Bostco LLC v. Milwaukee Metropolitan Sewerage District

2013 WI 78SUPREME COURT OF WISCONSIN
CASE NO.: 2007AP221 & 2007AP1440
COMPLETE TITLE:
Bostco LLC and Parisian, Inc.,
Plaintiffs-Appellants-Cross-
Respondents-Petitioners,
v.
Milwaukee Metropolitan Sewerage District,
Defendant-Respondent-Cross-Appellant-
Petitioner.
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at 334 Wis. 2d 620, 800 N.W.2d 518(Ct. App. 2011 - Published)
PDC No: 2011 WI App 76OPINION FILED: July 18, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT: September 6, 2012
SOURCE OF APPEAL:
COURT: Circuit
COUNTY: Milwaukee
JUDGE: Jean A. DiMotto & Jeffrey A. Kremers
JUSTICES:
CONCURRED: GABLEMAN, J., concurs. (Opinion filed.)
DISSENTED: ABRAHAMSON, C.J., BRADLEY, J., dissent. (Opinion
filed.)
NOT PARTICIPATING: PROSSER, J., did not participate.
ATTORNEYS:
For the plaintiffs-appellants-cross-respondents-
petitioners, there were briefs by Mark A. Cameli, Rebecca
Frihart Kennedy, Lisa Nester Kass, Amy MacArdy, and Reinhart,
Boerner Van Deuren, S.C., Milwaukee, and oral argument by Mark
A. Cameli and Rebecca Frihart Kennedy.
For the defendant-respondent-cross-appellant-petitioner,
there were briefs by G. Michael Halfenger, William J. Katt, Jr.,
Eric G. Pearson, and Foley & Lardner, LLP, Milwaukee, and Susan
B. Anthony, James H. Petersen and Milwaukee Metropolitan
Sewerage District, Milwaukee, and oral argument by G. Michael
Halfenger.
An amicus curiae brief was filed by Claire Silverman,
Madison, on behalf of the League of Wisconsin Municipalities.
2
2013 WI 78NOTICE
This opinion is subject to further
editing and modification. The final
version will appear in the bound
volume of the official reports.
No. 2007AP221 & 2007AP1440
(L.C. No. 2003CV5040)
STATE OF WISCONSIN : IN SUPREME COURT
Bostco LLC and Parisian, Inc.,
Plaintiffs-Appellants-Cross-
Respondents-Petitioners, FILED
v. JUL 18, 2013
Milwaukee Metropolitan Sewerage District, Diane M. Fremgen
Clerk of Supreme Court
Defendant-Respondent-Cross-Appellant-
Petitioner.
REVIEW of a decision of the Court of Appeals. Affirmed in
part, reversed in part, and remanded.
¶1 PATIENCE DRAKE ROGGENSACK, J. This is a review of a
published opinion of the court of appeals1 that affirmed in part
and reversed in part the decision of the circuit court for
Milwaukee County.2 The questions now before us arise from claims
by Bostco LLC and Parisian, Inc. (hereinafter Bostco), alleging
1
Bostco LLC v. Milwaukee Metro. Sewerage Dist. (Bostco),
2011 WI App 76, 334 Wis. 2d 620, 800 N.W.2d 518.
2
Judges Jeffrey A. Kremers and Jean A. DiMotto presided at
different phases in the circuit court.
No. 2007AP221 & 2007AP1440
that Milwaukee Metropolitan Sewerage District's (MMSD) negligent
operation and maintenance of a sewerage tunnel (the Deep Tunnel)
beneath Bostco's property resulted in excessive groundwater
seepage into the Deep Tunnel, thereby causing significant damage
to Bostco's buildings. Bostco sought money damages, as well as
equitable relief.
¶2 The parties raise five issues, and we affirm the court
of appeals on all but one of the issues. First, MMSD claims in
its cross-appeal that it is entitled to immunity for its
construction and maintenance of the Deep Tunnel, under Wis.
Stat. § 893.80(4).3 Second, if immunity is not accorded, Bostco
claims that the court of appeals erred when it reversed the
circuit court's award of equitable relief for Bostco, ordering
MMSD to abate the excessive seepage of groundwater into the Deep
Tunnel. Third, Bostco claims that the damage cap in
§ 893.80(3), which caps the damages recoverable in an action
against governmental entities at $50,000, violates equal
protection, both facially and as applied to Bostco's specific
claims. Additionally, Bostco contends that the damage cap does
not apply to continuing nuisances. Fourth, Bostco claims that
MMSD's operation and maintenance of the Deep Tunnel constituted
an unconstitutional taking of the groundwater beneath Bostco's
property. Fifth, MMSD argues that Bostco's claim is barred by
the notice of claim provision of § 893.80(1) (2005-06).
3
All references to the Wisconsin Statutes are to the 2011–
12 version unless otherwise noted. Although the parties refer
to the 2005–06 version, the relevant language remains the same
in the current version unless otherwise indicated.
2
No. 2007AP221 & 2007AP1440
¶3 First, we conclude that MMSD is not entitled to
immunity. Once MMSD had notice that the private nuisance it
negligently maintained was causing significant harm, immunity
under Wis. Stat. § 893.80(4) was not available for MMSD. The
proper immunity analysis in this case rests on our holding in
Milwaukee Metropolitan Sewerage District v. City of Milwaukee
(City of Milwaukee), 2005 WI 8, 277 Wis. 2d 635, ¶59, 691 N.W.2d
658, that "[w]hether immunity exists for nuisance founded on
negligence depends upon the character of the negligent acts."
Where the negligent act was undertaken pursuant to one of those
functions set forth in § 893.80(4)——that is, legislative, quasi-
legislative, judicial or quasi-judicial functions——immunity may
apply. See id.; see also § 893.80(4).
¶4 Here, Bostco's nuisance claim is grounded in MMSD's
negligent maintenance of its Deep Tunnel, which maintenance
constituted a continuing private nuisance. See Physicians Plus
Ins. Corp. v. Midwest Mut. Ins. Co., 2002 WI 80, ¶¶2-3, 254
Wis. 2d 77, 646 N.W.2d 777 (explaining that when all the
elements of nuisance are proved and the municipal entity has
notice that the nuisance was causing significant harm, the
entity has a duty to abate). Because MMSD's maintenance of the
continuing private nuisance is not a legislative, quasi-
legislative, judicial or quasi-judicial function, MMSD is not
entitled to immunity. See Hillcrest Golf & Country Club v. City
of Altoona, 135 Wis. 2d 431, 439-40, 400 N.W.2d 493 (Ct. App.
1986) (explaining that the "creation and maintenance of private
nuisances are simply not recognized as legislative acts subject
3
No. 2007AP221 & 2007AP1440
to protection under sec. 893.80(4)"); see also Welch v. City of
Appleton, 2003 WI App 133, ¶8, 265 Wis. 2d 688, 666 N.W.2d 511(explaining that "no statutory or common law immunity doctrine
empowers a public body to maintain a private nuisance"); Menick
v. City of Menasha, 200 Wis. 2d 737, 745, 547 N.W.2d 778 (Ct.
App. 1996) (concluding "there is no discretion as to maintaining
the [sewer] system so as not to cause injury"); Wis. Stat.
§§ 844.01(1) and 844.20(2) (providing statutory procedure for
seeking abatement of private nuisances).4 The court of appeals'
determination that MMSD is not entitled to immunity is therefore
affirmed.
¶5 Because MMSD does not have immunity for its negligent
maintenance of the Deep Tunnel, we also conclude as follows: On
the second issue, we conclude that Wis. Stat. § 893.80(3)–(5) do
not abrogate MMSD's duty to abate the private nuisance that MMSD
caused by its negligent maintenance of the Deep Tunnel, after
MMSD had notice that the nuisance was a cause of significant
harm. Therefore, we reverse the court of appeals' denial of the
equitable relief of abatement.
¶6 Third, we conclude that the monetary damage cap in
Wis. Stat. § 893.80(3) does not violate equal protection, either
facially or as applied to Bostco. Moreover, the nature of
Bostco's claim as a continuing nuisance does not render
§ 893.80(3)'s monetary damage cap inapplicable. Accordingly, we
4
See also Winchell v. City of Waukesha, 110 Wis. 101, 109,
85 N.W. 668 (1901) (concluding that the "legislative authority
to install a sewer system carries no implication of authority to
create or maintain a nuisance").
4
No. 2007AP221 & 2007AP1440
affirm the court of appeals' conclusion that the circuit court
properly reduced Bostco's monetary damages to $100,000.
¶7 Fourth, with regard to Bostco's inverse condemnation
claim, we conclude that Bostco forfeited the argument that it
makes before this court, and we therefore affirm the court of
appeals on this issue.
¶8 Fifth, we conclude that Bostco substantially complied
with the notice of claim provisions under Wis. Stat. § 893.80(1)
(2005–06), and that MMSD therefore had sufficient notice under
those provisions. Accordingly, we affirm the court of appeals
on that issue as well.
¶9 Because neither Wis. Stat. § 893.80(4) nor (3)
abrogates MMSD's duty to abate this private nuisance, we reverse
the court of appeals' decision in part, affirm that decision in
part, and remand to the circuit court for further proceedings
consistent with this opinion. In particular, we reverse the
court of appeals' reversal of the circuit court's order for
abatement, in part. That is, while we affirm the court of
appeals on all other issues, we reverse that court's decision
that Bostco was not entitled to equitable relief in the form of
an order for abatement. Therefore, we affirm the circuit court
decision that abatement is required, and we remand this matter
to the circuit court. Upon remand, a hearing may be held to
establish whether an alternate method will abate the continuing
private nuisance MMSD maintains or whether lining the Deep
Tunnel with concrete is required for abatement.
I. BACKGROUND
5
No. 2007AP221 & 2007AP1440
¶10 This case arises out of MMSD's maintenance of the
Milwaukee Deep Tunnel, which was constructed in the early 1990s
to collect and store both storm water runoff and sewage until
the Deep Tunnel's collections could be transported to
Milwaukee's sewage treatment plant.
¶11 Boston Store is located in downtown Milwaukee, one
block west of the Deep Tunnel's North Shore segment. First
erected in the 19th century, Boston Store consists of five
interconnected buildings that rest upon wood pile foundations
that were driven into the ground to support the buildings'
columns. At the time of construction, the pilings were below
the water table and were fully saturated, thereby preventing
their deterioration.
¶12 Over time, however, the water enclosing the pilings
was drawn down, and the Boston Store buildings began to suffer
substantial structural damage. On November 16, 2004, Bostco
filed the amended complaint in this case, alleging that MMSD's
operation and maintenance of the Deep Tunnel caused the drawdown
of the water that led to the deterioration of the wood pilings
underlying Bostco's buildings. Bostco's claims for relief were
based on theories of common law negligence, continuing private
nuisance, inverse condemnation and violations of Wis. Stat.
§ 101.111, setting forth safety standards for excavation
projects. Bostco sought equitable relief to abate the nuisance,
as well as damages and expenses.
¶13 The amended complaint gave rise to numerous motions
that resulted in dismissals of some of Bostco's claims.
6
No. 2007AP221 & 2007AP1440
Eventually two common law claims were tried to a jury:
negligence and private nuisance.
¶14 The jury found that MMSD was negligent in its
maintenance of the Deep Tunnel near Bostco's building,5 and that
MMSD's negligence was a cause of Bostco's injury.6 The jury
awarded Bostco $3,000,000 for past damages and $6,000,000 for
future damages.7 The jury also found that Bostco was at fault
for 30 percent of the damages, thereby reducing the $9,000,000
award to $6.3 million.8
¶15 In regard to Bostco's nuisance claim, the jury found
that the negligent manner in which MMSD maintained the Deep
Tunnel interfered with Bostco's use and enjoyment of its
property.9 The jury found that MMSD could abate the interference
5
QUESTION No. 1: "[W]as the District negligent in the
manner in which it operated or maintained the tunnel near the
Boston Store?"
ANSWER: "Yes."
6
QUESTION No. 2: "Was such negligence a cause of the
claimed damage to the Boston Store foundation?"
ANSWER: "Yes."
7
See Special Verdict Questions Nos. 7 & 8.
8
See Special Verdict Question No. 5.
9
QUESTION No. 9: "Has the manner in which the District has
operated or maintained the tunnel interfered with the Boston
Store's use and enjoyment of their building?"
ANSWER: "Yes."
7
No. 2007AP221 & 2007AP1440
by reasonable means and at a reasonable cost.10 However, the
jury also found that the interference did not result in
"significant harm" to Bostco.11
¶16 On post-verdict motions,12 the circuit court denied
Bostco's motion asking the court to find that over $2 million in
damages constituted "significant harm" for purposes of Bostco's
nuisance claim. Additionally, MMSD sought judgment
notwithstanding the verdict, on the ground that MMSD was
protected by governmental immunity. The circuit court denied
MMSD's motion; however, the court agreed with MMSD that the
$50,000 damages cap in Wis. Stat. § 893.80(3) applied, and
reduced the jury's negligence verdict from $6.3 million to
$100,000 ($50,000 each for Bostco and Parisian). After the
damage cap had been applied, Bostco reasserted its claim for
equitable relief, which the circuit court had held in abeyance
pending the determination of damages in the jury trial.
Specifically, Bostco claimed that a $100,000 damage award on
$6.3 million of damages constituted an inadequate remedy at law.
The circuit court granted Bostco's prayer for equitable relief
10
See Special Verdict Question No. 11. Bostco's experts
testified that the siphoning of water from near Bostco's
building could be abated either by lining the Deep Tunnel with
concrete or by installing and maintaining a system of
groundwater monitoring and recharge wells to replenish the
groundwater that is siphoned into the Deep Tunnel.
11
See Special Verdict Question No. 10.
12
The Honorable Jeffrey Kremers, Milwaukee County Circuit
Court, presided at the trial and initial post-verdict phase of
the proceedings.
8
No. 2007AP221 & 2007AP1440
and ordered MMSD to abate the nuisance caused by MMSD's
maintenance of the Deep Tunnel.13
¶17 Bostco appealed and MMSD cross-appealed. Bostco
argued that the circuit court erred when it refused to change
the jury's finding that Bostco did not suffer "significant harm"
as to its nuisance claim, as well as the court's summary
judgment dismissing Bostco's inverse condemnation claim. On
cross-appeal, MMSD argued that the circuit court erred (1) by
failing to hold that MMSD's operation and maintenance of the
Deep Tunnel were shielded by governmental immunity, (2) by
granting Bostco's request for abatement, and (3) by not
dismissing Bostco's complaint for failing to comply with the
notice of claim provisions of Wis. Stat. § 893.80(1) (2005–06).14
¶18 With regard to Bostco's nuisance claim, the court of
appeals concluded that the circuit court erred in declining to
reverse the jury's finding that Bostco did not suffer
"significant harm," and that, as a matter of law, suffering more
than $2 million in past damages constituted significant harm.
Therefore, the court concluded, Bostco proved its claim for
private nuisance. Bostco LLC v. Milwaukee Metro. Sewerage Dist.
(Bostco), 2011 WI App 76, ¶¶92–104, 334 Wis. 2d 620, 800 N.W.2d
518. Additionally, although the court of appeals concluded that
13
The Honorable Jean DiMotto, Milwaukee County Circuit
Court, presided over Bostco's claim for equitable relief.
14
When discussing the parties' notice of claim arguments,
we refer to the numbering of the provisions as they existed in
the 2005–06 version of the Wisconsin Statutes, because the
numbering of the relevant provisions of the statute has since
changed.
9
No. 2007AP221 & 2007AP1440
MMSD was not entitled to immunity under Wis. Stat. § 893.80(4),
the court reversed the circuit court's order for abatement,
because it concluded that, since § 893.80(3) capped Bostco's
recoverable damages at $50,000 per claimant, § 893.80(3) and (5)
precluded such equitable relief. Id., ¶¶105–07, 123-37. Also,
the court concluded that the damage cap under § 893.80(3) did
not violate equal protection, either on its face or as applied
to Bostco, id., ¶¶39–60, and that the cap applied to Bostco's
continuing nuisance claim, id., ¶107.
¶19 The court of appeals also affirmed the circuit court's
summary judgment dismissing Bostco's inverse condemnation claim,
holding that Bostco had failed to allege facts that could show
that MMSD either physically occupied Bostco's property or that
MMSD deprived Bostco of all or substantially all of the
beneficial use of its property.15 Id., ¶¶110–13. Additionally,
the court of appeals rejected MMSD's claim that Bostco had
failed to comply with the notice of claim provision under Wis.
Stat. § 893.80(1) (2005-06), and deemed that Bostco's notice was
sufficient. Id., ¶¶85–91.
¶20 Bostco petitioned for review, and MMSD cross-
petitioned for review. We granted both petitions.
II. DISCUSSION
A. Standard of Review
15
The court of appeals also affirmed the circuit court's
decision to dismiss Bostco's excavation protection claim on
summary judgment. Bostco, 334 Wis. 2d 620, ¶122. That claim is
not before us.
10
No. 2007AP221 & 2007AP1440
¶21 Whether MMSD is immune from a claim for abatement of
the private nuisance it negligently maintained, which was a
cause of significant harm and of which it had notice, when MMSD
could do so by reasonable means at a reasonable cost, is a
question of law for our independent review. See City of
Milwaukee, 277 Wis. 2d 635, ¶56.
¶22 This case also requires us to interpret and apply Wis.
Stat. § 893.80. Statutory interpretation and application
present questions of law that we review independently, while
benefitting from previous discussions of the court of appeals
and the circuit court. Richards v. Badger Mut. Ins. Co., 2008
WI 52, ¶14, 309 Wis. 2d 541, 749 N.W.2d 581. With regard to the
circuit court's decision to grant equitable relief and order
abatement, we review that decision for an erroneous exercise of
discretion. Forest Cnty. v. Goode, 215 Wis. 2d 218, 225, 572
N.W.2d 131 (Ct. App. 1997).
¶23 Additionally, Bostco asks this court to review the
circuit court's summary judgment of dismissal of its inverse
condemnation/takings claim. Rather than applying the
traditional summary judgment methodology, however, we decline to
review that claim because the alleged taking as presented to us
is materially different than the taking alleged in the circuit
court action. See Vill. of Trempealeau v. Mikrut, 2004 WI 79,
¶15, 273 Wis. 2d 76, 681 N.W.2d 190. Accordingly, we conclude
that Bostco has forfeited its new claim, and we therefore affirm
the court of appeals on this issue.
11
No. 2007AP221 & 2007AP1440
¶24 Bostco also claims that the application of the
statutory damages cap under Wis. Stat. § 893.80(3) violates the
equal protection clause of the Wisconsin Constitution. Whether
a statute's limitation violates equal protection presents a
question of law for our independent review. See State v. West,
2011 WI 83, ¶22, 336 Wis. 2d 578, 800 N.W.2d 929.
B. Discussion's Structure
¶25 Two competing concepts underlie this controversy: one
appurtenant to abating private nuisances and the other
appurtenant to statutory immunity. One concept requires an
understanding of the scope of the duty to abate a private
nuisance that a municipal entity negligently maintained, which
is a cause of significant harm, and of which the municipal
entity had notice.16 The other concept requires consideration of
whether a municipal entity, here MMSD, has statutory immunity
pursuant to Wis. Stat. § 893.80, from a claim for abatement
based on the entity's negligent maintenance of a private
nuisance. These two concepts are intertwined in the matter now
before us.
¶26 In order to address these competing contentions, it is
necessary to fully understand the claim that Bostco proved,
i.e., that MMSD negligently maintained a continuing private
nuisance that was a cause of significant harm and of which MMSD
16
Our conclusion on the question of negligence is based on
the jury's findings. Our analysis is confined to whether, upon
a finding of negligence, an injured party may seek abatement of
a private nuisance that continues to be a cause of significant
harm when the municipal entity has notice of such nuisance.
12
No. 2007AP221 & 2007AP1440
had notice. Given this posture, our task is to apply the law
that bears on the obligation to abate a nuisance, as it has
existed for more than 100 years. We interpret the governmental
immunity provisions of Wis. Stat. § 893.80 in light of the
common law duty to abate negligently maintained private
nuisances and statutory provisions such as Wis. Stat. § 844.01
and Wis. Stat. § 844.17 that specifically speak to abatement of
private nuisances.
¶27 After addressing those issues, we briefly address the
remaining issues. These include (1) Bostco's claim that Wis.
Stat. § 893.80(3)'s damage cap violates equal protection; (2)
Bostco's inverse condemnation claim; and (3) MMSD's challenge to
Bostco's notice of claim under § 893.80(1) (2005-06).
C. Nuisance
1. General principles
¶28 The tort of nuisance is grounded in a condition or
activity that unduly interferes with a public right or with the
use and enjoyment of private property. Physicians Plus, 254
Wis. 2d 77, ¶21 n.14. There are two broad categories of
nuisance that derive their distinctions from the types of rights
or interests invaded. City of Milwaukee, 277 Wis. 2d 635, ¶24.
These broad tort categories are known as public nuisance and
private nuisance. Restatement (Second) of Torts, Introductory
Note to §§ 821-49 (1979); see also Wis. Stat. ch. 844. It is
the type of harm suffered or interest invaded that determines
whether the nuisance is a public or a private nuisance. City of
Milwaukee, 277 Wis. 2d 635, ¶26.
13
No. 2007AP221 & 2007AP1440
¶29 A public nuisance involves the impingement of public
rights, rights that are common to all members of the public.
Id., ¶28. In order to recover for a public nuisance, an
individual must have suffered harm of a kind different from
other members of the public who exercised that common right.
Restatement (Second) of Torts, § 821C.
¶30 A private nuisance is a condition that harms or
interferes with a private interest. Id., § 821A. We have
accepted the Restatement (Second) of Torts' characterization of
private nuisance as "a nontrespassory invasion of another's
interest in the private use and enjoyment of land." City of
Milwaukee, 277 Wis. 2d 635, ¶25 n.4 (citing Vogel v. Grant-
Lafayette Elec. Coop., 201 Wis. 2d 416, 423, 548 N.W.2d 829(1996) and Prah v. Maretti, 108 Wis. 2d 223, 231, 321 N.W.2d 182(1982)); see Restatement (Second) of Torts, § 821D. There is no
dispute that the nuisance at issue in this case is a private
nuisance.
¶31 Wisconsin law employs the following directive for
those seeking to establish liability for a private nuisance:
One is subject to liability for a private
nuisance if, but only if, his conduct is a legal cause
of an invasion of another's interest in the private
use and enjoyment of land, and the invasion is either
(a) [I]ntentional and unreasonable, or
(b) [U]nintentional and otherwise actionable
under the rules controlling liability for negligent or
reckless conduct, or for abnormally dangerous
conditions or activities.
Restatement (Second) of Torts, § 822; City of Milwaukee, 277
Wis. 2d 635, ¶32. Because a nuisance is a result, of which
14
No. 2007AP221 & 2007AP1440
negligence or intentional conduct may be the cause, liability
for a nuisance "is founded on the wrongful act in . . .
maintaining [the nuisance]." Physicians Plus, 254 Wis. 2d 77,
¶27 (quoting Brown v. Milwaukee Terminal Ry. Co., 199 Wis. 575,
589, 227 N.W. 385 (1929) (internal quotation marks omitted).
Physical occupation of the property of another is not necessary
to a nuisance claim. Vogel, 201 Wis. 2d at 426. For example,
invasions of noxious odors can rise to the level of a nuisance.
Costas v. City of Fond du Lac, 24 Wis. 2d 409, 413, 129 N.W.2d
217 (1964).
¶32 Liability for a private nuisance may be based on
either intentional17 or negligent acts. City of Milwaukee, 277
Wis. 2d 635, ¶33. In the case of negligence, as here, liability
may be predicated on a party's failure to act when he has a duty
to do so. See id., ¶34. The duty to act to abate a nuisance
arises when one has notice that he is maintaining a nuisance
that is a cause of significant harm. See id., ¶35.
[Some] cases involve changes to otherwise benign
objects that develop over time and become harmful,
through no fault of the owner of the object. In these
cases, liability is predicated upon the defendant's
failure to remove the harmful condition after he has
notice of its existence.
Id. (citation omitted).
¶33 Furthermore, the duty to abate a nuisance negligently
maintained, of which one has notice, is a general common law
17
An intentional interference with another's private use
and enjoyment of property requires that the tortfeasor "must
either act for the purpose of causing [the interference] or know
that it is resulting or is substantially certain to result from
his conduct." Restatement (Second) of Torts § 825.
15
No. 2007AP221 & 2007AP1440
obligation to which all persons may be subject. See id. at
¶¶48, 51; see also Restatement (Second) of Torts §§ 821D, 824;
see also Wis JI——Civil 1922. Moreover, although a municipal
entity has a duty to abate a known, private nuisance by one of
any number of methods within the entity's discretion, such
"discretion" in selecting the particular method by which to
abate a nuisance does not eliminate the duty to abate, or make
that duty, itself, discretionary. Costas, 24 Wis. 2d at 418
(concluding that "[g]enerally the means whereby [a] nuisance is
to be abated is left to the direction of the defendant tort-
feasor").
¶34 In Physicians Plus, we fully explored the duty of
municipal entities to abate a nuisance caused by negligent
maintenance. There, a tree had grown to the extent that it
obscured a stop sign at a highway intersection, and that
untrimmed growth was alleged to have caused a significant
automobile accident. Physicians Plus, 254 Wis. 2d 77, ¶1. We
explained that because the municipal entities responsible for
trimming the tree had at least constructive notice of the sign
blockage, they had a duty to abate the nuisance. Id., ¶¶2-3.
This duty arises from the longstanding rule that generally
municipal entities are not shielded from liability for
maintaining a private nuisance. See Welch, 265 Wis. 2d 688, ¶8.
¶35 Similarly, in Costas, we addressed a nuisance that
arose out of the operation of a sewage system operated by a
16
No. 2007AP221 & 2007AP1440
municipal entity, the City of Fond du Lac.18 The City argued
that no nuisance claim could lie because the sewage plant was
built and operated according to the plan approved by a state
agency. Costas, 24 Wis. 2d at 415 (citing Hasslinger v. Vill.
of Hartland, 234 Wis. 201, 290 N.W. 647 (1940), as support for
18
Previously, in Winchell, 110 Wis. at 103-05, we
recognized a municipal entity's obligation to abate a private
nuisance that the entity caused. Winchell dealt with an action
against the City of Waukesha, to abate and enjoin a nuisance
resulting from the City's emptying its sewage into the Fox
River, which ran along the side of Winchell's property. Id. at
103. We concluded that the collection and disposal of sewage is
for the public safety, but that the "authority granted to
municipalities . . . to construct sewers, [is] subject to the
general legal restrictions resting upon such corporations
forbidding invasion of private rights by creation of nuisance or
otherwise." Id. at 109. In concluding that the City was
required to abate the nuisance it had created, we reasoned:
The great weight of authority, American and English,
supports the view that legislative authority to
install a sewer system carries no implication of
authority to create or maintain a nuisance, and that
it matters not whether such nuisance results from
negligence or from the plan adopted. If such nuisance
be created, the same remedies may be invoked as if the
perpetrator were an individual.
Id. We acknowledge that, following Holytz, Winchell's statement
that "it matters not whether such nuisance results from . . .
the plan adopted" has been abrogated by Wis. Stat. § 893.80(4),
which immunizes such legislative functions as adopting a plan.
This limited abrogation, however, has no bearing on Winchell's
still valid conclusion that a governmental entity's negligent
maintenance of a system or structure, which results in a
nuisance of which the entity has notice, may give rise to a
claim against the entity to abate that nuisance. It has never
been the law that a governmental entity, by virtue of its
governmental status alone, may perpetuate an injurious condition
of which the entity has knowledge. Our decision reaffirms that
longstanding limitation on the power of government to
continuously and knowingly invade the rights of its citizens.
17
No. 2007AP221 & 2007AP1440
this argument). We concluded that the language in Hasslinger,
upon which the City relied, was "misleading," and we overruled
Hasslinger to the extent that it implied "that operation of the
sewage-disposal plant in accordance with specifications and
orders and regulations of the state board of health cannot
constitute a nuisance." Id. We explained further that "[t]he
approval of the method of operation of the sewage-disposal plant
is pertinent not to the existence of the nuisance but to the
issue of whether it is feasible or practicable to give
injunctional [sic] relief for the nuisance." Id. at 416. This
principle has been applied in multiple cases before this court
and the court of appeals, discussed below. In the case now
before us, Bostco has proved that the private nuisance can be
abated by reasonable means and at a reasonable cost.19
¶36 In Menick, the plaintiff claimed that the operation of
a sewage system resulted in the flooding of the plaintiff's
basement with raw sewage on two occasions, constituting a
private nuisance. Menick, 200 Wis. 2d at 741. As we do here,
Menick focused on the duty that pertains to a municipal entity's
nuisance-causing actions, which is the duty to abate the
nuisance upon notice that the negligently caused condition is a
cause of significant harm. The court of appeals concluded that
although Menick had failed in her proof of her nuisance claim
because she did not offer an expert opinion as to the legal
cause of the flooding, the City would not have enjoyed immunity
from such an action based on private nuisance. Id. at 744-45.
19
See Special Verdict Question No. 11.
18
No. 2007AP221 & 2007AP1440
¶37 Factually similar to Menick is the Welch case, in
which Welch claimed that flooding that occurred after heavy
rainfalls constituted a private nuisance, attributable to the
City of Appleton's maintenance of its storm sewer system.
Welch, 265 Wis. 2d 688, ¶1. The City asserted that it was
immune from suit pursuant to Wis. Stat. § 893.80(4). Id., ¶5.
The court of appeals concluded that, as a matter of law, "no
statutory or common law immunity doctrine empowers a public body
to maintain a private nuisance."20 Id., ¶8.
¶38 The most recent nuisance case is City of Milwaukee,
which we decided in 2005. In City of Milwaukee, we reviewed the
legal issues surrounding a broken city water main that damaged a
section of MMSD's Deep Tunnel. City of Milwaukee, 277 Wis. 2d
635, ¶2. There, MMSD alleged both negligence and nuisance, just
as Bostco has alleged here, asserting that the City did not
properly inspect or maintain its pipeline so as to discover the
leakage before the pipeline ruptured. Id., ¶3.
¶39 After a full discussion of the law relating to
nuisance, we concluded that there was a question of fact as to
whether the City had notice that its water main was leaking, and
that such notice was necessary to show that the City was under a
ministerial duty to abate the nuisance by repairing the water
pipe before it broke. Id., ¶9. We explained:
20
Ultimately, the court in Welch v. City of Appleton, 2003
WI App 133, 265 Wis. 2d 688, 666 N.W.2d 511, concluded that the
City's maintenance of its storm sewer was not a private
nuisance. Id., ¶8.
19
No. 2007AP221 & 2007AP1440
[T]he City may be liable for its negligence in failing
to repair the leaky water main. However, since there
exists a material issue of fact as to whether the City
had notice of the leaking water main, we cannot
determine whether the City was under a ministerial
duty to repair its water main prior to the break.
Thus, we cannot determine whether the City is immune
under § 893.80(4) from liability predicated upon a
negligent failure to repair the water main before it
burst.
Id.
¶40 A careful reading of City of Milwaukee is important to
deciding this case because our decision in City of Milwaukee is
grounded in a nuisance claim and also because it explains how
the duty to abate a nuisance intersects with the concept of a
ministerial duty of a municipal entity. We explained,
Since we cannot determine whether the City was on
notice that its water main was leaking and could
potentially interfere with the use and enjoyment of
another's property, we cannot conclude whether its
duty to repair the leaking main with reasonable care
before it broke was "absolute, certain and
imperative," or whether the City's decision not to
repair the main before the break was discretionary.
Id., ¶62 (citation omitted).
¶41 It follows from our explanation in paragraph 62 of
City of Milwaukee, quoted above, that if the City had notice
that its water main was leaking before it broke, it had a duty
20
No. 2007AP221 & 2007AP1440
to abate the nuisance by fixing the pipe.21 The duty to fix the
pipe, if the City knew it was leaking, was "absolute, certain
and imperative"——in other words, ministerial——even though a
particular method of repairing the leak was not "absolute,
certain and imperative."22 This conclusion is supported by
21
In Anhalt v. Cities & Villages Mutual Insurance Co., 2001
WI App 271, 249 Wis. 2d 62, 72, 637 N.W.2d 422, the court of
appeals relied on our statement in Allstate Insurance Co. v.
Metropolitan Sewerage Commission of the County of Milwaukee, 80
Wis. 2d 10, 258 N.W.2d 148 (1977), that "the acts of designing,
planning and implementing a sewer system are discretionary acts
protected under Wis. Stat. § 893.80(4)." This statement
comports with our decision today, in that we do not upset the
rule that acts of designing, planning, and implementing are
legislative or quasi-legislative acts subject to immunity under
§ 893.80(4). Such acts, however, are distinguishable from the
act of negligently maintaining an existing system or structure
so as to cause a continuing nuisance, and longstanding law
demonstrates that the act of maintaining an existing system or
structure is not a legislative or quasi-legislative function.
See, e.g., Naker v. Town of Trenton, 62 Wis. 2d 654, 215 N.W.2d
38, aff'd on reh'g, 62 Wis. 2d 654, 660a, 217 N.W.2d 665 (1974)
("Once the decision is made and the [system or structure] is
erected, the legislative function is terminated and the doctrine
of Holytz that imposes liability for want of ordinary care takes
over."). Neither Allstate nor Anhalt decided the question of
negligent maintenance that we reach today. Rather, we
conclusively resolved that question in Milwaukee Metropolitan
Sewerage District v. City of Milwaukee (City of Milwaukee), 2005
WI 8, ¶59 277 Wis. 2d 635, 691 N.W.2d 658, in which we
recognized that a governmental entity is not entitled to
immunity for a negligent act when such act is not performed
pursuant to a legislative, quasi-legislative, judicial or quasi-
judicial function. Indeed, our decision in City of Milwaukee on
that point was intended to clarify any "confusion" created by
unclear statements in cases such as Anhalt. See City of
Milwaukee, 277 Wis. 2d 635, ¶59 n.17.
22
For example, the City could have removed the precise area
of pipe that was leaking; it could have sealed the leaky pipe
and left it in place, etc. The choice of method for abating the
nuisance, like the decision to initially install a particular
system, was within the City's discretion. Costas v. City of
Fond du Lac, 24 Wis. 2d 409, 418, 129 N.W.2d 217 (1964).
21
No. 2007AP221 & 2007AP1440
Physicians Plus, where we explained that a negligently caused
nuisance resulting in significant harm, of which the municipal
entity has notice, creates a ministerial duty to abate the
nuisance. See Physicians Plus, 254 Wis. 2d 77, ¶59 (reaffirming
municipal entity's ministerial duty to properly maintain
structures installed pursuant to municipal entity's legislative
authority).
2. MMSD's nuisance
¶42 In this case, Bostco proved that MMSD negligently
caused a continuing private nuisance due to the manner in which
MMSD chose to maintain the Deep Tunnel.23 MMSD had notice that
excessively siphoning groundwater from around Bostco's building
was interfering with Bostco's use and enjoyment of its property
by damaging the foundation of the building.
¶43 Here, in contrast to the City of Milwaukee case, no
further fact-finding is required before concluding that MMSD is
under a duty to abate. MMSD knew that excessive siphoning of
water into the Deep Tunnel was a cause of significant harm to
Bostco's building, and MMSD could have abated the nuisance,
i.e., stopped the excessive siphoning, by reasonable means and
at a reasonable cost.24 Accordingly, the circuit court properly
23
See Sunnyside Feed Co. v. City of Portage, 222 Wis. 2d
461, 470, 588 N.W.2d 278 (Ct. App. 1998) (defining a continuing
nuisance as "an ongoing or repeated disturbance or harm" that
"can be discontinued or abated").
24
This is a fact question that was resolved by the jury.
Question No. 11 of the Special Verdict asked: "Can the District
abate the interference by reasonable means and at a reasonable
cost so that it no longer interferes with Boston Store's use and
enjoyment of their building?" The jury answered this question,
"Yes."
22
No. 2007AP221 & 2007AP1440
concluded that MMSD was required to abate the private nuisance
caused by MMSD's negligent maintenance of the Deep Tunnel.25
D. Municipal Immunity
¶44 In the context of municipal entities, the obligation
to abate a known private nuisance is additionally subject to the
principles of immunity for governmental entities. We therefore
turn to interpreting those statutes relevant to an immunity
analysis: Wis. Stat. § 893.80(4) and (3).
¶45 Statutory interpretation requires us to determine the
statute's meaning, which is assumed to be expressed in the
language chosen by the legislature. Richards, 309 Wis. 2d 541,
¶20. If the meaning of the statute is apparent in the plain
language, we apply that language. State ex rel. Kalal v.
Circuit Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633,
681 N.W.2d 110. We give statutory terms their "common,
25
As discussed above, in accordance with our decision in
City of Milwaukee, once a governmental entity has notice that
its negligent maintenance of a system or structure is causing
damage, it is the manner in which MMSD complies with the
ministerial duty to fix the problem that is subject to
discretion; no such discretion exists as to whether MMSD must
fix the known problem. Cf. Rolland v. Cnty. of Milwaukee, 2001
WI App 53, ¶12, 241 Wis. 2d 215, 625 N.W.2d 590 (explaining that
the driver of a bus had a ministerial duty not to drive the bus
with a wheelchair passenger aboard unless the passenger was
secured, even though the method of securing the wheelchair was
discretionary). This conclusion comports with our statement in
City of Milwaukee, 277 Wis. 2d 635, ¶8, that a governmental
entity "is immune from suit for nuisance if the nuisance is
predicated on negligent acts that are discretionary in nature."
Because negligent maintenance of an existing system or structure
is not a "legislative, quasi-legislative, judicial or quasi-
judicial function," i.e., is not discretionary, no immunity
attaches to the entity's negligent maintenance.
23
No. 2007AP221 & 2007AP1440
ordinary, and accepted meaning, except that technical or
specially-defined words or phrases are given their technical or
special definitional meaning." Id.
¶46 A plain meaning analysis may be assisted by
consideration of statutory context and structure. See id., ¶46.
"[T]he statutory context in which a term is used, including the
language and structure of surrounding or closely related
statutes, is often highly instructive in determining a term's
meaning." State v. Soto, 2012 WI 93, ¶20, 343 Wis. 2d 43, 817
N.W.2d 848 (citing State v. Jensen, 2010 WI 38, ¶15, 324 Wis. 2d
586, 782 N.W.2d 415). The purpose of the legislation also may
be useful in ascertaining a statute's meaning. Sheboygan Cnty.
Dep't of Health & Human Servs. v. Tanya M.B., 2010 WI 55, ¶28,
325 Wis. 2d 524, 785 N.W.2d 369. Furthermore, we are assisted
by prior decisions that have examined similar statutory
questions. See DeHart v. Wis. Mut. Ins. Co., 2007 WI 91, ¶15,
302 Wis. 2d 564, 734 N.W.2d 394. Finally, if the statute was a
legislative attempt to follow the rule of law set forth in a
particular supreme court decision, a review of that decision
also informs our understanding of the statute.
¶47 In regard to the immunity question presented herein,
initially we are concerned with Wis. Stat. § 893.80(4), which
provides in relevant part:
No suit may be brought against any . . .
political corporation, governmental subdivision or any
agency thereof for the intentional torts of its
officers, officials, agents or employees nor may any
suit be brought against such corporation, subdivision
or agency . . . for acts done in the exercise of
24
No. 2007AP221 & 2007AP1440
legislative, quasi-legislative, judicial or quasi-
judicial functions.
We begin by noting that § 893.80(4) was intended to codify our
decision in Holytz v. City of Milwaukee, 17 Wis. 2d 26, 115
N.W.2d 618 (1962). See Coffey v. City of Milwaukee, 74 Wis. 2d
526, 532, 247 N.W.2d 132 (1976) (recognizing that § 893.80(4)'s
indirect predecessor, Wis. Stat. § 331.43 (1963), was intended
to codify Holytz); see also Raisanen v. City of Milwaukee, 35
Wis. 2d 504, 515-16, 151 N.W.2d 129 (1967) (noting § 331.43's
intermediate enumeration as Wis. Stat. § 895.43).
¶48 As the Legislative Council Report of 1976 also
explains:
Prior to 1961 local units of government in
Wisconsin were generally immune from tort liability
because of the judicial doctrine of governmental
immunity. . . . In 1961 the case of Holytz v.
Milwaukee (1961), 17 Wis. 2d 26, was decided which
abrogated the principal of governmental immunity from
tort liability. . . . The opinion did not impose
liability on a governmental body in the exercise of
its legislative or judicial or quasi-legislative or
quasi-judicial functions, and to that extent a part of
the immunity doctrine remained intact. . . . The
general statute concerning the liability of local
governmental units for torts [then § 343.80, now
§ 893.80] was enacted shortly after this decision and
in many respects draws from the decision for its
content.
Therefore, our interpretation of Wis. Stat. § 893.80(4) is
informed by a review of Holytz.
¶49 In Holytz, we explicitly abrogated common law immunity
for municipal entities as it existed in 1962. See Holytz, 17
Wis. 2d at 39–41. The abrogation was intended to apply to
municipal entity liability for all torts, "whether they be by
25
No. 2007AP221 & 2007AP1440
commission or omission."26 Id. at 39. The one limitation on our
broad abrogation was clearly stated: our decision was "not to
be interpreted as imposing liability on a governmental body in
the exercise of its legislative or judicial or quasi-legislative
or quasi-judicial functions." Id. at 40. The second sentence
of Wis. Stat. § 893.80(4) mirrors this limitation of municipal
entity liability.27
¶50 The rule as to municipal entity liability has been
repeated many times since our decision in Holytz and the
enactment of Wis. Stat. § 893.80: as to non-state governmental
entities, "'the rule is liability——the exception is immunity.'"
Kimps v. Hill, 200 Wis. 2d 1, 10 n.6, 546 N.W.2d 151 (1996)
26
The court's abrogation of immunity in Holytz v. City of
Milwaukee, 17 Wis. 2d 26, 115 N.W.2d 618 (1962), was not limited
to municipalities, and applied to public bodies within the state
such as counties, cities, villages, towns, school districts,
sewer districts, drainage districts, and any other political
subdivisions of the state. Id. at 40. Therefore, although
Holytz and subsequent discussions have referred to "municipal
immunity," the phrase "governmental immunity" has been used
interchangeably to apply to state officers, non-state
governmental entities, and officers or employees of those
entities.
27
In Holytz, we also recognized that the State's sovereign
immunity has its foundation in the Wisconsin Constitution,
Article IV, Section 27, which provides that "The legislature
shall direct by law in what manner and in what courts suits may
be brought against the state." Accordingly, the effect of
Holytz has been more relevant to suits against governmental
entities other than the State, as well as to governmental
officers and employees.
26
No. 2007AP221 & 2007AP1440
(quoting Holytz, 17 Wis. 2d at 39).28 See, e.g., Jorgenson v. N.
States Power Co., 60 Wis. 2d 29, 37, 208 N.W.2d 323 (1973)
(concluding that a city's failure to authorize the temporary
removal of a light pole so that it would not injure workers
digging next to the pole's base did not constitute an exercise
of a legislative or quasi-legislative function); Naker v. Town
of Trenton, 62 Wis. 2d 654, 215 N.W.2d 38, aff'd on reh'g, 62
Wis. 2d 654, 660a, 217 N.W.2d 665 (1974) (concluding that a
traffic sign, once erected, must be properly maintained or
liability may follow).
¶51 Furthermore, although a municipal entity escapes
liability for its legislative or quasi-legislative decision
regarding whether to install a particular system or structure,
once the municipal entity makes the decision to install, the
28
In contrast to governmental entities, for governmental
officers acting in their official capacity, we have stated that
the rule is immunity, and the exception is liability. See Cords
v. Anderson, 80 Wis. 2d 525, 539, 259 N.W.2d 672 (1977). This
rule for governmental officers is based on public policy
considerations that support limiting public officers' personal
liability for damages, namely, "(1) The danger of influencing
public officers in the performance of their functions by the
threat of lawsuit; (2) the deterrent effect which the threat of
personal liability might have on those who are considering
entering public service; (3) the drain on valuable time caused
by such actions; (4) the unfairness of subjecting officials to
personal liability for the acts of their subordinates; and (5)
the feeling that the ballot and removal procedures are more
appropriate methods of dealing with misconduct in public
[office]." Lister v. Bd. of Regents of the Univ. of Wis. Sys.,
72 Wis. 2d 282, 299, 240 N.W.2d 610 (1976).
27
No. 2007AP221 & 2007AP1440
entity is under a subsequent ministerial duty29 to maintain the
system or structure in a safe and working order. As we
explained in Naker:
Once the decision is made and the sign is erected, the
legislative function is terminated and the doctrine of
Holytz that imposes liability for want of ordinary
care takes over. A sign once erected by legislative
action must be properly maintained.
Naker, 62 Wis. 2d at 660a.
¶52 As discussed above, in City of Milwaukee, we explained
the relationship between municipal immunity under Wis. Stat.
§ 893.80(4) and the duty to abate a private nuisance. We held
that if the City of Milwaukee had a duty to repair the water
pipe so that it did not rupture and damage MMSD's tunnel (which
duty in turn was dependent upon the City having notice that the
pipe was leaking), such duty was ministerial and there would be
no immunity under § 893.80(4) for the City's failure to abate
the nuisance its leaking pipe had created. City of Milwaukee,
277 Wis. 2d 635, ¶62. Therefore, in City of Milwaukee, if the
City had notice of the leaking water pipe, the nuisance it was
maintaining would require abatement as a non-discretionary,
ministerial duty.
¶53 In the present case, the court of appeals, in
reversing the circuit court's order for abatement, concluded
that while Wis. Stat. § 893.80(4) does not provide immunity,
29
The decision in Naker, 62 Wis. 2d at 660a, does not label
the duty to "properly maintain" the sign the town erected as a
"ministerial duty." However, the conclusion that it is a
ministerial duty flows from the liability to which the
municipality was subject.
28
No. 2007AP221 & 2007AP1440
§ 893.80(3) does not allow parties to obtain equitable relief
against governmental entities because doing so would "render the
damage cap set forth in Wis. Stat. § 893.80(3) superfluous."
Bostco, 334 Wis. 2d 620, ¶129. The court of appeals concluded
that because § 893.80(3) is silent about equitable relief, when
read with § 893.80(5), § 893.80(3) precluded the circuit court's
order enjoining MMSD from continuing to injure Bostco. Id.,
¶¶130-31. To test the court of appeals decision, we turn to the
language of § 893.80(3), and construe the statute according to
its plain meaning.
¶54 Statutory interpretation begins with the words chosen
by the legislature. Wisconsin Stat. § 893.80(3) provides in
relevant part:
Except as provided in this subsection, the amount
recoverable by any person for any damages, injuries or
death in any action founded on tort against any . . .
governmental subdivision . . . shall not exceed
$50,000.
(Emphasis added).
¶55 Wisconsin Stat. § 893.80(3) addresses "the amount
recoverable by any person for any damages, injuries or death."
The statute limits the "amount recoverable" "by any person" to
$50,000. The words chosen by the legislature should be given
their plain meaning. Kalal, 271 Wis. 2d 633, ¶45. An order for
abatement does not entitle "any person" to "recover" any
"amount." It is a foundational principle of statutory
construction that "no word or clause shall be rendered
surplusage." Donaldson v. State, 93 Wis. 2d 306, 315, 286
N.W.2d 817 (1980). The court of appeals ignored the phrase,
29
No. 2007AP221 & 2007AP1440
"the amount recoverable by any person"; however, courts are not
free to ignore the words or phrases chosen by the legislature.
See Brunton v. Nuvell Credit Corp., 2010 WI 50, ¶16, 325 Wis. 2d
135, 785 N.W.2d 302.
¶56 Also, non-technical words are to be given their
ordinary and accepted meanings. Town of LaFayette v. City of
Chippewa Falls, 70 Wis. 2d 610, 619, 235 N.W.2d 435 (1975). The
phrase, "amount recoverable by any person," is stated in non-
technical terminology. In order to give an ordinary and
accepted meaning to those terms, we conclude that the statute
describes a relationship. That relationship is between any
person who is entitled to recover a damage award against a
municipal entity and the amount of that monetary liability.
Accordingly, we conclude that the plain meaning of Wis. Stat.
§ 893.80(3) is to limit the dollar amount of recovery to be paid
for damages, injuries or death to $50,000 per claimant, but that
the plain meaning of that provision has no bearing on the
availability of equitable relief such as abatement.
¶57 This interpretation is consistent with prior cases
interpreting Wis. Stat. § 893.80, such as Harkness v. Palmyra-
Eagle School District, 157 Wis. 2d 567, 460 N.W.2d 769 (Ct. App.
1990),30 in which the court of appeals was asked to consider
whether § 893.80(4) should be interpreted to preclude equitable
30
Harkness v. Palmyra-Eagle School District, 157 Wis. 2d
567, 460 N.W.2d 769 (Ct. App. 1990), was overruled by DNR v.
City of Waukesha, 184 Wis. 2d 178, 191, 515 N.W.2d 888 (1994),
to the extent that Harkness implied that § 893.80(1)'s notice of
claim requirement applied only to tort claims.
30
No. 2007AP221 & 2007AP1440
relief. The court held that in regard to Harkness's claim for
reinstatement, there was "no authority indicating that
[§ 893.80(4)] applies to equitable or injunctive relief" for
such a claim; accordingly, § 893.80(4) did not bar Harkness's
claim for reinstatement. Id. at 579-80.
¶58 Our interpretation of Wis. Stat. § 893.80(3) is
consistent with that statement in Harkness, and consistent with
the statutory history that we laid out in Anderson v. City of
Milwaukee, 208 Wis. 2d 18, 559 N.W.2d 563 (1997). In Anderson,
Justice Crooks thoroughly explained the genesis of § 893.80(3),
and quoted from our opinion in Holytz: "'[H]enceforward, so far
as governmental responsibility for torts is concerned, the rule
is liability——the exception is immunity.'" Id. at 26 (quoting
Holytz, 17 Wis. 2d at 39). Anderson explained the changing
dollar amounts that could be recovered as damages, showing that
the bill from which § 893.80(3) evolved began with a $10,000
limitation, changed to a $25,000 limitation in a Senate
Amendment, and increased to a $50,000 limitation by the Laws of
1981, ch. 63, § 2. Id. at 27 n.9. Throughout these changes,
nothing in the legislative history addressed limitations on
equitable relief of any type. Without any language in
§ 893.80(3) to suggest a limitation on equitable relief, we
decline to read in any such limitation.
E. Equitable Relief
¶59 In the case now before us, the court of appeals
attempted to fill the legislature's silence in regard to
equitable relief under Wis. Stat. § 893.80(3) by construing
31
No. 2007AP221 & 2007AP1440
§ 893.80(5) to create limitations in § 893.80(3) that were not
placed there by the legislature. Bostco, 334 Wis. 2d 620, ¶130.
The court of appeals said that the phrase "shall be exclusive"
in § 893.80(5), limits a plaintiff's recovery to those remedies
set forth in § 893.80 and because injunctions are not mentioned,
they are not available against a municipality. Id. However,
there is nothing in either the language or the history of
§ 893.80 to support the court of appeals' broad limitation of
remedies and its conclusion that § 893.80(3) precludes actions
in equity.31 The court of appeals' decision, if affirmed, would
have far-reaching effects and would overrule extensive precedent
in regard to the authority of courts to enjoin municipal
entities.32
¶60 To obtain injunctive relief, generally one must show
that the injunction is necessary to prevent the continuation of
significant harm. Pure Milk Prods. Coop. v. Nat'l Farmers Org.,
31
The words injunction, enjoin, or similar terms that may
indicate equitable relief are not present in the statute.
Furthermore, reference to injunctive relief would be
inconsistent with the purposes of the statute, such as providing
a recovery for death.
32
In addition, the court of appeals' limitation of remedies
based on statutory silence contradicts our decision in Willow
Creek Ranch, L.L.C. v. Town of Shelby, 2000 WI 56, 235 Wis. 2d
409, 611 N.W.2d 693, reconsid. denied 239 Wis. 2d 314, wherein
we expressly affirmed the availability of declaratory relief, a
nonmonetary remedy that, like equitable relief, is not mentioned
in Wis. Stat. § 893.80(3). Id., ¶36 n.12. Moreover, the court
of appeals' conclusion in the case before us is also contrary to
Wis. Stat. § 813.02, which has been employed to issue temporary
injunctions against municipalities. See Wis. Ass'n of Food
Dealers v. City of Madison, 97 Wis. 2d 426, 428-29, 293 N.W.2d
540 (1980).
32
No. 2007AP221 & 2007AP1440
90 Wis. 2d 781, 803, 280 N.W.2d 691 (1979). "The purpose of an
injunction is to prevent [future] violations." Id. In that
respect, injunctive relief is consistent with the obligation to
abate a continuing private nuisance, which obligation is imposed
to prevent future harms. See, e.g., Menick, 200 Wis. 2d at 745
(concluding that "there is no discretion as to maintaining the
[sewer] system so as not to cause injury to residents").
¶61 While the legislature may have authority to limit
equitable relief in some circumstances, there is nothing in the
language of Wis. Stat. § 893.80(3) to indicate that the
legislature sought to do so. When a statute fails to address a
particular situation, the remedy for the omission does not lie
with the courts. It lies with the legislature. La Crosse
Lutheran Hosp. v. La Crosse Cnty., 133 Wis. 2d 335, 338, 395
N.W.2d 612 (Ct. App. 1986).
¶62 Both before and after Holytz, when the principles of
immunity have been applied to claims against municipal entities
for damages, those principles have not been held applicable to
claims for injunctive relief against ongoing governmental
activities. Perhaps one of the clearest recognitions of this
distinction was our statement in Lister v. Board of Regents of
the University of Wisconsin System, 72 Wis. 2d 282, 240 N.W.2d
610 (1976). In Lister, we explained that the public policy
considerations that have prompted courts to grant substantive
immunity for monetary damages do not apply with equal force to
actions for declaratory or injunctive relief. Id. at 304; see
also Scarpaci v. Milwaukee Cnty., 96 Wis. 2d 663, 691, 292
33
No. 2007AP221 & 2007AP1440
N.W.2d 816 (1980) (reaffirming that policies that underlie
immunity from damages do not apply with equal force to a suit
for injunctive relief).
¶63 However, in Johnson v. City of Edgerton, 207 Wis. 2d
343, 558 N.W.2d 653 (Ct. App. 1996), the court of appeals seemed
to slip away from precedent in regard to injunctive relief
against municipal entities, without recognizing that it was
making a significant change in the law. Accordingly, Johnson is
a concern that must be addressed for a number of reasons. See
Willow Creek Ranch, L.L.C. v. Town of Shelby, 2000 WI 56, ¶¶75–
99, 235 Wis. 2d 409, 611 N.W.2d 693 (Prosser, J., dissenting).
First, because the language in Johnson is so broad, it could be
interpreted as overruling, sub-silentio, prior decisions of the
court of appeals that addressed immunity under Wis. Stat.
§ 893.80(4), which were, in turn, based on the longstanding
availability of equitable relief to abate ongoing nuisances.
See, e.g., Hillcrest, 135 Wis. 2d at 439-40 (explaining that the
"creation and maintenance of private nuisances are simply not
recognized as legislative acts subject to protection under sec.
893.80(4)"); see also, Harkness, 157 Wis. 2d 567, 579-80. The
court of appeals does not have the power to overrule prior
decisions. See Cook v. Cook, 208 Wis. 2d 166, 171, 560 N.W.2d
246 (1997) (concluding that the court of appeals does not have
the power to overrule, modify or withdraw language from another
court of appeals decision).
¶64 Second, the court of appeals' decision in Johnson
(upon which we based part of our decision barring injunctive
34
No. 2007AP221 & 2007AP1440
relief in Willow Creek), focused on the wrong language in the
municipal immunity statute, Wis. Stat. § 893.80(4), in that the
court of appeals emphasized that immunity applied to "any suit."
See Johnson, 207 Wis. 2d at 350–52. Instead, the relevant focus
when considering whether § 893.80(4) grants immunity is on
whether the action sought to be enjoined was within a limited
class of municipal decisions that involve the performance of
"legislative, quasi-legislative, judicial or quasi-judicial
functions." As our cases and those of the court of appeals make
clear, a municipal entity's failure to abate a continuing
nuisance caused by negligent maintenance of a system or
structure, after the municipality has notice, does not
constitute a legislative, quasi-legislative, judicial or quasi-
judicial act that may be entitled to immunity. See, e.g.,
Costas, 24 Wis. 2d at 413–19; Hillcrest Golf, 135 Wis. 2d at
439-40.
¶65 Third, Johnson relied on the principles of immunity
that apply to municipal officers. Johnson, 207 Wis. 2d at 352.
However, for municipal officers, the rule is immunity, not
liability. See Cords v. Anderson, 80 Wis. 2d 525, 539, 259
N.W.2d 672 (1977). The Johnson decision's reliance on those
principles is misplaced because Johnson actually involved a
municipal entity, and therefore, the rule is liability, not
immunity. Kimps, 200 Wis. 2d at 10 n.6.
¶66 Furthermore, the Johnson decision's errors were
uncorrected by our decision in Willow Creek. We did note that
"[t]o the extent that the language in Johnson suggests other-
35
No. 2007AP221 & 2007AP1440
wise by expanding immunity too broadly, we limit that language."
Willow Creek, 235 Wis. 2d 409, ¶34. We did not describe how the
language in Johnson was limited.33 However, we now clarify that
under Willow Creek and Johnson, equitable relief will be barred
when a municipal entity is entitled to immunity. Accordingly,
our analysis in this case would be different if we concluded
that MMSD were entitled to municipal entity immunity for
legislative, quasi-legislative, judicial or quasi-judicial
functions. Under circumstances when immunity applies, it bars
claims for both monetary damages and injunctive relief. Id.,
¶36. Therefore, when a plaintiff seeks equitable or injunctive
relief against a municipal entity, a court must first answer the
threshold question of whether immunity applies. If a court
concludes that the actions the plaintiff is seeking to stop
through a suit in equity are legislative, quasi-legislative,
judicial or quasi-judicial, then the suit must be dismissed
because the governmental entity is protected by immunity.
¶67 In addition, City of Milwaukee concluded that Wis.
Stat. § 893.80(4) provides no immunity for a municipal entity's
ministerial duty to abate. City of Milwaukee, 277 Wis. 2d 635,
¶¶9, 54. This conclusion is also supported by our discussion in
Physicians Plus, where we addressed nuisance and the duty of
municipal entities to abate a nuisance that the entities
33
Moreover, Willow Creek is not a private nuisance case
such as we have here, where the obligation to abate arises with
the municipal entity receiving notice of the continuing private
nuisance, which has resulted in significant harm. See City of
Milwaukee, 277 Wis. 2d 635, ¶¶51-62.
36
No. 2007AP221 & 2007AP1440
negligently maintained and of which they had notice. Physicians
Plus, 254 Wis. 2d 77, ¶¶2–3, 59.
¶68 Our conclusion that municipal entities may be subject
to orders for equitable relief also finds support in statutory
provisions referring to the availability of equitable relief
from continuing nuisances, as well as long-standing precedent to
the same effect. Currently, Wis. Stat. § 844.01(1) provides
that "Any person owning or claiming an interest in real property
may bring an action claiming physical injury to, or interference
with, the property or the person's interest therein; the action
may be to redress past injury, to restrain further injury, to
abate the source of injury, or for other appropriate relief."
Wisconsin Stat. § 844.17(1) then provides that "Any person whose
activities have injured or will injure the plaintiff's property
or interests may be made a defendant." (Emphasis added.)
"Person" includes "all partnerships, associations and bodies
politic or corporate." Wis. Stat. § 990.01(26). These
statutes, therefore, refer to circumstances wherein a political
body, such as a municipality, may be subject to an action to
redress injury to private property caused by a municipal
entity's negligent maintenance of a private nuisance that caused
significant harm.
¶69 Indeed, we expressed such an understanding of the
common law duty to abate and of immunity in Costas. Therein, we
concluded that a private individual could bring an action for
abatement of a private nuisance against a municipal entity,
thereby reaffirming the longstanding availability of injunctive
37
No. 2007AP221 & 2007AP1440
relief against municipally maintained nuisances. See Costas, 24
Wis. 2d at 413–19 (citing Winchell, 110 Wis. 101) (recognizing
that municipal entities may be subject to actions for equitable
relief from ongoing nuisances)). In recognizing the
availability of such relief, we relied on Wis. Stat. § 280.01,
which provided that "any person may maintain an action to
recover damages for or to abate a private nuisance." Id. at
414.
¶70 In 1973, the legislature amended Wis. Stat. § 280.01
and created Wis. Stat. § 814.01, which was identical to current
Wis. Stat. § 844.01. See § 16, ch. 189, Laws of 1973. The
effect of this amendment was to incorporate § 280.01's relief
for interferences with private property into the newly
consolidated chapters governing actions to enforce interests in
real property. See Drafting File for ch. 189, Laws of 1973,
Analysis by the Legislative Reference Bureau, Legislative
Reference Bureau, Madison, Wis. Therefore, since the abrogation
of municipal immunity in Holytz and its subsequent codification
in Wis. Stat. § 893.80, not only have we, in Costas, reaffirmed
the availability of equitable relief for the abatement of
municipal nuisances, but the legislature, after Costas,
reaffirmed the availability of such relief when it simply
renumbered and reorganized former § 280.01 into what is now
§ 844.01.
¶71 Therefore, based on the statutory history of Wis.
Stat. § 844.01, as well as the common law governing nuisance and
the principles of equitable relief, we reach the ineluctable
38
No. 2007AP221 & 2007AP1440
conclusion that a municipal entity may be subjected to claims
for equitable relief to abate a negligently maintained nuisance
that is a cause of significant harm and of which the municipal
entity has notice. Accordingly, we conclude that the circuit
court did not erroneously exercise its discretion in granting
Bostco equitable relief.
¶72 When the circuit court ordered MMSD to abate the
private nuisance caused by MMSD's negligent maintenance of its
Deep Tunnel, it applied the appropriate legal standard and made
a decision that a reasonable court could make. The circuit
court's order required MMSD to abate a continuing private
nuisance, of which MMSD had notice and which MMSD could abate by
reasonable means and at a reasonable cost. The circuit court,
however, went one step too far when, without hearing testimony,
it concluded that lining the Deep Tunnel was the required means
of abatement. Accordingly, we reverse the court of appeals'
conclusion that an order for abatement was improper. Abatement
is required. We therefore affirm the circuit court's order for
abatement, and remand the matter to the circuit court. Upon
remand, a hearing may be held to establish whether another
method will abate the continuing private nuisance MMSD
maintains, or whether lining the Deep Tunnel with concrete is
required for abatement.
F. Remaining Issues
¶73 Having concluded that Bostco is entitled to relief in
the form of abatement of MMSD's continuing nuisance, we now turn
to Bostco's other asserted claims for relief, beginning with its
39
No. 2007AP221 & 2007AP1440
challenge to the limitation of damages set forth in Wis. Stat.
§ 893.80(3), then moving to Bostco's inverse condemnation claim,
and finishing with MMSD's claim that Bostco failed to comply
with the notice of claim provisions of § 893.80(1) (2005–06).
Because we agree with the court of appeals' thorough analyses of
these issues,34 see Bostco, 334 Wis. 2d 620, ¶¶38–65, 85–91, 108–
117, we address them briefly.
1. Limitation of damages under Wis. Stat. § 893.80(3)
¶74 Bostco claims that the damage cap under Wis. Stat.
§ 893.80(3) is unconstitutional, in that it violates equal
protection of the law, in contravention of Article I, Section 1
of the Wisconsin Constitution. Section 1 provides:
All people are born equally free and independent, and
have certain inherent rights; among these are life,
liberty and the pursuit of happiness; to secure these
rights, governments are instituted, deriving their
just powers from the consent of the governed.
Wis. Const. art. I, § 1. Specifically, Bostco asserts that
§ 893.80(3) violates equal protection (1) facially, by affording
complete relief to plaintiffs injured by governmental actions
causing less than $50,000 in damages, while arbitrarily limiting
the amount of recovery by those plaintiffs who suffer greater
damages; and (2) as applied in this case, because parties who
34
Similarly, because our decision does not "overrule" the
court of appeals decision, but rather "reverses in part" the
decision of the court below in the same case, the rule announced
in Blum v. 1st Auto & Casualty Insurance Co., 2010 WI 78, ¶56,
326 Wis. 2d 729, 786 N.W.2d 78, does not apply here. Cf. State
v. Ziegler, 2012 WI 73, ¶7 n.3, 342 Wis. 2d 256, 816 N.W.2d 238(recognizing that supreme court decision "withdrawing language"
from previous court of appeals decision does not implicate the
Blum rule).
40
No. 2007AP221 & 2007AP1440
settled with MMSD before June 30, 1994, were not limited to the
amounts available under § 893.80(3), while those seeking
recovery after that arbitrarily set date are limited to the
statutory amounts of recovery.
¶75 Wisconsin Stat. § 893.80(3)'s limitation of damages
provides in relevant part:
Except as provided in this subsection, the amount
recoverable by any person for any damages, injuries or
death in any action founded on tort against any
volunteer fire company organized under ch. 181 or 213,
political corporation, governmental subdivision or
agency thereof and against their officers, officials,
agents or employees for acts done in their official
capacity or in the course of their agency or
employment, whether proceeded against jointly or
severally, shall not exceed $50,000.
We have had occasion to review this provision on multiple
occasions, including challenges asserting that the limitation on
damages violates equal protection. See Sambs v. City of
Brookfield, 97 Wis. 2d 356, 293 N.W.2d 504 (1980); Stanhope v.
Brown Cnty., 90 Wis. 2d 823, 280 N.W.2d 711 (1979). As noted by
the court of appeals in this case, we have upheld § 893.80(3)'s
limitation of damages previously, and Bostco has not persuaded
us to change our position.
¶76 With regard to Bostco's facial challenge, we reiterate
the high standard facing litigants asserting a constitutional
challenge: legislative enactments are presumed constitutional,
and we will resolve any reasonable doubt in favor of upholding
the provision as constitutional. See Stanhope, 90 Wis. 2d at
837. In the context of an equal protection challenge, we will
sustain a legislative enactment that creates a distinction
41
No. 2007AP221 & 2007AP1440
between treatment of different groups, if there exists a
rational basis to support that distinction, provided that the
distinction does not implicate a suspect class or impinge upon a
fundamental right. See State v. Quintana, 2008 WI 33, ¶79, 308
Wis. 2d 615, 748 N.W.2d 447. Because Bostco does not assert
that it is a member of a protected class, or that recovery in
tort from a governmental entity is a fundamental right, we must
uphold the damage limitations in Wis. Stat. § 893.80(3), if
there exists a rational basis for the legislature to limit the
amount of damages recoverable by plaintiffs against governmental
entities. See Stanhope, 90 Wis. 2d at 837–842. "The basic test
is not whether some inequality results from the classification,
but whether there exists any reasonable basis to justify the
classification." Sambs, 97 Wis. 2d at 371 (emphasis added)
(quoting Omernik v. State, 64 Wis. 2d 6, 19, 218 N.W.2d 734(1974)).
¶77 In Holytz, 17 Wis. 2d at 40, we recognized that the
legislature was free to limit the amount of damages that
plaintiffs may recover from governmental entities for the torts
of those entities or their officers. We have since reiterated
that principle in Sambs, 97 Wis. 2d at 371–78, and Stanhope, 90
Wis. 2d at 837–42. We now reaffirm the legislature's valid
limitation of the amount of damages recoverable under Wis. Stat.
§ 893.80(3). The principle we expressed in Stanhope, 90 Wis. 2d
at 842, is as applicable today as it was over 30 years ago:
It is within the legitimate power of the legislature
to take steps to preserve sufficient public funds to
ensure that the government will be able to continue to
provide those services which it believes benefits the
42
No. 2007AP221 & 2007AP1440
citizenry. We conclude that the legislature's
specification of a dollar limitation on damages
recoverable allows for fiscal planning and avoids the
risk of devastatingly high judgments while permitting
victims of public tortfeasors to recover their losses
up to that limit.
Accordingly, we conclude that a rational basis exists for the
damage limitations in § 893.80(3), and therefore reject Bostco's
facial challenge to that provision.
¶78 In its as-applied challenge to the damage limits in
Wis. Stat. § 893.80(3), Bostco asserts that there exists no
rational basis for MMSD to treat its claim any differently than
those claims that MMSD paid before June 30, 1994, which were not
subject to the statutory damage limitations. During the time of
construction of the Deep Tunnel, MMSD paid certain property
owners for damages caused by soil settlement in the area in
which the Deep Tunnel was being constructed. With the belief
that it had properly addressed that issue as pertained to
affected landowners, MMSD established the June 30, 1994, date as
a cutoff for claims, after which MMSD would no longer compensate
local landowners for property damage allegedly caused by soil
settlement.
¶79 Bostco asserts that the establishment of the June 1994
date was arbitrary, thereby violating the precept that "every
person within the state's jurisdiction will be protected against
intentional and arbitrary discrimination, whether arising out of
the terms of a statute or the manner in which the statute is
executed by officers of the state." State ex rel. Murphy v.
Voss, 34 Wis. 2d 501, 510, 149 N.W.2d 595 (1967). The necessary
corollary, however, is that some inequality is generally
43
No. 2007AP221 & 2007AP1440
insufficient to demonstrate unconstitutional disparate
treatment——again, where there exists a rational basis for the
unequal treatment, we will sustain the official action as within
the legislature's power. See State v. McManus, 152 Wis. 2d 113,
131, 447 N.W.2d 654 (1989).
¶80 Here, MMSD made the decision to stop paying claims at
the end of June 1994, based on its understanding that the
situation that had necessitated a dedicated claims procedure had
been ameliorated. MMSD provided notice to property owners
before November 1993, affording the owners sufficient time to
prepare any claims before the cutoff date. Although any time
limit for claims against a governmental entity may be deemed
arbitrary by those whose claims are made after the deadline, the
same primary principle that justifies limits on damage amounts——
protection of the public fisc——supports the reasonableness of
imposing a deadline for claims, especially when the deadline is
avowedly tied to the governmental entity's asserted belief that
it has addressed the problem necessitating the claims procedure.
On these bases, Bostco's equal protection challenge fails.35
35
As a final challenge to the damage cap, Bostco asserts
that continuing nuisances are not subject to Wis. Stat.
§ 893.80(3)'s damage cap because that section limits the damages
recoverable in "any action founded on tort," and a continuing
nuisance constitutes multiple, constantly recurring actions.
See, e.g., Stockstad v. Town of Rutland, 8 Wis. 2d 528, 534, 99
N.W.2d 813 (1959) ("It is well settled that every continuance of
a nuisance is in law a new nuisance and gives rise to a new
cause of action."). As the court of appeals noted, only one
nuisance action is before the court, and we therefore need not
conclude whether the damage cap would apply in a subsequent
action allegedly based on the same continuing nuisance.
44
No. 2007AP221 & 2007AP1440
2. Bostco's forfeiture of inverse condemnation arguments
¶81 In its complaint to the circuit court, Bostco alleged
that MMSD inversely condemned Boston Store's property when it
"physically took portions of the timber pilings which rendered
them unusable and damaged the Boston Store Building and Parking
Garage." (Emphasis added.) Bostco also alleged that MMSD's
conduct amounted to a taking of private property for public use
without providing just compensation. Bostco made the same
argument in opposing MMSD's motion for summary judgment and at
the summary judgment hearing. Bostco, however, did not allege
that the groundwater beneath Boston Store was taken. At the
court of appeals, Bostco added to its inverse
condemnation/takings claim, alleging that in addition to the
timber piles, MMSD also took the groundwater beneath Boston
Store.
¶82 The court of appeals addressed both the timber piles
and the groundwater arguments, and held that Bostco could not
establish that either claim met the standard for inverse
condemnation, namely, that neither the timber piles nor the
groundwater was physically occupied by MMSD and that Boston
Store was not "practically or substantially" rendered "useless
for all reasonable purposes." Bostco, 334 Wis. 2d 620, ¶¶111-
17. (quoting Howell Plaza, Inc. v. State Highway Comm'n, 92
Wis. 2d 74, 85, 284 N.W.2d 887 (1979)). The court of appeals
therefore affirmed the circuit court's dismissal of Bostco's
inverse condemnation/takings claim on summary judgment. Id.,
¶117.
45
No. 2007AP221 & 2007AP1440
¶83 Before us, however, Bostco states in its brief that it
"is no longer pursuing its inverse condemnation claim as a
taking of the wood piles." Instead, Bostco argues that MMSD
"physically took the groundwater" beneath Boston Store. As
Bostco is attempting to make a fundamentally different argument
than that which it raised and tried before the circuit court, we
decline to address its inverse condemnation/takings claim,
notwithstanding the court of appeals' decision to reach this
issue. See Tatera v. FMC Corp., 2010 WI 90, ¶19 n.16, 328
Wis. 2d 320, 786 N.W.2d 810 ("Arguments raised for the first
time on appeal are generally deemed forfeited.").
¶84 Bostco attempts to avoid the effects of forfeiture by
alleging that its complaint before the circuit court "was
replete with factual allegations about the taking of
groundwater." We disagree. Upon review of Bostco's complaint,
we conclude that no facts relevant to a taking of groundwater
were raised. Rather, the portions of the complaint that
allegedly support a claim for the taking of groundwater consist
of general recitations of the following arguments: (1) MMSD
failed to protect buildings during excavations; (2) MMSD failed
to properly respond to unexpected inflows of water; (3) MMSD
failed to properly monitor and recharge lowered groundwater
levels; (4) the Deep Tunnel damaged Boston Store; and (5) MMSD
was aware of the risk of structural damage to Boston Store.
¶85 Most tellingly, Count III of Bostco's complaint,
entitled "Inverse Condemnation," does not refer at all to
groundwater, and instead focuses entirely on timber piles.
46
No. 2007AP221 & 2007AP1440
Because Bostco has not preserved the groundwater–based
contention for appeal, we decline to address its inverse
condemnation/takings claim, and therefore affirm the court of
appeals, albeit on modified grounds.
3. Bostco's notice of claim
¶86 Finally, in its cross-appeal, MMSD asserts that Bostco
did not serve MMSD with a notice of injury and itemization of
relief as required by Wis. Stat. § 893.80(1) (2005–06),36 and
that Bostco's claims therefore should have been dismissed.
Specifically, MMSD argues that the notice it received was
insufficient because the notices informing MMSD of the damages
to the Boston Store buildings and the relief sought were
submitted by entities who are not parties to this action. Those
entities named in the notice of claim and itemization of relief
were Saks, Inc., a corporation that owns Parisian, Inc., and
WISPARK Holdings LLC, an LLC owned by the same holding company
that owns Bostco. For its part, Bostco argues that the notice
of claim and itemization of relief from the related entities
amounted to substantial compliance with § 893.80(1), and that,
under our case law, such notice is sufficient.
¶87 In pertinent part, Wis. Stat. § 893.80(1) provides
[N]o action may be brought or maintained against any
volunteer fire company organized under ch. 213,
political corporation, governmental subdivision or
agency thereof nor against any officer, official,
agent or employee of the corporation, subdivision or
36
For ease of reference to the parties' arguments, which
are based on the 2005–06 version of Wis. Stat. § 893.80(1), we
refer to that version of the statutes in this section of the
opinion.
47
No. 2007AP221 & 2007AP1440
agency for acts done in their official capacity or in
the course of their agency or employment upon a claim
or cause of action unless:
(a) Within 120 days after the happening of the
event giving rise to the claim, written notice of the
circumstances of the claim signed by the party, agent
or attorney is served on the volunteer fire company,
political corporation, governmental subdivision or
agency and on the officer, official, agent or employee
under s. 801.11. Failure to give the requisite notice
shall not bar action on the claim if the fire company,
corporation, subdivision or agency had actual notice
of the claim and the claimant shows to the
satisfaction of the court that the delay or failure to
give the requisite notice has not been prejudicial to
the defendant fire company, corporation, subdivision
or agency or to the defendant officer, official, agent
or employee; and
(b) A claim containing the address of the
claimant and an itemized statement of the relief
sought is presented to the appropriate clerk or person
who performs the duties of a clerk or secretary for
the defendant fire company, corporation, subdivision
or agency and the claim is disallowed.
¶88 The notice of claim provisions serve two purposes:37
"(1) to give governmental entities the opportunity to
investigate and evaluate potential claims, and (2) to afford
governmental entities the opportunity to compromise and budget
for potential settlement or litigation." E-Z Roll Off, LLC v.
Cnty. of Oneida, 2011 WI 71, ¶34, 335 Wis. 2d 720, 800 N.W.2d
421. In keeping with these purposes, we have recognized that
37
We refer to "the notice of claim provisions" collectively
here; these provisions include the "notice of injury provision"
under Wis. Stat. § 893.80(1)(a), and the "itemization of relief
provision" under § 893.80(1)(b), also referred to as the actual
"notice of claim provision." See Thorp v. Town of Lebanon, 2000
WI 60, ¶¶23, 28, 235 Wis. 2d 610, 612 N.W.2d 59. Reference to
the "notice of claim provisions" is intended to refer to the
notices required under both subsections of § 893.80(1).
48
No. 2007AP221 & 2007AP1440
the notice of claim provisions may be satisfied with
substantial, rather than strict compliance. See Figgs v. City
of Milwaukee, 121 Wis. 2d 44, 55, 357 N.W.2d 548 (1984).
Accordingly, where a claimant fails to strictly comply with the
notice of injury provision under Wis. Stat. § 893.80(1)(a), the
claimant may nonetheless satisfy that provision by showing that
(1) the governmental entity had actual notice of the claim, and
(2) the governmental entity was not prejudiced by the claimant's
failure to strictly comply. See § 893.80(1)(a); see also State
v. Town of Linn, 205 Wis. 2d 426, 435, 556 N.W.2d 394 (Ct. App.
1996).
¶89 Additionally, with regard to Wis. Stat.
§ 893.80(1)(b), referred to as the itemization or notice of
claim provision, see Thorp v. Town of Lebanon, 2000 WI 60, ¶28,
235 Wis. 2d 610, 612 N.W.2d 59, we have noted that two
principles guide our analysis of whether a claim is sufficient
under that section. First, the claim must provide the
governmental entity with enough information to decide whether to
settle the claim. See Gutter v. Seamandel, 103 Wis. 2d 1, 10–
11, 308 N.W.2d 403 (1981). Second, we will construe claims so
as to preserve bona fide claims for judicial adjudication,
rather than cutting them off without a trial. See id.
¶90 Here, Bostco's notice of injury informed MMSD that the
Boston Store buildings had been damaged by MMSD's operation of
the Deep Tunnel. Although the notice and the itemized statement
of relief were submitted on behalf of Saks, Inc. and WISPARK
Holdings LLC, the naming of these parties cannot reasonably be
49
No. 2007AP221 & 2007AP1440
said to have compromised MMSD's ability to investigate and
evaluate the nature of the claim, which was the substantial
damage to the Boston Store buildings. Moreover, MMSD has not
suffered any prejudice by not knowing precisely which entity
owned the property that MMSD was alleged to have damaged; merely
being required to litigate, without more, does not demonstrate
prejudice. See Luckett v. Bodner, 2009 WI 68, ¶43, 318 Wis. 2d
423, 769 N.W.2d 504.
¶91 Furthermore, the itemization of relief informed MMSD
of what relief was being sought, thereby apprising MMSD of
potential costs for which it might have wanted to budget, and
allowing MMSD to contemplate settlement for the asserted
injuries. Had MMSD sought to compromise or settle the claim
(which is not the case here), the naming of different corporate
entities did not interfere with the purposes of the notice of
claim provisions. Most notable for purposes of compromise or
settlement, the same law firm represented Saks, WISPARK, Bostco,
and Parisian. See DNR v. City of Waukesha, 184 Wis. 2d 178,
198, 515 N.W.2d 888, (1994) (recognizing that notice of claim
statute is satisfied when attorney's address is provided),
abrogated on other grounds by State ex rel. Auchinleck v. Town
of LaGrange, 200 Wis. 2d 585, 547 N.W.2d 587 (1996).
Furthermore, the close relationships of the entities involved
would have allowed for meaningful exploration into the
possibilities of settlement, since the same executives were
involved in the operation and control of the various entities.
50
No. 2007AP221 & 2007AP1440
¶92 In support of its argument that Bostco failed to
comply with the notice of claim requirements, MMSD relies on the
court of appeals' statement in Markweise v. Peck Foods Corp.,
205 Wis. 2d 208, 220–21, 556 N.W.2d 326 (Ct. App. 1996), that
"unless the government entity has 'actual knowledge' of both the
claimant and his or her claim, the investigation and evaluation
envisioned by the statute is impossible." That statement,
however, arose in the context of thousands of potential
claimants against the City of Milwaukee, many of whom remained
unknown after the notice of claim. See id. at 221, 232.
¶93 Such was not the case here. MMSD was aware of the
property damaged, it was aware of the relief sought, and it had
sufficient information to contact the claimants. Accordingly,
we conclude that Bostco substantially complied with the notice
of claim requirements of Wis. Stat. § 893.80(1), and therefore
affirm the court of appeals.
III. CONCLUSION
¶94 We conclude that MMSD is not entitled to immunity.
Once MMSD had notice that the private nuisance it negligently
maintained was a cause of significant harm, immunity under Wis.
Stat. § 893.80(4) was not available for MMSD. The proper
immunity analysis in this case rests on our holding in City of
Milwaukee, 277 Wis. 2d 635, ¶59, that "[w]hether immunity exists
for nuisance founded on negligence depends upon the character of
the negligent acts." Where the negligent act was undertaken
pursuant to one of those functions set forth in § 893.80(4)——
that is, legislative, quasi-legislative, judicial or quasi-
51
No. 2007AP221 & 2007AP1440
judicial functions——immunity may apply. See id.; see also
§ 893.80(4).
¶95 Here, Bostco's nuisance claim is grounded in MMSD's
negligent maintenance of its Deep Tunnel, which maintenance
constituted a continuing private nuisance. See Physicians Plus,
254 Wis. 2d 77, ¶2-3 (explaining that when all the elements of
nuisance are proved and the municipal entity has notice that the
nuisance is a cause of significant harm, the entity has a duty
to abate). Because MMSD's maintenance of the continuing private
nuisance is not a legislative, quasi-legislative, judicial or
quasi-judicial function, MMSD is not entitled to immunity. See
Hillcrest Golf, 135 Wis. 2d at 439-40 (explaining that the
"creation and maintenance of private nuisances are simply not
recognized as legislative acts subject to protection under sec.
893.80(4)"); see also Welch, 265 Wis. 2d 688, ¶8 (explaining
that "no statutory or common law immunity doctrine empowers a
public body to maintain a private nuisance"); Menick, 200
Wis. 2d at 745 (concluding "there is no discretion as to
maintaining the [sewer] system so as not to cause injury"); Wis.
Stat. §§ 844.01(1) and 844.20(2) (providing statutory procedure
for seeking abatement of private nuisances).38 The court of
appeals' determination that MMSD is not entitled to immunity is
therefore affirmed.
¶96 Because MMSD does not have immunity for its negligent
maintenance of the Deep Tunnel, we also conclude as follows: On
38
See also Winchell, 110 Wis. at 109 (concluding that the
"legislative authority to install a sewer system carries no
implication of authority to create or maintain a nuisance").
52
No. 2007AP221 & 2007AP1440
the second issue, we conclude that Wis. Stat. § 893.80(3)–(5) do
not abrogate MMSD's duty to abate the private nuisance that MMSD
caused by its negligent maintenance of the Deep Tunnel, after
MMSD had notice that the nuisance was a cause of significant
harm. Therefore, we reverse the court of appeals' denial of the
equitable relief of abatement.
¶97 Third, we conclude that the monetary damage cap in
Wis. Stat. § 893.80(3) does not violate equal protection, either
facially or as applied to Bostco. Moreover, the nature of
Bostco's claim as a continuing nuisance does not render
§ 893.80(3)'s monetary damage cap inapplicable. Accordingly, we
affirm the court of appeals' conclusion that the circuit court
properly reduced Bostco's monetary damages to $100,000.
¶98 Fourth, with regard to Bostco's inverse condemnation
claim, we conclude that Bostco forfeited the argument that it
makes before this court, and we therefore affirm the court of
appeals on this issue.
¶99 Fifth, we conclude that Bostco substantially complied
with the notice of claim provisions under Wis. Stat. § 893.80(1)
(2005–06), and that MMSD therefore had sufficient notice under
those provisions. Accordingly, we affirm the court of appeals
on that issue as well.
¶100 Because neither Wis. Stat. § 893.80(4) nor (3)
abrogates MMSD's duty to abate this private nuisance, we reverse
the court of appeals' decision in part, affirm that decision in
part, and remand to the circuit court for further proceedings
consistent with this opinion. In particular, we reverse the
53
No. 2007AP221 & 2007AP1440
court of appeals' reversal of the circuit court's order for
abatement, in part. That is, while we affirm the court of
appeals on all other issues, we reverse that court's decision
that Bostco was not entitled to equitable relief in the form of
an order for abatement. Therefore, we affirm the circuit court
decision that abatement is required, and we remand this matter
to the circuit court. Upon remand, a hearing may be held to
establish whether an alternate method will abate the continuing
private nuisance MMSD maintains or whether lining the Deep
Tunnel with concrete is required for abatement.
¶101 By the Court.—The decision of the court of appeals is
affirmed in part, reversed in part and the cause remanded to the
circuit court.
¶102 DAVID T. PROSSER, J., did not participate.
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No. 2007AP221 & 2007AP1440.mjg
¶103 MICHAEL J. GABLEMAN, J. (concurring). I join the
majority opinion in toto as I believe it reaches the correct
result under our existing immunity law. I write separately,
however, to express my dismay that this court continues to apply
a series of doctrines that have no connection to the text of the
municipal immunity statute (Wis. Stat. § 893.80) or our decision
to abrogate all governmental immunity in Holytz v. City of
Milwaukee, 17 Wis. 2d 26, 115 N.W.2d 618 (1962). Rather than
utilizing the nuisance approach adopted by the majority, I would
instead do away with the ministerial duty and known danger
exceptions and restore our immunity jurisprudence to conform
with § 893.80(4) and Holytz. That is, governmental entities,
officials, and employees should be entitled to immunity only for
"acts done in the exercise of legislative, quasi-legislative,
judicial, or quasi-judicial functions."1 § 893.80(4); see also
Holytz, 17 Wis. 2d at 40. As this court has never fashioned a
precise definition of that phrase, I recommend that we adopt the
"planning-operational distinction" to determine whether
governmental action is "legislative, quasi-legislative,
judicial, or quasi-judicial." This test "grants immunity only
to upper-level legislative, judicial, executive and
administrative policy and planning decisions rather than to any
decision that might be made." 18 Eugene McQuillin, The Law of
Municipal Corporations § 53:16 (3d ed., rev. vol. 2013). If a
decision or action does fall into that category, it is
1
Per the immunity statute, municipalities would still be
shielded from liability for intentional torts committed by
employees. Wis. Stat. § 893.80(4).
1
No. 2007AP221 & 2007AP1440.mjg
considered "planning level" and is immune from suit. Id. On
the other hand, "[a] decision resulting from a determination
based on preexisting laws, regulations, policies, or standards
usually indicates that its maker is performing an operational
act." Id. Immunity would not apply to activities of this
nature. Id. Because the operation and maintenance of a
sewerage system is by definition "operational," it does not fall
into the category of actions that are legislative, quasi-
legislative, judicial, or quasi-judicial. Our immunity analysis
need not go any further to determine that MMSD is not shielded
by governmental immunity.
I. THE HISTORY OF GOVERNMENTAL IMMUNITY
¶104 To better understand our current governmental immunity
quagmire, it will be helpful to briefly survey the historical
development of the doctrine. The concept of governmental
immunity goes back to the 18th-century English common law notion
that "the king could do no wrong," Linda M. Annoye, Comment,
Revising Wisconsin's Government Immunity Doctrine, 88 Marq. L.
Rev. 971, 973-74 (2005). Or, as Sir William Blackstone put it,
"The king . . . is not only incapable of doing wrong, but even
of thinking wrong." 1 Blackstone's Commentaries on the Laws of
England 187 (Wayne Morrison ed., Cavendish Publishing Limited
2001). The first known case to apply this concept was Russell
v. The Men of Devon, (1788) 100 Eng. Rep. 359 (K.B.), in which
the Court of King's Bench in England held that an unincorporated
county was not liable for damages caused by a faulty bridge. In
setting forth the court's ruling, Justice Ashhurst reasoned that
2
No. 2007AP221 & 2007AP1440.mjg
"it is better that an individual should sustain an injury than
that the public should suffer an inconvenience." Id. at 362.
Governmental immunity eventually migrated to the United States,
first landing in Massachusetts with Mower v. Leicester, 9 Mass.
247 (1812). Wisconsin subsequently adopted the doctrine in
Hayes v. City of Oshkosh, 33 Wis. 314 (1873). There, we
utilized reasoning similar to Russell, stating that
"[i]ndividual hardship or loss must sometimes be endured in
order that still greater hardship or loss to the public at large
or the community may be averted." Hayes, 33 Wis. at 319.
¶105 In 1962 this court abrogated the longstanding common
law rule of governmental immunity in Holytz, 17 Wis. 2d at 33,
noting, "[t]here are probably few tenets of American
jurisprudence which have been so unanimously berated as the
governmental immunity doctrine." That decision reversed the
relationship between injured plaintiffs and government
tortfeasors, as we held that "henceforward, so far as
governmental responsibility for torts is concerned, the rule is
liability——the exception is immunity." Id. at 39. However, we
qualified this sea change in the law by cautioning that
liability should not attach to a governmental body when it
exercises its "legislative or judicial or quasi-legislative or
quasi-judicial functions." Id. at 40 (citation omitted). We
also said that "[i]f the legislature deems it better public
policy, it is, of course, free to reinstate immunity." Id. As
the majority opinion observes, the year after Holytz was
decided, the legislature enacted an immunity statute that
3
No. 2007AP221 & 2007AP1440.mjg
closely tracked some of our language from that decision, thereby
codifying the elimination of blanket governmental immunity.
Majority op., ¶47; see also Ch. 198, Laws of 1963. The current
version of the immunity statute provides that no suit may be
brought against any "political corporation, governmental
subdivision or any agency thereof" or its "officers, officials,
agents or employees" for intentional torts or "acts done in the
exercise of legislative, quasi-legislative, judicial or quasi-
judicial functions."2 Wis. Stat. § 893.80(4). But while the
2
The text of the immunity statute does not mention the
state or its employees. Townsend v. Wis. Desert Horse Ass'n, 42
Wis. 2d 414, 422-23, 167 N.W.2d 425 (1969). However, Holytz v.
City of Milwaukee, 17 Wis. 2d 26, 40, 115 N.W.2d 618 (1962),
abrogated the common law doctrine of immunity for all
governmental entities, state or municipal. Given our open
invitation for the legislature to reinstate governmental
immunity if it thought our decision unwise, the legislative
silence with respect to state employees amounted to acceptance
of our decision that "so far as governmental responsibility for
torts is concerned, the rule is liability——the exception is
immunity." Holytz, 17 Wis. 2d at 39; see Progressive N. Ins.
Co. v. Romanshek, 2005 WI 67, ¶52, 281 Wis. 2d 300, 697 N.W.2d
417 ("[G]enerally, legislative silence with regard to new court-
made decisions indicates legislative acquiescence in those
decisions.") (internal quotation marks and citation omitted).
Strangely, though, this court has said that "unlike governmental
immunity as applied to state employees where immunity is the
rule and liability is the exception, the opposite is true for
municipal actors, i.e., liability is the rule and immunity is
the exception." Pries v. McMillon, 2010 WI 63, ¶20 n.11, 326
Wis. 2d 37, 784 N.W.2d 648 (emphasis added) (citation omitted).
This observation is incorrect because the underlined language is
plainly at odds with our decision in Holytz, and accordingly
there should be no distinction in the treatment of state and
municipal entities or their employees. Four years ago, Justice
Prosser (joined by Justice Crooks) noted this anomaly in his
scholarly concurrence in Umansky v. ABC Ins. Co., 2009 WI 82,
¶¶46-57, 319 Wis. 2d 622, 769 N.W.2d 1. I now express my
agreement with Justice Prosser's conclusion that liability is
the rule and immunity the exception for both municipalities and
the state.
4
No. 2007AP221 & 2007AP1440.mjg
legislature codified Holytz's abrogation of governmental
immunity, for the past five decades this court has been chipping
away at the Holytz decision and the immunity statute.
II. THE MINISTERIAL DUTY AND KNOWN DANGER "EXCEPTIONS"
¶106 The first thread of Holytz's newly woven tapestry to
unravel was Lister v. Bd. of Regents, 72 Wis. 2d 282, 300-01,
240 N.W.2d 610 (1976), where this court laid down the
discretionary/ministerial test for whether governmental immunity
applied. In holding that the University of Wisconsin-Madison
Registrar could not be sued for allegedly misclassifying a group
of law students as "non-residents" for tuition purposes, we held
that government employees are immune when exercising discretion,
but that no immunity attaches to the negligent performance of a
"ministerial duty." Id. at 300-01. We opined that within the
context of governmental immunity a "duty is ministerial only
when it is absolute, certain and imperative, involving merely
the performance of a specific task when the law imposes,
prescribes and defines the time, mode and occasion for its
performance with such certainty that nothing remains for
judgment or discretion." Id. at 301 (footnote omitted). As the
decision on whether to classify a student as a Wisconsin
resident for purposes of in-state tuition required "some
discretion and judgment," the Registrar was entitled to immunity
and the hapless law students were not allowed to make their case
that they paid too much tuition. Id. at 301-02.
¶107 The ministerial duty concept, though, came directly
from our decision in Meyer v. Carman, 271 Wis. 329, 332, 73
5
No. 2007AP221 & 2007AP1440.mjg
N.W.2d 514 (1955). See Lister, 72 Wis. 2d at 301 n.18, 19
(citing Meyer). The problem with relying on a test from Meyer,
however, was that case was decided before we abrogated
governmental immunity in Holytz. So while it made sense for
Meyer to speak of an exception to immunity when immunity was the
rule, it made no sense for Lister to adopt an exception to a
concept that had already been retired both judicially and
legislatively.
¶108 Justice Prosser has also commented on the bizarre
development of the ministerial duty exception "from a context in
which it was valuable and necessary" to "a context in which it
is unfair and absurd." Umansky v. ABC Ins. Co., 2009 WI 82,
¶64, 319 Wis. 2d 622, 769 N.W.2d 1 (Prosser, J., concurring).
By "shift[ing] the focus from liability to immunity," Lister
turned the Holytz decision upside down without even citing to
that momentous case. Id., ¶75. With a sleight-of-hand, Lister
cut the guts out of Holytz and essentially restored governmental
immunity. As Justice Prosser accurately and poignantly put it:
"[s]o far as government responsibility for torts is concerned,
immunity has become the rule and liability has become the rare
exception. Justice has been confined to a crawl space too
narrow for most tort victims to fit." Id., ¶78.
¶109 Following Lister, this court repeatedly relied on the
ministerial duty exception to stretch governmental immunity
beyond both the text of the statute and the Holytz decision.
For example, we have immunized such conduct as a road test
examiner's purported negligence in issuing a driver's license to
6
No. 2007AP221 & 2007AP1440.mjg
an applicant who was allegedly too overweight to drive,3 a
university instructor's construction of a volleyball net,4 a
school district benefits specialist's incorrect advice,5 a police
officer's allegedly negligent management of a busy intersection
during a rain storm,6 and a high school guidance counselor
providing inaccurate information regarding a student's
scholarship eligibility requirements.7 All of these decisions
3
Lifer v. Raymond, 80 Wis. 2d 503, 512, 259 N.W.2d 537(1977). Justice Robert Hansen colorfully summed up the issue
presented in Lifer:
How fat is too fat? Who is too fat to be
licensed to get behind the wheel and drive an
automobile? Plaintiff alleges that the 320-pound
driver of the auto in which he was a passenger was so
fat that she should not have been granted a
probationary license to drive an automobile, even
though she passed the road test portion of the
examination.
At what point on the scales does an overweight
person suffer a physical disability that prevents him
or her from exercising reasonable control over a motor
vehicle? The plaintiff answers that the duty to
determine when corpulency becomes disabling is on the
road test examiner at the time a road test is
administered. The plaintiff sues the defendant
examiner for breaching a duty owed to the plaintiff
passenger when he passed Jeannine M. Yingling in the
road test portion of her examination.
Id. at 506-07.
4
Kimps v. Hill, 200 Wis. 2d 1, 5, 546 N.W.2d 151 (1996).
5
Kierstyn v. Racine Unified Sch. Dist., 228 Wis. 2d 81, 85,
95, 596 N.W.2d 417 (1999).
6
Lodl v. Progressive N. Ins. Co., 2002 WI 71, ¶¶11, 31, 253
Wis. 2d 323, 646 N.W.2d 314.
7
Scott v. Savers Prop. & Cas. Ins. Co., 2003 WI 60, ¶¶9,
18, 262 Wis. 2d 127, 663 N.W.2d 715.
7
No. 2007AP221 & 2007AP1440.mjg
are at odds with Holytz and the immunity statute in that none of
these actions can fairly be described as "legislative, quasi-
legislative, judicial, or quasi-judicial functions." Wis. Stat.
§ 893.80(4); Holytz, 17 Wis. 2d at 40. Yet that is where this
court has taken immunity law courtesy of the misappropriated
ministerial duty exception.
¶110 In addition to having no connection whatsoever to the
governing statute, the other flaw with the ministerial duty test
is that it is excruciatingly narrow. As one court has put it,
"it would be difficult to conceive of any official act, no
matter how directly ministerial, that did not admit of some
discretion in the manner of its performance, even if it involved
only the driving of a nail." Ham v. Los Angeles Cnty., 189 P.
462, 468 (Cal. Ct. App. 1920); see also Swanson v. United
States, 229 F. Supp. 217, 219-20 (N.D. Cal. 1964) ("In a strict
sense, every action of a government employee, except perhaps a
conditioned reflex action, involves the use of some degree of
discretion."). The upshot of this court's adoption of the
ministerial duty exception is that we have in essence overturned
Holytz and rewritten Wis. Stat. § 893.80.
¶111 The ministerial duty exception is also the progenitor
responsible for the illegitimate birth of the known danger
exception. In Cords v. Anderson, 80 Wis. 2d 525, 531-32, 536-
38, 259 N.W.2d 672 (1977), a group of college students were
injured while hiking at a state park when they fell from an
unguarded and unmarked 90-foot cliff into a gorge. The
plaintiffs sued the manager of the park (a state employee) for
8
No. 2007AP221 & 2007AP1440.mjg
failing to put up warning signs along the trail. Id. at 537-38.
The manager, naturally, asserted governmental immunity. Id.
However, instead of asking whether the manager's actions were
legislative, quasi-legislative, judicial, or quasi-judicial, as
Holytz requires for state employees, this court (relying on
Lister) framed the question as whether the manager had "an
absolute, certain, or imperative duty to either place the signs
warning the public of the dangerous conditions existing on the
upper trail or to advise his superiors of the condition with a
view toward adequate protection of the public responding to the
invitation to use this facility." Cords, 80 Wis. 2d at 541.
Inexplicably, the court held that because the park manager knew
the park terrain was dangerous, "the duty to either place
warning signs or advise superiors of the conditions is, on the
facts here, a duty so clear and absolute that it falls within
the definition of a ministerial duty." Id. at 542 (emphasis
added). I say inexplicably because the choice to use one of two
options quite obviously renders the decision discretionary
rather than ministerial.8 In any event, to circumvent the
8
This court has also inconsistently applied the known
danger exception, most significantly in Lodl. In that case, a
heavy rain storm triggered a power outage that caused the
traffic lights to go out at a busy intersection. 253 Wis. 2d
323, ¶6. A police sergeant investigated the blackout and
decided to open the folded stop signs that were affixed to the
poles of the traffic control signals. Id., ¶7. Another officer
arrived on the scene, called for backup, and requested that
portable stop signs be brought to the intersection. Id., ¶8.
An accident occurred minutes later, before the police backup or
portable signs arrived. Id., ¶10. The injured plaintiff sued,
alleging that the second officer who arrived on the scene had a
ministerial duty to manually control traffic at the
intersection. Id., ¶¶11-12. Extrapolating from our reasoning
9
No. 2007AP221 & 2007AP1440.mjg
judicially created ministerial duty test we invented what became
known as the "known danger exception," thus creating an
exception to an exception. Unfortunately, neither the
ministerial duty test nor the known danger test is grounded in
Holytz or the immunity statute, so although we reached the
correct ultimate conclusion in Cords (immunity does not apply),
we took an incorrect route.
III. A NEW APPROACH FOR GOVERNMENTAL IMMUNITY JURISPRUDENCE
¶112 If we were to do away with the ministerial duty and
known danger exceptions, what test would we use to determine
whether an action is "legislative, quasi-legislative, judicial,
or quasi-judicial?" I recommend that this court adopt the
"planning-operational distinction." This test, which is used in
in Cords v. Anderson, 80 Wis. 2d 525, 259 N.W.2d 672 (1977), we
explained that a dangerous situation constitutes a known danger
for immunity purposes only when "there exists a known present
danger of such force that the time, mode and occasion for
performance is evident with such certainty that nothing remains
for the exercise of judgment and discretion." Id., ¶38 (quoting
C.L. v. Olson, 143 Wis. 2d 701, 717, 422 N.W.2d 614 (1988)).
With that principle in mind, we concluded that there was no
known danger, as the second officer had discretion in deciding
how to respond when he arrived at the intersection. Lodl, 253
Wis. 2d 323, ¶¶46-47. Yet this conclusion was clearly at odds
with Cords, where we held that the park manager was required to
take one of two options. 80 Wis. 2d at 542. For a further
elaboration of this point, see Justice Bradley's dissent in
Lodl. 253 Wis. 2d 323, ¶¶64, 68-69.
10
No. 2007AP221 & 2007AP1440.mjg
some form by a majority9 of states that no longer recognize
governmental immunity,10 grants immunity to "planning level
conduct" but not to "operational level decisions." McQuillin,
The Law of Municipal Corporations § 53:16. Planning level
conduct touches on questions of public policy and includes those
governmental decisions that involve "the balancing of priorities
9
See Indus. Indem. Co. v. Alaska, 669 P.2d 561, 563 (Alaska
1983); Doe v. Arizona, 24 P.3d 1269, 1271 (Ariz. 2001) (en
banc); Steed v. Dep't of Consumer Affairs, 138 Cal. Rpt. 3d 519,
528 (Ct. App. 2012); Cooper v. Hollis, 600 P.2d 109, 111 (Colo.
Ct. App. 1979); Dep't of Transp. v. Neilson, 419 So. 2d 1071,
1077-78 (Fla. 1982); Julius Rothschild & Co. v. Hawaii, 655 P.2d
877, 880-81 (Haw. 1982) (per curiam); Jones v. City of St.
Maries, 727 P.2d 1161, 1163-64 (Idaho 1986); Peavler v. Bd. of
Comm'rs of Monroe Cnty., 528 N.E.2d 40, 45 (Ind. 1988); Fowler
v. Roberts, 556 So. 2d 1, 15 (La. 1989); Jorgensen v. Dep't of
Transp., 969 A.2d 912, 917 (Me. 2009); Whitney v. City of
Worcester, 366 N.E.2d 1210, 1216 (Mass. 1977); Ross v. Consumers
Power Co., 363 N.W.2d 641, 647 (Mich. 1984) (per curiam); Conlin
v. City of Saint Paul, 605 N.W.2d 396, 400 (Minn. 2000); Jasa v.
Douglas Cnty., 510 N.W.2d 281, 288 (Neb. 1994); Schoff v. City
of Somersworth, 630 A.2d 783, 787 (N.H. 1993); Costa v. Josey,
415 A.2d 337, 341-43 (N.J. 1980); Enghauser Mfg. Co. v. Eriksson
Eng'g Ltd., 451 N.E.2d 228, 232 (Ohio 1983), superseded by
Ohio's Political Subdivision Tort Liability Act, Ohio Rev. Code
Ann. Ch. 2744 (West 2013); Nguyen v. Oklahoma, 788 P.2d 962,
964-65 (Okla. 1990); Costopoulos v. Gibboney, 579 A.2d 985, 988
(Pa. Commw. Ct. 1990); Bowers v. City of Chattanooga, 826 S.W.2d
427, 430-31 (Tenn. 1992); Stephen F. Austin State Univ. v.
Flynn, 228 S.W.3d 653, 657-58 (Tex. 2007); Johnson v. Utah Dep't
of Transp., 133 P.3d 402, 409 (Utah 2006); Avellaneda v.
Washington, 273 P.3d 477, 482-83 (Wash. Ct. App. 2012); Darrar
v. Bourke, 910 P.2d 572, 577 (Wyo. 1996).
10
"The majority rule is that in the absence of a statute
granting immunity, a municipality is liable for its negligence
in the same manner as a private person or corporation. The
common-law doctrine of sovereign or governmental immunity is a
viable defense in this country only in a minority of states [14]
and only in certain circumstances." 18 Eugene McQuillin, The
Law of Municipal Corporations § 53:3 (3d ed., rev. vol. 2013).
11
No. 2007AP221 & 2007AP1440.mjg
and the weighing of budgetary considerations." Id. Operational
decisions, on the other hand, "concern the day-to-day operation
of government and include decisions based solely upon
engineering or scientific considerations." Id. In other words,
a decision to adopt (or not adopt) a certain policy would be
shielded by immunity, but the implementation of the policy would
be subject to traditional tort standards. Cf. Bowers v. City of
Chattanooga, 826 S.W.2d 427, 431 (Tenn. 1992).
¶113 This approach is most consistent with the municipal
immunity statute and Holytz. To begin with, it would protect
"the essential acts of governmental decision-making" from
"judicial second-guessing or harassment by the actual or
potential threat of litigation." Enghauser Mfg. Co. v. Eriksson
Eng'g Ltd., 451 N.E.2d 228, 232 (Ohio 1983), superseded by
Ohio's Political Subdivision Tort Liability Act, Ohio Rev. Code
Ann. Ch. 2744 (West 2013). Specifically, budgetary decisions
would be immunized such that a governmental entity could not be
sued for inadequately funding a project. Indus. Indem. Co. v.
Alaska, 669 P.2d 561, 566 (Alaska 1983). The planning-
operational distinction, however, would ensure that citizens are
protected from the negligent acts of governmental employees "at
the operational level, where there is no room for policy
judgment." Jasa v. Douglas Cnty., 510 N.W.2d 281, 288 (Neb.
1994) (citation omitted). Finally, it would restore Holytz by
placing the burden on the government to show that it is entitled
to immunity, as opposed to the status quo in Wisconsin, where it
is now the plaintiff's responsibility to prove that immunity was
12
No. 2007AP221 & 2007AP1440.mjg
pierced. McQuillin, The Law of Municipal Corporations § 53:16
(under the planning-operational test, "[t]he governmental entity
seeking to establish immunity bears the burden of proving that
the challenged act or omission was a policy decision made by
consciously balancing risks and benefits.").
¶114 How would this test apply to the present case? MMSD's
decision to build the Deep Tunnel system is a planning level
decision entitled to immunity. Conversely, had the Deep Tunnel
never been built, a plaintiff could not successfully allege that
his basement was flooded as a result of MMSD's inaction. The
decision not to build is shielded for the same reasons as the
decision to build: it is a question of public policy that
involves the evaluation of financial, political, economic, and
social factors. See Conlin v. City of Saint Paul, 605 N.W.2d
396, 400 (Minn. 2000).
¶115 The day-to-day operation and maintenance of the Deep
Tunnel is, quite obviously, "operational," and thus standard
negligence principles apply in the same fashion as if the tunnel
were built by a private organization. See Whitney v. City of
Worcester, 366 N.E.2d 1210, 1216 (Mass. 1977) ("[A] governmental
entity is not liable for negligence in the planning of sewers
but may be liable for negligence in their construction and
maintenance.") (citation omitted). Contrary to MMSD's
assertions, this case was tried to the jury as one of operation
and maintenance, not design. At a pre-trial hearing, the
circuit court stated, "[t]he issue is, okay, as the tunnel is
being maintained, operated and inspected by [MMSD], is it
13
No. 2007AP221 & 2007AP1440.mjg
creating a nuisance[?]" The court made clear that the case
"doesn't have anything to do with the way [the Deep Tunnel] was
designed or constructed." Instead, "it has to do with the
manner in which it is being operated, which is causing the
nuisance."
¶116 The circuit court asked each of the parties to submit
a date as to when MMSD took over the operation and maintenance
of the Deep Tunnel. Both parties agreed that the date MMSD
began operating the Deep Tunnel was the date the jury would use
"in determining what, if any acts of negligence . . . MMSD
committed." After briefing and argument, the court settled on
August 7, 1992, the date MMSD offered as to when the contractor
certified that the Deep Tunnel project was substantially
completed. The court then made the nature of the case clear to
the attorneys:
[MMSD] is only responsible[,] and the jury will only
be asked to assess assuming they find negligence,
assess damages that occurred to the Boston Store from
that day forward.
So if the proof were, for example, that all of
the damages that the foundation, the Boston Store
suffered occurred before August 7, 1992, then the jury
should enter zero dollars.
On the other hand, if all the damages occurred
after August 7, 1992, then whatever those amounts are,
that's the number the jury should assess.
¶117 The negligence question submitted to the jury was
consistent with the circuit court's remarks to the lawyers at
the pre-trial conference: "On or after August 7, 1992 was
[MMSD] negligent in the manner in which it operated or
maintained the tunnel near Boston Store?" After a two-and-a-
14
No. 2007AP221 & 2007AP1440.mjg
half week trial, the jury found that MMSD was negligent and that
this negligence was the cause of the damage to Boston Store's
foundation. Bostco produced a number of expert witnesses during
the trial to support its argument that the negligent operation
and maintenance of the Deep Tunnel caused damage to the Boston
Store, including an engineer who testified that "[t]he Boston
Store has experienced large structural column movement as a
result of the operation of the [Deep] Tunnel," and, "[i]f the
operation of the [Deep] Tunnel continues under the current
conditions, the Boston Store will experience large structural
column movements requiring future repair." (Emphasis added).
It is our job as an appellate court to search the record for
evidence to support, not contradict, the jury's findings.
Morden v. Cont'l AG, 2000 WI 51, ¶39, 235 Wis. 2d 325, 611
N.W.2d 659. Here, there is ample evidence in the record to
buttress the factual conclusion that MMSD's negligent operation
and maintenance of the Deep Tunnel unsettled Boston Store's
foundation, causing millions of dollars of damage.
¶118 As the operation and maintenance of a sewerage system
is an "operational" rather than "planning-level" decision, this
is as far as our immunity analysis needs to go. The conclusion
that MMSD is liable for damages under this test would also be in
harmony with more than a century of Wisconsin case law, which
has reaffirmed that while the decision to build a public works
project is entitled to immunity, a governmental entity is liable
if its negligent operation and maintenance of the project causes
15
No. 2007AP221 & 2007AP1440.mjg
damages or injury.11 However, I would also add that even if MMSD
were correct that any negligence on its part related solely to
the design of the Deep Tunnel, this is not the type of planning-
level decision that should be entitled to immunity. As the
Minnesota Supreme Court has held in interpreting that state's
governmental immunity statute, "immunity does not bar an action
11
See Lange v. Town of Norway, 77 Wis. 2d 313, 320, 253
N.W.2d 240 (1977) ("[G]overnmental immunity would apply to
acquisition of the [dam and floodgate] by the town. However,
such governmental immunity would not include a failure to
maintain as to a condition of disrepair or defect or a failure
to properly operate said floodgate."); Naker v. Town of Trenton,
62 Wis. 2d 654, 660, 217 N.W.2d 665 (1974) (per curiam) ("Once
the decision is made and the sign is erected, the legislative
function is terminated and the doctrine of Holytz that imposes
liability for want of ordinary care takes over."); Christian v.
City of New London, 234 Wis. 123, 129, 290 N.W. 621 (1940)("The
doctrine of the cases dealing with municipally owned waterworks
is that the municipality must use proper care in maintaining the
means of storage and distribution, or respond in damages to
anyone injured."); Mitchell Realty Co. v. City of West Allis,
184 Wis. 352, 363, 199 N.W. 390 (1924) ("In creating a nuisance
[in managing a sewage disposal plant] . . . , [the City] must
respond in damages . . . ."); Winchell v. City of Waukesha, 110
Wis. 101, 109, 85 N.W. 668 (1901) (the legislative authority to
"install a sewer system carries no implication of authority to
create or maintain a nuisance, and . . . it matters not whether
such nuisance results from negligence or from the plan adopted.
If such nuisance be created, the same remedies may be invoked as
if the perpetrator were an individual."); Welch v. City of
Appleton, 2003 WI App 133, ¶24, 265 Wis. 2d 688, 666 N.W.2d 511("Maintenance of sewers so as not to cause injury is generally
considered ministerial compared to the discretionary decision
relating to design or implementation of a system.") (citation
omitted); Menick v. City of Menasha, 200 Wis. 2d 737, 745, 547
N.W.2d 778 (Ct. App. 1996) ("[W]hile the decision to install and
provide a sewer system in a community is a discretionary
decision, there is no discretion as to maintaining the system so
as not to cause injury to residents. The actions of the City in
operating and maintaining the sewer system do not fall within
the immunity provisions of [Wis. Stat.] § 893.80.").
16
No. 2007AP221 & 2007AP1440.mjg
when the conduct was merely a professional or scientific
judgment." Fisher v. Cnty. of Rock, 596 N.W.2d 646, 652 (Minn.
1999) (citation omitted). Immunity only attaches "if in
addition to professional or scientific judgments, policy
considerations played a part in making a decision . . . ." Id.
(citation omitted). There is nothing in the record to indicate
that the design of the Deep Tunnel was anything but a
technocratic decision that was farmed out to an engineering firm
that MMSD contracted with. While the decision to build the Deep
Tunnel was planning-level conduct, the implementation of that
decision was operational and thus not entitled to immunity.
IV. CONCLUSION
¶119 We stated in Holytz that the legislature was free to
reinstate governmental immunity. In the five decades since that
decision, it has not done so. That choice should be respected
by this court rather than undermined.
17
No. 2007AP221.ssa
¶120 SHIRLEY S. ABRAHAMSON, C.J. (dissenting). I
conclude that the Milwaukee Metropolitan Sewerage District (the
District or MMSD) is immune from suit for any monetary damages
or injunctive relief in the present case. The District is
immune because the Deep Tunnel is being operated and maintained
in the manner in which it was designed. Neither Bostco nor the
majority opinion has shown otherwise.
¶121 Decisions regarding the design of a municipal
improvement project are, according to case law, legislative,
discretionary decisions, the type of core decisions for which
government entities are immune from suit.1 Government entities
are immune from suit even if the planning, design, and
implementation of the project are negligent and lead to a
harmful result, including the maintenance of a nuisance.2
¶122 If the District were not immune, I would conclude that
any monetary damages or injunctive relief in the present case is
limited by the statutory cap set forth in Wis. Stat.
§ 893.80(3).3 Permitting a circuit court to order ad hoc
abatement of a private nuisance, at unlimited cost, circumvents
the monetary damage cap and eviscerates the statutory text and
1
Milwaukee Metro. Sewerage Dist. v. City of Milwaukee (City
of Milwaukee), 2005 WI 8, ¶9, 277 Wis. 2d 635, 691 N.W.2d 658.
See also Allstate Ins. Co. v. Metro. Sewerage Comm'n, 80
Wis. 2d 10, 15-17, & n.3 (collecting cases), 258 N.W.2d 148(1977).
2
City of Milwaukee, 277 Wis. 2d 635, ¶¶8, 44, 50, 58, 59,
60; Allstate, 80 Wis. 2d at 16.
3
I agree that Bostco forfeited its inverse condemnation
claim and that Bostco substantially complied with the Notice of
Claim requirements. See majority op., ¶¶7-8.
1
No. 2007AP221.ssa
legislatively enacted protection of the taxpayer and the public
purse.
¶123 Before examining the numerous errata in the majority
opinion, let me sound an A*L*A*R*M. The majority opinion
drastically and fundamentally increases government liability.
This case alone may result in a mandatory expenditure of over
$10 million by the District.
¶124 As a matter of courtesy and comity to the legislative
branch, the majority opinion should, in my opinion, apply its
new-found law only to tortious causes of action occurring after
July 15, 2015. Such a delayed effective date would give public
bodies time "to enable [them] to make financial arrangements to
meet the new liability implicit in this holding"4 and would give
the state legislature time to consider the enactment of a new
state policy on government immunity and liability. Delaying the
effective date of an opinion that substantially increases
government liability is not an original thought. This is
exactly what the court did in Holytz v. City of Milwaukee, 17
4
In Holytz v. City of Milwaukee, 17 Wis. 2d 26, 42, 115
N.W.2d 618 (1962), the court explained:
To enable the various public bodies to make financial
arrangements to meet the new liability implicit in
this holding, the effective date of the abolition of
the rule of governmental immunity for torts shall be
July 15, 1962. See sec. 66.18, Stats., regarding
liability insurance for both the state and
municipalities. The new rule shall not apply to torts
occurring before July 15, 1962. However, for the
reasons set forth in the supplemental opinion in Kojis
v. Doctors Hospital (1961), 12 Wis. 2d 367, 373, 374,
107 N.W.2d 131, 292, this decision shall apply to the
case at bar.
2
No. 2007AP221.ssa
Wis. 2d 26, 42, 115 N.W.2d 618 (1962), the seminal Wisconsin
case abrogating government immunity, at least in part.
¶125 I now turn to a critique of the majority opinion. The
first step is to put the case in perspective.
¶126 Bostco asserts (and the majority opinion agrees) that
the District is liable in tort for negligently maintaining a
private nuisance——a sewer system called the Deep Tunnel——that
has interfered with Bostco's real property, regardless of the
nature of the District's action that created the nuisance.5
¶127 The District derives its power to design and construct
sewer systems from the legislature. The legislature has
delegated that authority to cities and their sewerage districts.
Wis. Stat. § 62.18. In accordance with its legislatively
delegated powers, the District designed the Deep Tunnel to be
built beneath the City of Milwaukee to collect and store excess
sewage and storm water to prevent basement backups and sewer
overflows. Taking into account a plethora of policy, planning,
regulatory, and budget considerations, the District designed
Phase One of the Deep Tunnel to be built beneath downtown
Milwaukee. One of the District's design decisions dictated that
nearly half of the Tunnel would be lined with concrete while the
other half would be porous, allowing groundwater to seep through
the soil and bedrock beneath downtown Milwaukee and into the
5
See majority op., ¶¶3, 4, 43, 67, 71, 72.
3
No. 2007AP221.ssa
Tunnel.6 Decisions regarding the design of a municipal
improvement project are, according to case law, legislative,
discretionary decisions, the type of core decisions for which
government entities are immune from suit.7
¶128 Since going into service in 1993, the Tunnel,
according to the record, has been operated and maintained by the
District in the manner in which it was designed to function.
Both Bostco and the majority opinion have failed to demonstrate
any way in which the Deep Tunnel is failing to function as it
was designed to function. Moreover, neither Bostco nor the
majority opinion has pointed to any applicable standard, that
is, to any applicable statute, guideline, or regulation,
requiring the District to operate or maintain the Deep Tunnel in
6
Some of the other decisions the District made include:
the route of the Tunnel beneath the City, the Tunnel's length
(19.4 miles) and diameter (varying between 17 and 32 feet), the
Tunnel's depth (300 feet below ground), and the Tunnel's
capacity (405 million gallons of water).
A stipulation during litigation between the District and
the Department of Natural Resources in 1986 permitted the
District to line only portions of the Tunnel. The District's
current permit from the DNR requires the Tunnel to have a
positive inward gradient, that is, to allow water to flow into
the Tunnel in order to prevent the possible exfiltration of
wastewater.
7
City of Milwaukee, 277 Wis. 2d 635, ¶9. See also
Allstate, 80 Wis. 2d at 15-17 & n.3 (collecting cases).
In City of Milwaukee, the court referred to these types of
design decisions as "legislative" functions. See City of
Milwaukee, 277 Wis. 2d 635, ¶¶9, 55, 57, 58, 60, 91. For the
sake of consistency, I will refer to them as "legislative" as
well.
4
No. 2007AP221.ssa
a manner different than the way in which it was designed to
function.8
¶129 Even if the District designed the Tunnel in a poor and
negligent manner and has created a nuisance and injured Bostco,
the District is immune from suit for that design and for the
operation and maintenance of the Tunnel in accordance with that
design.9
¶130 I dissent because the majority opinion reaches the
wrong result by revising history, erroneously interpreting cases
and statutes, isolating and citing language from cases out of
context, relying on and reinvigorating recanted cases, and
silently and surreptitiously overturning precedent.
¶131 This criticism is, alas, easy to level and to prove
(and I shall). At the same time it is important to acknowledge,
and I do, that the law of government tort immunity over the last
50 years since Holytz has become encrusted with not-always-
consistent case law. Indeed the law may be described as having
become once again "knee-deep in legal esoterica," and replete
with "highly artificial judicial distinctions."10
8
When the court of appeals commented on this court's City
of Milwaukee decision, it explained in DeFever v. City of
Waukesha that "[b]ecause MMSD could not point to laws directing
the City how to inspect, monitor, and repair or replace the
water main, the City's duty was discretionary rather than
ministerial." DeFever v. City of Waukesha, 2007 WI App 266,
¶12, 306 Wis. 2d 766, 743 N.W.2d 848 (citing City of Milwaukee,
277 Wis. 2d 635, ¶¶56-60).
9
City of Milwaukee, 277 Wis. 2d 635, ¶¶8, 44, 50, 58, 59,
60; Allstate, 80 Wis. 2d at 16.
10
Holytz, 17 Wis. 2d at 30, 32.
5
No. 2007AP221.ssa
¶132 The concurrence bemoans the fact that courts have
drifted away from the text of Wis. Stat. § 893.80, never having
"fashioned a precise definition of [the] phrase" "legislative,
quasi-legislative, judicial, or quasi-judicial functions."
Concurrence, ¶1. Not completely true!
¶133 Case after case has explained that these terms "have
been collectively interpreted to include any act that involves
the exercise of discretion and judgment."11 The concurrence
might not characterize this definition as "precise," but it is
just as precise (or imprecise) as the concurrence's recommended
"planning-operational" distinction as a sound interpretation of
the statutory words.12
¶134 Indeed, this court has explicitly "decline[d] the
invitation to create a planning/operational distinction to be
utilized in the analysis of state employee immunity," because
the distinction is "ill-defined and difficult to apply." Kimps
v. Hill, 200 Wis. 2d 1, 24, 546 N.W.2d 151 (1996). The
planning/operational distinction has not become better defined
or easier to apply since Kimps. Cases from other jurisdictions
(both before and after Kimps) demonstrate that using a
"planning-operational" distinction between acts that are immune
11
City of Milwaukee, 277 Wis. 2d 635, ¶54. For similar
statements, see Lodl v. Progressive N. Ins. Co., 2002 WI 71,
¶21, 253 Wis. 2d 323, 646 N.W.2d 314; Willow Creek Ranch, L.L.C.
v. Town of Shelby, 2000 WI 56, ¶¶25, 27, 235 Wis. 2d 409, 611
N.W.2d 693; Lifer v. Raymond, 80 Wis. 2d 503, 509, 511-12, 259
N.W.2d 537 (1977); Lister v. Bd. of Regents, 72 Wis. 2d 282,
301, 240 N.W.2d 610 (1976).
12
See concurrence, ¶¶1, 10-11.
6
No. 2007AP221.ssa
and those for which a government entity is liable provides no
silver bullet piercing the difficulties associated with
interpreting and applying rules of government immunity and
liability.13
¶135 Government immunity and liability is a complicated
area of jurisprudence with 50 years of Wisconsin case law
precedent that is not always easy to explain or justify.
Periodically the court has attempted to synthesize and clarify
our cases. This court's decision in Milwaukee Metropolitan
Sewerage District v. City of Milwaukee (City of Milwaukee), 2005
WI 8, 277 Wis. 2d 635, 691 N.W.2d 658, just eight years ago,
went a long way to clarify the issues presented in the instant
case——nuisance, negligence, liability, and immunity. And here
we are moving away from that decision.14
¶136 Perhaps our whole body of case law interpreting Wis.
Stat. § 893.80 needs to be carefully revisited. Indeed, ten
years ago I wrote that the court has struggled to define the
proper scope of government immunity, that revisiting the scope
13
The courts have not found this distinction easy to apply
and decisions have not been consistent within a state or from
state to state. For a discussion of this distinction and cases,
see 18 Eugene McQuillin, Municipal Corporations § 53:16 (3d ed.
rev. 2013).
14
When a court has "authoritatively construed a statute,
well-established principles of judicial decision-making require
that the chosen construction be maintained unless and until the
legislature either amends or repeals the statute." Reiter v.
Dyken, 95 Wis. 2d 461, 470, 290 N.W.2d 510 (1980); Zimmerman v.
Wis. Elec. Power Co., 38 Wis. 2d 626, 633-34, 157 N.W.2d 648(1968). The majority opinion does not adhere to this rule of
statutory interpretation.
7
No. 2007AP221.ssa
and limits of government immunity has far-reaching impact, and
that if this court should undertake such a task it should do so
only with the benefit of full information, including briefs from
tort victims, the State of Wisconsin, the League of Wisconsin
Municipalities, the Wisconsin Counties Association, and the
Wisconsin Insurance Alliance.15
¶137 The majority opinion does not carefully revisit the
law and does not have full information. Instead, unfortunately,
the majority opinion further muddies the waters.
¶138 I am writing this dissent to focus attention on the
mistaken premises upon which the majority opinion is based. I
shall proceed by listing each erratum with a brief description,
followed by a more extensive discussion.16
ERRATUM I. (¶¶44-65, infra)
¶139 THE INITIAL BAIT-AND-SWITCH. The majority opinion
rests heavily on the old bait-and-switch trick.
¶140 Here's the basic bait: The majority opinion (at ¶3)
declares that it "rests on our holding in Milwaukee Metro.
Sewerage District v. City of Milwaukee." I joined this City of
Milwaukee opinion. I agreed with it then. I agree with it now.
15
Scott v. Savers Prop. & Cas. Ins. Co., 2003 WI 60, ¶¶58-
59, 262 Wis. 2d 127, 663 N.W.2d 715 (Abrahamson, C.J.,
concurring).
16
I have tried to point out what I view as the major errors
in the majority opinion. There are others. Inconsistent
statement of legal principles, inconsistent application of legal
principles, and inconsistent use of language cause additional
problems.
8
No. 2007AP221.ssa
¶141 Here's the switch: The majority opinion fails to
adhere to City of Milwaukee and to Physicians Plus Insurance
Corp. v. Midwest Mutual Insurance Co., 2002 WI 80, 254
Wis. 2d 77, 646 N.W.2d 777, upon which City of Milwaukee relies.
¶142 Here's the bait again: The majority opinion (at ¶3)
correctly states the rule of law set forth in City of Milwaukee:
"Whether immunity exists for nuisance founded on negligence
depends upon the character of the negligent acts."17
¶143 City of Milwaukee then declares the following rule of
law regarding the character of the negligent act:
A municipality is immune from suit for nuisance if the
nuisance is predicated on negligent acts that are
discretionary in nature. A municipality does not
enjoy immunity from suit for nuisance when the
underlying tortious conduct is negligence and the
negligence is comprised of acts performed pursuant to
a ministerial duty.18
¶144 The City of Milwaukee court did not decide whether the
City was immune from suit for failing to repair a leaking main
17
City of Milwaukee, 277 Wis. 2d 635, ¶59. See also id.,
¶90.
18
City of Milwaukee, 277 Wis. 2d 635, ¶8. See also id.,
¶¶59-60, 90-91.
See also id., ¶9:
Decisions concerning the adoption, design, and
implementation of a public works system are
discretionary, legislative decisions for which a
municipality enjoys immunity. Thus, the City is
immune from suit relating to its decisions regarding
the adoption of a waterworks system, the selection of
the specific type of pipe, the placement of the pipe
in the ground, and the continued existence of such
pipe.
9
No. 2007AP221.ssa
before it ruptured. The court declared that the record was not
sufficiently developed to determine whether the City was under a
ministerial duty (a non-legislative duty) or a discretionary
duty (a legislative duty) to repair the leaking main prior to
its rupture. The City of Milwaukee court directed that "the
circuit court must consider this issue on remand."19
¶145 Here's the switch: The majority opinion (at ¶41)
recasts City of Milwaukee to state: "The duty to fix the pipe,
if the City knew it was leaking, was 'absolute, certain and
imperative,'——in other words, ministerial——even though a
particular method of repairing the leak was not 'absolute,
certain and imperative.'"
¶146 According to the majority opinion (at ¶43 n.25):
"[I]t is the manner in which MMSD complies with the ministerial
duty to fix the problem that is subject to discretion; no such
discretion exists as to whether MMSD must fix the known
problem." The majority opinion further states (at ¶51):
19
City of Milwaukee, 277 Wis. 2d 635, ¶62:
Having reviewed the record, we determine that the
facts of the present case are not sufficiently
developed for us to determine whether the City was
under a ministerial duty to repair the leaking main
prior to its break on December 9, 1999. . . . [W]e
cannot conclude whether [the City's] duty to repair
the leaking main with reasonable care before it broke
was "absolute, certain and imperative," or whether the
City's decision not to repair the main before the
break was discretionary. As such, we cannot determine
whether the City is entitled to governmental immunity
under § 893.80(4) based on the record before us
(internal citations omitted).
See also id., ¶¶90-91.
10
No. 2007AP221.ssa
[A]lthough a municipal entity escapes liability for
its legislative or quasi-legislative decision
regarding whether to install a particular system or
structure, once the municipal entity makes the
decision to install, the entity is under a subsequent
ministerial duty to maintain the system or structure
in a safe and working order.20
¶147 In other words, according to the majority opinion
(¶¶51, 64), once a municipal entity installs a particular system
or structure, the entity is under a subsequent ministerial duty
to maintain the system or structure in a safe manner and is
liable for any damages negligently caused, no matter the act
that caused the nuisance or the damage.21
20
This sentence is an example of the majority opinion's
inconsistent and confusing use of the word "maintain."
"Maintain" is sometimes used to mean "to keep a structure in a
state of repair." At other times, the majority opinion uses the
word "maintain" to mean that a municipality "maintains a
nuisance," after its actions "created" or "caused" or "resulted
in" the existence of the nuisance.
Before a sewer system can be "maintained" in a proper state
of repair, the system must first be "created." At times, the
majority opinion alludes to the fact that the District has
"created and maintained a nuisance," while at other times, the
majority opinion simply concludes that the District has
"maintained a nuisance." See also ¶77, infra.
This case is unlike Physicians Plus, where an act of nature
created, caused, or resulted in a nuisance——a tree hanging over
and obstructing a stop sign. In the present case, the Tunnel is
a man-made object created by the District, the existence of
which has resulted in a nuisance. The majority opinion
repeatedly asserts that the District "maintains" the nuisance or
"keeps [the Tunnel] in that state."
21
According to the majority opinion, "[A] municipal
entity's failure to abate a continuing nuisance caused by
negligent maintenance of a system" after the entity has notice
does not constitute a discretionary act. Majority op., ¶64.
11
No. 2007AP221.ssa
¶148 The majority opinion flouts the City of Milwaukee rule
of law that distinguishes between operation and maintenance of
the Tunnel that may in particular circumstances be legislative
actions, and operation and maintenance of the Tunnel that may in
other circumstances be ministerial actions. The majority
opinion then imposes liability in a limited amount for damages
for negligent operation and maintenance of a nuisance and
unlimited injunctive relief for a nuisance, regardless of
whether the negligently created nuisance is a result of
discretionary action or a failure to fulfill a ministerial duty.
ERRATUM II. (¶¶66 to 86, infra)
¶149 A CONTINUED BAIT-AND-SWITCH. After promising to
adhere to City of Milwaukee, the majority opinion contravenes
City of Milwaukee in a second way: It repeatedly relies on
cases explicitly called into doubt by City of Milwaukee22 and
asserts (sometimes in slightly different language) that "there
is no discretion as to maintaining the [sewer system] so as not
to cause injury."
¶150 Some cases upon which the majority opinion depends
were decided before Holytz and the enactment of Wis. Stat.
There are, however, contradictory statements scattered in
the majority opinion. See, for example, majority op., ¶66,
requiring a court to determine first whether immunity applies to
the actions that caused the nuisance the plaintiff is asking to
stop. If immunity applies to the actions, then no relief is
available, no matter the result. This is the rule clearly laid
down in City of Milwaukee.
22
City of Milwaukee, 277 Wis. 2d 635, ¶¶55 n.14, 58 n.15,
59 n.17.
12
No. 2007AP221.ssa
§ 893.80 (Winchell).23 Others were decided after Holytz and
§ 893.80 (Costas,24 Hillcrest,25 Menick,26 and Welch27). These
cases have all been called into question by subsequent case law,
especially by City of Milwaukee.28 Thus once again the majority
opinion has baited us with a promise to adhere to the City of
Milwaukee case but has switched to repudiating City of
Milwaukee.
ERRATUM III. (¶¶87 to 99, infra)
¶151 EQUITABLE CLAIM: WIS. STAT. § 893.80(3). The majority
opinion bends the text of Wis. Stat. § 893.80(3) to conclude
23
Winchell v. City of Waukesha, 110 Wis. 101, 85 N.W. 668(1901). See majority op., ¶¶4 n.4, 35 n.18, 69, 98 n.3p.
24
Costas v. City of Fond du Lac, 24 Wis. 2d 409, 129
N.W.2d 217 (1964). See majority op., ¶¶31, 33, 35, 41 n.22, 64,
69, 70.
25
Hillcrest Golf & Country Club v. City of Altoona, 135
Wis. 2d 431, 400 N.W.2d 493 (Ct. App. 1986). See majority op.,
¶¶4, 63, 64, 98.
26
Menick v. City of Menasha, 200 Wis. 2d 737, 547
N.W.2d 778 (Ct. App. 1995). See majority op., ¶¶4, 36, 37, 60,
98.
27
Welch v. City of Appleton, 2003 WI App 133, 265
Wis. 2d 688, 666 N.W.2d 511. See majority op., ¶¶4, 34, 37 &
n.20, 98.
28
Anhalt v. Cities & Vills. Mut. Ins. Co., 2001 WI App 271,
249 Wis. 2d 62, 637 N.W.2d 422, repeats the mantra oft repeated
in the majority opinion: In a suit against a municipal entity
for negligent operation and failure to maintain an adequate
sewerage system, the complainant has to show only that the
sewerage system failed due to negligence, rather than showing
the negligence stemmed from the municipal entity's failure to
perform a ministerial duty. The Anhalt holding, however, does
not support this refrain. See discussion at ¶¶80-91, 83-85,
infra.
13
No. 2007AP221.ssa
that the $50,000 statutory cap does not apply to a court order
directing a municipal entity to abate a nuisance founded on tort
for which it is liable.29
¶152 Espousing an ordinary and reasonable interpretation of
the phrase "the amount recoverable by any person for any
damages . . . in any action founded on tort" in § 893.80(3), the
majority opinion concludes that this phrase means only money
damages awarded to the complainant. The majority opinion
disregards the fact that in many instances there may be no
substantial difference for both the complainant and the
government entity between a monetary sum awarded to a
complaining party to remedy its injury and injunctive relief
directed to a government entity forcing it to remedy the
complaining party's injury.30 In either event, the complainant
recovers and gets the relief sought, and the government entity
must expend funds. This statutory phrase, given its ordinary
29
Wisconsin Stat. § 893.80(3) provides in relevant part as
follows:
Except as provided in this subsection, the amount
recoverable by any person for any damages, injuries or
death in any action founded on tort against
any . . . political corporation, governmental
subdivision or agency thereof and against their
officers, officials, agents or employees for acts done
in their official capacity or in the course of their
agency or employment, whether proceeded against
jointly or severally, shall not exceed $50,000. . . .
30
Bostco LLC v. Milwaukee Metro. Sewerage Dist., 2011 WI
App 76, ¶133, 334 Wis. 2d 620, 800 N.W.2d 518 ("From the
standpoint of the public treasury, there is little difference in
practice between a monetary damage award given to a plaintiff to
remedy its harm and in injunction order requiring the defendant
to abate the harm.").
14
No. 2007AP221.ssa
and reasonable meaning, governs both monetary damages and
injunctive relief in any action founded on tort.
¶153 The majority opinion is oblivious to the extreme irony
in limiting monetary damages to $50,000 for public policy
reasons while requiring government entities to pay as much as it
takes to abate a nuisance.
¶154 The majority opinion's interpretation of Wis. Stat.
§ 893.80(3) is unreasonable and absurd, as it renders
meaningless the $50,000 legislatively mandated limit on the
amount a government entity must expend when liable for its
tortious conduct.
ERRATUM IV. (¶¶100 to 132, infra)
¶155 EQUITABLE CLAIM CONTINUED: WIS. STAT. § 893.80(3),
(4), and (5). The majority opinion offers up a potpourri of
arguments to support its thesis that Wis. Stat. § 893.80(3),
(4), and (5) do not apply to injunctive relief in a tort action
such as the present case. In all of its analysis, the majority
opinion overlooks the plain text of Wis. Stat. § 893.80(3), (4),
and (5). The texts are broadly worded, regulating "any action
founded on tort," "any suit," and "all claims against
a . . . governmental subdivision," and declaring that § 893.80
shall be "exclusive."
¶156 Clearly Bostco's request for injunctive relief in this
tort action is encompassed in "any suit." It is labeled a claim
and is a "claim" that fits within the statutory phrase "all
claims."
15
No. 2007AP221.ssa
¶157 Section 893.80 uses all-encompassing words, like"any
action founded on tort," "any suit," "exclusive," and "all
claims" to include injunctive and "all" types of relief for
negligent tortious conduct within the confines of § 893.80.
¶158 The majority opinion offers no statute (or precedent)
excluding injunctive relief from Wis. Stat. § 893.80 or
excluding the facts of the present case from § 893.80.
¶159 The majority opinion enables a court to order
abatement of a private nuisance at unlimited cost, thereby
eviscerating the text and legislatively enacted protection of
the taxpayer and the public purse.
ERRATUM V. (¶¶133 to 152, infra)
¶160 EQUITABLE CLAIM: MANY UNANSWERED QUESTIONS. The
majority opinion fails to discuss injunctive relief in any
meaningful manner. The injunctive remedy adopted by the
majority opinion leaves more questions than answers. In
ordering injunctive relief, the majority opinion does not pay
particular attention to the public consequences and hardships of
granting injunctive relief, as required by law. It does not
recognize that the legislature has declared that the statutorily
allowed damages are sufficient. It does not determine whether
Bostco's contributory negligence reduces the available equitable
relief. It disregards the practicability of a court's framing
and enforcing an injunctive order when the Deep Tunnel is a
municipal structure highly regulated by state and federal laws
and overseen by the Department of Natural Resources.
ERRATUM VI. (¶¶153 to 158)
16
No. 2007AP221.ssa
¶161 UNFUNDED MANDATE: CONTRARY TO PUBLIC POLICY. The
majority opinion expands government liability and increases
costs for government entities and taxpayers. This results in an
unfunded mandate on government entities. Increased government
liability is contrary to recent legislative expressions of state
policy that reduce government liability and reduce potential
recovery for tort victims. The majority opinion is marching in
the opposite direction from the legislature.
¶162 On consideration of these serious errata, I dissent.
I
¶163 I agree with the majority opinion that the proper
negligence, nuisance, liability, and immunity analyses rest upon
City of Milwaukee. Majority op., ¶3. The decision in City of
Milwaukee builds on the Physicians Plus decision and carefully
analyzes half a century of precedent.31 The rub, as I have
stated, is that the majority opinion does not adhere to the City
of Milwaukee decision.
¶164 The negligent creation and known existence of a
nuisance are alone insufficient to impose liability on a
municipal entity. As City of Milwaukee instructs, once a
property owner proves the existence of a nuisance and notice to
the entity, the owner must also prove that the underlying
tortious conduct giving rise to the nuisance constitutes
actionable negligence.32
31
City of Milwaukee, 277 Wis. 2d 635, ¶¶24-49.
32
Id., ¶¶6, 7.
17
No. 2007AP221.ssa
¶165 Once actionable negligence is established, the next
step under City of Milwaukee is to determine the nature of the
municipal entity's negligent acts in order to determine whether
the entity is liable or immune. As City of Milwaukee explained:
"[A] municipality may be immune from nuisance suits depending on
the nature of the tortious acts giving rise to the nuisance. A
municipality is immune from suit for nuisance if the nuisance is
predicated on negligent acts that are discretionary in nature."33
¶166 City of Milwaukee further explained that "[d]ecisions
concerning the adoption, design, and implementation of a public
works system are discretionary, legislative decisions for which
a municipality enjoys immunity."34 Thus, if the nuisance in the
present case is predicated on negligent "[d]ecisions concerning
the adoption, design and implementation of" the Deep Tunnel,
then such actions are "discretionary, legislative decisions" for
which the District enjoys immunity.35
33
City of Milwaukee, 277 Wis. 2d 635, ¶8 (emphasis added);
see also id., ¶¶58-59, 62, 90.
34
Id., ¶9.
35
Id.
City of Milwaukee makes clear that some of these
discretionary, immune decisions include "decisions regarding the
adoption of a waterworks system, the selection of the specific
type of pipe, the placement of the pipe in the ground, and the
continued existence of such pipe." City of Milwaukee, 277
Wis. 2d 635, ¶9. Applying these principles to this case, some
of the District's discretionary decisions, which are immune from
suit, include decisions regarding the adoption of a Deep Tunnel
system, the selection of the specific type of Tunnel system, the
placement of the Tunnel in the ground, and the continued
existence of the Tunnel.
18
No. 2007AP221.ssa
¶167 In contrast, if the nuisance is predicated on a
negligent act in performing a ministerial duty to operate or
maintain the Deep Tunnel that caused the nuisance, then the
District is liable.36
¶168 In City of Milwaukee, the City's water main was
obviously neither designed nor constructed to leak. All agreed
that the water main leaked and then ruptured, causing damage to
MMSD's sewer. MMSD in that case did not allege that the City
was negligent in failing to repair the main after it ruptured.
MMSD alleged that the City was negligent and created a nuisance
by failing to monitor and inspect the system to detect leaks,
and by failing to repair the main before it ruptured. The
question before the Supreme Court was whether the City had a
ministerial duty to act while the water main was leaking before
the main ruptured.37
¶169 At no time in City of Milwaukee did this court decide
that the City had a ministerial duty to abate a nuisance merely
because it had notice of the nuisance. The court decided only
that the City may be liable if it had sufficient notice that
created an "absolute, certain, and imperative" duty to act.38
36
City of Milwaukee, 277 Wis. 2d 635, ¶9.
37
Id., ¶¶8, 9, 61.
38
The majority opinion, ¶¶38-41, 43, recasts City of
Milwaukee by zeroing in on some sentences of the opinion but not
reading them in context of the entire opinion. City of
Milwaukee did not create a rule whereby a government entity's
notice of a nuisance automatically creates a general ministerial
duty to abate the nuisance, as the majority opinion in the
present case claims.
19
No. 2007AP221.ssa
¶170 The majority opinion (at ¶¶41, 51) recasts City of
Milwaukee to state that once the District had notice that it had
negligently created a private nuisance that caused damage, it
had a ministerial duty to abate the nuisance. According to the
majority opinion, "[O]nce the municipal entity makes the
decision to install, the entity is under a subsequent
ministerial duty to maintain the system or structure in a safe
and working order." Majority op., ¶51 (footnote omitted).
¶171 This recasting of City of Milwaukee contradicts
precedent. Case law instructs that the court must look at the
act, and not simply the result. In Allstate Insurance Co. v.
Metropolitan Sewerage Commission, 80 Wis. 2d 10, 258 N.W.2d 148A reading of the entire opinion reveals that notice was a
threshold issue but was not dispositive. City of Milwaukee
clearly states that the next question to be addressed by the
circuit court was whether the act was discretionary. City of
Milwaukee never stated that if the city had notice, a general
ministerial duty to stop the leaking would necessarily follow.
A concurring opinion by Justice Prosser in City of
Milwaukee demonstrates that this court did not remand to the
circuit court just for the purpose of determining whether the
City was on notice that the water main was leaking. Justice
Prosser stated that "this formulation [in the City of Milwaukee
of discretionary and ministerial actions] is so narrow that it
appears to decide the case." City of Milwaukee, 277
Wis. 2d 635, ¶95 (Prosser, J., concurring) (internal citations
omitted).
Butler v. Advance Drainage Systems, Inc., 2005 WI App 108,
¶40, 282 Wis. 2d 776, 698 N.W.2d 117, quotes City of Milwaukee
and states that the first step in a negligent nuisance action is
to determine whether a nuisance is present; the second step is
to determine the underlying tortious conduct; and the third step
is to decide whether the defendant's conduct "is 'otherwise
actionable under the rules governing liability for negligent
conduct.'"
20
No. 2007AP221.ssa
(1977), the court explained that "[w]here, when and how to build
sewer systems are legislative determinations imposed upon a
governmental body."39 So long as the parts of the sewer system,
in that case a manhole, were placed at a location in compliance
with the plans, their placement is an act in compliance with a
legislative function that is subject to immunity.40 Initial
planning and implementation decisions are immune even though
"the placement and subsequent use of the manhole may have
created a danger."41
¶172 Allstate teaches that the District may have a
ministerial duty to operate and maintain the Deep Tunnel
functioning in its original, intended state. The ministerial
duty to operate and maintain the Tunnel does not, however,
require making improvements to the Tunnel, even if an
improvement is necessary to avoid harm.42
¶173 The problem in the present case is that no one
examines the District's acts. No one——not Bostco, not the
witnesses, not the jury, not the circuit court, not the court of
appeals, and not the majority opinion——identifies the District's
allegedly negligent acts that caused the nuisance or
characterizes the negligent acts as either discretionary
39
Allstate, 80 Wis. 2d at 16.
40
City of Milwaukee, 277 Wis. 2d 635, ¶58 (citing Allstate,
80 Wis. 2d at 16).
41
Allstate, 80 Wis. 2d at 16.
42
Id. at 15-16; cf. Hocking v. City of Dodgeville, 2010 WI
59, ¶¶45, 48, 326 Wis. 2d 155, 785 N.W.2d 398.
21
No. 2007AP221.ssa
(legislative) or ministerial (non-discretionary, non-
legislative).
¶174 Bostco's complaint broadly alleges that two District
actions led to the continuing private nuisance: 1) the
District's negligent design and construction of the Tunnel; and
2) the District's failure to exercise ordinary care in the
inspection, repair, maintenance, and operation of the Tunnel.
¶175 The record does not identify any District actions that
are not related to design and construction.
¶176 The jury in the present case was never instructed to
identify which negligent conduct caused the nuisance. The jury
was not asked to determine whether the negligent conduct was
related to the District's design and construction of the Tunnel
or to the District's maintenance and operation of the Tunnel
unrelated to the design and its implementation. The jury was
thus not instructed about or asked about disaggregating the
District's negligent legislative acts and the harm caused
thereby and the District's negligent non-legislative acts and
the harm caused thereby.43
43
The pertinent portion of the jury instructions reads as
follows:
The District is specifically required by law to
project, plan, design, construct, maintain and operate
the sewerage system including the collection,
transmission and disposal of storm water and
groundwater.
As I [the circuit court judge] told you earlier, the
planning, design and construction of the tunnel are
not issues in this case.
22
No. 2007AP221.ssa
¶177 The circuit court did not differentiate between
legislative and non-legislative acts in analyzing the District's
conduct in operating and maintaining the Tunnel.
¶178 The majority opinion does not attempt to do so,
although, as I have explained, this distinction is crucial under
City of Milwaukee.
¶179 City of Milwaukee clearly instructs that "the proper
inquiry is to examine the character of the underlying tortious
acts,"44 because "liability depends upon the existence of
underlying tortious acts that cause the harm."45 The Restatement
(Second) of Torts illustrates this point as follows:
[F]or a nuisance to exist there must be harm to
another or the invasion of an interest, but there need
not be liability for it. If the conduct of the
defendant is not a kind that subjects him to
liability . . . the nuisance exists, but he is not
liable for it.46
The claims in this case involve claims for negligence
based on the operation, maintenance and inspection of
the tunnel on or after August 7, 1992. Evidence of
events prior to August 7, 1992, was admitted and may
be considered by you insofar as it bears on the
knowledge of the parties and actions of the parties
after August 7, 1992.
44
City of Milwaukee, 277 Wis. 2d 635, ¶59.
An accompanying footnote at ¶59 n.18 in City of Milwaukee
reads: "Thus, the court of appeals in the instant case
misstated the law when it concluded that § 893.80(4) immunizes a
municipality from a cause of action alleging negligence but not
a nuisance claim that is based in negligence. Milwaukee Metro.
Sewerage Dist. [v. City of Milwaukee], 2003 WI App 209, ¶22, 267
Wis. 2d 688, 671 N.W.2d 346."
45
City of Milwaukee, 277 Wis. 2d 635, ¶25.
46
Id. (quoting Restatement (Second) of Torts § 821A cmt. c
(emphasis in City of Milwaukee)).
23
No. 2007AP221.ssa
¶180 As City of Milwaukee made clear:
[I]t is incorrect to speak of nuisance "as itself a
type of liability-forming conduct . . . ."47
. . . .
Focusing the immunity analysis on the character of the
tortious acts underlying the nuisance is important for
two reasons. First, . . . liability for nuisance is
itself dependent upon whether the underlying tortious
conduct is actionable. Second, and more importantly,
Wis. Stat. § 893.80(4) does not immunize
municipalities for certain results; rather, immunity
is provided for certain acts.48
¶181 Indeed, in contrast to its other statements, the
majority opinion itself recognizes that "when a plaintiff seeks
equitable or injunctive relief against a municipal entity, a
court must first answer the threshold question of whether
immunity applies. If a court concludes that the actions the
plaintiff is seeking to stop through a suit in equity are
legislative, quasi-legislative, judicial or quasi-judicial, then
the suit must be dismissed because the governmental entity is
protected by immunity." Majority op., ¶66; see also id., ¶64.
¶182 In sum, the majority opinion cannot use the District's
alleged negligent design or construction of the Tunnel in
determining the District's liability, because those actions
would be protected by immunity. The majority has not pointed to
any of the District's alleged negligent operation and
maintenance of the Tunnel that is not in compliance with the
47
City of Milwaukee, 277 Wis. 2d 635, ¶26 (quoting
Restatement (Second) of Torts § 822 cmt. c (emphasis added)).
48
City of Milwaukee, 277 Wis. 2d 635, ¶59 n.17 (emphasis in
original).
24
No. 2007AP221.ssa
manner in which the Tunnel was designed. The Tunnel is not
broken; it is functioning in compliance with the "plan adopted,"
as it was designed to function. Therefore, to create liability,
the majority opinion must assert that the District negligently
maintained a private nuisance, that is, that its conduct (its
failing to repair the Tunnel, which was operating as designed)
failed to fulfill a ministerial duty to abate.
¶183 The majority opinion ignores the clear directive in
City of Milwaukee that "[a] municipality is immune from suit for
nuisance if the nuisance is predicated on negligent acts that
are discretionary in nature."49 The majority opinion bends that
clear rule to hold that the maintenance of a nuisance itself is
the act which is not discretionary in nature. According to the
majority opinion, no longer is the act (that creates the result)
the basis for liability, but rather the result (the nuisance)
creates liability no matter what act caused that result.50
¶184 To repeat, neither Bostco nor the majority opinion has
alleged that the Tunnel is malfunctioning. If the Deep Tunnel
is functioning as designed, in compliance with the "plan
adopted" and it is not broken, then, according to City of
Milwaukee and Allstate (and Welch & Anhalt), the District does
not have a ministerial duty to repair it.
49
Id., ¶8 (emphasis added).
50
Case law and black letter law instruct that a nuisance
itself is not a type of liability-forming conduct and that
immunity is granted for certain acts, notwithstanding their
results. City of Milwaukee, 277 Wis. 2d 635, ¶59 n.17 ("Wis.
Stat. § 893.80(4) does not immunize municipalities for certain
results; rather, immunity is provided for certain acts.").
25
No. 2007AP221.ssa
II
¶185 The second erratum is a continuation of the majority
opinion's bait-and-switch approach to City of Milwaukee and
precedent. After promising to adhere to City of Milwaukee, the
majority opinion contravenes City of Milwaukee by reviving and
reinvigorating cases that City of Milwaukee significantly pulled
back.
¶186 The majority opinion repeatedly asserts (sometimes in
slightly different language) the proposition that "there is no
discretion as to maintaining the [sewer system] so as not to
cause injury."51 In doing so, the majority opinion depends in
large part for this refrain on cases that have been called into
doubt by subsequent case law, especially City of Milwaukee. In
City of Milwaukee, this court explicitly cast doubt on case law
preceding Holytz and the enactment of Wis. Stat. § 893.80
(Winchell)52 and on some post-Holytz and post-§ 893.80 cases
51
Majority op., ¶¶4, 60, 95 (quoting Menick, 200 Wis. 2d at
745). See also majority op., ¶¶33, 43 n.25, 51.
52
Winchell v. City of Waukesha, 110 Wis. 101, 85 N.W. 668(1901), is cited by the majority opinion at ¶¶4 n.4, 35 n.18,
69, 95 n.38, for the proposition that the "legislative authority
to install a sewer system carries no implication of authority to
create or maintain a nuisance"; the "authority granted to
municipalities . . . to construct sewers, [is] subject to the
general legal restrictions resting upon such corporations
forbidding invasion of private rights by creation of nuisance or
otherwise,"; the "legislative authority to install a sewer
system carries no implication of authority to create or maintain
a nuisance, and that it matters not whether such nuisance
results from negligence or from the plan adopted. If such
nuisance be created, the same remedies may be invoked as if the
perpetrator were an individual"; and thus, the municipal entity
has an obligation to abate a private nuisance the entity caused,
which may include equitable relief.
26
No. 2007AP221.ssa
(Costas,53 Hillcrest,54 Menick,55 and Welch56). Thus once again
the majority opinion has baited us with a promise to adhere to
City of Milwaukee but has audaciously repudiated City of
Milwaukee.
53
Costas v. City of Fond du Lac, 24 Wis. 2d 409, 129
N.W.2d 217 (1964), is cited by the majority opinion at ¶¶31, 33,
35, 41 n.22, 64, 69, 70, for the proposition that a nuisance can
exist even though a sewage plant was built and operated in
compliance with state plans and regulations; a private
individual can bring an action for the injunctive relief of
abatement of a private nuisance against a municipal entity; the
municipal entity's failure to abate that nuisance caused by the
negligent maintenance of the system or structure after it has
notice is not a discretionary act that may be entitled to
immunity; but "generally the means whereby [a] nuisance is to be
abated is left to the direction of the defendant tortfeasor."
54
Hillcrest Golf & Country Club v. City of Altoona, 135
Wis. 2d 431, 400 N.W.2d 493 (Ct. App. 1986), is cited by the
majority opinion at ¶¶4, 63, 64, 95, for the proposition that
the "creation and maintenance of private nuisances are simply
not recognized as legislative acts subject to protection under
sec. 893.80(4)," and the municipal entity's failure to abate
that nuisance caused by the negligent maintenance of the system
or structure after it has notice is not a discretionary act that
may be entitled to immunity.
55
Menick v. City of Menasha, 200 Wis. 2d 737, 547
N.W.2d 778 (Ct. App. 1995), is cited by the majority opinion at
¶¶4, 36, 37, 60, 95, for the proposition that a municipal entity
does not enjoy immunity from an action for negligent creation of
a private nuisance; and "there is no discretion as to
maintaining [a sewer] system so as not to cause injury to
residents."
56
Welch v. City of Appleton, 2003 WI App 133, 265
Wis. 2d 688, 666 N.W.2d 511, is cited by the majority opinion at
¶¶4, 34, 37 & n.20, 95, for the proposition that there is a
longstanding rule that generally municipal entities are not
shielded from liability for maintaining a private nuisance; and
"no statutory or common law immunity doctrine empowers a public
body to maintain a private nuisance." Ultimately though, the
court of appeals concluded that the City's maintenance of its
storm sewer was not a private nuisance.
27
No. 2007AP221.ssa
¶187 The majority opinion repeatedly refers to Winchell v.
City of Waukesha, 110 Wis. 101, 85 N.W. 668 (1901). Majority
op., ¶¶4 n.4, 35 n.18, 69, 95 n.38. This court decided Winchell
in 1901, more than 60 years before Holytz and the enactment of
Wis. Stat. § 893.80 and before the extensive subsequent case law
interpreting the statute. Not surprisingly then, Winchell has
been called into question repeatedly since 1963 as to its
persuasiveness and precedential value in a post-Holytz, post-
Wis. Stat. § 893.80 world.57
¶188 Even Holytz itself called into question all of the
case law that came before it and gave credence to the idea that
any court decision published before June 5, 1962, relating to
government immunity is suspect.58 Holytz aimed to change the law
that was in the court's view "knee-deep in legal esoterica:
e.g., governmental function v. proprietary function;
relationship of governor to governed," and had "resulted in some
highly artificial judicial distinctions."59
¶189 Although the majority opinion relies on Winchell, it
spends even more time and space on Costas v. City of Fond du
Lac, 24 Wis. 2d 409, 129 N.W.2d 217 (1964). Majority op., ¶¶31,
57
See, e.g., City of Milwaukee, 277 Wis. 2d 635, ¶¶51-53
n.12, 14. The court of appeals in City of Milwaukee relied on
Winchell. The supreme court then characterized Winchell as a
case based on obsolete logic.
58
Also see pre-Holytz cases cited in the concurrence at ¶16
n.11 (citing Christian v. City of New London, 234 Wis. 123, 129,
290 N.W. 621 (1940); Mitchell Realty Co. v. City of West Allis,
184 Wis. 352, 363, 199 N.W. 390 (1924)).
59
Holytz, 17 Wis. 2d at 30.
28
No. 2007AP221.ssa
33, 35, 41 n.21, 64, 70. Even though Costas was decided in
1964——post-Holytz and post-§ 893.80——the Costas court based its
holding on Winchell and did not mention either Holytz or Wis.
Stat. § 893.80.60 Indeed, Costas does not even mention the
phrase or notion of government immunity.
¶190 Costas relied heavily on Winchell and overturned an
observation made in Hasslinger v. Village of Hartland, 234 Wis.
201, 207, 290 N.W. 647 (1940), that if the sewage treatment
plant was built according to government specification and was
operating according to specification, the plant was not a
nuisance in its creation or operation.61 The Costas court
disavowed this observation.
¶191 With regard to Costas, City of Milwaukee noted that
"the holdings in Allstate Ins. Co. v. Metropolitan Sewerage
Commission, 80 Wis. 2d 10, 15, 258 N.W.2d 148 (1977), and Lange
v. Town of Norway, 77 Wis. 2d 313, 318, 321, 253 N.W.2d 240(1977), effectively overruled, sub silencio," the language in
Costas that a city has no immunity for the "plan adopted" for a
public works system.62 Costas has limited shelf-life and
relevancy for the present case.
¶192 The majority opinion then discusses Hillcrest, Menick,
and Welch. These cases are not good law standing for the
proposition for which the majority opinion cites them, namely
60
City of Milwaukee, 277 Wis. 2d 635, ¶55 n.14.
61
See Hillcrest, 135 Wis. 2d at 440-41 (similarly
interpreting Costas).
62
City of Milwaukee, 277 Wis. 2d 635, ¶¶55 n.14, 58 n.15.
29
No. 2007AP221.ssa
that the "creation and maintenance of private nuisances are
simply not recognized as legislative acts subject to protection
under sec. 893.80(4)."63
¶193 The majority opinion cites Hillcrest, the first in the
series of storm sewer decisions by the court of appeals, to
support its view that municipal entities are not shielded from
liability for maintaining a private nuisance. The allegation
was that the system discharged water that damaged the
complainant's land. Citing and quoting Winchell and Costas, the
court of appeals concluded that "[t]he creation and maintenance
of private nuisances are simply not recognized as legislative
acts subject to protection under sec. 893.80(4)."64
¶194 In another sewer case, Menick, the sewer system
flooded the complainant's basement. Relying on Hillcrest, the
Menick court concluded that "[t]he actions of the City in
operating and maintaining the sewer system do not fall within
the immunity provision of § 893.80."65
¶195 The majority opinion then cites Welch, another
overflowing sewer case. The majority opinion cites Welch as
supporting the following: "This duty to abate arises from the
longstanding rule that generally municipal entities are not
shielded from liability for maintaining a private nuisance."
Majority op., ¶34. In contrast, the court of appeals stated in
63
Majority op., ¶¶4, 63, 95 (quoting Hillcrest, 135
Wis. 2d at 439-40).
64
Hillcrest, 135 Wis. 2d at 439-40.
65
Menick, 200 Wis. 2d at 745.
30
No. 2007AP221.ssa
Welch that there was no private nuisance in that case (as the
majority opinion admits in footnote 20); that the city was not
liable because the evidence was that the sewer system was in
working order, functioning as planned; and that the municipal
government was immune for the discretionary act of poor design.66
¶196 The court of appeals further explained in Welch that
the verb "maintain" means "to keep in a state of repair."67
There, as here, "it is undisputed" that the sewer system was
working as designed. Thus, according to Welch, "there was no
required pipe 'maintenance.'"68
¶197 Hillcrest, Menick, and Welch comprise a set of court
of appeals decisions based on Winchell, Costas, and each other.
The majority opinion ignores the fact that City of Milwaukee and
other cases rendered these cases ineffectual.69
¶198 Although language isolated from the full opinions in
Winchell, Hillcrest, Menick, and Welch can be made to support
the majority opinion, these cases do not buttress the majority
opinion's stance. The language and the cases are suspect.
¶199 In City of Milwaukee, Justice Wilcox, writing for the
six-person majority, called into doubt the validity of the
explanations for government immunity or liability in the
66
Welch, 265 Wis. 2d 688, ¶¶12, 13, 25-27 (citing Anhalt,
249 Wis. 2d 62, ¶12 (quoting Allstate, 80 Wis. 2d at 15-16)).
67
This court adopted a similar definition of "maintenance"
in Hocking, 326 Wis. 2d 155, ¶48.
68
Welch, 265 Wis. 2d 688, ¶25.
69
See, e.g., Butler, 282 Wis. 2d 776, ¶41.
31
No. 2007AP221.ssa
majority opinion's favorite court of appeals decisions as
follows:
Several court of appeals decisions . . . have applied
the immunity statute to a variety of nuisance claims
involving sanitary and storm sewers and have utilized
conflicting rationales to reach results that are not
entirely consistent. See, e.g., Welch v. City of
Appleton, 2003 WI App 133, 265 Wis. 2d 688, 666
N.W.2d 511; Anhalt v. Cities and Vills. Mut. Ins. Co.,
2001 WI App 271, 249 Wis. 2d 62, 637 N.W.2d 422;
Menick v. City of Menasha, 200 Wis. 2d 737, 547
N.W.2d 778 (Ct. App. 1996); Hillcrest Golf & Country
Club v. City of Altoona, 135 Wis. 2d 431, 400
N.W.2d 493 (Ct. App. 1986)[hereinafter Hillcrest].
To the extent these decisions have created confusion
in the area of municipal immunity for nuisances, such
confusion is a result of three factors. First, some
decisions have continued to rely on immunity
jurisprudence that predated Holytz and § 893.80(4).
See, e.g., Hillcrest, 135 Wis. 2d at 438-41, 400
N.W.2d 493. Second, some decisions employ separate
analyses for negligence and nuisances grounded in
negligence. See, e.g., Welch, 265 Wis. 2d 688, ¶¶8-
13, 666 N.W.2d 511. Third, some decisions fail to
stress that a municipality is liable for its negligent
acts only if those acts are performed pursuant to a
ministerial duty. See, e.g., Anhalt, 249 Wis. 2d 62,
¶26, 637 N.W.2d 422.
Focusing the immunity analysis on the character of the
tortious acts underlying the nuisance is important for
two reasons. First, as discussed supra, liability for
nuisance is itself dependent upon whether the
underlying tortious conduct is actionable. Second,
and more importantly, Wis. Stat. § 893.80(4) does not
immunize municipalities for certain results; rather,
immunity is provided for certain acts.
City of Milwaukee, 277 Wis. 2d 635, ¶59 n.17.70
70
See also City of Milwaukee, 277 Wis. 2d 635, ¶¶50-62.
In Butler v. Advanced Drainage Systems, Inc., 2005 WI App
108, ¶41, 282 Wis. 2d 776, 698 N.W.2d 117, which the majority
opinion ignores, the court of appeals recognized this court's
abrogation of Welch and similar cases, explaining:
32
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¶200 Although City of Milwaukee casts a significant shadow
on these cases as "utiliz[ing] conflicting rationales to reach
results that are not entirely consistent,"71 the majority opinion
reinstates, reinvigorates, and perpetuates these incompatible
opinions.
¶201 The majority opinion points to no authority aside from
the out-of-context language in this small subset of court of
appeals decisions that appears to state that a municipal entity
has a general ministerial duty to operate and maintain a sewer
system in a safe condition for neighboring property owners.
¶202 Indeed, the majority opinion at ¶41 n.21 dismisses a
more recent 2001 court of appeals storm sewer case, Anhalt v.
Cities & Villages Mutual Insurance Co.,72 that is on point here
Welch v. City of Appleton, 2003 WI App 133, 265
Wis. 2d 688, 666 N.W.2d 511, and Anhalt v. Cities and
Vills. Mut. Ins. Co., 2001 WI App 271, 249 Wis. 2d 62,
637 N.W.2d 422 were among those [cases] expressly
noted by the [supreme] court in Milwaukee Metro.
Sewerage as applying the immunity statute (because all
involved municipalities) "utilizing conflicting
rationales to reach results that are not entirely
consistent." 277 Wis. 2d 635, ¶59 n.17, 691
N.W.2d 658. Welch, the court observed, erred in
employing a separate analysis for negligence and
nuisances grounded in negligence, and Anhalt "fail[ed]
to stress that a municipality is liable for its
negligent acts only if those acts are performed
pursuant to a ministerial duty." Id. To the extent
that either Welch or Anhalt support the proposition
that a nuisance claim need not be grounded either in
intentional conduct or in otherwise actionable
negligence, they are no longer good law on that point
after Milwaukee Metro. Sewerage.
71
City of Milwaukee, 277 Wis. 2d 635, ¶59 n.17.
72
Anhalt v. Cities & Vills. Mut. Ins. Co., 2001 WI App 271,
249 Wis. 2d 62, 637 N.W.2d 422.
33
No. 2007AP221.ssa
and undercuts Winchell, Costas, Hillcrest, Menick, and Welch,
the cases the majority opinion highlights. In Anhalt, yet one
more sewer system case, residents claimed destruction to their
real property from flooding. The thrust of the residents'
complaint was that the city negligently designed, planned, and
implemented an inadequate sewer system that caused a private
nuisance. The court of appeals reviewed Winchell, Hillcrest,
and Menick, the "prominent cases that apply the law of nuisance
to hold municipalities liable for damages resulting from the
operation of sewage systems."73
¶203 The court of appeals declared in Anhalt that no
authority exists imposing a positive duty on a municipal entity
to keep its sewer system current with developing needs or to
remedy an untenable situation.74 Anhalt adheres to Allstate, and
holds that "the acts of designing, planning and implementing a
sewer system are discretionary acts protected under Wis. Stat.
§ 893.80(4)."75 The system in Anhalt was operating in the manner
in which it was designed to operate. Even though 46 residential
properties were substantially damaged by the City's operation
and maintenance of the system according to the design it
selected, the court of appeals held that the remedy for the
residents "lies in their power to vote rather than in the
judicial system."76
73
Anhalt, 249 Wis. 2d 62, ¶18.
74
Id., ¶16.
75
Id., ¶12 (citing Allstate, 80 Wis. 2d at 15-16).
76
Anhalt, 249 Wis. 2d 63, ¶16.
34
No. 2007AP221.ssa
¶204 Anhalt, a 2001 court of appeals decision, was followed
by Welch in 2003, and although the two cases "utilized
conflicting rationales," they reached the same conclusion: A
municipal entity is immune from suit for injuries arising from
the design, planning, and implementation of a sewer system. The
older court of appeals decisions that reached a different
conclusion, Hillcrest (1986) and Menick (1996), are the basis
for the majority opinion, which refuses to make the slightest
admission that the most recent decisions directly contradict its
holding.
¶205 Eight years ago in City of Milwaukee and shortly
before that in Physicians Plus, this court labored to synthesize
the case law on negligence, nuisance, and government immunity
and liability. Today, the majority opinion ignores that
guidance and reinvigorates and propels repudiated precedent to
reach a result that neither Wis. Stat. § 893.80 nor our case law
presently supports.
III
¶206 I come to the third erratum——the majority opinion's
interpretation of the statutory cap on damages in Wis. Stat.
§ 893.80(3). Even if I agreed with the majority opinion that
the District is liable in tort for damages and injunctive relief
for the creation and maintenance of the private nuisance in the
I agree with City of Milwaukee and Butler, which criticize
Anhalt, 249 Wis. 2d 62, ¶26, as failing "to stress that a
municipality is liable for its negligent acts only if those acts
are performed pursuant to a ministerial duty." City of
Milwaukee, 277 Wis. 2d 635, ¶59 n.17; Butler, 282 Wis. 2d 776,
¶41.
35
No. 2007AP221.ssa
present case, and I do not, the majority opinion errs in
concluding that the statutory cap in Wis. Stat. § 893.80(3) does
not limit the expenditures a government entity must make to
comply with an order for injunctive relief in a tort action.
¶207 Wisconsin Stat. § 893.80(3) provides in relevant part:
Except as provided in this subsection, the amount
recoverable by any person for any damages, injuries or
death in any action founded on tort against
any . . . political corporation, governmental
subdivision or agency thereof and against their
officers, officials, agents or employees for acts done
in their official capacity or in the course of their
agency or employment, whether proceeded against
jointly or severally, shall not exceed
$50,000. . . . (emphasis added).
¶208 The majority opinion (at ¶¶54-58) concludes that
although the statutory cap on damages, injuries, or death
applies to monetary damages in a tort action, the statutory cap
does not similarly extend to a court order directing a
municipality to abate a nuisance founded on tort for which it is
liable.
¶209 The majority opinion reaches its unreasonable and
absurd result by not adhering to the basic rules of statutory
interpretation.
¶210 The majority opinion's reasoning turns on the words
"the amount recoverable by any person" in Wis. Stat.
§ 893.80(3). It claims to give the phrase an ordinary and
reasonable meaning. It does not. The majority opinion
concludes that injunctive relief is not an "amount recoverable
by any person," without examining the ordinary meaning of these
36
No. 2007AP221.ssa
words or the meaning of these words in the context of Wis. Stat.
§ 893.80(3) and in the context of § 893.80 as a whole.
¶211 The majority opinion fails to acknowledge that insofar
as a complainant and a government entity are concerned, in many
instances there is no substantial difference between monetary
damages awarded to the complaining party so that it can remedy
its injury and injunctive relief directing a government entity
to remedy the complaining party's injury.77 In either event, the
complainant benefits and gets the relief it sought, and the
government entity must expend funds.
¶212 I conclude that the phrase "the amount recoverable by
any person for any damages" in its ordinary and reasonable
meaning includes monetary damages and equitable, injunctive
relief against a municipal entity in any action founded on tort.
¶213 My reading of this phrase is bolstered by the
legislative policy underlying Wis. Stat. § 893.80(3), namely to
limit the amount of funds expended by a government entity when
liable "in any action founded on tort."
77
The word "damages" is used in its ordinary and reasonable
meaning in Wis. Stat. § 893.80(3). In cases involving insurance
policies in which the insurance company agreed to pay "all sums
which the insured shall become legally obligated to pay as
damages," the court has rejected an overly restrictive
definition of the word "damages," as understood by a reasonable
insured. The court rejected the notion that the word "damages"
does not encompass the insured's costs of complying with an
injunctive decree, recognizing that mandatory injunctive relief
may also be compensatory in nature. See Johnson Controls, Inc.
v. Employers Ins. of Wausau, 2003 WI 108, ¶¶31-44, 264
Wis. 2d 60, 665 N.W.2d 257.
37
No. 2007AP221.ssa
¶214 The justification for limitations on the amount the
government expends in any action founded on tort is to protect
the public purse while providing some relief for damage caused
by government entities acting in a non-immune manner.78
Wisconsin adopted the concept of government immunity in Hayes v.
City of Oshkosh, 33 Wis. 314, 318 (1873), holding: "Individual
hardship or loss must sometimes be endured in order that still
greater hardship or loss to the public at large or the community
may be averted." Although the majority opinion reaffirms the
constitutionality and rational basis for such caps,79 the
majority opinion is oblivious to the extreme irony in limiting
monetary damages in any action founded on tort to $50,000 for
public policy reasons, while requiring government entities to
pay as much as it takes to abate a nuisance.80 The injunctive
78
Willow Creek, 235 Wis. 2d 409, ¶33:
The concerns over the expenditure of both time and
resources apply with equal force to actions seeking
injunctive relief as they do to actions for money
damages. We recognize, however, that the suits must
be based in tort to garner the protection of immunity
consistent with the statute.
79
See majority op., ¶¶78-80, 83; Sambs v. City of
Brookfield, 97 Wis. 2d 356, 377, 383, 293 N.W.2d 504 (1980);
Stanhope v. Brown County, 90 Wis. 2d 823, 842, 280 N.W.2d 711(1979).
80
Other courts have recognized this extreme irony. See,
e.g., Andrews v. Chevy Chase Bank, 545 F.3d 570, 575 (7th Cir.
2008) ("'[T]he notion that Congress would limit liability to
$500,000 with respect to one remedy while allowing the sky to be
the limit with respect to another for the same violation strains
credulity.'" (quoting McKenna v. First Horizon Home Loan Corp.,
475 F.3d 418, 424 (1st Cir. 2007))).
38
No. 2007AP221.ssa
relief granted in the present case might cost the District 200
times the statutory damage cap of $50,000.
¶215 As this court explained in Sambs v. City of
Brookfield, 97 Wis. 2d 356, 293 N.W.2d 504 (1980), "The
legislature's goal after Holytz was to delineate the liability
to which governmental units would be exposed as a result of
Holytz, to reduce the financial strain, and to enable the
governmental units to plan for the risk of such liability."81
¶216 The court of appeals got it right:
The "'notion that [the legislature] would limit
liability . . . with respect to one remedy while
allowing the sky to be the limit with respect to
another for the same violation strains credulity'"
(citation omitted).
From the standpoint of the public treasury, there is
little difference in practice between a monetary
damage award given to a plaintiff to remedy its harm
and an injunction order requiring the defendant to
abate the harm.82
¶217 We are required to read statutes so that no part is
rendered meaningless or superfluous and so that the statute is
not rendered unreasonable or absurd. The majority opinion
renders the statutory damage cap in the statute meaningless and
81
Sambs, 97 Wis. 2d at 373. For purposes of planning and
budgeting for liability and litigation, damages up to $50,000
and unlimited injunctive relief are not interchangeable. See
Figgs v. City of Milwaukee, 121 Wis. 2d 44, 52, 357 N.W.2d 548(1984).
82
Bostco, 334 Wis. 2d 620, ¶¶131, 133 (citing Andrews v.
Chevy Chase Bank, 545 F.3d 570, 575 (7th Cir. 2008)).
39
No. 2007AP221.ssa
superfluous, unreasonable, and absurd to a significant extent by
granting unlimited injunctive relief.83
¶218 For the reasons set forth, I conclude that the Wis.
Stat. § 893.80(3) cap applies to injunctive relief in the
present case.
IV
¶219 I now turn to the majority opinion's erroneous
interpretation of Wis. Stat. § 893.80(3), (4), and (5).
83
The majority opinion cites to Lister v. Board of Regents
of the University of Wisconsin System, 72 Wis. 2d 282, 304, 240
N.W.2d 610 (1976) and Scarpaci v. Milwaukee County., 96
Wis. 2d 663, 691, 292 N.W.2d 816 (1980), for the proposition
that "the public policy considerations that have prompted courts
to grant substantive immunity for monetary damages do not apply
with equal force to actions for declaratory or injunctive
relief." Majority op., ¶62. These cases are not pertinent to
the present case. Both Lister & Scarpaci addressed the
liability of individual government officers and enjoined them
from acting in the future, unlike the present case in which
injunctive relief will require the District to act and to incur
expenses in the future. Lister, 72 Wis. 2d at 303.
For comments indicating that provisions and limits in Wis.
Stat. § 893.80 apply to injunctive relief, see Willow Creek, 235
Wis. 2d 409, ¶36 (government immunity provisions in Wis. Stat.
§ 893.80(4) govern suit founded on tort against a town for money
damages and injunctive relief; "Although immunity serves as a
bar to both money damages and injunctive relief based in tort,
municipalities do not benefit from the shield of immunity in
actions seeking declaratory relief" (emphasis added)). The
majority opinion (¶59 n.32) rewrites Willow Creek to mean that
because Wis. Stat. § 893.80(3) allows a declaratory judgment
action (an equitable non-monetary remedy), then injunctive
relief in a tort suit (also an equitable monetary remedy) is
similarly permitted. See also E-Z Roll Off, LLC v. County of
Oneida, 2011 WI 71, ¶¶21-24, 28, 335 Wis. 2d 720, 800 N.W.2d 421(explaining the factors to consider to determine whether certain
actions are exempt from notice of claim requirements found in
Wis. Stat. § 893.80; court held that a claim for violation of a
state antitrust statute, ch. 133, which provides for injunctive
relief, is subject to § 893.80(1)).
40
No. 2007AP221.ssa
According to the majority opinion, these provisions do not apply
to suits for or claims for injunctive relief in actions founded
on tort. Majority op., ¶¶59-80. The majority opinion delivers
a potpourri of arguments to support its thesis but ignores the
text of Wis. Stat. § 893.80(3), which we discussed above; the
texts of § 893.80(4) and § 893.80(5); and case law precedent
interpreting these provisions.
¶220 Subsection (4) is broadly worded: "[N]or may any suit
be brought against such corporation, subdivision or agency or
volunteer fire company or against its officers, officials,
agents or employees for acts done in the exercise of
legislative, quasi-legislative, judicial or quasi-judicial
functions" (emphasis added).84 Subsection (4) bars "any suit"
against any governmental subdivision for acts done in the
exercise of legislative, quasi-legislative, judicial, or quasi-
judicial functions. Subsection (4) applies to Bostco's lawsuit.
¶221 The Court explained in Willow Creek Ranch, L.L.C. v.
Town of Shelby, 2000 WI 56, 235 Wis. 2d 409, 611 N.W.2d 693,
that the term "any suit" includes injunctive relief based on
tort:
84
Wisconsin Stat. § 893.80(4) provides as follows:
No suit may be brought against any volunteer fire
company organized under ch. 213, political
corporation, governmental subdivision or any agency
thereof for the intentional torts of its officers,
officials, agents or employees nor may any suit be
brought against such corporation, subdivision or
agency or volunteer fire company or against its
officers, officials, agents or employees for acts done
in the exercise of legislative, quasi-legislative,
judicial or quasi-judicial functions.
41
No. 2007AP221.ssa
The "any suit" language contained in the immunity
statute, however, does not limit suits to money
damages in tort but also encompasses injunctive relief
based in tort. This interpretation furthers the
policy rationales underlying tort immunity that
officials not be "unduly hampered or intimidated in
the discharge of their functions by threat of lawsuit
or personal liability."85
¶222 Permitting Bostco to get relief for a negligence claim
through the back door by bringing a suit for injunctive relief
for a nuisance (based on negligence) "contravenes the government
immunity policy of this State set forth in Wis. Stat.
§ 893.80(4) and consequently would not serve the ends of
justice."86
¶223 Subsection (5) is also very broadly worded: "[T]he
provisions and limitations of this section [893.80] shall be
exclusive and shall apply to all claims against . . . a
governmental subdivision" (emphasis added).
¶224 Wisconsin Stat. § 893.80(5) reads as follows:
Except as provided in this subsection, the provisions
and limitations of this section shall be exclusive and
shall apply to all claims against a volunteer fire
company organized under ch. 213, political
corporation, governmental subdivision or agency or
against any officer, official, agent or employee
thereof for acts done in an official capacity or the
course of his or her agency or employment. When
rights or remedies are provided by any other statute
against any political corporation, governmental
subdivision or agency or any officer, official, agent
85
Willow Creek, 235 Wis. 2d 409, ¶33 (quoting Scarpaci, 96
Wis. 2d at 682 (citing Lister, 72 Wis. 2d at 299)).
86
Scott, 262 Wis. 2d 127, ¶4; see also id., ¶55 (declaring
that permitting damages through the back door of a promissory
estoppel claim, an equitable claim, based on the same
allegations as a negligence claim contravenes Wis. Stat.
§ 893.80(4) and does not serve the ends of justice).
42
No. 2007AP221.ssa
or employee thereof for injury, damage or death, such
statute shall apply and the limitations in sub. (3)
shall be inapplicable.
¶225 Two sentences comprise subsection (5). I shall
examine each in turn.
¶226 The plain language of the first sentence of Wis. Stat.
§ 893.80(5) includes the words "exclusive" and "all claims" to
explain that the provisions and limitations (including the
monetary limitations in subsection (3)) are "exclusive" and
apply to "all claims" brought in tort. This very broad, all-
inclusive language sets the stage and tone for interpreting this
subsection.
¶227 The majority opinion curiously skips over the word
"exclusive" and the phrase "shall apply to all claims." Instead
the majority opinion reasons that Wis. Stat. § 893.80(3) (indeed
all of § 893.80) is silent about equitable relief and therefore,
that subsections (3), (4), and (5) do not govern actions in
equity founded on tort. Majority op., ¶¶55-59, 61.
¶228 Clearly a request for injunctive relief founded on
tort is a claim that fits within the statutory phrase in Wis.
Stat. § 893.80(5): "all claims." Indeed, Count II of Bostco's
complaint is labeled "Claim" and requests equitable relief.
Count II of the complaint alleges the claim of a continuing
nuisance (based on negligence) and asserts that abatement by
concrete lining or recharge wells is the proper relief.
¶229 Section 893.80 is not silent about injunctive relief
in tort claims, as the majority opinion proclaims. Subsection
(4) addresses "any suit" and subsection (5) addresses "all
claims" against a government entity. The words "any suit,"
43
No. 2007AP221.ssa
"exclusive," and "all claims" are all-encompassing. The only
reasonable interpretation is that a claim for injunctive relief
founded on tort is within the all-inclusive scope of the words
"any suit" and "all claims" and that § 893.80 is an "exclusive"
provision.
¶230 In pursuing its myth of silence in regard to equitable
relief under Wis. Stat. § 893.80, the majority opinion (¶¶57-58,
63) leans on Harkness v. Palmyra-Eagle School District, 157
Wis. 2d 567, 460 N.W.2d 769 (Ct. App. 1990), to support its
argument that § 893.80 does not apply to equitable claims. The
majority opinion sidesteps the fact, however, that the Harkness
decision was clearly and emphatically overruled in DNR v. City
of Waukesha, 184 Wis. 2d 178, 191, 515 N.W.2d 888 (1994).
¶231 Harkness held that subsection (4) of § 893.80 (barring
suit for legislative acts of a government entity) does not apply
to equitable relief and based this conclusion on two prior
cases stating that the notice of claim requirements in Wis.
Stat. § 893.80(1) do not apply to equitable claims. Harkness
concluded that if subsection (1) does not apply to claims for
injunctive relief, then subsection (4) does not apply to
injunctive relief. Accordingly, the Harkness court concluded
that § 893.80(4) does not bar a teacher's equitable claim for
reinstatement to her previous position.
¶232 Reviewing the Harkness precedent in DNR v. City of
Waukesha, the Supreme Court stated, "[W]e now hold that sec.
893.80 applies to all causes of action, not just those in tort
and not just those for money damages. We therefore
44
No. 2007AP221.ssa
overrule . . . Harkness . . . to the extent [it] hold[s] that
sec. 893.80(1) applies only to tort claims and claims for money
damages."87
¶233 Because Harkness based its interpretation of
subsection (4) on case law relating to subsection (1), which DNR
explicitly overruled, Harkness no longer retains any
precedential value regarding subsection (4).
¶234 Johnson v. City of Edgerton, 207 Wis. 2d 343, 558
N.W.2d 653 (Ct. App. 1996), got it right, as explained by Willow
Creek. The narrow issue presented in Johnson was whether the
complainants were permitted to seek injunctive relief based on
their claim of negligence against the city. After reviewing the
Harkness and DNR cases, the court of appeals concluded, as
limited by Willow Creek, "that the official immunity provisions
of § 893.80(4), Stats., . . . are not limited to . . . money-
damage actions [founded on tort], but are equally applicable to
[tort] actions which . . . seek injunctive relief . . . ."88
87
DNR v. City of Waukesha, 184 Wis. 2d 178, 191, 515
N.W.2d 888 (1994), overruled the following language in prior
cases: Kaiser v. City of Mauston, 99 Wis. 2d 345, 356, 299
N.W.2d 259 (Ct. App. 1980) ("[t]his statute applies to claims
for money damages. It does not apply to a claim for equitable
relief"); Harkness v. Palmyra–Eagle School Dist., 157
Wis. 2d 567, 579, 460 N.W.2d 769 (Ct. App. 1990) ("[w]e have
found no authority indicating that it applies to equitable or
injunctive relief"); Nicolet v. Village of Fox Point, 177
Wis. 2d 80, 86, 501 N.W.2d 842 (Ct. App. 1993) ("[t]he full
legislative history clarifies that sec. 893.80 never was
intended to apply to equitable actions").
88
Johnson v. City of Edgerton, 207 Wis. 2d 343, 352, 558
N.W.2d 653 (Ct. App. 1996). See Willow Creek, 235 Wis. 2d 409,
¶¶33-34 (limiting the Johnson language to tort actions).
45
No. 2007AP221.ssa
¶235 The Harkness case has been relegated to the waste bin
of history. The majority opinion's reliance on Harkness is
misplaced.
¶236 I now turn to the second sentence of Wis. Stat.
§ 893.80(5). It tells us how to harmonize the "exclusive" and
"all claims" language of § 893.80(5) with other statutes in
which the legislature may provide rights or remedies against a
government entity for damage, injury, or death. The second
sentence of (5) directs that when a claim is based on another
statute, the damage limitations of subsection (3) no longer
apply.89
¶237 The majority opinion seems to assert that Wis. Stat.
§ 844.01 trumps Wis. Stat. § 893.80, making § 893.80(3)
inapplicable in the present case. Majority op., ¶¶768-71.
¶238 Wisconsin Stat. § 844.01 governs a person claiming
interference with property who brings an action to redress past
or further injury to property. The statute reads as follows:
Any person owning or claiming an interest in real
property may bring an action claiming physical injury
to, or interference with, the property or the person's
interest therein; the action may be to redress past
injury, to restrain further injury, to abate the
source of injury, or for other appropriate relief.
¶239 Section 844.17(1) explains that a defendant in a Wis.
Stat. § 844.01 suit may be "[a]ny person whose activities have
injured or will injure the plaintiff's property or interests"
(emphasis added). To define the word "person," the majority
opinion turns to Wis. Stat. § 990.01(26). Section 990.01 sets
89
DNR v. City of Waukesha, 184 Wis. 2d at 192.
46
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forth definitions of words to be used in interpreting all
statutes "unless such construction would produce a result
inconsistent with the manifest intent of the legislature."
Section 990.01(26) defines "person." "Person includes all
partnerships, associations and bodies politic or corporate"
(emphasis added).
¶240 The majority opinion reasons as follows: Chapter 844
contemplates that a body politic, such as the District, may be a
defendant in an action brought by an owner of property to
redress injury caused by the District's negligent maintenance of
a private nuisance and to abate the source of injury. Thus,
according to the majority opinion, Wis. Stat. § 893.80 does not
apply to injunctions that fall within Chapter 844.
¶241 This reasoning is faulty.
¶242 First, Chapter 844 is a remedial and procedural
statute; it does not create liability. Chapter 844 applies only
when an owner of real estate has a cause of action under common
law or otherwise. Chapter 844 is a codification of remedies
involving real estate, not "the creation of new or the revision
of old rights or duties" (emphasis added). Shanak v. City of
Waupaca, 185 Wis. 2d 568, 597, 518 N.W.2d 310 (Ct. App. 1994).
In Menick v. City of Menasha, 200 Wis. 2d 737, 746-47, 547
N.W.2d 778 (Ct. App. 1995), the court of appeals, relying on
Shanak, concluded that a complainant could not base her
substantive claim for private nuisance against the City of
47
No. 2007AP221.ssa
Menasha on § 844.01(1). The substantive basis of the claim must
be found elsewhere, wrote the court of appeals in Menick.90
¶243 The substantive basis of Bostco's claim is not Wis.
Stat. § 844.01, but common law tort and § 893.80 governing a
government entity's immunity and liability for tortious conduct.
¶244 Second, the majority opinion is inconsistent when it
applies Chapter 844 to authorize injunctive relief free of Wis.
Stat. § 893.80, but does not hold that Chapter 844 authorizes
monetary damages free of § 893.80.
¶245 Chapter 844 governs both injunctive relief and
monetary damages for physical injury to or interference with
real property. If the majority opinion is correct that Chapter
844 trumps the cap in Wis. Stat. § 893.80(3) (as well as
subsections (4) and (5)), then the majority opinion should hold,
but does not, that Chapter 844 trumps the cap on monetary
damages awarded to Bostco for the past and future injury to its
real property caused by the District.
¶246 Third, in its reliance on Chapter 844, the majority
opinion pays no attention to an oft-used rule of statutory
interpretation: A specific statute trumps a general statute.
Sometimes it is difficult to determine which is the general
statute and which is the specific statute. Not here. Chapter
844 is a remedial, procedural statute and is also a general
statute governing owners of real property bringing a real
property action against any person. Wisconsin Stat. § 893.80 is
90
See also Schultz v. Trascher, 2002 WI App 4, ¶¶24-29, 249
Wis. 2d 722, 640 N.W.2d 130 (Wis. Stat. § 844.01 is a remedial
and procedural statute).
48
No. 2007AP221.ssa
a specific, substantive, "exclusive" statute governing the
liability and immunity of a government entity named as a
defendant.
¶247 When the legislature wants to create a specific
statute that trumps Wis. Stat. § 893.80, it knows how to do so.
An example of a specific statute that creates government entity
tort liability was discussed in Morris v. Juneau County, 219
Wis. 2d 543, 579 N.W.2d 690 (1998).
¶248 In Morris,91 a statute, then-Wis. Stat. § 81.15 (1991-
92), entitled "Damages caused by highway defects; liability of
town and county," was specific to highway damages and specific
to the liability of the town and county. The statute created a
right to recover from a government entity for want of repairs of
a highway.92 Section 81.15 explicitly imposed liability on a
91
Just as the legislature knows how to create liability, it
also knows how to nullify liability. The legislature has
essentially nullified Morris. The statute imposing liability on
government entities for highway defects discussed in Morris,
then-Wis. Stat. § 81.15 (1991-92), was renumbered by 2003 Wis.
Act 214, and joined with the statute relating to damages and
injuries caused by snow and ice accumulation. See Comment, Wis.
Stat. Ann. § 893.83 (West 2006).
In 2011, the legislature enacted 2011 Wis. Act 132, which
removed language holding government entities liable for highway
defects. Now Wis. Stat. § 893.83 (2011-12) addresses only an
action to recover damages for injuries sustained by reason of an
accumulation of snow or ice that has existed for three weeks or
more upon any bridge or highway. See Jessica Vanegeren, Man
suffers after odd accident; Fall River resident has little legal
recourse after concrete fell from bridge and hit him, Portage
Daily Register, Jan. 27, 2013, available at
http://www.wiscnews.com/news/local/article_5790d188-690c-11e2-
ac15-001a4bcf887a.html (last visited July 5, 2013).
92
Morris, 219 Wis. 2d at 558.
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government entity for certain conduct and limited the amount
recoverable; it explicitly applied the procedures under
§ 893.80.93
¶249 This court concluded that Wis. Stat. § 81.15 provided
"an exception to the general grant of immunity under Wis. Stat.
§ 893.80(4)"94 for legislative acts, noting "that the general
immunity given counties under Wis. Stat. § 893.80(4) is not
applicable when the conditions of Wis. Stat. § 81.15 are met."95
Section 81.15, stated the Morris court, is "a specific statute
tak[ing] precedence over a general statute."96
¶250 Unlike the specific statute in Morris creating
government liability for particular acts, Wis. Stat. § 844.01
does not explicitly apply to government entities and does not
impose liability on government entities. Chapter 844 simply
does not override the substantive rules in Wis. Stat. § 893.80
as the specific provisions of § 81.15 once did.
¶251 In sum, Wis. Stat. § 893.80(3), (4), and (5), as
applicable to actions founded on tort, govern "any suit," "all
claims," and are "exclusive." The majority opinion's potpourri
of arguments does not demonstrate that injunctive relief is
excluded in the present case. The broadly worded texts of Wis.
Stat. § 893.80(3), (4), and (5) govern a government entity's
93
Id. at 551-57.
94
Id. at 552.
95
Id. at 546.
96
Id. at 552, 557.
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tortious acts that cause harm and govern claims for injunctive
relief for private nuisances founded on tort. "A nuisance is
nothing more than a particular type of harm suffered; liability
depends upon the existence of underlying tortious acts that
cause harm."97
V
¶252 The fifth erratum relates to the majority's discussion
of——or rather its failure to discuss in any meaningful way——
injunctive relief. The majority opinion says that injunctive
relief may be ordered in excess of the statutory caps, no dollar
limits. The End! The majority opinion offers no analysis or
directions to the circuit court about injunctive relief and
leaves unanswered numerous questions. Let me offer several
comments.
¶253 First: When a court exercises its discretion in
granting an equitable remedy, it "should pay particular regard
for the public consequences in employing the extraordinary
remedy of injunction."98 "Where an important public interest
would be prejudiced, the reasons for denying the injunction may
be compelling."99 An injunction against maintaining a nuisance
should not be granted where "the inconveniences and hardships
caused outweigh the benefits." McKinnon v. Benedict, 38
97
City of Milwaukee, 277 Wis. 2d 635, ¶25.
98
Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982)
(citing Railroad Comm'n v. Pullman Co., 312 U.S. 496, 500
(1941)) (emphasis added).
99
City of Harrisonville v. W.S. Dickey Clay Mfg. Co., 289
U.S. 334, 338 (1933).
51
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Wis. 2d 607, 616-17, 157 N.W.2d 665 (1968) (citing Maitland v.
Twin City Aviation Corp., 254 Wis. 541, 549, 37 N.W.2d 74(1949)).100
¶254 The circuit court did not exercise its discretion in
the present case by paying particular regard for the public
consequences or weighing the inconveniences and hardships to the
parties. Without holding a hearing, the circuit court based its
ruling on injunctive relief on the grounds that the monetary
damages were inadequate and that Bostco was suffering
irreparable harm.101
¶255 Nor does the majority opinion pay any regard to the
public consequences of injunctive relief in the present case or
the weighing of hardships and inconveniences.
¶256 Second: Ordinarily, if injunctive relief would cause
substantial harm to a defendant, the injunction should be denied
100
In granting an injunction, a court considers the
relative hardship likely to result to the defendant if the
injunction is granted and to the plaintiff if it is denied.
"The appropriateness of injunction against tort finally depends
upon a comparative appraisal of all of the factors in the case,
balanced against each other, and considered together." 4
Restatement of Torts § 936 cmt b. at 695 (1939).
101
The circuit court erred in the present case by granting
injunctive relief without holding a hearing, taking evidence, or
making findings about the merits of the relief proposed. See
Hoffmann v. Wis. Elec. Power Co., 2003 WI 64, ¶27, 262
Wis. 2d 264, 664 N.W.2d 55 (An ordering of injunctive relief
"must be based on the merits of the [proposed relief] with a
record to support that order.").
52
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when monetary damages are available to the complainant.102 In
the present case, the circuit court and the majority opinion
conclude that the monetary damages available to Bostco are
insufficient in amount. But the legislature has declared that
the statutorily allowed amount of damages is sufficient.
¶257 Both the circuit court and the majority opinion defy
the legislative determination that the government has rendered
itself immune from liability in excess of the statutory amount.
As the court held in Sambs, "whatever the monetary limitation on
recovery, the amount will seem arbitrary because it is based on
imponderables, [but] the legislature, not the court, must select
the figure."103 Stanhope echoes the same point: The "monetary
limitation is one which the legislature determines balancing the
ideal of equal justice and need for fiscal security."104
¶258 The balancing of damages, liability, and immunity with
regard to a government entity is for the legislature, not the
courts. Unless a constitutional violation exists, the court
should respect the legislature's decisions about what amount
constitutes adequate monetary relief against a government entity
and about the important public policy of protecting the fisc.105
102
Harrisonville v. W.S. Dickey Clay Mfg. Co., 289 U.S.
334, 337-38 (1933); Pure Milk Prods. Co-Op v. Nat'l Farmers
Org., 90 Wis. 2d 781, 800, 280 N.W.2d 691 (1979) ("To invoke the
remedy of injunction the plaintiff must moreover establish that
the injury is irreparable, i.e. not adequately compensable in
damages."); Kohlbeck v. Reliance Const. Co., Inc., 2002 WI App
142, ¶13, 256 Wis. 2d 235, 647 N.W.2d 277.
103
Sambs, 97 Wis. 2d at 367.
104
Stanhope, 90 Wis. 2d at 843.
105
Stanhope, 90 Wis. 2d at 844:
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The mere fact that a judgment for damages is not as
adequate relief from the point of view of the
plaintiff as an injunction would be is not wholly
determinative of the question as to whether an
injunction will be given. A judgment for damages
merely shifts to the defendant a harm equal to that
which the plaintiff has suffered. This is not true in
the case of the issuance of an injunction. The harm
to the defendant which may follow the granting of an
injunction against him may be entirely
disproportionate to the benefit resulting to the
plaintiff.
5 Restatement of Property § 528 cmt. f at 3188 (1944), cited in
part by McKinnon v. Benedict, 38 Wis. 2d 607, 618-19, 157 N.W.2d
665 (1968).
¶259 Third: Although the jury verdict plays a very minor
role in the present case in the appellate courts, the jury
verdict is instructive on the issue of injunctive relief. In
its answer to a special verdict question, the jury concluded
that the nuisance could be abated by reasonable means and at a
reasonable cost. The jury was not asked what the reasonable
means or costs were and was not instructed on this special
verdict question.106 The majority opinion does not reveal
whether this jury finding of reasonableness is binding on the
circuit court in exercising its discretion in an equity matter.
Courts are not equipped or empowered to make
investigations into the financial resources of various
public bodies in Wisconsin; the coverage, policy
limits and cost of available liability insurance; or
the number of victims of governmental tortfeasors and
a profile of the losses they have suffered.
Information derived from such investigation must
necessarily precede any reasoned evaluation of either
a limitation on recovery or a requirement of purchase
of insurance.
106
Majority op., ¶35 n.19. See jury instruction at note
44, supra.
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¶260 At trial, Bostco's experts testified that abatement
could be accomplished by lining the Tunnel or by installing a
system of groundwater monitoring and recharge wells. Majority
op., ¶16 n.10. The only evidence regarding the cost of
abatement was a $10 million estimate proposed by one of Bostco's
experts.107 In contrast, the jury found that Bostco was entitled
to $3 million for past damages and $6 million for future
damages. Taking into account Bostco's comparative negligence,
this $9 million figure was reduced to $6.3 million; the jury
found Bostco 30% liable for the damage to the Boston Store
building.
¶261 The injunctive relief, which might cost $10 million,
appears out of sync with the monetary damages.
¶262 Furthermore, although the majority opinion (¶31)
adopts the concept that the law of negligence applies to the
nuisance in the present case, it is silent about whether the
contributory negligence the jury attributed to Bostco reduces
any equitable relief founded on tort and negligence.
¶263 Case law instructs that all the usual rules and
defenses to negligence apply to nuisance claims predicated on
negligence.108 One of those defenses is contributory
107
No estimate was offered at trial about the District's
costs of installing and maintaining a system of groundwater
monitoring and recharge wells to replenish groundwater siphoned
into the Deep Tunnel. Majority op., ¶15 n.10.
108
City of Milwaukee, 277 Wis. 2d 635, ¶¶7, 45. See also
Physicians Plus Ins. Corp., 2002 WI 80, ¶¶25, 31, 254
Wis. 2d 77, 646 N.W.2d 777.
55
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negligence.109 Does Bostco have to pay 30% of the cost of
abatement?
¶264 Fourth: What is a reasonable sum that the District
should be required to expend on abatement under these
circumstances? An analysis of the injunctive relief ordered
shines light once more on the glaring short-sightedness of the
majority opinion. Its statutory interpretation undermines the
purpose of Wis. Stat. § 893.80: to "compensate victims of
government tortfeasors while at the same time protecting the
public treasury."110 Interpreting Wis. Stat. § 893.80 to allow
unlimited injunctive relief in the present case circumvents the
monetary cap set by Wis. Stat. § 893.80(3) and nullifies the
statute's purpose.111
¶265 Fifth: There is a legitimate question about whether
and how the majority opinion's order that the District "abate
the nuisance" is to be framed and enforced.
¶266 The majority opinion explains at one point that "the
means whereby [a] nuisance is to be abated is left to the
direction of the defendant tortfeasor." Majority op., ¶33.
109
Physicians Plus Ins. Corp., 254 Wis. 2d 77, ¶31 (citing
Schiro v. Oriental Realty Co., 272 Wis. 537, 547, 76 N.W.2d 355(1956) ("[C]ontributory negligence is a defense in an action for
damages occasioned by a nuisance grounded upon negligence.");
McFarlane v. City of Niagara Falls, 160 N.E. 391, 392 (N.Y.
1928) (Chief Judge Cardozo writing that when negligence is the
basis of the nuisance, contributory negligence principles
apply)).
110
See Stanhope, 90 Wis. 2d at 842.
111
See Bostco, 334 Wis. 2d 620, ¶130.
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Nevertheless, the majority opinion sends the issue back to the
circuit court to establish the method of abatement.
¶267 Courts, however, "traditionally have been reluctant to
enjoin as a public nuisance activities which have been
considered and specifically authorized by the government."112
The same principle should apply to a private nuisance.
Moreover, the United States Supreme Court recently commented on
the relative competence of courts and agencies to solve
technical problems as follows: An "expert agency is surely
better equipped to do the job than individual [trial] judges
issuing ad hoc, case-by-case injunctions." Am. Elec. Power Co.
v. Connecticut, 131 S. Ct. 2527, 2539 (2011).113
¶268 The Deep Tunnel is a municipal improvement project
that is regulated by an agency with expertise——the DNR——pursuant
to state and federal law. The DNR is not a party in the present
case, but the District submitted two affidavits from DNR
employees to the circuit court. According to the affidavits,
any changes to the Tunnel must be undertaken in compliance with
DNR regulations, the Federal Clean Water Act, and other
applicable law. The affidavits indicate that the DNR had no
112
North Carolina ex rel. Cooper v. TVA, 615 F.3d 291, 309
(4th Cir. 2010) (citing New England Legal Found. v. Costle, 666
F.2d 30, 33 (2d Cir. 1981)).
113
The United States Court of Appeals for the Seventh
Circuit recently made a similar comment: "Environmental problems
require the balancing of many complicated interests, and
agencies are better suited [than judges] to weigh competing
proposals and select among solutions." Michigan v. U.S. Army
Corps of Eng'rs, 667 F.3d 765, 797 (7th Cir. 2011).
57
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intention of approving the concrete lining that Bostco and the
circuit court sought.
¶269 Abatement may also require a study of the
environmental impact, costs, and benefits of both concrete
lining and alternatives to lining, and other matters regulated
by state and federal law.
¶270 The ultimate unanswered question is whether this
court, or the circuit court, or the DNR, an independent agency
that is not a party to this action, governs abatement.
¶271 The injunction remedy adopted by the majority opinion
leaves more questions than answers. Litigation may abound.
VI
¶272 The final erratum: The majority opinion imposes an
unfunded mandate on government entities and is contrary to
legislative policy. The legitimate legislative concerns of
protecting the fisc, ensuring funds are available to pay for
essential services, and keeping property taxes at reasonable
rates are undermined by the majority opinion.
¶273 By means of this majority opinion, the court imposes
an unfunded mandate. Government entities will now be subject to
unlimited liability in the form of injunctive relief in cases
founded on tort, and may not have the concurrent ability to
raise additional taxes or request additional funds from the
legislature to pay for the liability the court imposes.
¶274 Government entities are struggling to fund essential
services without overburdening the tax base. State aid to
government subdivisions has been reduced. The legislature has
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constrained the ability of government entities to raise funds by
imposing levy limits.
¶275 Without question, the majority opinion expands
government liability and increases expenses for government
entities and taxpayers. This expansion of government liability,
this increase in the expenditures of government entities, and
this increase in costs to taxpayers are contrary to recent
legislative expressions of state policy: One, reduce government
liability, and two, reduce recovery for tort victims.
¶276 The legislature has always been less zealous in
abrogating government immunity than the courts.114 The majority
opinion repeats the oft-quoted, poorly understood line from
Holytz that says "the rule is liability——the exception is
immunity." Majority op., ¶50. The legislature never codified
the mantra that "the rule is liability." The 1963 statute the
legislature enacted in response to Holytz does not direct that
"the rule is liability——the exception is immunity." Rather, the
legislature rendered government entities immune for broadly
enumerated acts. And the legislature severely limited the
dollar amounts for which a government entity would be liable.
¶277 Of late, the legislature has been decreasing and
eliminating tort liability for government entities and
114
"[J]udicial abrogation of common law immunity did not
bind the legislature." Sambs, 97 Wis. 2d at 372.
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decreasing the recovery of tort victims.115 The majority opinion
is marching in the opposite direction from the legislature.
* * * *
¶278 This court attempted to synthesize the law on
negligence, nuisance, liability, and immunity in City of
Milwaukee. The majority opinion retreats from City of Milwaukee
and confuses the law instead of developing the law in a clear
manner.
¶279 Because of the numerous errata in the majority opinion
(many of which I do not enumerate), I dissent.
¶280 I am authorized to state that Justice ANN WALSH
BRADLEY joins this opinion.
115
See, e.g., 2011 Act 132 (removing statutory language
holding government entities liable for highway defects); 2011
Act 2 (e.g., restricting recovery for products liability and
placing caps on punitive damages and noneconomic health care
damages).
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