506 P.2d
(Kan. 1973));
CEW Mgmt.,
See also
88 Wis. 2d at
words,
636. In other
"nuisance has reference to the
negligence
interest
invaded
to the conduct that
subjects
liability
the actor to
for the invasion." Restate
(Second)
§
person
ment
of Torts 822 cmt.
"a
such,
b. As
may
damages
private
not recover
from a
unintentional
underlying negligent.
nuisance in the absence of
..
Stunkel,
conduct... or activities."
9 may that it Therefore, reject MMSD's contention we it theory if fails to establish negligence even proceed liability for nuisance. proof negligence
¶ 45. Since is essential to a negligence-based claim, nuisance our courts have re- peatedly predicated held that when nuisance claim is upon negligence, negligence the usual defenses in a applicable. Vogel, e.g., See, action are 201 Wis. 2d at Physicians Stunkel, 425; at In Plus, Wis. 2d 669-70. prior we noted that case law had established that when " negligent a nuisance is founded on conduct, 'the de- fendant be should accorded the same defenses any grounded upon would be available in other action negligence.'" Physicians Plus, Wis. 2d 546). (quoting Schiro, Thus, atWis. we ruled that negligently when claim is made that the defendant a nuisance, maintained notice causation are re- quired liability. Id., ¶ to establish 20.10 argues required
¶ 46. MMSD that notice is not private emphasizes an action for nuisance and Physicians public Plus awas However, case. *28 principal public since the a difference between and private nuisance lies in the nature interest by wrongful violated or conduct, affected the ele- required liability ments virtually to establish for either are Id., ¶ ¶ (explain- n.14,
identical. 21 & 25 n.21 ing public private the difference between a nui- noting similarity analyses public sance and in for (Second) private nuisance); Restatement of Torts 10 reject We MMSD's contention that notice is not required liability because a for nuisance is based on the violation of an duty. correctly by absolute As noted the court appeals in Stunkel, 670, 229 Wis. 2d at suggest while some older cases a liability analysis, strict these are cases all consistent with the provisions regarding Restatement's intentional and unreason able conduct.
668 (stating liability public § for nuisance 82IB cmt. e liability governed by applicable to for the same rules is private nuisance). Physicians in-
¶ addition, Plus was In while Physicians specifically public Plus case, deed a nuisance proposi- quoted Schiro, for our earlier decision negligent premised on when a nuisance is tion that to all usual is entitled conduct, the defendant negligence. Physicians Plus, 2d Wis. defenses private Schiro, itself nuisance. 25. Schiro involved underlying rules of 545. Since all the 272 Wis. at negligence applicable are to a claim of nuisance based Vogel, negligence, Schiro, 546; at 201 Wis. 272 Wis. on Stunkel, 425; 669; Wis. 2d at Restatement 2d at (Second) § logically then, h, & cmt. of Torts vary liability depending prerequisites for should by upon the interest invaded the defendant's whether public private. negligent conduct is neg- alleges MMSD that the Here, ligent failing repair main it broke. the water before specifically supra, in Brown we stated As discussed upon liability predicated for a when (failure nuisance), notice of the to abate a failure to act liability. Brown, prerequisite is a defective condition (Second) of Torts at The 199 Wis. 589-90. Restatement liability provides nuisance can attach that no actor was under on a failure to act unless the based knowledge duty or notice he has is, to act—that unless Schiro, Further, Wis. of the nuisance condition. premised when a nuisance is 546-47, noted that at we failing negligent conduct, to allow the defendant negligence action have in a as he would same defenses *29 plain- liability dependent label the on the render would pleading defendant's and not tiff used on underlying conduct. therefore We conclude that notice necessary part proof plaintiffs is a in an action liability predicated upon for nuisance when alleged negligent regardless act, defendant's failure to public private. of whether the nature of the harm is sum, In order to maintain an action for a private proof nuisance, there be must that there exists private an invasion or interference with the use and enjoyment of land, the defendant's conduct was the legal cause of the invasion, and the defendant's conduct relating is actionable under the rules to intentional or negligent liability conduct. When for a nuisance is predicated upon negligent necessary conduct, it is private establish both the existence of nuisance —an private enjoyment interference with the use and causing land—and that the conduct the harm is action- governing liability negligent able under the rules including conduct, notice. Immunity
C. Governmental addressing ¶ 50. Before whether MMSD has es- prima negligence-based tablished a facie case for a question nuisance, gov- we must first consider the immunity.11 argues ernmental MMSD that under the municipality law, common a involving is never immune from private nuisance suits the invasion aof inter- 11Because we have concluded that the record does not support a claim of nuisance conduct, based on intentional we only consider whether the liability is immune from for a negligence-based nuisance. We do not consider whether immu nity would apply to a claim of premised on conduct that would see, constitute an intentional tort. But Lange v. Norway, Town 313, 320-21, 77 Wis. 2d (1977); 253 N.W.2d420 *30 enjoys argues City it whereas the land, est in 893.80(4) immunity all the case under because in this legislative quasi-legislative complained or of are acts parties are incorrect. acts. Both analysis starting point for an
¶ 51. The entity immunity governmental for aof common-law Winchell, of 110 Wis. at is much cited case plaintiff, riparian landowner, al- a where the 103-04, through leged a nuisance had created defendant sewage system that defiled the waters of installation city adjoining was land. The court held her liability subject be, would an individual to the same as authority stating, "legislative to install a 110, id. at authority system implication no of carries sewer it matters not nuisance, and that create or maintain negligence or from from whether such nuisance results plan adopted." other older Id. at 109. Numerous routinely governmental entities were found that cases damage by negligence caused or nuisance liable e.g., public See, Town Stockstad v. works. various of (1959); Rutland, 528, 532-34, 2d N.W.2d813 8 99 Wis. Printing Madison, 148 Wis. v. State Journal Co. (1912); Piper v. 403-04, 396, 397, N.W.909 (1909). Madison, 314-15, 122 N.W.730 311, 140 Wis. immunity questions early cases, In these governmental on the rule that a based were decided entity generally it in tort unless immune from suits was engaged "proprietary function" deemed be entity governmental and the relation between the plaintiff governed." "governor See was not that Holytz, 32, the landmark decision 2d at 36. In 17 Wis. Holytz, be- distinctions abandoned the older the court 245, (1974); Racine, 214 N.W.2d v. 62 Wis. 2d Salerno Waukesha, 277, 288, 2d Corp. City 192 Wis. Envirologix v. 1995). (Ct. App. N.W.2d tween proprietary and governmental functions in rela- tion to government immunity. Id. at 39.12 The court abrogated the general governmental rule of immunity for municipalities, stating: "henceforward, so far as governmental responsibility concerned, for torts is *31 rule is liability exception immunity." Id. How- —the ever, the court retained an immunity exception for the of a liability for done municipality acts "in the exercise judicial of legislative its or or quasi-legislative or quasi- judicial Id. functions." at 40. 53. Following Holytz, the legislature
¶ enacted (1963), § Wis. Stat. 331.43 which is currently codified as 893.80(4).13 § We recognized in Lange, 77 2d at Wis. 314-18, that this statute codified the in holding Holytz regarding immunity for legislative, judicial, quasi- legislative, and quasi-judicial acts. Wisconsin Stat. 893.80(4) § provides: may brought against any...
No suit be political corpo- ration, governmental any agency subdivision or thereof for the officers, officials, intentional torts of agents its employees may or any nor brought against suit be such corporation, or agency subdivision ... for acts done in legislative, the exercise of quasi-legislative, judicial or quasi-judicial functions.
12While appeals several court of decisions have relied on cases, Holytz Milwaukee, these earlier v. City 26, 17 Wis. 2d 39, (1962), 115 N.W.2d618 clearly this court rendered obsolete logic upon which immunity determinations these cases were based. legislature The changed the statutory numbering to Wis. 1965, §
Stat. 895.43 in § and 2, § Wis. Stat. 893.80 in 1979. See 66, 1965; 29,§ ch. 323, Laws of ch. pertinent Laws 1979. The language unchanged the statute has remained throughout its renumbering. 839.80(4) § recognized "immu have 54. We liability legislative, quasi-legislative, against for
nizes judicial, quasi-judicial have collec acts, which been and any tively interpreted involves the act that to include judgment." Progres Lodi v. of discretion exercise 323, 2d Co., 71, 21, Wis. N. Ins. 2002 WI sive Envirologix Corp. City v. Wauke 314. See also N.W.2d sha, (Ct. App. 288, 531 N.W.2d 192 Wis. 2d 1995)("The judicial 'legislative, quasi-legislative, terms synonymous quasi-judicial' the term with are or omitted). 'discretionary.'")(internal contrast, In citation recognized the second clause we have 893.80(4) municipality protection to a no affords nondiscretionary "ministerial" acts: discre- act, in contrast to an immune
A ministerial absolute, certain tionary act, duty that "is involves performance involving merely the imperative, *32 prescribes and imposes, the law specific task when performance time, and for its the mode occasion defines nothing judgment for certainty remains that with such or discretion." Shelby, Ranch, 2000 WI L.L.C. v. Town Creek
Willow of (quoting C.L. 611 693 27, 409, 2d N.W.2d 56, 235 Wis. 711-12, 614 422 N.W.2d Olson, 701, 2d 143 Wis. v. (1988) Regents, (quoting 72 2dWis. Lister v. Bd. of (1976))). 301, 240 610 N.W.2d Holytz Following of the and the enactment Lange,
immunity 77 2d decided Wis. statute, this court negli- plaintiff alleged a town the 314,14-where at 14 Fond court decided Costas v. Lange, this Prior (1964), Lac, 409, 411, where the du 2d N.W.2d Wis. city private a against a abate brought an action plaintiffs city's sewage from the gases emanating by caused nuisance gently operation and maintained dam that the of the dam constituted nuisance because it caused the wa- nearby up ters of a lake to back and flood his lands. Reviewing dismissing the circuit court's order the plaintiffs complaint, immunity the court addressed the recognized by statute that the statute was enacted legislature response Holytz in to the decision. Id. at immunity n.3. The court concluded that under the any liability predi- statute, the town was immune from upon acquisition existing cated its dam or con- clearly struction a new dam because are "these legislative functions under the Id. at statute." Reviewing immunity
¶ 56. several cases decided passage since the statute, the court concluded enjoyed immunity regard while town to "the acquired capacity size dam and the of its flood- immunity gate," arising did not extend to claims from negligence operating maintaining existing immunity dam. Id. at 318-20. The court held that "would not include failure maintain as ato condi- disrepair operate tion of or defect or a failure to said floodgate." Finally, Id. at 320. the court stated that if upon negligence operating the nuisance was based maintaining immunity dam, acts to which did apply, separately analyze not there was no need to question negligence question from the as disposal plant. The city court concluded that a has no immunity "plan adopted" for the a public system. works Id. at 416. However, controlling point, Costas on this its holding as Waukesha, was based on v. Winchell 101, 109, 110 Wis. *33 (1901), predated Holytz N.W. which and the enactment of immunity Notably, the statute. the court in Costas did not even Holytz mention the decision or the newly immunity enacted statute, (1963). Wis. Stat. 331.43 " negligence by terming required 'nothing the is added1 maintaining public nuisance." to such' constitute 'as 321. Id. at Metropolitan Insurance Co. v. In Allstate
Sewerage Commission, 12, 2d 258 N.W.2d 80 Wis. (1977), injured plaintiffs' in an insureds were the by resulting operated from a truck accident automobile discharging effluent into a that was the defendant complaint blocking system al- traffic. The and sewer "designing leged negligent in was that the defendant placing it knew or have the manhole when should and it failed to its would block traffic known" that use prevent blocking precautions Id. of traffic. take dispostive appeal The issue was whether at 14. immunity against any the claims various barred The court concluded that all defendants. Id. at 14-15. by alleged munici- to act the various the pal corporations acts or failures legislative quasi- or "were either [were] judicial 895.43, immune under sec. and, such, as Id. at 18. Stats." holding the court ruled that decisions In so system question, designing "planning in legisla-
including placement manhole, were "[w]here, that when Id. 15. The court stated tive acts. at legislative systems determi- are and how build sewer body." imposed governmental upon Id. at 16. nations added.) governmental entity (Emphasis Further, acting legisla- plans approved in either approving capacity quasi-judicial such when tive plans. long as the Moreover, ruled that so Id. the court compliance placed with at a location manhole was compliance placement plans, was an act its sewer immunity. subject legislative act that was also awith planning and initial these Id. The court ruled immunity by implementation covered decisions were *34 even the use of though "subsequent the manhole may have created a 7<£15 danger." Therefore, it is clear that under the
¶
law since
the
Holytz and
enactment of the
a
immunity statute that
may
a
municipality
be liable for
nuisance founded upon
negligent acts. Lange,
17 decisions, parties the appeals upon court which Several of variety immunity to a rely, applied have the statute this case involving sanitary and storm sewers and claims of nuisance reach that are not conflicting have rationales to results utilized See, e.g., City Appleton, v. 2003 WI entirely consistent. Welch of 688, 133, 511; Anhalt v. Cities and 2d 666 N.W.2d App 265 Wis. 271, Co., 62, 2d 637 249 Wis. App Mut. Ins. 2001 WI Vills. 737, 422; City 200 Wis. 2d 547 of Menasha, Menick v. N.W.2d (Ct. 1996); Country v. Hillcrest & Club App. N.W.2d 778 Golf (Ct. Altoona, App. 431, 400 493 Wis. 2d N.W.2d 135 of 1986)[hereinafter Hillcrest]. the confusion in these decisions have created To the extent nuisances, is a immunity for such confusion municipal area of to First, have continued of factors. some decisions result three Holytz and immunity predated rely jurisprudence 893.80(4). Second, See, Hillcrest, 2d at 438-41. e.g., § 135 Wis. analyses negligence for employ separate some decisions See, Welch,265 2d grounded negligence. e.g., Wis. nuisances 688, Third, fail stress 8-13. some decisions ¶¶ only if are negligent acts those acts is liable for its municipality See, Anhalt, duty. e.g., pursuant to a ministerial performed 62, 2d Wis. analysis character of the immunity on the
Focusing the important for two underlying the is acts tortious liability itself First, supra, for nuisance is as discussed reasons. is underlying tortious conduct dependent upon whether the 893.80(4) Second, importantly, Stat. and more Wis. actionable. results; rather, for certain municipalities not immunize does immunity acts. provided is certain in the instant case misstated Thus, appeals court of the Applying
¶ these rules to the
facts
present
regarding
case, it is clear that decisions
adoption, design,
implementation
public
works
discretionary, legislative
quasi-legislative
are
acts
subject
immunity. Allstate,
15-17;
2dWis.
at
Lange,
"Approval
design
2d at 317-18.
Wis.
of the
[public work]
generally
and construction of a
are
dis-
cretionary
system poorly
acts....
Even if
de-
signed, municipal government
immune
for this
discretionary
City Appleton,
act." Welch v.
2003 WI
App
133,
13,
265 Wis. 2d
¶ may The 61. act for which the be potentially repair leaking liable is its failure to the alleged City water main. As MMSD has not that the was negligent failing repair to broke, the main it the after question City then becomes whether the a was under 893.80(4) § the law when it concluded that immunizes a mu nicipality a alleging negligence from cause of action but claim negligence. is based in Milwaukee Metro. Dist., 209, 22, Sewerage App 688, 2003 WI 267 2d Wis. N.W.2d 346. Allstate, n.5, inAs express opinion Wis. 2d at 16 we no municipal as to "whether immunity attached planning to the function should persist of subsequent experience view changed conditions which an demonstrate actual and substan is, danger." tial That we govern do not determine whether a entity mental duty has "a to its legislative review determina tion[s] after notice that dangerous condition exists[.]" Id. leaking duty repair it main to the ministerial before "only supra, duty when is ministerial As noted broke. involving merely imperative, absolute, certain and it specific performance im- the law of a task when the poses, prescribes time, and occa- and defines mode certainty performance noth- with such sion for its ing judgment Lister, 72 Wis. or discretion." remains for 2d at 301. Having record, determine reviewed the we sufficiently present are not case
that the facts City developed was determine whether the for us to duty repair leaking main a ministerial to under prior 9, As will be its on December to break as to below, is a material issue of fact discussed there City leaking main notice of the water whether the had prior determine whether its we cannot break. Since leaking main that its water was was notice enjoy- potentially interfere with the use and and could property, cannot conclude we ment another's repair leaking duty main with its whether "absolute, certain it was reasonable care before broke imperative," Lister, 2d at or whether Wis. repair City's before not to the main decision discretionary. such, we cannot determine As break immunity governmental entitled whether 893.80(4) Thus, before us. based on the record under remand. this issue on the circuit court must consider Judgment Summary D. *37 only Having the actionable determined that failing negligently abate to
claim in case one for this lastly court the circuit nuisance, examine whether we summary judgment granted properly in As we this case. prevail previously of in on claim discussed, order prove plaintiff negligence, must the nuisance based 1) following private the elements: The existence of a nuisance —the interference with another's interest 2) private enjoyment the land; use of The legal private defendant's conduct is the cause of the 3) nuisance; and The defendant's conduct is otherwise governing liability negli- actionable under the rules gent including conduct, Here, notice. MMSD has estab- lished the first element —an interference with its inter- enjoyment parties inest the use and of line. its MIS The any disputed contest whether there are issues mate- relating leaky rial fact to causation and notice of the pipe. We will discuss the causation issue first and then examine the notice issue.
1. Causation regard ap
¶ 64. With
causation,
the court of
peals
City Menasha,
in Menick v.
2dWis.
(Ct.
1996),
App.
correctly
747,
¶ 65. the course of this parties disputed have whether the water main broke causing collapse first collapsed to MIS or whether the MIS causing thereby City's
first, water main to fracture and break. Prior to the case, incident this engaged investigate MMSD had firm to Rust/Harza system Central MIS order to evaluate its current improvements. employee condition and recommend An *38 investigated collapse, the who MIS Rust/Harza Murray, deposition MIS his that the Patrick stated poor susceptible to failure." "is in condition and sewer signed Murray later an affidavit retract- However, Mr. testimony. ing deposition part A MMSD this his Larry inspected employee, Osieczonek, he testified that day the water main break and observed the MIS the Timothy normally through flowing the to be MIS. water prior engineer, col- Bate, a MMSD stated that to the functioning normally lapse, MIS and that while the was suggest that old, MMSD had no information to it was danger any collapse. the was MIS investigation During course of the the of its collapse, procured and examined soil MIS MMSD samples the from site. MMSD also sent the break analysis. portion a lab of the water main to broken experts, in- DeMuth, of MMSD's named Steven one pipe spected the broken at and tested the section of any laboratory if to determine there were fractures any pipe age such fractures. He testified age. very good pipe "in condition" for its that the looked pipe graphite in the but He opined some corrosion found relatively recent the corrosion was very "no He also that he saw "seemed minor." stated go replacement." pipe In in for reason that this would any internal in the addition, he was to find flaw unable piping materials.20 expert, Fradkin, Another MMSD Steven
geologist, clear as to that there was no answer testified causing collapsed main the MIS first water whether first. the water main cracked to break or whether Thus, analysis, pipe. lab discarded the After experts opportunity did an to have its own examine not have pipe. age given
However, MIS, he testified that it likely that there had movement of been its bricks. *39 testimony by geo- This was contradicted a Rust/Harza engineer, Hunt, technical who that Steven testified the great MIS in was located stable material and "wasn't at becoming breaching risk unstable" due to soil the In Mr. contrast, brick. Hunt indicated that the soil surrounding the main was water corrosive.21 expert
¶ Heuer, 68. Ronald another MMSD who boring samples examined soil in taken the the break "strong," area, testified that there awas "more than collapse trig- reasonable" likelihood that the MIS was gered by leakage City's the from water water main. say pressed opinion However, when he would not his degree rendered "to a was reasonable scientific cer- tainty." heYet, stated that the soil under the water main was loose and that the downward movement of this soil eventually caused the break in the main. Similarly, Murray
¶ deposi- 69. Mr. in stated his following tion that an examination of the broken water certainty main, "he could state with what caused either the MIS water However, or main to fail." he pipes further noted while that both were old susceptible "age failure, of the water main collapse point fractures and the time of tends to failing water main first." Douglas expert, Chisholm, another MMSD pipe testified that the fracture in the existed some- years pipe where between .8 and 2.6 and that the was leaking period over this However, time. he could not pipe actually state when broke. Mr. Chisholm testi- 21 Mr. Scheller stated his affidavit that the changed the material it used as fill the main during process installation to limestone the 1970s to reduce the risk of water main corrosion. subjected was to some outside the water main
fled that pipe. breach in the water When that caused the force fracture, Mr. the initial cause of the Chish- asked about possible pipe it was that was olm stated that damaged nearby program as a result of construction place Mr. 1992-93.22 Chisholm that took sometime pipe "enormously suscep- iron testified that old cast important it to outside force" tible yet, replace pipe; he aware old cast iron was monitor pipe began to crack when the of no evidence that the place. project Mr. testi- took Heuer 1993 construction "[t]he fied that disturbance related to construction why activity explanation main the water could be an fractured." City's design engi- main However, water *40 that the neer, Scheller, Mr. stated an affidavit while project experi- contractors on the construction problems near some the location the 8-inch enced no main, documentation whatsoever water "there project the ... construction which establishes any damage Mr. to the 8 inch water main." caused "[tjhere any no indication in testified that Scheller collapse supporting wall of the caused record that the any damage Mr. main in the area." to the water located project since this construction Scheller stated that any repairs, complaints, no ended, "there have been problems to whatsoever, reference documented with any question. area in main" in the water project to renovation work This related construction Bridge. Apparently, Avenue during done on Wisconsin package" "duct col supporting wall a project, a construction The question. main in contractors 20 feet from the water lapsed adding support package by duct extra subsequently repaired the it. Viewing summary judgment ¶ materials light nonmoving party, in a most favorable to the disputed MMSD, there we conclude that exists issue relating of material fact In addition, causation. appeals' open possibility court of decision leaves that the circuit court can issue an res instruction on ipsa loquitur. Sewerage Dist., Metro. Milwaukee 688, Wis. 2d
2. Notice complaint alleges City's
¶ 73. MMSD's
repair
leaky
failure to
collapse
water main resulted in the
summary
their
In
MIS.
order to survive
judgment, there must be evidence in the record such
jury
that a reasonable
could find that
had
leaky pipe
negligent
notice of the
failing
and was therefore
repair
may
it.
Notice
nuisance condition
Physicians
be either
Plus,
actual or constructive.
(Second)
¶77,
29;
Wis. 2d
Restatement
of Torts 839
(A possessor
failing
of land is liable for
to abate a
if he
"knows
or should know the condition
nuisance.").23 Walley Patake,
and the
In
v.
271 Wis.
(1956),
542-43,
23 However, duty to abate duty "is not an absolute to prevent costs, harm to merely duty others at all but a to do what practicable reasonably is under the circumstances." Re (Second) § statement addition, of Torts 839 In cmt. e. reasonably condition must be susceptible being to abated. (Second) § Restatement of 839 Torts cmt. f. a and could have remedied it within of condition agreed of time. MMSD has that the reasonable amount leaky City main. not have actual notice of the water did judg- summary Thus, must determine whether we light in a most favorable to materials, ment viewed con- a fact-finder to MMSD, would allow reasonable City is, had constructive notice—that clude that leaky pipe. should have known —of the "may Generally, constructive notice arise existing period any of condition over a from observable likely [that is] a leak has to time indicative that is Liability Drechsler, Water Annotation, occur." C.T. of by Damage Escaping Caused Water Distributor from for (1968) § [hereinafter Main, Liabil 1294, 11 20 A.L.R. 3d ity Distributor]. Jur. 2D See also 78 Am. Water (2003)(accord). Companies 61 and Water Waterworks requirement important The notice is constructive main a closed conduit this context because water is readily the street that buried several feet below susceptible inspection as to in the manner same City Light Republic v. Cin & Furniture Co. sewer. 1954). (Ohio App. Ct. cinnati, 767, N.E.2d city an if a were under Another court has noted that duty constantly dig up its streets and absolute any problem, pipes of a its without notice examine maintaining system expense "[t]he under those as make the cost of be such circumstances would supplying prohibitive." Son, v. Brown & Inc. water 1933). (Mich. Rapids, 562-63 Grand N.W. why arguments four as to sets forth 75. MMSD present First, case. MMSD this constructive notice leaking up argues question the main years ruptured and should it two before during noted, As one leak this time. have learned pipe experts fracture in the testified that the of MMSD's *42 years existed .8 2.6 somewhere between and and that pipe leaking period the was over this of time. Mr. pipe DeMuth concluded that the fractures in the were they only probably recent, had as existed for a few leakage weeks or months. Mr. Heuer that testified gradual process from the water main was and that quantify while he could not at which rate water was escaping, noted he there were several in fractures pipe probably leaking that indicated water was from the pipe years. for a number of problem
¶ 76. The with MMSD's reliance on the testimony length above while that it establishes the leaking, time in which water main was it does not establish that should been have aware leak. Our have cases established that when a nuisance grounded negligence action is in and there nois actual knowledge of the condition that interferes with the use enjoyment proof of land, there must be demonstrat- ing resulting [the] "the existence of the condition alleged length for a nuisance sufficient so time ought the defendants knew or to have it, known of period could within Walley, reasonable have remedied it." Walley at The Wis. court further stated liability there can be no these showing when circumstances there has not been a "that the condition had been maintained over an unreason- period differently, able of time." at Id. 542. Stated it be must shown that "the defendant failed to act under duty positive circumstances which it had a to take prevent plaintiffs prop- action to the invasion of the erty." Mgmt., CEW 2d Wis. at 636-67.24 (Second) See also Restatement i of Torts 839 cmt. ("What know, therefore, possessor depends upon should first specifically that the leak Mr. Heuer testified visually until the main had com- identifiable *43 early ruptured. pletely He that at the critical stated stages have no failure, main there would been problem physical at manifestation of street "[T]he things a started much earlier at level: critical anything you He can't on the surface." time when see visually by any problem mani- the time testified that collapse process surface, the was itself on the fested anything have been too late do about and it would nothing "By stage, .... And there's that it's all over it: just way you get it now, do out of the and let can you something."25 go stabilize, and then can back and do City testimony have no that the should discov- There is ordinary leaky through pipe the exercise of ered the up years. solely to two leak existed for care because argument ¶ 78. second is that the MMSD's inspections periodic tests should have conducted ordinary and, in the care had water mains exercise its condition of the so, it have discovered the it done would argues employed leaky pipe. that the once MMSD testing pipes system pressure it its a he, his is in condition that as reasonable land such whether in a man, might it be harmful would he led believe necessary."). it inspection an of was condition and that against is not an insurer "[B]ecause a water distributor mains, only liable for its liability resulting from defective but is damage for from a broken liability may attach negligence, no that, leak, notice of the the water upon if it is main shown measures to locate defect took all reasonable distributor Companies and Water 2D Waterworks Jur. it." 78 Am. repair Annotation, Liability Water also C.T. Drechsler, 60. See Main, Escaping Damage by Water Distributor Caused from (1968)(accord). 1294, § A.L.R. 3d 10b recently system, electing simply this abandoned to. repair they mains once break.
¶ 79. There are several flaws MMSD's second argument. First, above, as noted the uncontroverted testimony experts from one of MMSD's establishes that there have would been no observable indications that pipe leaking it until broke. He stated that the visually leak would have manifested itself until it inspect problem. was too late to and correct While City employee responding to the scene of the break large depression noticed a road, no there is evidence that such condition exited before water agree main burst.26 "Most courts that in the absence of tending some circumstances indicate defective *44 actionably negli- condition, a water is distributor not gent by failing regularly dig up inspect to and buried Liability Distributor, water mains." Water 20 A.L.R. of § 1294, 3d 9. See also 78 Am. 2D Jur. Waterworks and ("In § Companies Water the absence of circumstances tending probable deficiency, to indicate a a water main negligent failing regular is in distributor to conduct mains."). inspections of its Rather, a waterworks operator's duty inspect repair "fajfter to and arises likely damage." Liability notice leak a cause to of of § (emphasis Distributor, Water 20 A.L.R. 3d 1294, 10 added).27 proof Thus, there be must of facts that would operator lead a reasonable waterworks to conclude that property there awas harmful condition on its that giving duty Constructive notice rise inspect to a repair may found "[p]ersistent be when there is wetness and surface in depressions ground the over the main." 78 Am. Jur. 2D Companies § Waterworks and Water 61. jurisdictions Those that do impose duty an absolute upon a operator inspect waterworks buried do pipes so because ordinary require inspec- care, of an would, the course operator shown, tion. Once such a condition is any charged of nuisance con- notice with constructive in the have discovered course dition that would been (Second) investigation. Restatement reasonable cmt. i. Torts 839 The leads to the second above discussion argument,
deficiency is, an that there is MMSD's testimony concerning record utter lack of operator appropriate of care for a waterworks standard periodic pressure includes and whether this standard duty testing. Regarding and the notice constructive inspect, Wauwatosa, 2d in Kunz v. Wis. (1959), when a cause we stated that 657, 95 N.W.2d760 maintaining negligently a nui based on action is "[i]n of nuisance it sance, order to substantiate claim dangerous condition existed be shown that the must by ordinary long enough care exercise of so that danger re have discovered defendant should simply no There are it before the accident." moved testimony depositions, affidavits, other in the record care for a of reasonable that that the exercise establish testing pressure operator periodic waterworks includes of water mains. City argues such In addition,
system testing pressure The not feasible. pressurized and mains are all its water states constantly pressure grid, operate there is in a such that *45 pressure testing system. that in the It contends integrity dangerous, of undermines structural require pipes, to its the loss of service and would put forth no evidence as has customers. MMSD strictly under nuisance law operators hold liable they such See, City, v. 131 N.W.2d system. e.g., Lubin Iowa any leaks in the (Iowa 1964). 765, 770 municipalities regularly pressure
whether other
test
pipes,
testing,
dangers
their
the cost of such
in
testing
commonplace,
volved, whether such
testing
require
whether such
of
would
extended loss
obviously
service to customers. Such matters are
be
yond lay comprehension
expert testimony
such that
required
pressure
periodic
be
would
testing
to establish that
part
ordinary
is feasible and
exercise
operator.
care for a reasonable waterworks
See
v.
Olfe
(1980).
Gordon,
record that the ever testing pressure According journal pipes. its to a part in 1970s, article written which was made of experiment record, did, time, at one with pressure testing of older water mains that were aban longer Raymond doned and no Kocol, service. J. Testing System Milwaukee, Pressure Distribution July J. Am. Ass'n, Water Works at 430. This journal experimental pressure article discusses an test ing procedure City adopt and recommends that the regular pressure conjunction testing program with a comprehensive replacement program. water main at Id. explains The article also the tests were performed pipes longer that were no in service and *46 pipes testing performed after the was that some ground. at from the Id. 430-31. removed had been in record that would is no evidence the However, there City adopted program or such a indicate that the ever anything testing in article the was that the described experiment. Indeed, article the than a one-time more testing developmental pressure in the "is still notes that City's experience" stage," with refers to the and "limited testing. pressure The article further de Id. at 430. project." project Id.28 research as "basic scribes the argument in relation to no- third 84. MMSD's previous that oc- two breaks tice is that there were question in in 1988 and 1989. put main curred the water City these breaks MMSD asserts that may leak in have been a notice that there constructive inspection required. system, was such that further Manager for Milwaukee Water- A Water Distribution from Daniels, in an affidavit that works, Laura stated at 40th time the water main was installed question, main break until the water Bluemound surrounding previous in the breaks there were two The break occurred area. first four-block approximately street, 630 feet 40th located on occurred Road. The second break south of Bluemound approximately street, on 40th in 1989 and was located proof deposition Dinah Gant as MMSD cites to the also stopped in City employed pressure testing but once However, once Ms. Gant never testified Rather, pressure testing. counsel system employed you you like said used to do "it to me queried: MMSD sounded had responded by stating that there pressure testing." Ms. Gant testing joined Milwaukee any since she pressure not been of Ms. Gant's portion Nowhere in in 1996. Waterworks does she state that is in the record deposition that abandoned it. system testing and then pressure employed *47 1000 feet south Bluemound Road. Both breaks were repaired described in nature, as "minor and were in the normal course business." Daniels Ms. further stated any previous complaints that there was no record or repairs within 579 feet of the break at issue in this case. testimony concerning The record contains no further these leaks. Again, argument
¶ 85. MMSD's fails because testimony simply concerning there is no standard operator. care a waterworks Constructive notice may by previous be established the existence "of breaks complained in the main at or near the break of... providing previous that the number breaks is more expected." than that which would be 78 Am. 2D Jur. § Companies (emphasis Waterworks and Water added). Whether two minor main, breaks in a water place each over 600 from leak, feet the eventual would operator a reasonable waterworks on notice that there system certainly was a leak else in somewhere (Sec- beyond lay comprehension. normal Restatement ond) ("The possessor duty of Torts 839 cmt. i ahas to premises inspect his and learn about harmful condi- only tions his land when the are circumstances such person position a reasonable in his would realize it."). might upon that there be harmful conditions Also, the extent to which reasonable wa- operator inspections terworks would conduct in such requiring special knowledge. circumstances is a matter previous assuming instance, For after of a leak, notice it type was of the that would lead reasonable water- operator inspection, works an conduct would rea- inspection digging up pipe, sonable include 50 feet of pipe, pipe? 100 feet of or 500 feet of In words, other even assuming prove MMSD could either the or put City break, both, were sufficient to on notice system, there is still no else of a leak somewhere constitute a reasonable evidence as to what would inspection. regarding argument MMSD's final construc- that the 1992-93 notice is that the was aware
tive damaged project water main could have its construction duty inspect its was under a and therefore the pipe. the water main in Mr. Chisholm testified that question susceptible damage this construc- from project Mr. Heuer testified that the construc- tion leaky pipe. project explanation an for the could be tion *48 Apparently, mains records indicate that the water supposed inspected and to have been in the area were following project. However, the construction tested Mr. testified records, about Scheller when asked these Assuming testing inspection never done. were project prove that the 1992-93 construction MMSD can inspec- damaged and that a reasonable main water completed project would was tion after the construction pipe,29we there the defect in the believe have revealed regard disputed fact with to issue of material exists a notice.30 in the that the fracture testimony Mr. Chisholm's Given is over years, dispute to 2.6 there main existed from .8
water immediately after the any be observable whether defect would completed. project construction deny liability argues based that we should The also Plus, 2d Physicians 254 Wis. policy factors. In public on liability be denied an 44, 49, could noted that we ¶¶ public traditional six based on the nuisance case appropriate argument does City's one-page public policy policy The factors. support denying liabil identify policy factors public which are arguments that need not consider ity. appellate An court V SUMMARY prima ¶ 88. holdWe that in order to establish liability nuisance, facie case for for a there must be proof proof underlying of the nuisance, tortious giving proof nuisance, conduct rise to the that the legal tortious conduct was the cause of the nuisance. alleged City's The nuisance in case is the this interfer- property ence with MMSD's interest in its sewer. governing ¶ 89. We conclude that under the law liability for nuisance based on conduct, intentional pleadings any support and record do not claim that the City intentionally created a nuisance. We conclude that only giving actionable tortious act rise City's alleged negligence nuisance in this case failing repair leaky its water main it before burst. We existing reaffirm our predicated case law that when a nuisance is negligence, all the usual rules and de- applicable negligence apply. fenses Thus, claims predicated negligent when a nuisance on a failure to proof act, there must be that the defendant's conduct negligence, including proof constituted actionable regardless alleged notice, of whether the nuisance is public private. 893.80(4), Moreover, we hold that under immunity jurisprudence Holytz,
and Wisconsin's since *49 municipality may be immune from nuisance suits de- pending giving on the nature of the tortious acts rise to municipality the A nuisance. is immune from suit for predicated negligent if the nuisance is acts discretionary municipality that are in nature. A does immunity enjoy from suit for nuisance when the inadequately Pettit, 627, 646-47, v. briefed. State 2dWis. (Ct. 1992). App. 492 N.W.2d Thus, we do not this address argument. neg- negligence
underlying is and the conduct tortious pursuant performed ligence comprised to a of acts is duty. ministerial design, concerning adoption, the 91. Decisions system public implementation are of a works
and discretionary, legislative which munici- decisions for immunity City enjoys pality from Thus, the immune adoption regarding relating of a the its decisions suit to type specific system, of the the selection waterworks pipe, ground, pipe placement and the of the the the City pipe. contrast, In of such continued existence failing negligence repair may to be liable its leaky a mate- However, since there exists water main. City of the had notice fact as to whether the rial issue of leaking whether the we determine main, cannot water duty repair City water its a ministerial was under prior cannot determine Thus, we to the break. main 893.80(4) from immune under whether repair upon negligent liability predicated failure to main before it burst. the water summary viewing judgment Finally, ma-
¶ 92. light MMSD, we conclude favorable terials in a most disputed issues material at least two that there are regarding disputed of fact issue In addition fact. leaking water main notice of the had whether disputed prior of fact issue break, there exists to the collapse. Therefore, sewer to MMSD's as to what caused reversing appeals, court of the decision the we affirm summary judgment grant in favor circuit court's City. appeals By of the court decision the Court.—The is affirmed. {concurring}. I PROSSER, T. J. 93. DAVID case to
agree to remand this decision the court's with *50 by appeals. court, circuit as of directed the court Metropolitan Sewerage Milwaukee Dist. v. Mil of App waukee, ¶ 209, 33, 688, WI 267 Wis. 2d agree comprehensive N.W.2d346. I also with the court's My problems of discussion nuisance law. with the majority opinion are twofold. governmental First, 94. court's discussion of
immunity
principles
reiterates several
that,
law
my judgment, depart
language
legislative
from the
and
893.80(4).
§
My
subject
intent of Wis. Stat.
views on this
Property
Casualty
are stated in
v.
Scott
Savers
Co.,
¶¶
60,
Insurance
75-82,
127,
2003 WI
262 Wis. 2d
(Prosser,
dissenting),
J.,
cussion in the section on with the governmental immunity. discussion the section on acknowledges municipality may The court "a be upon negligent liable for a nuisance founded acts." Majority op., ¶ only But then it states: "The act for *51 City may potentially hable is its failure be which repair question leaking Id., 61. "The main." water duty [is] a ministerial was under whether duty leaking repair broke," a "abso- it main before involving merely per- imperative, lute, certain imposes, specific when the law task formance of for prescribes time, and occasion mode and defines certainty nothing re- performance with such its (quoting judgment Lister v. Id. or discretion." mains Regents, 282, 301, 240 N.W.2d 72 Wis. 2d Bd. of (1976)). practical so matter, formulation is this aAs appears the case. it to decide narrow that respectfully I concerns, Because of these concur. The notes of a nuisance. claim for maintenance