PATIENCE DRAKE ROGGENSACK, J.
¶ 1 This is a review of a published opinion of the court of appeals
¶ 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 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 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).
¶ 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.
¶ 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.
¶ 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. 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
¶ 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.
¶ 16 On post-verdict motions,
¶ 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
¶ 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 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.
¶ 20 Bostco petitioned for review, and MMSD cross-petitioned for review. We granted both petitions.
¶ 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, 691 N.W.2d 658.
¶ 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
¶ 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.
¶ 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.
¶ 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 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).
¶ 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, 646 N.W.2d 777. 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, 691 N.W.2d 658. 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
¶ 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, 691 N.W.2d 658 (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:
Restatement (Second) of Torts, § 822; City of Milwaukee, 277 Wis.2d 635, ¶ 32, 691 N.W.2d 658. Because a nuisance is a result, of which 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, 646 N.W.2d 777 (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, 548 N.W.2d 829. 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 intentional
Id. (citation omitted).
¶ 33 Furthermore, the duty to abate a nuisance negligently maintained, of
¶ 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, 646 N.W.2d 777. 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, 666 N.W.2d 511.
¶ 35 Similarly, in Costas, we addressed a nuisance that arose out of the operation of a sewage system operated by a municipal entity, the City of Fond du Lac.
¶ 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, 547 N.W.2d 778. 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, 547 N.W.2d 778.
¶ 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, 666 N.W.2d 511. 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."
¶ 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, 691 N.W.2d 658. 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:
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,
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 to abate the nuisance by fixing the pipe.
¶ 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.
¶ 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.
¶ 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, 749 N.W.2d 581. 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, 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.
¶ 47 In regard to the immunity question presented herein, initially we are concerned with Wis. Stat. § 893.80(4), which provides in relevant part:
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:
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, 115 N.W.2d 618. The abrogation was intended to apply to municipal entity liability for all torts, "whether they be by commission or omission."
¶ 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) (quoting Holytz, 17 Wis.2d at 39, 115 N.W.2d 618).
¶ 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 entity is under a subsequent ministerial duty
Naker, 62 Wis.2d at 660a, 62 Wis.2d 654.
¶ 52 As discussed above, in City of Milwaukee, we explained the relationship between
¶ 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, § 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, 800 N.W.2d 518. 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:
(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, 681 N.W.2d 110. 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, "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.
¶ 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, 115 N.W.2d 618 (quoting Holytz, 17 Wis.2d at 39, 115 N.W.2d 618). 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, 559 N.W.2d 563. 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.
¶ 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 § 893.80(5) to create limitations in § 893.80(3) that were not placed there by the legislature. Bostco, 334 Wis.2d 620, ¶ 130, 800 N.W.2d 518. 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.
¶ 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. LaCrosse Lutheran Hosp. v. LaCrosse 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, 240 N.W.2d 610; see also Scarpaci v. Milwaukee Cnty., 96 Wis.2d 663, 691, 292 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, 400 N.W.2d 493 (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, 460 N.W.2d 769. 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 relief in Willow Creek), focused on the wrong language
¶ 65 Third, Johnson relied on the principles of immunity that apply to municipal officers. Johnson, 207 Wis.2d at 352, 558 N.W.2d 653. 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, 546 N.W.2d 151.
¶ 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 otherwise by expanding immunity too broadly, we limit that language." Willow Creek, 235 Wis.2d 409, ¶ 34, 611 N.W.2d 693. We did not describe how the language in Johnson was limited.
¶ 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, 691 N.W.2d 658. 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 negligently maintained and of which they had notice. Physicians Plus, 254 Wis.2d 77, ¶¶ 2-3, 59, 646 N.W.2d 777.
¶ 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.
¶ 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 relief against municipally maintained nuisances. See Costas, 24 Wis.2d at 413-19, 129 N.W.2d 217 ((citing Winchell, 110 Wis. 101, 85 N.W. 668) (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, 85 N.W. 668.
¶ 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 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,
¶ 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 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,
¶ 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:
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 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:
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
¶ 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, 280 N.W.2d 711. In the context of an equal protection challenge, we will sustain a legislative enactment that creates a distinction 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, 280 N.W.2d 711. "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, 293 N.W.2d 504 (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, 115 N.W.2d 618, 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, 293 N.W.2d 504, and Stanhope, 90 Wis.2d at 837-42, 280 N.W.2d 711. 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, 280 N.W.2d 711, is as applicable today as it was over 30 years ago:
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.
¶ 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.
¶ 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, 800 N.W.2d 518. (quoting Howell Plaza, Inc. v.
¶ 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. 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.
¶ 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),
¶ 87 In pertinent part, Wis. Stat. § 893.80(1) provides
¶ 88 The notice of claim provisions serve two purposes:
¶ 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
¶ 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.
¶ 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, 556 N.W.2d 326.
¶ 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.
¶ 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, 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).
¶ 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, 646 N.W.2d 777 (explaining that when all the elements of nuisance are
¶ 96 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.
¶ 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 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.
¶ 102 DAVID T. PROSSER, J., did not participate.
¶ 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."
¶ 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
¶ 105 In 1962 this court abrogated the longstanding common law rule of governmental immunity in Holytz, 17 Wis.2d at 33, 115 N.W.2d 618, 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, 115 N.W.2d 618. 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, 115 N.W.2d 618 (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 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."
¶ 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, 240 N.W.2d 610. 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, 240 N.W.2d 610 (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, 240 N.W.2d 610.
¶ 107 The ministerial duty concept, though, came directly from our decision in Meyer v. Carman, 271 Wis. 329, 332, 73 N.W.2d 514 (1955). See Lister, 72 Wis.2d at 301 n. 18, n. 19, 240 N.W.2d 610 (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 an applicant who was allegedly too overweight to drive,
¶ 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., 46 Cal.App. 148, 189 P. 462, 468 (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 failing to put up warning signs along the trail. Id. at 537-38, 259 N.W.2d 672. 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
¶ 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 some form by a majority
¶ 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., 6 Ohio St.3d 31, 451 N.E.2d 228, 232 (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., 244 Neb. 944, 510 N.W.2d 281, 288 (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 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.
¶ 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, 373 Mass. 208, 366 N.E.2d 1210, 1216 (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 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:
¶ 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-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"
¶ 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.
¶ 120 SHIRLEY S. ABRAHAMSON, Chief Justice (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
¶ 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.
¶ 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).
¶ 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"
¶ 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
¶ 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 Tunnel.
¶ 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 a manner different than the way in which it was designed to function.
¶ 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.
¶ 130 I dissent because the majority opinion reaches the wrong result by revising
¶ 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."
¶ 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."
¶ 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 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.
¶ 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.
¶ 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.
¶ 139
¶ 140
¶ 141
¶ 142
¶ 143 City of Milwaukee then declares the following rule of law regarding the character of the negligent act:
¶ 145
¶ 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):
¶ 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.
¶ 149
¶ 150 Some cases upon which the majority opinion depends were decided before Holytz and the enactment of Wis. Stat. § 893.80 (Winchell).
¶ 151
¶ 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.
¶ 155
¶ 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."
¶ 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.
¶ 160
¶ 161
¶ 162 On consideration of these serious errata, I dissent.
¶ 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.
¶ 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.
¶ 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."
¶ 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."
¶ 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.
¶ 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.
¶ 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.
¶ 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
¶ 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 148 (1977), the court explained that "[w]here, when and how to build sewer systems are legislative determinations imposed upon a governmental body."
¶ 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.
¶ 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 (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.
¶ 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,"
¶ 180 As City of Milwaukee made clear:
¶ 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 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
¶ 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."
¶ 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.
¶ 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."
¶ 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.
¶ 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.
¶ 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, 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.
¶ 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.
¶ 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.
¶ 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 that the "creation and maintenance of private nuisances are simply not recognized as legislative acts subject to protection under sec. 893.80(4)."
¶ 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)."
¶ 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."
¶ 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 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.
¶ 196 The court of appeals further explained in Welch that the verb "maintain"
¶ 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.
¶ 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 majority opinion's favorite court of appeals decisions as follows:
City of Milwaukee, 277 Wis.2d 635, ¶ 59 n. 17, 691 N.W.2d 658.
¶ 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.,
¶ 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.
¶ 204 Anhalt, a 2001 court of appeals decision, was followed by Welch in 2003, and although the two cases "utilized conflicting
¶ 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.
¶ 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 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:
¶ 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 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.
¶ 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."
¶ 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.
¶ 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."
¶ 216 The court of appeals got it right:
¶ 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 superfluous, unreasonable, and absurd to a significant extent by granting unlimited injunctive relief.
¶ 218 For the reasons set forth, I conclude that the Wis. Stat. § 893.80(3) cap applies to injunctive relief in the present case.
¶ 219 I now turn to the majority opinion's erroneous interpretation of Wis. Stat. § 893.80(3), (4), and (5). 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).
¶ 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:
¶ 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."
¶ 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:
¶ 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
¶ 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," "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 overrule... Harkness ... to the extent [it] hold[s] that sec. 893.80(1) applies only to tort claims and claims for money damages."
¶ 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
¶ 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.
¶ 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:
¶ 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 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
¶ 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 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,
¶ 249 This court concluded that Wis. Stat. § 81.15 provided "an exception to the general grant of immunity under Wis. Stat. § 893.80(4)"
¶ 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 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."
¶ 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."
¶ 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 when monetary damages are available to the complainant.
¶ 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."
¶ 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.
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.
¶ 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.
¶ 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.
¶ 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
¶ 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. 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."
¶ 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 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.
¶ 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
¶ 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 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.
¶ 277 Of late, the legislature has been decreasing and eliminating tort liability for government entities and decreasing the recovery of tort victims.
¶ 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.
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.
Id. at 506-07, 259 N.W.2d 537.
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, 691 N.W.2d 658. For the sake of consistency, I will refer to them as "legislative" as well.
See also id., ¶ 9:
See also id., ¶¶ 90-91.
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."
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.
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, 691 N.W.2d 658. 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.
A 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, 691 N.W.2d 658 (Prosser, J., concurring) (internal citations omitted).
Butler v. Advanced 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.'"
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."
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:
For comments indicating that provisions and limits in Wis. Stat. § 893.80 apply to injunctive relief, see Willow Creek, 235 Wis.2d 409, ¶ 36, 611 N.W.2d 693 (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)).
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).
