District II
April 15, 2015
To:
Hon. Linda M. Van De Water
Circuit Court Judge
Waukesha County Courthouse
515 W. Moreland Blvd.
Waukesha, WI 53188
Kathleen A. Madden
Clerk of Circuit Court
Waukesha County Courthouse
515 W. Moreland Blvd.
Waukesha, WI 53188
Alexandra Cali
Robert P. Ochowicz
Kasdorf, Lewis & Swietlik, S.C.
One Park Plaza, Ste. 500
11270 West Park Place
Milwaukee, WI 53224
Terry J. Klippel
Storm, Balgeman, Miller & Klippel, S.C.
1011 N. Mayfair Rd., Ste. 200
Wauwatosa, WI 53226
You are hereby notified that the Court has entered the following opinion and order:
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Earl A. Wiggins Revocable Trust v. Village of Menomonee Falls (L.C. #2012CV1526) |
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Before Brown, C.J., Reilly and Gundrum, JJ.
Earl A. Wiggins Revocable Trust (the
Wiggins Trust) appeals from a circuit court judgment dismissing on summary
judgment its complaint against the Village of Menomonee Falls (the Village). Based upon our review of the briefs and record, we conclude
at conference that this case is appropriate for summary disposition. See
Wis. Stat. Rule 809.21 (2013-14).[1] We affirm the judgment of the circuit court.
The Wiggins Trust is a revocable trust of which Earl
A. Wiggins is the grantor, trustee, and beneficiary. The trust owns residential property in
Menomonee Falls where Wiggins has lived since approximately 2004.
In May 2012, the Wiggins Trust filed a complaint
against the Village for damages related to flooding that had occurred on its
property after heavy rains. The
complaint alleged that the Village had caused the flooding by directing storm
water in front of the property into a drainage pipe that runs through and
underneath the property. The complaint
further alleged that this amounted to a continuing trespass and nuisance.
In a subsequent deposition, Wiggins clarified that his
trust’s complaint was based on how the Village had designed the storm water
drainage system.
Q: All right. My question is is the size of the pipe your complaint? Or the design of where the water goes through the pipe?
A: The design. The entire design.
Q: Okay. And just to shorten this a little bit. Is your complaint with regard to what the village did, as far as where the water flows, when you have a heavy rain like this, is the design of where the pipe is and where it flows and how they designed where the water should flow in heavy rains?
A: Definitely.
Q: Okay.
A: Poor design.
Q: So your argument is if they designed it properly, it wouldn’t have flooded?
A: No. Not at all.
Q: Am I correct in that statement?
A: Yes.
The Village eventually filed a motion for summary
judgment, claiming that it had governmental immunity against the Wiggins
Trust’s claims under Wis. Stat. § 893.80(4).[2] The circuit court agreed and dismissed the
complaint. This appeal follows.
We review a grant of summary judgment de novo, using the same methodology as the circuit court. Estate of Sheppard ex rel. McMorrow v. Schleis, 2010 WI 32, ¶15, 324 Wis. 2d 41, 782 N.W.2d 85. Summary judgment is proper if there are no genuine issues of material fact and one party is entitled to judgment as a matter of law. See id.; Wis. Stat. § 802.08(2).
Determining whether governmental immunity exists involves the application of legal standards to a set of facts, which is a question of law. Lodl v. Progressive N. Ins. Co., 2002 WI 71, ¶17, 253 Wis. 2d 323, 646 N.W.2d 314. We therefore review the issue de novo. Estate of Brown v. Mathy Constr. Co., 2008 WI App 114, ¶6, 313 Wis. 2d 497, 756 N.W.2d 417.
On appeal, the Wiggins Trust contends that the circuit court erred in dismissing its complaint on summary judgment. We disagree.
Like the circuit court, we conclude that the Village had immunity against the Wiggins Trust’s claims. That is because those claims were based on allegations of an improperly designed storm water drainage system, and the acts of designing such a system are subject to immunity under Wis. Stat. § 893.80(4). See, e.g., Milwaukee Metro. Sewerage Dist. v. City of Milwaukee, 2005 WI 8, ¶9, 277 Wis. 2d 635, 691 N.W.2d 658 (decisions concerning the design of a waterworks system are discretionary, legislative decisions for which a municipality enjoys immunity).[3]
Given this immunity, which the Wiggins Trust does not dispute, we are satisfied that the Village was entitled to judgment as a matter of law. Accordingly, we affirm.
Upon the foregoing reasons,
IT IS ORDERED that the judgment of the circuit court
is summarily affirmed, pursuant to Wis.
Stat. Rule 809.21.
Diane M. Fremgen
Clerk of Court of Appeals
[1] All references to the Wisconsin Statutes are to the 2013-14 version.
[2] Under Wis. Stat. § 893.80(4), municipalities and their employees are immunized against liability “for acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial functions.”
[3] The Wisconsin Supreme Court recently reaffirmed this principle in Bostco LLC v. Milwaukee Metropolitan Sewerage District, 2013 WI 78, 350 Wis. 2d 554, 835 N.W.2d 160, a case involving a claim of negligent maintenance of a sewer tunnel. There, it observed, “[W]e 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).” Id., ¶41 n.21.