PUBLISHED OPINION
Case No.: 95-0185
Complete Title
of Case:
LISA MENICK,
Plaintiff-Appellant,
v.
CITY OF MENASHA,
Defendant-Respondent,
STATE FARM FIRE AND
CASUALTY COMPANY,
Defendant.
Submitted on Briefs: November 3, 1995
COURT COURT
OF APPEALS OF WISCONSIN
Opinion Released: March 6, 1996
Opinion Filed: March 6, 1996
Source of APPEAL Appeal
from an order
Full Name JUDGE COURT: Circuit
Lower Court. COUNTY: Winnebago
(If "Special", JUDGE: BRUCE K. SCHMIDT
so indicate)
JUDGES: Anderson,
P.J., Nettesheim and Snyder, JJ.
Concurred:
Dissented:
Appellant
ATTORNEYSOn
behalf of the plaintiff-appellant, the cause was submitted on the briefs of John
R. Monroe of DeForest.
Respondent
ATTORNEYSOn
behalf of the defendant-respondent, the cause was submitted on the brief of Peter
M. Farb of Gabert, Williams & Farb of Appleton.
COURT OF APPEALS DECISION DATED AND RELEASED March 6, 1996 |
NOTICE |
A party may file with the
Supreme Court a petition to review an adverse decision by the Court of
Appeals. See § 808.10 and
Rule 809.62, Stats. |
This opinion is subject to
further editing. If published, the
official version will appear in the bound volume of the Official Reports. |
No. 95-0185
STATE
OF WISCONSIN IN COURT OF
APPEALS
LISA MENICK,
Plaintiff-Appellant,
v.
CITY OF MENASHA,
Defendant-Respondent,
STATE FARM FIRE AND
CASUALTY COMPANY,
Defendant.
APPEAL from an order of
the circuit court for Winnebago County:
BRUCE K. SCHMIDT, Judge. Affirmed.
Before Anderson, P.J.,
Nettesheim and Snyder, JJ.
SNYDER, J. Lisa
Menick appeals from an order granting summary judgment to the City of
Menasha. Menick brought an action
against the City after raw sewage from the city's sewer system had twice
flooded her basement. In the complaint,
Menick alleged that the City was responsible because the flooding was: (1) a taking under the Fifth Amendment of
the United States Constitution; (2) a deprivation of property in violation of
42 U.S.C. § 1983; (3) a taking under Article I, Section 13 of the
Wisconsin Constitution; (4) an interference with real property under § 844.01, Stats.; and (5) a private
nuisance. We conclude that summary
judgment was proper as to all theories of liability and affirm.
In June 1993, the city
sewer system flooded several residents' homes with raw sewage, including
Menick's. The flood damaged carpeting,
flooring and walls in Menick's finished basement, as well as items of personal
property. In spite of professional
cleaning, a foul smell from the sewage persisted for weeks.
In July 1993, the
previous flooding repeated itself.
Menick filed a lawsuit against the City. She subsequently filed a motion for summary judgment which the
City opposed, claiming that there existed genuine issues of material fact. After
the denial of Menick's motion and following discovery, the City moved for
summary judgment. Menick opposed that
motion and renewed her earlier motion.
The City was granted summary judgment as to all claims and this appeal
followed.
The review of a grant of
summary judgment is governed by the standard set out in § 802.08(2), Stats.
Green Spring Farms v. Kersten, 136 Wis.2d 304, 315, 401
N.W.2d 816, 820 (1987). Our review of a
trial court's grant of summary judgment is de novo. See id.
Summary judgment must be granted if there is no genuine issue as to any
material fact, and the moving party is entitled to judgment as a matter of
law. Id.
Menick first contends
that as a result of the flooding, the City took her property without
compensation in violation of the Fifth Amendment of the United States
Constitution. She relies on Loretto
v. Teleprompter Manhattan CATV Corp., 458 U.S. 419, 441 (1982), in
which the Supreme Court applied well-settled case law in determining that the
installation of cable lines on privately-owned buildings was a permanent
invasion, and thus was compensable as a taking. Menick contends that under Loretto, there is no
constitutional difference between a permanent and a temporary physical
occupation. We disagree. Loretto states:
[T]his
Court has consistently distinguished between flooding cases involving a
permanent physical occupation, on the one hand, and cases involving a more
temporary invasion. ... A taking has always been found only in the
former situation. ... [T]o be a taking,
flooding must constitute an actual, permanent invasion of the land, amounting
to an appropriation of, and not merely an injury to, the property.
Id. at
428 (citations and quotation omitted).
The flooding of the basement was not a permanent physical occupation of
Menick's property. The first episode
occurred while Menick was away; by the time she returned home, the flooding had
subsided. The second incident also
spontaneously receded. Under the test
required by Loretto, no taking occurred.
Menick next argues that
the City violated her civil rights under 42 U.S.C. § 1983. A claim under this section must include a
federal constitutional basis for the claim.
See Chapman v. Houston Welfare Rights Org., 441
U.S. 600, 617-18 (1979). It must also
assert that there is an inadequate state remedy for the claim. See New Burnham Prairie Homes,
Inc. v. Village of Burnham, 910 F.2d 1474, 1481 (7th Cir. 1990). As to both requirements, Menick's claim
fails.
The constitutional basis
for Menick's claim is a taking contrary to the Fifth Amendment. As discussed above, that claim is without
legal merit. Menick disputes the
existence of adequate state remedies for her claims when she argues that “[t]he
trial court granted summary judgment to Respondent on each of Appellant's state
law claims. In effect, the court has
ruled that there are no remedies to be had under state law.” We do not agree that a finding that her
state law claims lack merit can be translated as an absence of state law
remedies. Menick's 42 U.S.C.
§ 1983 claim fails.
The third basis for
asserting this claim is that the flooding constituted a taking under Article I,
Section 13 of the Wisconsin Constitution.
This constitutional provision was extensively addressed in Wisconsin
Power & Light Co. v. Columbia County, 3 Wis.2d 1, 87 N.W.2d 279
(1958). There, the court noted that
this section of the Wisconsin Constitution provides that “the property of no
person shall be taken for public use without just compensation therefor without
mention of damage.” Id.
at 6, 87 N.W.2d at 281-82 (quotations and citations omitted; second emphasis
added).
This rule was restated
more recently in Public Serv. Corp. v. Marathon County, 75 Wis.2d
442, 249 N.W.2d 543 (1977). There, the
court succinctly stated, “Wisconsin compensates only a taking, not mere damage
to the property.” Id. at
447, 249 N.W.2d at 545. We conclude
that the temporary flooding of Menick's basement cannot be claimed a taking
under the Wisconsin Constitution. Mere
damage is not compensable as a taking.
Menick's final two
theories of liability are interrelated.
She argues that she should be allowed to bring this action as the
flooding was a private nuisance and was also in violation of § 844.01, Stats., termed the “nuisance statute”
by the trial court. The City argues
that § 844.01 is not available as a statutory cause of action, and even if it
were, the City has immunity for this action under § 893.80, Stats.
While we conclude that
the City cannot claim immunity against the assertion of a private nuisance
action, we agree that § 844.01, Stats.,
does not confer a statutory basis for this claim. Furthermore, while there exists a cause of action in private
nuisance, we conclude that Menick's failure to offer an expert's opinion as to
the legal cause of the flooding defeats her claim.
Section 893.80(4), Stats., confers immunity “for acts done
in the exercise of legislative, quasi-legislative, judicial or quasi-judicial
functions.” In Hillcrest Golf
& Country Club v. City of Altoona, 135 Wis.2d 431, 434, 400 N.W.2d
493, 495 (Ct. App. 1986), the claim was that a subdivision's sewer system which
collected rainwater and discharged it onto the plaintiff's land, resulting in
substantial erosion and rendering the land unusable, was actionable as a
private nuisance. The municipality
argued that the design, approval and construction of a sewer system are
legislative functions, properly immunized under § 893.80(4). Hillcrest, 135 Wis.2d at 437,
400 N.W.2d at 496. In reaching a
determination that the municipality was not immune to suit, the court noted:
The
great weight of authority ... supports the view that legislative authority to
install a sewer system carries no implication of authority to create or maintain
a nuisance ....
Id. at
438, 400 N.W.2d at 497. We conclude
that while 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 § 893.80.
Having concluded that
the City cannot claim municipal immunity, we next examine Menick's alternate
theories of liability, statutory nuisance under § 844.01, Stats., or private nuisance.
The statutory nuisance
claim is premised on § 844.01, Stats.,
which provides in relevant part:
Physical
injury to, or interference with, real property. (1) 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.
A
determination of whether this statute supports Menick's claim requires the
interpretation of a statute. This
presents a question of law which we decide without deference to the trial
court. Ball v. District No. 4,
Area Bd., 117 Wis.2d 529, 537, 345 N.W.2d 389, 394 (1984).
Menick contends that
“[t]he statute authorizes a cause of action for physical injury to real
property, and for interference with the use of real property.” This is similar to a claim raised in Shanak
v. City of Waupaca, 185 Wis.2d 568, 595, 518 N.W.2d 310, 320 (Ct. App.
1994), in which it was claimed that Ҥ 844.01, Stats., grants to any person claiming an interest in real
property a basis for injunctive relief abating an interference with property
rights of that person.”
In construing this
statute, the court there determined that this section was originally enacted as
a “recodification of the law on real property” and that it set out “real
property remedies obtainable by a lawsuit and the legal procedure to be used to
obtain the remedies.” Shanak,
185 Wis.2d at 596, 518 N.W.2d at 320 (quoted source omitted). The Shanak court then held:
Section
844.01(1), Stats., creates no
rights or duties. It does not purport
to create a cause of action. It is a
remedial and procedural statute.
Id. at
596, 518 N.W.2d at 320. Menick cannot
base her claim on the provisions of § 844.01.
Menick's final theory is
that the flooding constituted a private nuisance for which the City is
liable. Under Wisconsin Power
& Light, 3 Wis.2d at 11, 87 N.W.2d at 284, the court adopted the
then-current Restatement definition of a private nuisance as the correct
rule. Under that definition a plaintiff
must show, inter alia, that the “actor's conduct is a legal cause of the
invasion.” Id. This requires a showing that:
(1) the invasion is intentional and
unreasonable, or
(2)
unintentional and otherwise actionable under the rules governing liability for
negligent, reckless, or ultrahazardous conduct.
Id. Based on Menick's sworn statement, there is
no claim that the flooding was intentional.
Therefore, she must show that the flooding was caused by the City and
that the City was either negligent, reckless or engaged in an ultrahazardous
activity. Under these facts, the trial
court found, and we agree, that the only applicable theory is one of
negligence.
A showing of negligence
requires proof of causation. Collins
v. Eli Lilly Co., 116 Wis.2d 166, 181‑82, 342 N.W.2d 37, 45, cert.
denied sub nom. E.R. Squibb & Sons v. Collins, 469 U.S.
826 (1984). The party with the burden
of proof on an element must establish that there is a genuine issue of fact by
submitting evidence setting forth specific facts material to that element. See Transportation Ins. Co. v.
Hunzinger Constr. Co., 179 Wis.2d 281, 290, 507 N.W.2d 136, 139 (Ct.
App. 1993); see also § 802.08(3), Stats. Expert testimony is required to prove
causation if the matter does not fall within the realm of ordinary experience
and lay comprehension. White v.
Leeder, 149 Wis.2d 948, 960, 440 N.W.2d 557, 562 (1989).
Menick has the burden of
proving that the flooding was caused by the negligence of the City. Our review of the record shows that she has
failed to provide any expert testimony or to advance any theory of liability
supported by specific allegations of negligent actions on the part of the City.
Instead, Menick grounds
her case on a theory of strict liability.
She argues that because the City operates the sewer system and sewage
backed up into her residence, the City is therefore negligent. According to Menick, “The concept of a sewer
or drain backing up is not outside the general understanding of people ...
requir[ing] expert testimony.”
Menick further asserts
that even if this court concludes that lay witnesses cannot prove causation,
“then Appellant should be allowed to prosecute her case under a theory of res
ipsa loquitur.” While there is no
dispute that the City's sewer system was the conduit for sewage to enter
Menick's residence, that fact does not satisfy the requirement that the City's
actions are the legal cause of the backup. See Wisconsin Power & Light, 3 Wis.2d at
11, 87 N.W.2d at 284.
There were affidavits
submitted that the rainfall recorded during the two episodes was
unprecedented. There was an affidavit
from the street superintendent that the City activated an auxiliary pump for
over twenty-two hours on June 18 and 19, which diverted more than one
million gallons of water. This
affidavit also stated that on the dates in question there was no blockage of
the sewer main which serviced Menick's residence.
Given the undisputed
facts, a jury could properly infer that the heavy rains alone resulted in an
overload of the system. “A mere
possibility of such causation is not enough; and when the matter remains one of
pure speculation or conjecture or the probabilities are at best evenly
balanced, it becomes the duty of the court to direct a verdict for the
defendant.” Merco Distrib. Corp.
v. Commercial Police Alarm Co., 84 Wis.2d 455, 460, 267 N.W.2d 652, 655
(1978) (quoted source omitted).
Under the Restatement
rule defining a private nuisance, a showing of negligence requires proof of
causation. We conclude, as did the
trial court, that Menick has not met this burden. She has failed to offer any substantiated theories of negligence
implicating the actions of the City, and summary judgment for the City was
properly granted.
By the Court.—Order
affirmed.