COURT OF APPEALS

DECISION

DATED AND FILED

June 24, 2020

Sheila T. Reiff

Clerk of Court of Appeals

NOTICE

This opinion is subject to further editing. If 

published, the official version will appear in 

the bound volume of the Official Reports. 

A party may file with the Supreme Court a 

petition to review an adverse decision by the 

Court of Appeals. See WIS. STAT. § 808.10 

and RULE 809.62. 

Appeal No. 2018AP1441 Cir. Ct. No. 2014CV2274

STATE OF WISCONSIN IN COURT OF APPEALS

DISTRICT II

COOLIDGE A L.L.C. AND COOLIDGE B L.L.C.,

 PLAINTIFFS-APPELLANTS,

 V.

CITY OF WAUKESHA AND D.F. TOMASINI CONTRACTORS,INC.,

 DEFENDANTS-THIRD-PARTY 

 PLAINTIFFS-RESPONDENTS,

 V.

D.F. TOMASINI CONTRACTORS, INC., BITCO GENERAL INSURANCE 

P/K/A BITUMINOUS FIRE AND MARINE INSURANCE, ACUITY, A

MUTUAL INSURANCE COMPANY AND STATE CONTRACTORS INC.,

 THIRD-PARTY DEFENDANTS-RESPONDENTS.

APPEAL from orders of the circuit court for Waukesha County: 

JENNIFER R. DOROW, Judge. Affirmed.
No. 2018AP1441

2

 

Before Neubauer, C.J., Gundrum and Seidl, JJ.

Per curiam opinions may not be cited in any court of this state as precedent 

or authority, except for the limited purposes specified in WIS. STAT. RULE 809.23(3). 

¶1 PER CURIAM. Coolidge A L.L.C. and Coolidge B L.L.C. 

(hereinafter, collectively “Coolidge”) appeal from orders granting summary 

judgment in favor of the City of Waukesha and the City’s contractor, D.F. 

Tomasini Contractors, Inc., and dismissing the property damage claims brought by 

Coolidge arising from a public works project commissioned by the City and 

completed by Tomasini. For the reasons that follow, we affirm. 

BACKGROUND

¶2 Coolidge owns an apartment building that was constructed on top of 

a landfill located near the intersection of Coolidge Avenue and Scott Avenue. The 

prior property owners had entered into a settlement agreement with the City to 

close the landfill. In exchange for not having to contribute financially to the 

cleanup of the landfill, the prior property owners agreed to release the City from 

“any property damage claims related to or arising from the Contamination or the 

condition of the Site or the Property.” 

¶3 In 2013, the City began a public works project replacing the water 

and sewer mains that run down the middle of both avenues. Pursuant to its 

contract with the City, Tomasini dug up the streets, replaced the sewer and water 

pipes, and backfilled the trenches so that the streets could be repaved. Tomasini 

compacted the final layer of fill using a vibrating drum roller. 
No. 2018AP1441

3

¶4 Coolidge filed suit alleging several causes of action, all premised on 

the notion that the construction work performed by Tomasini produced vibrations 

that caused the soil supporting the Coolidge property to differentially settle, which 

damaged the property and made it uninhabitable. Coolidge’s complaint alleged 

negligence against both the City and Tomasini. Coolidge alleged that the City 

acted negligently by failing to warn Tomasini about the condition of Coolidge’s 

building and failing to require Tomasini to protect the building. As to Tomasini, 

Coolidge alleged that it was negligent for failing to inspect Coolidge’s building, 

for using a vibratory roller to compact the fill, and for failing to monitor the 

vibrations caused by its compacting work. Coolidge brought three additional 

causes of action against the City: intentional nuisance; inverse condemnation; and 

indemnification. 

¶5 The City and Tomasini filed motions for summary judgment on all 

claims. With regard to negligence, both respondents asserted that they were 

entitled to governmental immunity. The circuit court informed the parties it would 

first hear Coolidge’s negligence claims and determine whether the City and/or 

Tomasini were immune from suit.

¶6 In hearing Coolidge’s negligence claims, the circuit court examined 

the undisputed facts, assumed the existence of negligence, and ultimately 

determined that both the City and Tomasini were entitled to governmental 

immunity. With regard to the City, the court “reviewed hundreds of pages of 

documents showing the extensive detail and instruction that went into the planning 

and methodology of this project[,]” including: 

For example, the City worked with three lead engineers on 

the project. The first did the underground work and created 

the underground specifications to be used; the second 

engineer reviewed the paving and roadwork conditions; and 
No. 2018AP1441

4

the third engineer worked with the utility for the water 

work that was involved. All three of these engineers then 

had their work reviewed and approved by the City’s lead 

engineer—engineers—excuse me, singular, engineer. This 

shows a deliberative, contemplative process involved in 

arriving at the decisions made concerning this public works 

project.

The court stated that the City’s deliberative process “in determining the 

specifications and final construction documents demonstrate, without a doubt, that 

the City engaged in a quasi-legislative process which this Court will not secondguess.” 

¶7 Turning to Tomasini, the circuit court found that the City’s wellconsidered specifications “became significantly more precise” through the process

of requesting proposals, which culminated in Tomasini receiving the contract. 

The court concluded that Tomasini followed the City’s reasonably precise 

specifications and was entitled to governmental contractor immunity. The court 

granted summary judgment to the City and to Tomasini and dismissed Coolidge’s 

negligence claims. 

¶8 At a subsequent hearing on Coolidge’s remaining claims, the circuit 

court granted summary judgment in favor of the City. The court determined that 

the settlement agreement between the City and the prior owners of the Coolidge 

property barred Coolidge’s intentional nuisance and inverse condemnation 

claims.1 The court went on to address both remaining claims on the merits and 

 

1

 Coolidge originally raised as an alternative claim that it was entitled to indemnification 

under the settlement agreement. The circuit court dismissed this claim, and Coolidge does not 

raise it on appeal. See Reiman Assocs., Inc. v. R/A Adver., Inc., 102 Wis. 2d 305, 306 n.1., 306 

N.W.2d 292 (Ct. App. 1981) (issues not briefed are deemed abandoned).
No. 2018AP1441

5

concluded that even without considering the settlement agreement, the City was 

entitled to summary judgment. 

DISCUSSION

The circuit court properly granted summary judgment in favor of the City on 

Coolidge’s negligence claim because the City was entitled to governmental 

immunity. 

¶9 Coolidge maintains that both the City and Tomasini were negligent, 

and that neither is entitled to governmental immunity for their negligent acts. We 

review summary judgment decisions de novo, applying the same methodology as 

the circuit court. Palisades Collection LLC v. Kalal, 2010 WI App 38, ¶9, 324 

Wis. 2d 180, 781 N.W.2d 503. Summary judgment “shall be rendered if the 

pleadings, depositions, answers to interrogatories, and admissions on file, together 

with the affidavits, if any, show that there is no genuine issue as to any material 

facts and that the moving party is entitled to judgment as a matter of law.” WIS.

STAT. § 802.08(2) (2017-18).2 

¶10 WISCONSIN STAT. § 893.80(4) immunizes governmental 

subdivisions and their employees and agents from liability “for acts done in the 

exercise of legislative, quasi-legislative, judicial, or quasi-judicial functions.” The 

statute “confers broad immunity from suit” and has been interpreted to include 

“any act that involves the exercise of discretion and judgment.” Lodl v. 

Progressive N. Ins. Co., 2002 WI 71, ¶¶20-21, 253 Wis. 2d 323, 646 N.W.2d 314. 

“The immunity defense assumes negligence, focusing instead on whether the 

municipal action (or inaction) upon which liability is premised is entitled to 

 

2

 All references to the Wisconsin Statutes are to the 2017-18 version unless otherwise 

noted.
No. 2018AP1441

6

immunity under the statute, and if so, whether one of the judicially-created 

exceptions to immunity applies.” Id., ¶17. The application of § 893.80(4) to a set 

of facts presents a question of law that we review independently. Heuser ex rel. 

Jacobs v. Community Ins. Corp., 2009 WI App 151, ¶21, 321 Wis. 2d 729, 774 

N.W.2d 653. 

¶11 Taking as true the predicate facts for Coolidge’s negligence claim, 

and assuming that those facts constitute negligence, we conclude that the City was 

entitled to governmental immunity, and therefore, to summary judgment. 

“Decisions concerning the adoption, design, and implementation of a public works 

system are discretionary, legislative decisions for which a municipality enjoys 

immunity.” Milwaukee Metro. Sewerage Dist. v. City of Milwaukee, 2005 WI 8, 

¶9, 277 Wis. 2d 635, 691 N.W.2d 658 (hereinafter, MMSD). In the instant case, a 

local ordinance required the City’s Board of Public Works to “superintend all 

public works and keep the streets, alleys, sewers and public works and places in 

repair.” See CITY OF WAUKESHA, WIS., CODE BOOK § 3.01 (Board of Public 

Works) (2002). To comply, the City prepared a comprehensive plan to rehabilitate 

the sewer and water lines at issue. There is no dispute that different aspects of the 

project were debated and reviewed by project engineers, the City Engineer, and 

the Director of Public Works, or that the City’s employees made discretionary 

design choices and policy decisions. As such, the City’s project resulted from the 

exercise of its legislative or quasi-legislative functions, and the City is immune 

from liability under WIS. STAT. § 893.80(4). 

¶12 In arguing against the City’s immunity, Coolidge does not suggest 

that the City’s actions were ministerial rather than discretionary, or that one of the 

exceptions to governmental immunity applies. Instead, Coolidge asserts that the 

City is not entitled to immunity because “[t]here is not a shred of evidence” that its 
No. 2018AP1441

7

failure to warn Tomasini about the building’s condition and to require that 

Tomasini take protective measures “was the result of a legislative or quasilegislative decision.” According to Coolidge, the City made “no decision at all; 

no one thought about it.” Coolidge argues that immunity does not apply to an

action or inaction unless the municipality can show that it expressly raised and 

discussed that particular action or inaction, and then made a conscious choice 

between identified alternatives.

¶13 We are not persuaded. Coolidge cites no authority for the 

proposition that individual elements of, or omissions from, a public works project 

that was created, planned and implemented pursuant to a municipality’s legislative 

or quasi-legislative functions can be isolated from the project as a whole and, in 

hindsight, picked apart to defeat immunity.3 Such a notion runs afoul of wellsettled case law concerning the government immunity extended to “the adoption, 

design, and implementation of a public works system.” MMSD, 277 Wis. 2d 635, 

¶9. See also Allstate Ins. Co. v. Metropolitan Sewerage Comm’n, 80 Wis. 2d 10, 

16, 258 N.W.2d 148 (1977) (“Where, when and how to build sewer systems are 

legislative determinations imposed upon a governmental body. It is not for the 

 

3

 The cases cited by Coolidge on appeal are inapt. Coolidge’s reliance on Showers 

Appraisals, LLC v. Musson Bros., 2013 WI 79, ¶1, 350 Wis. 2d 509, 835 N.W.2d 226, is 

misplaced as to its claims against the City because the issues on appeal in Showers concerned 

under which circumstances a contractor was entitled to governmental immunity. Indeed, the 

circuit court in Showers granted the municipality’s motion for summary judgment on grounds of 

immunity, and the plaintiff did not appeal that decision. Id., ¶18. Nor is Coolidge’s position 

supported by Bostco LLC v. Milwaukee Metro. Sewerage Dist., 2013 WI 78, ¶¶3-4, 100, 350 

Wis. 2d 554, 835 N.W.2d 160, which concerned a city’s failure to abate a public nuisance. 
No. 2018AP1441

8

court to be judge or jury to ‘second guess’ them in these determinations nor to find 

they are liable for negligence.”) (footnote omitted).4

The circuit court properly granted summary judgment in favor of Tomasini on 

Coolidge’s negligence claims because Tomasini was entitled to governmental 

contractor immunity.

¶14 Coolidge contends that Tomasini was negligent for (1) not 

performing a “site survey” (an inspection of the Coolidge property) before starting 

the project to determine whether Tomasini needed to adjust its construction 

technique due to the condition of the Coolidge property, (2) failing to use a 

seismograph to detect vibration levels while using its compaction equipment, and 

(3) using a vibratory compactor to compact the base course of the roadway. As to 

the first two complaints, both of which involve omissions by Tomasini, it is 

undisputed that the contract did not require Tomasini to inspect the Coolidge 

property or monitor vibration levels. The third complaint involves an affirmative 

action taken by Tomasini that was accounted for in the specifications.

¶15 Courts have extended governmental immunity to private contractors 

acting as agents of a government entity. See, e.g., Melchert v. Pro Elec. 

Contractors, 2017 WI 30, ¶19, 374 Wis. 2d 439, 892 N.W.2d 710; Estate of 

Lyons v. CNA Ins. Cos., 207 Wis. 2d 446, 457, 558 N.W.2d 658 (Ct. App. 1996). 

In Lyons, we explicitly extended WIS. STAT. § 893.80(4) immunity to government 

contractors, concluding that a contractor should not bear liability when “simply 

 

4

 We also observe that Coolidge’s factual assertion that the City did not give a thought to 

the condition of its property mischaracterizes the record. There is no dispute that the City’s 

specifications do advise that the project is taking place near a landfill. The circuit court properly 

found as undisputed that the City did consider private property near the site when making 

decisions about the specifications and other bid documents. 
No. 2018AP1441

9

acting as an ‘agent’ of governmental authorities who had retained ultimate 

responsibility” for a project. Lyons, 207 Wis. 2d at 454. To assert immunity, a 

government contractor must prove that: (1) the governmental entity approved 

reasonably precise specifications that were being followed at the time the alleged 

injury occurred and (2) the conduct for which immunity is sought implemented the 

governmental entity’s decisions, made during the exercise of its legislative, quasilegislative, judicial, or quasi-judicial functions. Melchert, 374 Wis. 2d 437, ¶¶19-

20.

¶16 Applying the test, we conclude that Tomasini was entitled to 

immunity. First, the City promulgated “reasonably precise specifications”

governing Tomasini’s work, which Tomasini was following when its compacting 

activities allegedly damaged Coolidge’s building. Id., ¶19. Through the 116 

different Special Provisions for the project, an incorporated set of Department of 

Transportation (DOT) specifications, and a set of its own Standard Construction 

Specifications, the City directed every aspect of Tomasini’s work, including how 

to compact granular material in the roadway. Having strictly followed those

specifications, Tomasini cannot be held liable for any damages resulting from the 

execution of the City’s plan.

¶17 As to the claims that Tomasini failed to perform extra-contractual 

property inspection and vibrations monitoring, Coolidge argues that because the 

City’s specifications did not prohibit Tomasini from performing these tasks, 

Tomasini was not acting according to “reasonably precise specifications.” This 

argument is a nonstarter. “A contract is reasonably precise if it reasonably and 

precisely lists items required; common sense dictates that items not required by the 

contract do not obligate the contractor to provide them.” Estate of Brown v. 

Mathy Constr. Co., 2008 WI App 114, ¶13, 313 Wis. 2d 497, 756 N.W.2d 417. 
No. 2018AP1441

10

Tasks not included in the City’s specifications pertain to its project design and 

Tomasini cannot be held to account for their absence.5 

¶18 With regard to the third negligence claim (use of the vibratory 

rollers), Coolidge contends that the specifications were not reasonably precise for 

purposes of immunity because they allowed Tomasini to choose which equipment 

to use in compacting the gravel base. We are not persuaded. 

¶19 Coolidge understates the City’s extensive control over the equipment 

Tomasini could use to compact the road base. The City’s specifications 

incorporated DOT specifications requiring the use of “specialized pneumatic or 

vibratory compaction equipment.” This limited Tomasini to two types of 

compaction equipment and prevented Tomasini from using static (nonvibratory) 

drum rollers, sheepsfoot rollers, tamping rollers, grid rollers, or other equipment. 

“[S]pecifications need not spell out every minute detail of a project to qualify as 

‘reasonably precise.’” Bronfeld v. Pember Cos., 2010 WI App 150, ¶25, 330 

Wis. 2d 123, 792 N.W.2d 222. The specifications pertaining to compacting 

equipment did not delegate to Tomasini sole responsibility “for the means, 

methods, techniques, sequences, and procedures of construction.” See Showers 

 

5

 Coolidge’s argument is further undercut by the existence of provisions contemplating 

site inspections and vibratory compaction. Before bidding, the City required Tomasini to 

“examine the worksite.” This required Tomasini to inspect only the roadway and just beyond the 

sidewalk, not private buildings such as Coolidge’s apartments. After bidding, the specifications 

required Tomasini to inspect water utilities and to inspect and document the condition of 

underground sewer laterals. These specifications provided reasonable precision to Tomasini’s 

inspection obligations and conspicuously omitted any requirement to inspect buildings on private 

property. Similarly, specifications detailed the means by which Tomasini was to compact the 

base course: use a vibratory roller to compact the 1.25-inch crushed stone “until there is no 

appreciable displacement, either laterally or longitudinally.” In other words, the contract 

contained “reasonably precise” specifications on how Tomasini should use vibration to compact 

the base course, but omitted any additional requirement that Tomasini monitor those vibrations.
No. 2018AP1441

11

Appraisals, LLC v. Musson Bros., 2013 WI 79, ¶¶37, 48-49, 51, 350 Wis. 2d 509, 

835 N.W.2d 226. We agree with the circuit court that by narrowing Tomasini’s 

choices to only two types of rollers with which to densify the foundation, the 

specifications were reasonably precise so as to warrant immunity.

¶20 In fact, the City’s specifications went further in controlling 

Tomasini’s use of equipment to compact the top layer of gravel in the roadway. 

The project expressly incorporated the City’s Standard Construction 

Specifications, which addressed asphalt road construction and required the use of a 

large vibratory roller before paving the roadway: 

Prior to the placing of the Prime Coat[,] the crushed 

aggregate shall be rolled with a vibratory roller having a 

minimum effective weight of four (4) tons. 

This specification applies to the work Tomasini was performing when Coolidge 

claims its apartment building settled. As such, the circuit court found that the 

specifications required Tomasini “to use the vibratory roller on the final phase of 

compacting.” Thus, even if we were to accept Coolidge’s argument that 

reasonable precision required the City to mandate the exact piece of equipment 

alleged to have caused damage (here, the vibratory roller), that standard is 

satisfied. 

¶21 Finally, we conclude that the second prong of the governmental 

contractor immunity test is satisfied. The undisputed facts show that the City 

made legislative or quasi-legislative decisions to (1) require Tomasini to use a 

vibratory roller to compact the roadway, (2) not require Tomasini to inspect any 

private buildings adjacent to the Project, and (3) not require Tomasini to monitor 

any vibration levels from its equipment. There is no dispute that Tomasini 

followed those design decisions. Therefore, Tomasini is immune from any 
No. 2018AP1441

12

liability resulting from its implementation of the City’s legislative or quasilegislative project design. 

¶22 Coolidge maintains that Tomasini’s failure to inspect the Coolidge 

property and to monitor compaction vibrations were not omitted pursuant to the 

City’s legislative function because the City did not expressly debate and decide 

against including the inspection and monitoring requirements in its specifications. 

We are not persuaded. “If contractor immunity required a contract to list not only 

all the work and materials required but all work and materials not required, state 

contracts would approach encyclopedic proportions.” Brown, 313 Wis. 2d 497, 

¶13. Government contractor immunity does not hinge on the existence of such a 

cumbersome and inefficient process. 

¶23 Moreover, Coolidge is wrong to suggest that the City did not 

consider the particular work that Coolidge claims Tomasini should have done on 

the project. The record before the circuit court shows that the City considered the

landfill’s potential impact on the project, but was not concerned about its impact 

on private buildings because none of the street work “impact[ed] the landfill 

proper.” Similarly, the City did not include any specifications about protecting 

nearby homes or buildings because the City was “not anticipating any damage.”

The City did not discuss minimizing vibrations because “it’s typically not an issue 

on projects.” While Coolidge may disagree with the City’s conclusions, the fact 

remains that the City considered the landfill while drafting the specifications but 

did not think the street work would cause any problems. 
No. 2018AP1441

13

The Circuit Court properly granted summary judgment in favor of the City on 

Coolidge’s intentional nuisance claim.

¶24 Coolidge alleges that the City is liable for creating an intentional 

private nuisance, that is, a nontrespassory invasion of Coolidge’s interest in the 

private use and enjoyment of its land. See Vogel v. Grant-Lafayette Elec. Coop., 

201 Wis. 2d 416, 423, 548 N.W.2d 829 (1996). As with its other causes of action, 

the factual predicate for Coolidge’s intentional nuisance claim is that vibrations 

from the City’s construction caused its building to settle and rendered it 

uninhabitable. Coolidge asserts that the City is liable because it knew about the 

condition of Coolidge’s building and that the project involved the use of 

vibrations. 

¶25 A nuisance is intentional if the defendant either acts for the purpose 

of causing it, or “nonetheless has knowledge that [its] otherwise legal enterprise is 

causing harm or is substantially certain to cause the invasion at issue.” MMSD, 

277 Wis. 2d 635, ¶37. The MMSD court continued, “when a nuisance is alleged 

to fall under the second category of intentional conduct, the ‘knowledge’ refers to 

knowledge that the condition or activity is causing harm to another’s interest in the 

use and enjoyment of the land.” Id., ¶38 (citing Vogel, 201 Wis. 2d at 430-31). 

The court in MMSD relied on Vogel to summarize the law, stating that in Vogel, 

“a case involving stray voltage alleged to have damaged a farmer’s cows, this 

court stated that it was not sufficient that the defendant knew that some stray 

voltage invaded the farmer’s land; rather, proof was required that the defendant 

knew that unreasonable levels of the stray voltage were causing harm to the 

plaintiff’s cows.” MMSD, 277 Wis. 2d 635, ¶38 (citing Vogel, 201 Wis. 2d at 

432-433). 
No. 2018AP1441

14

¶26 In the instant case, citing the above law, the circuit court concluded 

that Coolidge failed to set forth an intentional nuisance claim:6

That means that even assuming causation, as I’ve indicated 

I would for purposes of this motion, that the plaintiffs here 

must be able to make a prima facie showing that the City 

knew the vibrations were causing dynamic settling of the 

soil. The undisputed evidence before the court on summary 

judgment motion is that no one reported any vibration 

problems to the City, that the City’s engineer received no 

complaints about vibration problems. And the undisputed 

evidence before the court is that the City did not otherwise 

have knowledge that the vibrations caused by the project 

were unreasonable, that the vibrations invaded the property, 

and that the vibrations caused harm, meaning the dynamic 

settling.

And so for those reasons then, I'll find that ... the plaintiff 

has not made a prima facie case as it relates to the nuisance 

claim and find alternatively for the City on summary 

judgment on that claim as well. And I’ll just add to that 

that the City had no knowledge, frankly actual, imputed or 

otherwise, of the harm caused by the settling. And that’s 

really where Vogel comes in, because, again, it’s not 

sufficient that they know of the condition of the property. 

¶27 Like the circuit court, we conclude that summary judgment was 

appropriate. Pursuant to MMSD, to demonstrate its intentional nuisance claim, 

Coolidge would have to prove that the City knew that there were vibrations 

invading Coolidge’s property, and that the level of those vibrations was causing 

harm to the use and enjoyment of the property. The undisputed facts are that the 

City did not know that vibrations were causing Coolidge’s soil to settle such that it 

interfered with the use and enjoyment of the property. 

 

6

 The circuit court first concluded that the settlement agreement barred Coolidge’s 

recovery on both the intentional nuisance and inverse condemnation claims. Because we 

conclude that the City was entitled to summary judgment on the merits of these claims, we 

decline to consider whether the settlement agreement also required dismissal of Coolidge’s 

claims. See Sweet v. Berge, 113 Wis. 2d 61, 67, 334 N.W.2d 559 (Ct. App. 1983). 
No. 2018AP1441

15

¶28 Coolidge also asserts that “Tomasini was an agent of the City, 

therefore [the City] had actual knowledge that harm was substantially likely to 

occur.” Coolidge introduces no evidence that Tomasini had actual knowledge that 

the Coolidge property was being harmed by excessive vibrations. To the extent

Coolidge cites to the deposition testimony of an expert retained after the lawsuit 

was filed, that expert did not provide any evidence that Tomasini had actual 

knowledge that vibrations were causing harm contemporaneous with the project. 

At best, Coolidge appears to be suggesting that this intentional nuisance claim can 

be sustained based on knowledge imputed to the City from Tomasini’s knowledge 

acquired after the fact. We are not persuaded. The intentional nuisance claim in 

this case necessarily requires contemporaneous knowledge of both the conduct 

causing the nuisance as well as knowledge that the nuisance-causing conduct was 

actually causing damage to the property. 

The Circuit Court properly granted summary judgment in favor of the City on 

Coolidge’s claim that its property was taken for public use without just 

compensation. 

¶29 “The property of no person shall be taken for public use without just 

compensation therefor.” WIS. CONST. art. I, § 13. “Governmental action that 

merely causes damage to private property is not the basis for” a just compensation 

claim. Zinn v. State, 112 Wis. 2d 417, 424, 334 N.W.2d 67 (1983). Rather, there 

must be a “taking” of private property for public use. Id. A taking can occur 

through two types of governmental conduct: (1) an actual physical occupation or 

appropriation or (2) a regulatory restriction on the property that deprives the owner 

of all, of substantially all, of the beneficial use of the property. E-L Enters., Inc. 

v. Milwaukee Metro. Sewerage Dist., 2010 WI 58, ¶22, 326 Wis. 2d 82, 785 

N.W.2d 409.
No. 2018AP1441

16

¶30 Coolidge has failed to set forth a claim for compensable taking. 

None of the construction work was performed on private property, and the City 

did not appropriate any of Coolidge’s property for its public works project. 

“[G]overnment action outside the owner’s property that causes consequential 

damages within does not constitute a taking.” Id., ¶30 (citation omitted). The 

claim in Coolidge’s brief that a compensable taking occurs “[i]f a governmental 

entity causes damage to property which renders the property valueless” finds no 

support in the cases it cites and is plainly contradicted by Zinn and E-L 

Enterprises. Absent a physical occupation or appropriation of property, 

Coolidge’s claim is simply a reformulation of its negligence claim, for which the 

City enjoys immunity. See E-L Enterprises, 326 Wis. 2d 82, ¶¶5, 32-33.

¶31 Coolidge also asserts that the City’s project effected a regulatory 

taking of its private property.7 We are not persuaded. Coolidge could have made 

repairs after it identified the problems with its sanitary system. To the extent 

Coolidge suggests that a DNR regulation is interfering with needed repairs, there 

is a process by which Coolidge can make repairs in compliance with the DNR

regulation. Coolidge submits no evidence that it has initiated any such process 

with the DNR or sought a building permit from the City.

 

7

 Coolidge’s complaint alleged a claim for inverse condemnation under WIS. STAT.

§ 32.10. At some point, the claim morphed into one alleging a regulatory taking under the 

constitution, which is a different cause of action. See Zinn v. State, 112 Wis. 2d 417, 433, 334 

N.W.2d 67 (1983) (The inverse condemnation statute “is designed solely to deal with the 

traditional exercise of eminent domain by the government: the government has occupied private 

property, plans to continue such occupation and the landowner is merely requesting just payment 

for this land.”). Coolidge has not set forth a claim under § 32.10, and we will address its cause of 

action as a regulatory taking without just compensation in violation of the constitution.
No. 2018AP1441

17

By the Court.—Orders affirmed.

This opinion will not be published. See WIS. STAT.

RULE 809.23(1)(b)5.