2013 WI 78

SUPREME COURT OF WISCONSIN

CASE NO.: 2007AP221 & 2007AP1440

COMPLETE TITLE:

Bostco LLC and Parisian, Inc.,

Plaintiffs-Appellants-CrossRespondents-Petitioners,

v.

Milwaukee Metropolitan Sewerage District,

Defendant-Respondent-Cross-AppellantPetitioner.

REVIEW OF A DECISION OF THE COURT OF APPEALS

Reported at 334 Wis. 2d 620, 800 N.W.2d 518

(Ct. App. 2011 - Published)

PDC No: 2011 WI App 76

OPINION FILED: July 18, 2013

SUBMITTED ON BRIEFS:

ORAL ARGUMENT: September 6, 2012

SOURCE OF APPEAL:

COURT: Circuit

COUNTY: Milwaukee

JUDGE: Jean A. DiMotto & Jeffrey A. Kremers

JUSTICES:

CONCURRED: GABLEMAN, J., concurs. (Opinion filed.)

DISSENTED: ABRAHAMSON, C.J., BRADLEY, J., dissent. (Opinion

filed.)

NOT PARTICIPATING: PROSSER, J., did not participate.

ATTORNEYS:

For the plaintiffs-appellants-cross-respondentspetitioners, there were briefs by Mark A. Cameli, Rebecca

Frihart Kennedy, Lisa Nester Kass, Amy MacArdy, and Reinhart,

Boerner Van Deuren, S.C., Milwaukee, and oral argument by Mark

A. Cameli and Rebecca Frihart Kennedy.

For the defendant-respondent-cross-appellant-petitioner,

there were briefs by G. Michael Halfenger, William J. Katt, Jr.,

Eric G. Pearson, and Foley & Lardner, LLP, Milwaukee, and Susan

B. Anthony, James H. Petersen and Milwaukee Metropolitan
2

Sewerage District, Milwaukee, and oral argument by G. Michael

Halfenger.

An amicus curiae brief was filed by Claire Silverman,

Madison, on behalf of the League of Wisconsin Municipalities.
2013 WI 78

NOTICE

This opinion is subject to further

editing and modification. The final

version will appear in the bound

volume of the official reports.

No. 2007AP221 & 2007AP1440

(L.C. No. 2003CV5040)

STATE OF WISCONSIN : IN SUPREME COURT

Bostco LLC and Parisian, Inc.,

Plaintiffs-Appellants-CrossRespondents-Petitioners,

v.

Milwaukee Metropolitan Sewerage District,

Defendant-Respondent-Cross-AppellantPetitioner.

FILED

JUL 18, 2013

Diane M. Fremgen

Clerk of Supreme Court

REVIEW of a decision of the Court of Appeals. Affirmed in

part, reversed in part, and remanded.

¶1 PATIENCE DRAKE ROGGENSACK, J. This is a review of a

published opinion of the court of appeals

1 that affirmed in part

and reversed in part the decision of the circuit court for

Milwaukee County.

2 The questions now before us arise from claims

by Bostco LLC and Parisian, Inc. (hereinafter Bostco), alleging

1 Bostco LLC v. Milwaukee Metro. Sewerage Dist. (Bostco),

2011 WI App 76, 334 Wis. 2d 620, 800 N.W.2d 518.

2 Judges Jeffrey A. Kremers and Jean A. DiMotto presided at

different phases in the circuit court.
No. 2007AP221 & 2007AP1440

2

that Milwaukee Metropolitan Sewerage District's (MMSD) negligent

operation and maintenance of a sewerage tunnel (the Deep Tunnel)

beneath Bostco's property resulted in excessive groundwater

seepage into the Deep Tunnel, thereby causing significant damage

to Bostco's buildings. Bostco sought money damages, as well as

equitable relief.

¶2 The parties raise five issues, and we affirm the court

of appeals on all but one of the issues. First, MMSD claims in

its cross-appeal that it is entitled to immunity for its

construction and maintenance of the Deep Tunnel, under Wis.

Stat. § 893.80(4).

3 Second, if immunity is not accorded, Bostco

claims that the court of appeals erred when it reversed the

circuit court's award of equitable relief for Bostco, ordering

MMSD to abate the excessive seepage of groundwater into the Deep

Tunnel. Third, Bostco claims that the damage cap in

§ 893.80(3), which caps the damages recoverable in an action

against governmental entities at $50,000, violates equal

protection, both facially and as applied to Bostco's specific

claims. Additionally, Bostco contends that the damage cap does

not apply to continuing nuisances. Fourth, Bostco claims that

MMSD's operation and maintenance of the Deep Tunnel constituted

an unconstitutional taking of the groundwater beneath Bostco's

property. Fifth, MMSD argues that Bostco's claim is barred by

the notice of claim provision of § 893.80(1) (2005-06).

3 All references to the Wisconsin Statutes are to the 2011–

12 version unless otherwise noted. Although the parties refer

to the 2005–06 version, the relevant language remains the same

in the current version unless otherwise indicated.
No. 2007AP221 & 2007AP1440

3

¶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, quasilegislative, 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, quasilegislative, 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
No. 2007AP221 & 2007AP1440

4

to protection under sec. 893.80(4)"); see also Welch v. City of

Appleton, 2003 WI App 133, ¶8, 265 Wis. 2d 688, 666 N.W.2d 511

(explaining that "no statutory or common law immunity doctrine

empowers a public body to maintain a private nuisance"); Menick

v. City of Menasha, 200 Wis. 2d 737, 745, 547 N.W.2d 778 (Ct.

App. 1996) (concluding "there is no discretion as to maintaining

the [sewer] system so as not to cause injury"); Wis. Stat.

§§ 844.01(1) and 844.20(2) (providing statutory procedure for

seeking abatement of private nuisances).

4 The court of appeals'

determination that MMSD is not entitled to immunity is therefore

affirmed.

¶5 Because MMSD does not have immunity for its negligent

maintenance of the Deep Tunnel, we also conclude as follows: On

the second issue, we conclude that Wis. Stat. § 893.80(3)–(5) do

not abrogate MMSD's duty to abate the private nuisance that MMSD

caused by its negligent maintenance of the Deep Tunnel, after

MMSD had notice that the nuisance was a cause of significant

harm. Therefore, we reverse the court of appeals' denial of the

equitable relief of abatement.

¶6 Third, we conclude that the monetary damage cap in

Wis. Stat. § 893.80(3) does not violate equal protection, either

facially or as applied to Bostco. Moreover, the nature of

Bostco's claim as a continuing nuisance does not render

§ 893.80(3)'s monetary damage cap inapplicable. Accordingly, we

4 See also Winchell v. City of Waukesha, 110 Wis. 101, 109,

85 N.W. 668 (1901) (concluding that the "legislative authority

to install a sewer system carries no implication of authority to

create or maintain a nuisance").
No. 2007AP221 & 2007AP1440

5

affirm the court of appeals' conclusion that the circuit court

properly reduced Bostco's monetary damages to $100,000.

¶7 Fourth, with regard to Bostco's inverse condemnation

claim, we conclude that Bostco forfeited the argument that it

makes before this court, and we therefore affirm the court of

appeals on this issue.

¶8 Fifth, we conclude that Bostco substantially complied

with the notice of claim provisions under Wis. Stat. § 893.80(1)

(2005–06), and that MMSD therefore had sufficient notice under

those provisions. Accordingly, we affirm the court of appeals

on that issue as well.

¶9 Because neither Wis. Stat. § 893.80(4) nor (3)

abrogates MMSD's duty to abate this private nuisance, we reverse

the court of appeals' decision in part, affirm that decision in

part, and remand to the circuit court for further proceedings

consistent with this opinion. In particular, we reverse the

court of appeals' reversal of the circuit court's order for

abatement, in part. That is, while we affirm the court of

appeals on all other issues, we reverse that court's decision

that Bostco was not entitled to equitable relief in the form of

an order for abatement. Therefore, we affirm the circuit court

decision that abatement is required, and we remand this matter

to the circuit court. Upon remand, a hearing may be held to

establish whether an alternate method will abate the continuing

private nuisance MMSD maintains or whether lining the Deep

Tunnel with concrete is required for abatement.

I. BACKGROUND
No. 2007AP221 & 2007AP1440

6

¶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.
No. 2007AP221 & 2007AP1440

7

Eventually two common law claims were tried to a jury:

negligence and private nuisance.

¶14 The jury found that MMSD was negligent in its

maintenance of the Deep Tunnel near Bostco's building,

5 and that

MMSD's negligence was a cause of Bostco's injury.

6 The jury

awarded Bostco $3,000,000 for past damages and $6,000,000 for

future damages.

7 The jury also found that Bostco was at fault

for 30 percent of the damages, thereby reducing the $9,000,000

award to $6.3 million.

8

¶15 In regard to Bostco's nuisance claim, the jury found

that the negligent manner in which MMSD maintained the Deep

Tunnel interfered with Bostco's use and enjoyment of its

property.

9 The jury found that MMSD could abate the interference

5 QUESTION No. 1: "[W]as the District negligent in the

manner in which it operated or maintained the tunnel near the

Boston Store?"

ANSWER: "Yes."

6 QUESTION No. 2: "Was such negligence a cause of the

claimed damage to the Boston Store foundation?"

ANSWER: "Yes."

7 See Special Verdict Questions Nos. 7 & 8.

8 See Special Verdict Question No. 5.

9 QUESTION No. 9: "Has the manner in which the District has

operated or maintained the tunnel interfered with the Boston

Store's use and enjoyment of their building?"

ANSWER: "Yes."
No. 2007AP221 & 2007AP1440

8

by reasonable means and at a reasonable cost.

10 However, the

jury also found that the interference did not result in

"significant harm" to Bostco.

11

¶16 On post-verdict motions,

12 the circuit court denied

Bostco's motion asking the court to find that over $2 million in

damages constituted "significant harm" for purposes of Bostco's

nuisance claim. Additionally, MMSD sought judgment

notwithstanding the verdict, on the ground that MMSD was

protected by governmental immunity. The circuit court denied

MMSD's motion; however, the court agreed with MMSD that the

$50,000 damages cap in Wis. Stat. § 893.80(3) applied, and

reduced the jury's negligence verdict from $6.3 million to

$100,000 ($50,000 each for Bostco and Parisian). After the

damage cap had been applied, Bostco reasserted its claim for

equitable relief, which the circuit court had held in abeyance

pending the determination of damages in the jury trial.

Specifically, Bostco claimed that a $100,000 damage award on

$6.3 million of damages constituted an inadequate remedy at law.

The circuit court granted Bostco's prayer for equitable relief

10 See Special Verdict Question No. 11. Bostco's experts

testified that the siphoning of water from near Bostco's

building could be abated either by lining the Deep Tunnel with

concrete or by installing and maintaining a system of

groundwater monitoring and recharge wells to replenish the

groundwater that is siphoned into the Deep Tunnel.

11 See Special Verdict Question No. 10.

12 The Honorable Jeffrey Kremers, Milwaukee County Circuit

Court, presided at the trial and initial post-verdict phase of

the proceedings.
No. 2007AP221 & 2007AP1440

9

and ordered MMSD to abate the nuisance caused by MMSD's

maintenance of the Deep Tunnel.

13

¶17 Bostco appealed and MMSD cross-appealed. Bostco

argued that the circuit court erred when it refused to change

the jury's finding that Bostco did not suffer "significant harm"

as to its nuisance claim, as well as the court's summary

judgment dismissing Bostco's inverse condemnation claim. On

cross-appeal, MMSD argued that the circuit court erred (1) by

failing to hold that MMSD's operation and maintenance of the

Deep Tunnel were shielded by governmental immunity, (2) by

granting Bostco's request for abatement, and (3) by not

dismissing Bostco's complaint for failing to comply with the

notice of claim provisions of Wis. Stat. § 893.80(1) (2005–06).

14

¶18 With regard to Bostco's nuisance claim, the court of

appeals concluded that the circuit court erred in declining to

reverse the jury's finding that Bostco did not suffer

"significant harm," and that, as a matter of law, suffering more

than $2 million in past damages constituted significant harm.

Therefore, the court concluded, Bostco proved its claim for

private nuisance. Bostco LLC v. Milwaukee Metro. Sewerage Dist.

(Bostco), 2011 WI App 76, ¶¶92–104, 334 Wis. 2d 620, 800 N.W.2d

518. Additionally, although the court of appeals concluded that

13 The Honorable Jean DiMotto, Milwaukee County Circuit

Court, presided over Bostco's claim for equitable relief.

14 When discussing the parties' notice of claim arguments,

we refer to the numbering of the provisions as they existed in

the 2005–06 version of the Wisconsin Statutes, because the

numbering of the relevant provisions of the statute has since

changed.
No. 2007AP221 & 2007AP1440

10

MMSD was not entitled to immunity under Wis. Stat. § 893.80(4),

the court reversed the circuit court's order for abatement,

because it concluded that, since § 893.80(3) capped Bostco's

recoverable damages at $50,000 per claimant, § 893.80(3) and (5)

precluded such equitable relief. Id., ¶¶105–07, 123-37. Also,

the court concluded that the damage cap under § 893.80(3) did

not violate equal protection, either on its face or as applied

to Bostco, id., ¶¶39–60, and that the cap applied to Bostco's

continuing nuisance claim, id., ¶107.

¶19 The court of appeals also affirmed the circuit court's

summary judgment dismissing Bostco's inverse condemnation claim,

holding that Bostco had failed to allege facts that could show

that MMSD either physically occupied Bostco's property or that

MMSD deprived Bostco of all or substantially all of the

beneficial use of its property.

15 Id., ¶¶110–13. Additionally,

the court of appeals rejected MMSD's claim that Bostco had

failed to comply with the notice of claim provision under Wis.

Stat. § 893.80(1) (2005-06), and deemed that Bostco's notice was

sufficient. Id., ¶¶85–91.

¶20 Bostco petitioned for review, and MMSD crosspetitioned for review. We granted both petitions.

II. DISCUSSION

A. Standard of Review

15 The court of appeals also affirmed the circuit court's

decision to dismiss Bostco's excavation protection claim on

summary judgment. Bostco, 334 Wis. 2d 620, ¶122. That claim is

not before us.
No. 2007AP221 & 2007AP1440

11

¶21 Whether MMSD is immune from a claim for abatement of

the private nuisance it negligently maintained, which was a

cause of significant harm and of which it had notice, when MMSD

could do so by reasonable means at a reasonable cost, is a

question of law for our independent review. See City of

Milwaukee, 277 Wis. 2d 635, ¶56.

¶22 This case also requires us to interpret and apply Wis.

Stat. § 893.80. Statutory interpretation and application

present questions of law that we review independently, while

benefitting from previous discussions of the court of appeals

and the circuit court. Richards v. Badger Mut. Ins. Co., 2008

WI 52, ¶14, 309 Wis. 2d 541, 749 N.W.2d 581. With regard to the

circuit court's decision to grant equitable relief and order

abatement, we review that decision for an erroneous exercise of

discretion. Forest Cnty. v. Goode, 215 Wis. 2d 218, 225, 572

N.W.2d 131 (Ct. App. 1997).

¶23 Additionally, Bostco asks this court to review the

circuit court's summary judgment of dismissal of its inverse

condemnation/takings claim. Rather than applying the

traditional summary judgment methodology, however, we decline to

review that claim because the alleged taking as presented to us

is materially different than the taking alleged in the circuit

court action. See Vill. of Trempealeau v. Mikrut, 2004 WI 79,

¶15, 273 Wis. 2d 76, 681 N.W.2d 190. Accordingly, we conclude

that Bostco has forfeited its new claim, and we therefore affirm

the court of appeals on this issue.
No. 2007AP221 & 2007AP1440

12

¶24 Bostco also claims that the application of the

statutory damages cap under Wis. Stat. § 893.80(3) violates the

equal protection clause of the Wisconsin Constitution. Whether

a statute's limitation violates equal protection presents a

question of law for our independent review. See State v. West,

2011 WI 83, ¶22, 336 Wis. 2d 578, 800 N.W.2d 929.

B. Discussion's Structure

¶25 Two competing concepts underlie this controversy: one

appurtenant to abating private nuisances and the other

appurtenant to statutory immunity. One concept requires an

understanding of the scope of the duty to abate a private

nuisance that a municipal entity negligently maintained, which

is a cause of significant harm, and of which the municipal

entity had notice.

16 The other concept requires consideration of

whether a municipal entity, here MMSD, has statutory immunity

pursuant to Wis. Stat. § 893.80, from a claim for abatement

based on the entity's negligent maintenance of a private

nuisance. These two concepts are intertwined in the matter now

before us.

¶26 In order to address these competing contentions, it is

necessary to fully understand the claim that Bostco proved,

i.e., that MMSD negligently maintained a continuing private

nuisance that was a cause of significant harm and of which MMSD

16 Our conclusion on the question of negligence is based on

the jury's findings. Our analysis is confined to whether, upon

a finding of negligence, an injured party may seek abatement of

a private nuisance that continues to be a cause of significant

harm when the municipal entity has notice of such nuisance.
No. 2007AP221 & 2007AP1440

13

had notice. Given this posture, our task is to apply the law

that bears on the obligation to abate a nuisance, as it has

existed for more than 100 years. We interpret the governmental

immunity provisions of Wis. Stat. § 893.80 in light of the

common law duty to abate negligently maintained private

nuisances and statutory provisions such as Wis. Stat. § 844.01

and Wis. Stat. § 844.17 that specifically speak to abatement of

private nuisances.

¶27 After addressing those issues, we briefly address the

remaining issues. These include (1) Bostco's claim that Wis.

Stat. § 893.80(3)'s damage cap violates equal protection; (2)

Bostco's inverse condemnation claim; and (3) MMSD's challenge to

Bostco's notice of claim under § 893.80(1) (2005-06).

C. Nuisance

1. General principles

¶28 The tort of nuisance is grounded in a condition or

activity that unduly interferes with a public right or with the

use and enjoyment of private property. Physicians Plus, 254

Wis. 2d 77, ¶21 n.14. There are two broad categories of

nuisance that derive their distinctions from the types of rights

or interests invaded. City of Milwaukee, 277 Wis. 2d 635, ¶24.

These broad tort categories are known as public nuisance and

private nuisance. Restatement (Second) of Torts, Introductory

Note to §§ 821-49 (1979); see also Wis. Stat. ch. 844. It is

the type of harm suffered or interest invaded that determines

whether the nuisance is a public or a private nuisance. City of

Milwaukee, 277 Wis. 2d 635, ¶26.
No. 2007AP221 & 2007AP1440

14

¶29 A public nuisance involves the impingement of public

rights, rights that are common to all members of the public.

Id., ¶28. In order to recover for a public nuisance, an

individual must have suffered harm of a kind different from

other members of the public who exercised that common right.

Restatement (Second) of Torts, § 821C.

¶30 A private nuisance is a condition that harms or

interferes with a private interest. Id., § 821A. We have

accepted the Restatement (Second) of Torts' characterization of

private nuisance as "a nontrespassory invasion of another's

interest in the private use and enjoyment of land." City of

Milwaukee, 277 Wis. 2d 635, ¶25 n.4 (citing Vogel v. GrantLafayette Elec. Coop., 201 Wis. 2d 416, 423, 548 N.W.2d 829

(1996) and Prah v. Maretti, 108 Wis. 2d 223, 231, 321 N.W.2d 182

(1982)); see Restatement (Second) of Torts, § 821D. There is no

dispute that the nuisance at issue in this case is a private

nuisance.

¶31 Wisconsin law employs the following directive for

those seeking to establish liability for a private nuisance:

One is subject to liability for a private

nuisance if, but only if, his conduct is a legal cause

of an invasion of another's interest in the private

use and enjoyment of land, and the invasion is either

(a) [I]ntentional and unreasonable, or

(b) [U]nintentional and otherwise actionable

under the rules controlling liability for negligent or

reckless conduct, or for abnormally dangerous

conditions or activities.

Restatement (Second) of Torts, § 822; City of Milwaukee, 277

Wis. 2d 635, ¶32. Because a nuisance is a result, of which
No. 2007AP221 & 2007AP1440

15

negligence or intentional conduct may be the cause, liability

for a nuisance "is founded on the wrongful act in . . .

maintaining [the nuisance]." Physicians Plus, 254 Wis. 2d 77,

¶27 (quoting Brown v. Milwaukee Terminal Ry. Co., 199 Wis. 575,

589, 227 N.W. 385 (1929) (internal quotation marks omitted).

Physical occupation of the property of another is not necessary

to a nuisance claim. Vogel, 201 Wis. 2d at 426. For example,

invasions of noxious odors can rise to the level of a nuisance.

Costas v. City of Fond du Lac, 24 Wis. 2d 409, 413, 129 N.W.2d

217 (1964).

¶32 Liability for a private nuisance may be based on

either intentional

17 or negligent acts. City of Milwaukee, 277

Wis. 2d 635, ¶33. In the case of negligence, as here, liability

may be predicated on a party's failure to act when he has a duty

to do so. See id., ¶34. The duty to act to abate a nuisance

arises when one has notice that he is maintaining a nuisance

that is a cause of significant harm. See id., ¶35.

[Some] cases involve changes to otherwise benign

objects that develop over time and become harmful,

through no fault of the owner of the object. In these

cases, liability is predicated upon the defendant's

failure to remove the harmful condition after he has

notice of its existence.

Id. (citation omitted).

¶33 Furthermore, the duty to abate a nuisance negligently

maintained, of which one has notice, is a general common law

17 An intentional interference with another's private use

and enjoyment of property requires that the tortfeasor "must

either act for the purpose of causing [the interference] or know

that it is resulting or is substantially certain to result from

his conduct." Restatement (Second) of Torts § 825.
No. 2007AP221 & 2007AP1440

16

obligation to which all persons may be subject. See id. at

¶¶48, 51; see also Restatement (Second) of Torts §§ 821D, 824;

see also Wis JI——Civil 1922. Moreover, although a municipal

entity has a duty to abate a known, private nuisance by one of

any number of methods within the entity's discretion, such

"discretion" in selecting the particular method by which to

abate a nuisance does not eliminate the duty to abate, or make

that duty, itself, discretionary. Costas, 24 Wis. 2d at 418

(concluding that "[g]enerally the means whereby [a] nuisance is

to be abated is left to the direction of the defendant tortfeasor").

¶34 In Physicians Plus, we fully explored the duty of

municipal entities to abate a nuisance caused by negligent

maintenance. There, a tree had grown to the extent that it

obscured a stop sign at a highway intersection, and that

untrimmed growth was alleged to have caused a significant

automobile accident. Physicians Plus, 254 Wis. 2d 77, ¶1. We

explained that because the municipal entities responsible for

trimming the tree had at least constructive notice of the sign

blockage, they had a duty to abate the nuisance. Id., ¶¶2-3.

This duty arises from the longstanding rule that generally

municipal entities are not shielded from liability for

maintaining a private nuisance. See Welch, 265 Wis. 2d 688, ¶8.

¶35 Similarly, in Costas, we addressed a nuisance that

arose out of the operation of a sewage system operated by a
No. 2007AP221 & 2007AP1440

17

municipal entity, the City of Fond du Lac.

18 The City argued

that no nuisance claim could lie because the sewage plant was

built and operated according to the plan approved by a state

agency. Costas, 24 Wis. 2d at 415 (citing Hasslinger v. Vill.

of Hartland, 234 Wis. 201, 290 N.W. 647 (1940), as support for

18 Previously, in Winchell, 110 Wis. at 103-05, we

recognized a municipal entity's obligation to abate a private

nuisance that the entity caused. Winchell dealt with an action

against the City of Waukesha, to abate and enjoin a nuisance

resulting from the City's emptying its sewage into the Fox

River, which ran along the side of Winchell's property. Id. at

103. We concluded that the collection and disposal of sewage is

for the public safety, but that the "authority granted to

municipalities . . . to construct sewers, [is] subject to the

general legal restrictions resting upon such corporations

forbidding invasion of private rights by creation of nuisance or

otherwise." Id. at 109. In concluding that the City was

required to abate the nuisance it had created, we reasoned:

The great weight of authority, American and English,

supports the view that legislative authority to

install a sewer system carries no implication of

authority to create or maintain a nuisance, and that

it matters not whether such nuisance results from

negligence or from the plan adopted. If such nuisance

be created, the same remedies may be invoked as if the

perpetrator were an individual.

Id. We acknowledge that, following Holytz, Winchell's statement

that "it matters not whether such nuisance results from . . .

the plan adopted" has been abrogated by Wis. Stat. § 893.80(4),

which immunizes such legislative functions as adopting a plan.

This limited abrogation, however, has no bearing on Winchell's

still valid conclusion that a governmental entity's negligent

maintenance of a system or structure, which results in a

nuisance of which the entity has notice, may give rise to a

claim against the entity to abate that nuisance. It has never

been the law that a governmental entity, by virtue of its

governmental status alone, may perpetuate an injurious condition

of which the entity has knowledge. Our decision reaffirms that

longstanding limitation on the power of government to

continuously and knowingly invade the rights of its citizens.
No. 2007AP221 & 2007AP1440

18

this argument). We concluded that the language in Hasslinger,

upon which the City relied, was "misleading," and we overruled

Hasslinger to the extent that it implied "that operation of the

sewage-disposal plant in accordance with specifications and

orders and regulations of the state board of health cannot

constitute a nuisance." Id. We explained further that "[t]he

approval of the method of operation of the sewage-disposal plant

is pertinent not to the existence of the nuisance but to the

issue of whether it is feasible or practicable to give

injunctional [sic] relief for the nuisance." Id. at 416. This

principle has been applied in multiple cases before this court

and the court of appeals, discussed below. In the case now

before us, Bostco has proved that the private nuisance can be

abated by reasonable means and at a reasonable cost.

19

¶36 In Menick, the plaintiff claimed that the operation of

a sewage system resulted in the flooding of the plaintiff's

basement with raw sewage on two occasions, constituting a

private nuisance. Menick, 200 Wis. 2d at 741. As we do here,

Menick focused on the duty that pertains to a municipal entity's

nuisance-causing actions, which is the duty to abate the

nuisance upon notice that the negligently caused condition is a

cause of significant harm. The court of appeals concluded that

although Menick had failed in her proof of her nuisance claim

because she did not offer an expert opinion as to the legal

cause of the flooding, the City would not have enjoyed immunity

from such an action based on private nuisance. Id. at 744-45.

19 See Special Verdict Question No. 11.
No. 2007AP221 & 2007AP1440

19

¶37 Factually similar to Menick is the Welch case, in

which Welch claimed that flooding that occurred after heavy

rainfalls constituted a private nuisance, attributable to the

City of Appleton's maintenance of its storm sewer system.

Welch, 265 Wis. 2d 688, ¶1. The City asserted that it was

immune from suit pursuant to Wis. Stat. § 893.80(4). Id., ¶5.

The court of appeals concluded that, as a matter of law, "no

statutory or common law immunity doctrine empowers a public body

to maintain a private nuisance."

20 Id., ¶8.

¶38 The most recent nuisance case is City of Milwaukee,

which we decided in 2005. In City of Milwaukee, we reviewed the

legal issues surrounding a broken city water main that damaged a

section of MMSD's Deep Tunnel. City of Milwaukee, 277 Wis. 2d

635, ¶2. There, MMSD alleged both negligence and nuisance, just

as Bostco has alleged here, asserting that the City did not

properly inspect or maintain its pipeline so as to discover the

leakage before the pipeline ruptured. Id., ¶3.

¶39 After a full discussion of the law relating to

nuisance, we concluded that there was a question of fact as to

whether the City had notice that its water main was leaking, and

that such notice was necessary to show that the City was under a

ministerial duty to abate the nuisance by repairing the water

pipe before it broke. Id., ¶9. We explained:

20 Ultimately, the court in Welch v. City of Appleton, 2003

WI App 133, 265 Wis. 2d 688, 666 N.W.2d 511, concluded that the

City's maintenance of its storm sewer was not a private

nuisance. Id., ¶8.
No. 2007AP221 & 2007AP1440

20

[T]he City may be liable for its negligence in failing

to repair the leaky water main. However, since there

exists a material issue of fact as to whether the City

had notice of the leaking water main, we cannot

determine whether the City was under a ministerial

duty to repair its water main prior to the break.

Thus, we cannot determine whether the City is immune

under § 893.80(4) from liability predicated upon a

negligent failure to repair the water main before it

burst.

Id.

¶40 A careful reading of City of Milwaukee is important to

deciding this case because our decision in City of Milwaukee is

grounded in a nuisance claim and also because it explains how

the duty to abate a nuisance intersects with the concept of a

ministerial duty of a municipal entity. We explained,

Since we cannot determine whether the City was on

notice that its water main was leaking and could

potentially interfere with the use and enjoyment of

another's property, we cannot conclude whether its

duty to repair the leaking main with reasonable care

before it broke was "absolute, certain and

imperative," or whether the City's decision not to

repair the main before the break was discretionary.

Id., ¶62 (citation omitted).

¶41 It follows from our explanation in paragraph 62 of

City of Milwaukee, quoted above, that if the City had notice

that its water main was leaking before it broke, it had a duty
No. 2007AP221 & 2007AP1440

21

to abate the nuisance by fixing the pipe.

21 The duty to fix the

pipe, if the City knew it was leaking, was "absolute, certain

and imperative"——in other words, ministerial——even though a

particular method of repairing the leak was not "absolute,

certain and imperative."

22 This conclusion is supported by

21 In Anhalt v. Cities & Villages Mutual Insurance Co., 2001

WI App 271, 249 Wis. 2d 62, 72, 637 N.W.2d 422, the court of

appeals relied on our statement in Allstate Insurance Co. v.

Metropolitan Sewerage Commission of the County of Milwaukee, 80

Wis. 2d 10, 258 N.W.2d 148 (1977), that "the acts of designing,

planning and implementing a sewer system are discretionary acts

protected under Wis. Stat. § 893.80(4)." This statement

comports with our decision today, in that we do not upset the

rule that acts of designing, planning, and implementing are

legislative or quasi-legislative acts subject to immunity under

§ 893.80(4). Such acts, however, are distinguishable from the

act of negligently maintaining an existing system or structure

so as to cause a continuing nuisance, and longstanding law

demonstrates that the act of maintaining an existing system or

structure is not a legislative or quasi-legislative function.

See, e.g., Naker v. Town of Trenton, 62 Wis. 2d 654, 215 N.W.2d

38, aff'd on reh'g, 62 Wis. 2d 654, 660a, 217 N.W.2d 665 (1974)

("Once the decision is made and the [system or structure] is

erected, the legislative function is terminated and the doctrine

of Holytz that imposes liability for want of ordinary care takes

over."). Neither Allstate nor Anhalt decided the question of

negligent maintenance that we reach today. Rather, we

conclusively resolved that question in Milwaukee Metropolitan

Sewerage District v. City of Milwaukee (City of Milwaukee), 2005

WI 8, ¶59 277 Wis. 2d 635, 691 N.W.2d 658, in which we

recognized that a governmental entity is not entitled to

immunity for a negligent act when such act is not performed

pursuant to a legislative, quasi-legislative, judicial or quasijudicial function. Indeed, our decision in City of Milwaukee on

that point was intended to clarify any "confusion" created by

unclear statements in cases such as Anhalt. See City of

Milwaukee, 277 Wis. 2d 635, ¶59 n.17.

22 For example, the City could have removed the precise area

of pipe that was leaking; it could have sealed the leaky pipe

and left it in place, etc. The choice of method for abating the

nuisance, like the decision to initially install a particular

system, was within the City's discretion. Costas v. City of

Fond du Lac, 24 Wis. 2d 409, 418, 129 N.W.2d 217 (1964).
No. 2007AP221 & 2007AP1440

22

Physicians Plus, where we explained that a negligently caused

nuisance resulting in significant harm, of which the municipal

entity has notice, creates a ministerial duty to abate the

nuisance. See Physicians Plus, 254 Wis. 2d 77, ¶59 (reaffirming

municipal entity's ministerial duty to properly maintain

structures installed pursuant to municipal entity's legislative

authority).

2. MMSD's nuisance

¶42 In this case, Bostco proved that MMSD negligently

caused a continuing private nuisance due to the manner in which

MMSD chose to maintain the Deep Tunnel.

23 MMSD had notice that

excessively siphoning groundwater from around Bostco's building

was interfering with Bostco's use and enjoyment of its property

by damaging the foundation of the building.

¶43 Here, in contrast to the City of Milwaukee case, no

further fact-finding is required before concluding that MMSD is

under a duty to abate. MMSD knew that excessive siphoning of

water into the Deep Tunnel was a cause of significant harm to

Bostco's building, and MMSD could have abated the nuisance,

i.e., stopped the excessive siphoning, by reasonable means and

at a reasonable cost.

24 Accordingly, the circuit court properly

23 See Sunnyside Feed Co. v. City of Portage, 222 Wis. 2d

461, 470, 588 N.W.2d 278 (Ct. App. 1998) (defining a continuing

nuisance as "an ongoing or repeated disturbance or harm" that

"can be discontinued or abated").

24 This is a fact question that was resolved by the jury.

Question No. 11 of the Special Verdict asked: "Can the District

abate the interference by reasonable means and at a reasonable

cost so that it no longer interferes with Boston Store's use and

enjoyment of their building?" The jury answered this question,

"Yes."
No. 2007AP221 & 2007AP1440

23

concluded that MMSD was required to abate the private nuisance

caused by MMSD's negligent maintenance of the Deep Tunnel.

25

D. Municipal Immunity

¶44 In the context of municipal entities, the obligation

to abate a known private nuisance is additionally subject to the

principles of immunity for governmental entities. We therefore

turn to interpreting those statutes relevant to an immunity

analysis: Wis. Stat. § 893.80(4) and (3).

¶45 Statutory interpretation requires us to determine the

statute's meaning, which is assumed to be expressed in the

language chosen by the legislature. Richards, 309 Wis. 2d 541,

¶20. If the meaning of the statute is apparent in the plain

language, we apply that language. State ex rel. Kalal v.

Circuit Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633,

681 N.W.2d 110. We give statutory terms their "common,

25 As discussed above, in accordance with our decision in

City of Milwaukee, once a governmental entity has notice that

its negligent maintenance of a system or structure is causing

damage, it is the manner in which MMSD complies with the

ministerial duty to fix the problem that is subject to

discretion; no such discretion exists as to whether MMSD must

fix the known problem. Cf. Rolland v. Cnty. of Milwaukee, 2001

WI App 53, ¶12, 241 Wis. 2d 215, 625 N.W.2d 590 (explaining that

the driver of a bus had a ministerial duty not to drive the bus

with a wheelchair passenger aboard unless the passenger was

secured, even though the method of securing the wheelchair was

discretionary). This conclusion comports with our statement in

City of Milwaukee, 277 Wis. 2d 635, ¶8, that a governmental

entity "is immune from suit for nuisance if the nuisance is

predicated on negligent acts that are discretionary in nature."

Because negligent maintenance of an existing system or structure

is not a "legislative, quasi-legislative, judicial or quasijudicial function," i.e., is not discretionary, no immunity

attaches to the entity's negligent maintenance.
No. 2007AP221 & 2007AP1440

24

ordinary, and accepted meaning, except that technical or

specially-defined words or phrases are given their technical or

special definitional meaning." Id.

¶46 A plain meaning analysis may be assisted by

consideration of statutory context and structure. See id., ¶46.

"[T]he statutory context in which a term is used, including the

language and structure of surrounding or closely related

statutes, is often highly instructive in determining a term's

meaning." State v. Soto, 2012 WI 93, ¶20, 343 Wis. 2d 43, 817

N.W.2d 848 (citing State v. Jensen, 2010 WI 38, ¶15, 324 Wis. 2d

586, 782 N.W.2d 415). The purpose of the legislation also may

be useful in ascertaining a statute's meaning. Sheboygan Cnty.

Dep't of Health & Human Servs. v. Tanya M.B., 2010 WI 55, ¶28,

325 Wis. 2d 524, 785 N.W.2d 369. Furthermore, we are assisted

by prior decisions that have examined similar statutory

questions. See DeHart v. Wis. Mut. Ins. Co., 2007 WI 91, ¶15,

302 Wis. 2d 564, 734 N.W.2d 394. Finally, if the statute was a

legislative attempt to follow the rule of law set forth in a

particular supreme court decision, a review of that decision

also informs our understanding of the statute.

¶47 In regard to the immunity question presented herein,

initially we are concerned with Wis. Stat. § 893.80(4), which

provides in relevant part:

No suit may be brought against any . . .

political corporation, governmental subdivision or any

agency thereof for the intentional torts of its

officers, officials, agents or employees nor may any

suit be brought against such corporation, subdivision

or agency . . . for acts done in the exercise of
No. 2007AP221 & 2007AP1440

25

legislative, quasi-legislative, judicial or quasijudicial functions.

We begin by noting that § 893.80(4) was intended to codify our

decision in Holytz v. City of Milwaukee, 17 Wis. 2d 26, 115

N.W.2d 618 (1962). See Coffey v. City of Milwaukee, 74 Wis. 2d

526, 532, 247 N.W.2d 132 (1976) (recognizing that § 893.80(4)'s

indirect predecessor, Wis. Stat. § 331.43 (1963), was intended

to codify Holytz); see also Raisanen v. City of Milwaukee, 35

Wis. 2d 504, 515-16, 151 N.W.2d 129 (1967) (noting § 331.43's

intermediate enumeration as Wis. Stat. § 895.43).

¶48 As the Legislative Council Report of 1976 also

explains:

Prior to 1961 local units of government in

Wisconsin were generally immune from tort liability

because of the judicial doctrine of governmental

immunity. . . . In 1961 the case of Holytz v.

Milwaukee (1961), 17 Wis. 2d 26, was decided which

abrogated the principal of governmental immunity from

tort liability. . . . The opinion did not impose

liability on a governmental body in the exercise of

its legislative or judicial or quasi-legislative or

quasi-judicial functions, and to that extent a part of

the immunity doctrine remained intact. . . . The

general statute concerning the liability of local

governmental units for torts [then § 343.80, now

§ 893.80] was enacted shortly after this decision and

in many respects draws from the decision for its

content.

Therefore, our interpretation of Wis. Stat. § 893.80(4) is

informed by a review of Holytz.

¶49 In Holytz, we explicitly abrogated common law immunity

for municipal entities as it existed in 1962. See Holytz, 17

Wis. 2d at 39–41. The abrogation was intended to apply to

municipal entity liability for all torts, "whether they be by
No. 2007AP221 & 2007AP1440

26

commission or omission."

26 Id. at 39. The one limitation on our

broad abrogation was clearly stated: our decision was "not to

be interpreted as imposing liability on a governmental body in

the exercise of its legislative or judicial or quasi-legislative

or quasi-judicial functions." Id. at 40. The second sentence

of Wis. Stat. § 893.80(4) mirrors this limitation of municipal

entity liability.

27

¶50 The rule as to municipal entity liability has been

repeated many times since our decision in Holytz and the

enactment of Wis. Stat. § 893.80: as to non-state governmental

entities, "'the rule is liability——the exception is immunity.'"

Kimps v. Hill, 200 Wis. 2d 1, 10 n.6, 546 N.W.2d 151 (1996)

26 The court's abrogation of immunity in Holytz v. City of

Milwaukee, 17 Wis. 2d 26, 115 N.W.2d 618 (1962), was not limited

to municipalities, and applied to public bodies within the state

such as counties, cities, villages, towns, school districts,

sewer districts, drainage districts, and any other political

subdivisions of the state. Id. at 40. Therefore, although

Holytz and subsequent discussions have referred to "municipal

immunity," the phrase "governmental immunity" has been used

interchangeably to apply to state officers, non-state

governmental entities, and officers or employees of those

entities.

27 In Holytz, we also recognized that the State's sovereign

immunity has its foundation in the Wisconsin Constitution,

Article IV, Section 27, which provides that "The legislature

shall direct by law in what manner and in what courts suits may

be brought against the state." Accordingly, the effect of

Holytz has been more relevant to suits against governmental

entities other than the State, as well as to governmental

officers and employees.
No. 2007AP221 & 2007AP1440

27

(quoting Holytz, 17 Wis. 2d at 39).

28 See, e.g., Jorgenson v. N.

States Power Co., 60 Wis. 2d 29, 37, 208 N.W.2d 323 (1973)

(concluding that a city's failure to authorize the temporary

removal of a light pole so that it would not injure workers

digging next to the pole's base did not constitute an exercise

of a legislative or quasi-legislative function); Naker v. Town

of Trenton, 62 Wis. 2d 654, 215 N.W.2d 38, aff'd on reh'g, 62

Wis. 2d 654, 660a, 217 N.W.2d 665 (1974) (concluding that a

traffic sign, once erected, must be properly maintained or

liability may follow).

¶51 Furthermore, although a municipal entity escapes

liability for its legislative or quasi-legislative decision

regarding whether to install a particular system or structure,

once the municipal entity makes the decision to install, the

28 In contrast to governmental entities, for governmental

officers acting in their official capacity, we have stated that

the rule is immunity, and the exception is liability. See Cords

v. Anderson, 80 Wis. 2d 525, 539, 259 N.W.2d 672 (1977). This

rule for governmental officers is based on public policy

considerations that support limiting public officers' personal

liability for damages, namely, "(1) The danger of influencing

public officers in the performance of their functions by the

threat of lawsuit; (2) the deterrent effect which the threat of

personal liability might have on those who are considering

entering public service; (3) the drain on valuable time caused

by such actions; (4) the unfairness of subjecting officials to

personal liability for the acts of their subordinates; and (5)

the feeling that the ballot and removal procedures are more

appropriate methods of dealing with misconduct in public

[office]." Lister v. Bd. of Regents of the Univ. of Wis. Sys.,

72 Wis. 2d 282, 299, 240 N.W.2d 610 (1976).
No. 2007AP221 & 2007AP1440

28

entity is under a subsequent ministerial duty

29 to maintain the

system or structure in a safe and working order. As we

explained in Naker:

Once the decision is made and the sign is erected, the

legislative function is terminated and the doctrine of

Holytz that imposes liability for want of ordinary

care takes over. A sign once erected by legislative

action must be properly maintained.

Naker, 62 Wis. 2d at 660a.

¶52 As discussed above, in City of Milwaukee, we explained

the relationship between municipal immunity under Wis. Stat.

§ 893.80(4) and the duty to abate a private nuisance. We held

that if the City of Milwaukee had a duty to repair the water

pipe so that it did not rupture and damage MMSD's tunnel (which

duty in turn was dependent upon the City having notice that the

pipe was leaking), such duty was ministerial and there would be

no immunity under § 893.80(4) for the City's failure to abate

the nuisance its leaking pipe had created. City of Milwaukee,

277 Wis. 2d 635, ¶62. Therefore, in City of Milwaukee, if the

City had notice of the leaking water pipe, the nuisance it was

maintaining would require abatement as a non-discretionary,

ministerial duty.

¶53 In the present case, the court of appeals, in

reversing the circuit court's order for abatement, concluded

that while Wis. Stat. § 893.80(4) does not provide immunity,

29 The decision in Naker, 62 Wis. 2d at 660a, does not label

the duty to "properly maintain" the sign the town erected as a

"ministerial duty." However, the conclusion that it is a

ministerial duty flows from the liability to which the

municipality was subject.
No. 2007AP221 & 2007AP1440

29

§ 893.80(3) does not allow parties to obtain equitable relief

against governmental entities because doing so would "render the

damage cap set forth in Wis. Stat. § 893.80(3) superfluous."

Bostco, 334 Wis. 2d 620, ¶129. The court of appeals concluded

that because § 893.80(3) is silent about equitable relief, when

read with § 893.80(5), § 893.80(3) precluded the circuit court's

order enjoining MMSD from continuing to injure Bostco. Id.,

¶¶130-31. To test the court of appeals decision, we turn to the

language of § 893.80(3), and construe the statute according to

its plain meaning.

¶54 Statutory interpretation begins with the words chosen

by the legislature. Wisconsin Stat. § 893.80(3) provides in

relevant part:

Except as provided in this subsection, the amount

recoverable by any person for any damages, injuries or

death in any action founded on tort against any . . .

governmental subdivision . . . shall not exceed

$50,000.

(Emphasis added).

¶55 Wisconsin Stat. § 893.80(3) addresses "the amount

recoverable by any person for any damages, injuries or death."

The statute limits the "amount recoverable" "by any person" to

$50,000. The words chosen by the legislature should be given

their plain meaning. Kalal, 271 Wis. 2d 633, ¶45. An order for

abatement does not entitle "any person" to "recover" any

"amount." It is a foundational principle of statutory

construction that "no word or clause shall be rendered

surplusage." Donaldson v. State, 93 Wis. 2d 306, 315, 286

N.W.2d 817 (1980). The court of appeals ignored the phrase,
No. 2007AP221 & 2007AP1440

30

"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 nontechnical terminology. In order to give an ordinary and

accepted meaning to those terms, we conclude that the statute

describes a relationship. That relationship is between any

person who is entitled to recover a damage award against a

municipal entity and the amount of that monetary liability.

Accordingly, we conclude that the plain meaning of Wis. Stat.

§ 893.80(3) is to limit the dollar amount of recovery to be paid

for damages, injuries or death to $50,000 per claimant, but that

the plain meaning of that provision has no bearing on the

availability of equitable relief such as abatement.

¶57 This interpretation is consistent with prior cases

interpreting Wis. Stat. § 893.80, such as Harkness v. PalmyraEagle School District, 157 Wis. 2d 567, 460 N.W.2d 769 (Ct. App.

1990),

30 in which the court of appeals was asked to consider

whether § 893.80(4) should be interpreted to preclude equitable

30 Harkness v. Palmyra-Eagle School District, 157 Wis. 2d

567, 460 N.W.2d 769 (Ct. App. 1990), was overruled by DNR v.

City of Waukesha, 184 Wis. 2d 178, 191, 515 N.W.2d 888 (1994),

to the extent that Harkness implied that § 893.80(1)'s notice of

claim requirement applied only to tort claims.
No. 2007AP221 & 2007AP1440

31

relief. The court held that in regard to Harkness's claim for

reinstatement, there was "no authority indicating that

[§ 893.80(4)] applies to equitable or injunctive relief" for

such a claim; accordingly, § 893.80(4) did not bar Harkness's

claim for reinstatement. Id. at 579-80.

¶58 Our interpretation of Wis. Stat. § 893.80(3) is

consistent with that statement in Harkness, and consistent with

the statutory history that we laid out in Anderson v. City of

Milwaukee, 208 Wis. 2d 18, 559 N.W.2d 563 (1997). In Anderson,

Justice Crooks thoroughly explained the genesis of § 893.80(3),

and quoted from our opinion in Holytz: "'[H]enceforward, so far

as governmental responsibility for torts is concerned, the rule

is liability——the exception is immunity.'" Id. at 26 (quoting

Holytz, 17 Wis. 2d at 39). Anderson explained the changing

dollar amounts that could be recovered as damages, showing that

the bill from which § 893.80(3) evolved began with a $10,000

limitation, changed to a $25,000 limitation in a Senate

Amendment, and increased to a $50,000 limitation by the Laws of

1981, ch. 63, § 2. Id. at 27 n.9. Throughout these changes,

nothing in the legislative history addressed limitations on

equitable relief of any type. Without any language in

§ 893.80(3) to suggest a limitation on equitable relief, we

decline to read in any such limitation.

E. Equitable Relief

¶59 In the case now before us, the court of appeals

attempted to fill the legislature's silence in regard to

equitable relief under Wis. Stat. § 893.80(3) by construing
No. 2007AP221 & 2007AP1440

32

§ 893.80(5) to create limitations in § 893.80(3) that were not

placed there by the legislature. Bostco, 334 Wis. 2d 620, ¶130.

The court of appeals said that the phrase "shall be exclusive"

in § 893.80(5), limits a plaintiff's recovery to those remedies

set forth in § 893.80 and because injunctions are not mentioned,

they are not available against a municipality. Id. However,

there is nothing in either the language or the history of

§ 893.80 to support the court of appeals' broad limitation of

remedies and its conclusion that § 893.80(3) precludes actions

in equity.

31 The court of appeals' decision, if affirmed, would

have far-reaching effects and would overrule extensive precedent

in regard to the authority of courts to enjoin municipal

entities.

32

¶60 To obtain injunctive relief, generally one must show

that the injunction is necessary to prevent the continuation of

significant harm. Pure Milk Prods. Coop. v. Nat'l Farmers Org.,

31 The words injunction, enjoin, or similar terms that may

indicate equitable relief are not present in the statute.

Furthermore, reference to injunctive relief would be

inconsistent with the purposes of the statute, such as providing

a recovery for death.

32 In addition, the court of appeals' limitation of remedies

based on statutory silence contradicts our decision in Willow

Creek Ranch, L.L.C. v. Town of Shelby, 2000 WI 56, 235 Wis. 2d

409, 611 N.W.2d 693, reconsid. denied 239 Wis. 2d 314, wherein

we expressly affirmed the availability of declaratory relief, a

nonmonetary remedy that, like equitable relief, is not mentioned

in Wis. Stat. § 893.80(3). Id., ¶36 n.12. Moreover, the court

of appeals' conclusion in the case before us is also contrary to

Wis. Stat. § 813.02, which has been employed to issue temporary

injunctions against municipalities. See Wis. Ass'n of Food

Dealers v. City of Madison, 97 Wis. 2d 426, 428-29, 293 N.W.2d

540 (1980).
No. 2007AP221 & 2007AP1440

33

90 Wis. 2d 781, 803, 280 N.W.2d 691 (1979). "The purpose of an

injunction is to prevent [future] violations." Id. In that

respect, injunctive relief is consistent with the obligation to

abate a continuing private nuisance, which obligation is imposed

to prevent future harms. See, e.g., Menick, 200 Wis. 2d at 745

(concluding that "there is no discretion as to maintaining the

[sewer] system so as not to cause injury to residents").

¶61 While the legislature may have authority to limit

equitable relief in some circumstances, there is nothing in the

language of Wis. Stat. § 893.80(3) to indicate that the

legislature sought to do so. When a statute fails to address a

particular situation, the remedy for the omission does not lie

with the courts. It lies with the legislature. La Crosse

Lutheran Hosp. v. La Crosse Cnty., 133 Wis. 2d 335, 338, 395

N.W.2d 612 (Ct. App. 1986).

¶62 Both before and after Holytz, when the principles of

immunity have been applied to claims against municipal entities

for damages, those principles have not been held applicable to

claims for injunctive relief against ongoing governmental

activities. Perhaps one of the clearest recognitions of this

distinction was our statement in Lister v. Board of Regents of

the University of Wisconsin System, 72 Wis. 2d 282, 240 N.W.2d

610 (1976). In Lister, we explained that the public policy

considerations that have prompted courts to grant substantive

immunity for monetary damages do not apply with equal force to

actions for declaratory or injunctive relief. Id. at 304; see

also Scarpaci v. Milwaukee Cnty., 96 Wis. 2d 663, 691, 292
No. 2007AP221 & 2007AP1440

34

N.W.2d 816 (1980) (reaffirming that policies that underlie

immunity from damages do not apply with equal force to a suit

for injunctive relief).

¶63 However, in Johnson v. City of Edgerton, 207 Wis. 2d

343, 558 N.W.2d 653 (Ct. App. 1996), the court of appeals seemed

to slip away from precedent in regard to injunctive relief

against municipal entities, without recognizing that it was

making a significant change in the law. Accordingly, Johnson is

a concern that must be addressed for a number of reasons. See

Willow Creek Ranch, L.L.C. v. Town of Shelby, 2000 WI 56, ¶¶75–

99, 235 Wis. 2d 409, 611 N.W.2d 693 (Prosser, J., dissenting).

First, because the language in Johnson is so broad, it could be

interpreted as overruling, sub-silentio, prior decisions of the

court of appeals that addressed immunity under Wis. Stat.

§ 893.80(4), which were, in turn, based on the longstanding

availability of equitable relief to abate ongoing nuisances.

See, e.g., Hillcrest, 135 Wis. 2d at 439-40 (explaining that the

"creation and maintenance of private nuisances are simply not

recognized as legislative acts subject to protection under sec.

893.80(4)"); see also, Harkness, 157 Wis. 2d 567, 579-80. The

court of appeals does not have the power to overrule prior

decisions. See Cook v. Cook, 208 Wis. 2d 166, 171, 560 N.W.2d

246 (1997) (concluding that the court of appeals does not have

the power to overrule, modify or withdraw language from another

court of appeals decision).

¶64 Second, the court of appeals' decision in Johnson

(upon which we based part of our decision barring injunctive
No. 2007AP221 & 2007AP1440

35

relief in Willow Creek), focused on the wrong language in the

municipal immunity statute, Wis. Stat. § 893.80(4), in that the

court of appeals emphasized that immunity applied to "any suit."

See Johnson, 207 Wis. 2d at 350–52. Instead, the relevant focus

when considering whether § 893.80(4) grants immunity is on

whether the action sought to be enjoined was within a limited

class of municipal decisions that involve the performance of

"legislative, quasi-legislative, judicial or quasi-judicial

functions." As our cases and those of the court of appeals make

clear, a municipal entity's failure to abate a continuing

nuisance caused by negligent maintenance of a system or

structure, after the municipality has notice, does not

constitute a legislative, quasi-legislative, judicial or quasijudicial act that may be entitled to immunity. See, e.g.,

Costas, 24 Wis. 2d at 413–19; Hillcrest Golf, 135 Wis. 2d at

439-40.

¶65 Third, Johnson relied on the principles of immunity

that apply to municipal officers. Johnson, 207 Wis. 2d at 352.

However, for municipal officers, the rule is immunity, not

liability. See Cords v. Anderson, 80 Wis. 2d 525, 539, 259

N.W.2d 672 (1977). The Johnson decision's reliance on those

principles is misplaced because Johnson actually involved a

municipal entity, and therefore, the rule is liability, not

immunity. Kimps, 200 Wis. 2d at 10 n.6.

¶66 Furthermore, the Johnson decision's errors were

uncorrected by our decision in Willow Creek. We did note that

"[t]o the extent that the language in Johnson suggests other-
No. 2007AP221 & 2007AP1440

36

wise by expanding immunity too broadly, we limit that language."

Willow Creek, 235 Wis. 2d 409, ¶34. We did not describe how the

language in Johnson was limited.

33 However, we now clarify that

under Willow Creek and Johnson, equitable relief will be barred

when a municipal entity is entitled to immunity. Accordingly,

our analysis in this case would be different if we concluded

that MMSD were entitled to municipal entity immunity for

legislative, quasi-legislative, judicial or quasi-judicial

functions. Under circumstances when immunity applies, it bars

claims for both monetary damages and injunctive relief. Id.,

¶36. Therefore, when a plaintiff seeks equitable or injunctive

relief against a municipal entity, a court must first answer the

threshold question of whether immunity applies. If a court

concludes that the actions the plaintiff is seeking to stop

through a suit in equity are legislative, quasi-legislative,

judicial or quasi-judicial, then the suit must be dismissed

because the governmental entity is protected by immunity.

¶67 In addition, City of Milwaukee concluded that Wis.

Stat. § 893.80(4) provides no immunity for a municipal entity's

ministerial duty to abate. City of Milwaukee, 277 Wis. 2d 635,

¶¶9, 54. This conclusion is also supported by our discussion in

Physicians Plus, where we addressed nuisance and the duty of

municipal entities to abate a nuisance that the entities

33 Moreover, Willow Creek is not a private nuisance case

such as we have here, where the obligation to abate arises with

the municipal entity receiving notice of the continuing private

nuisance, which has resulted in significant harm. See City of

Milwaukee, 277 Wis. 2d 635, ¶¶51-62.
No. 2007AP221 & 2007AP1440

37

negligently maintained and of which they had notice. Physicians

Plus, 254 Wis. 2d 77, ¶¶2–3, 59.

¶68 Our conclusion that municipal entities may be subject

to orders for equitable relief also finds support in statutory

provisions referring to the availability of equitable relief

from continuing nuisances, as well as long-standing precedent to

the same effect. Currently, Wis. Stat. § 844.01(1) provides

that "Any person owning or claiming an interest in real property

may bring an action claiming physical injury to, or interference

with, the property or the person's interest therein; the action

may be to redress past injury, to restrain further injury, to

abate the source of injury, or for other appropriate relief."

Wisconsin Stat. § 844.17(1) then provides that "Any person whose

activities have injured or will injure the plaintiff's property

or interests may be made a defendant." (Emphasis added.)

"Person" includes "all partnerships, associations and bodies

politic or corporate." Wis. Stat. § 990.01(26). These

statutes, therefore, refer to circumstances wherein a political

body, such as a municipality, may be subject to an action to

redress injury to private property caused by a municipal

entity's negligent maintenance of a private nuisance that caused

significant harm.

¶69 Indeed, we expressed such an understanding of the

common law duty to abate and of immunity in Costas. Therein, we

concluded that a private individual could bring an action for

abatement of a private nuisance against a municipal entity,

thereby reaffirming the longstanding availability of injunctive
No. 2007AP221 & 2007AP1440

38

relief against municipally maintained nuisances. See Costas, 24

Wis. 2d at 413–19 (citing Winchell, 110 Wis. 101) (recognizing

that municipal entities may be subject to actions for equitable

relief from ongoing nuisances)). In recognizing the

availability of such relief, we relied on Wis. Stat. § 280.01,

which provided that "any person may maintain an action to

recover damages for or to abate a private nuisance." Id. at

414.

¶70 In 1973, the legislature amended Wis. Stat. § 280.01

and created Wis. Stat. § 814.01, which was identical to current

Wis. Stat. § 844.01. See § 16, ch. 189, Laws of 1973. The

effect of this amendment was to incorporate § 280.01's relief

for interferences with private property into the newly

consolidated chapters governing actions to enforce interests in

real property. See Drafting File for ch. 189, Laws of 1973,

Analysis by the Legislative Reference Bureau, Legislative

Reference Bureau, Madison, Wis. Therefore, since the abrogation

of municipal immunity in Holytz and its subsequent codification

in Wis. Stat. § 893.80, not only have we, in Costas, reaffirmed

the availability of equitable relief for the abatement of

municipal nuisances, but the legislature, after Costas,

reaffirmed the availability of such relief when it simply

renumbered and reorganized former § 280.01 into what is now

§ 844.01.

¶71 Therefore, based on the statutory history of Wis.

Stat. § 844.01, as well as the common law governing nuisance and

the principles of equitable relief, we reach the ineluctable
No. 2007AP221 & 2007AP1440

39

conclusion that a municipal entity may be subjected to claims

for equitable relief to abate a negligently maintained nuisance

that is a cause of significant harm and of which the municipal

entity has notice. Accordingly, we conclude that the circuit

court did not erroneously exercise its discretion in granting

Bostco equitable relief.

¶72 When the circuit court ordered MMSD to abate the

private nuisance caused by MMSD's negligent maintenance of its

Deep Tunnel, it applied the appropriate legal standard and made

a decision that a reasonable court could make. The circuit

court's order required MMSD to abate a continuing private

nuisance, of which MMSD had notice and which MMSD could abate by

reasonable means and at a reasonable cost. The circuit court,

however, went one step too far when, without hearing testimony,

it concluded that lining the Deep Tunnel was the required means

of abatement. Accordingly, we reverse the court of appeals'

conclusion that an order for abatement was improper. Abatement

is required. We therefore affirm the circuit court's order for

abatement, and remand the matter to the circuit court. Upon

remand, a hearing may be held to establish whether another

method will abate the continuing private nuisance MMSD

maintains, or whether lining the Deep Tunnel with concrete is

required for abatement.

F. Remaining Issues

¶73 Having concluded that Bostco is entitled to relief in

the form of abatement of MMSD's continuing nuisance, we now turn

to Bostco's other asserted claims for relief, beginning with its
No. 2007AP221 & 2007AP1440

40

challenge to the limitation of damages set forth in Wis. Stat.

§ 893.80(3), then moving to Bostco's inverse condemnation claim,

and finishing with MMSD's claim that Bostco failed to comply

with the notice of claim provisions of § 893.80(1) (2005–06).

Because we agree with the court of appeals' thorough analyses of

these issues,

34 see Bostco, 334 Wis. 2d 620, ¶¶38–65, 85–91, 108–

117, we address them briefly.

1. Limitation of damages under Wis. Stat. § 893.80(3)

¶74 Bostco claims that the damage cap under Wis. Stat.

§ 893.80(3) is unconstitutional, in that it violates equal

protection of the law, in contravention of Article I, Section 1

of the Wisconsin Constitution. Section 1 provides:

All people are born equally free and independent, and

have certain inherent rights; among these are life,

liberty and the pursuit of happiness; to secure these

rights, governments are instituted, deriving their

just powers from the consent of the governed.

Wis. Const. art. I, § 1. Specifically, Bostco asserts that

§ 893.80(3) violates equal protection (1) facially, by affording

complete relief to plaintiffs injured by governmental actions

causing less than $50,000 in damages, while arbitrarily limiting

the amount of recovery by those plaintiffs who suffer greater

damages; and (2) as applied in this case, because parties who

34 Similarly, because our decision does not "overrule" the

court of appeals decision, but rather "reverses in part" the

decision of the court below in the same case, the rule announced

in Blum v. 1st Auto & Casualty Insurance Co., 2010 WI 78, ¶56,

326 Wis. 2d 729, 786 N.W.2d 78, does not apply here. Cf. State

v. Ziegler, 2012 WI 73, ¶7 n.3, 342 Wis. 2d 256, 816 N.W.2d 238

(recognizing that supreme court decision "withdrawing language"

from previous court of appeals decision does not implicate the

Blum rule).
No. 2007AP221 & 2007AP1440

41

settled with MMSD before June 30, 1994, were not limited to the

amounts available under § 893.80(3), while those seeking

recovery after that arbitrarily set date are limited to the

statutory amounts of recovery.

¶75 Wisconsin Stat. § 893.80(3)'s limitation of damages

provides in relevant part:

Except as provided in this subsection, the amount

recoverable by any person for any damages, injuries or

death in any action founded on tort against any

volunteer fire company organized under ch. 181 or 213,

political corporation, governmental subdivision or

agency thereof and against their officers, officials,

agents or employees for acts done in their official

capacity or in the course of their agency or

employment, whether proceeded against jointly or

severally, shall not exceed $50,000.

We have had occasion to review this provision on multiple

occasions, including challenges asserting that the limitation on

damages violates equal protection. See Sambs v. City of

Brookfield, 97 Wis. 2d 356, 293 N.W.2d 504 (1980); Stanhope v.

Brown Cnty., 90 Wis. 2d 823, 280 N.W.2d 711 (1979). As noted by

the court of appeals in this case, we have upheld § 893.80(3)'s

limitation of damages previously, and Bostco has not persuaded

us to change our position.

¶76 With regard to Bostco's facial challenge, we reiterate

the high standard facing litigants asserting a constitutional

challenge: legislative enactments are presumed constitutional,

and we will resolve any reasonable doubt in favor of upholding

the provision as constitutional. See Stanhope, 90 Wis. 2d at

837. In the context of an equal protection challenge, we will

sustain a legislative enactment that creates a distinction
No. 2007AP221 & 2007AP1440

42

between treatment of different groups, if there exists a

rational basis to support that distinction, provided that the

distinction does not implicate a suspect class or impinge upon a

fundamental right. See State v. Quintana, 2008 WI 33, ¶79, 308

Wis. 2d 615, 748 N.W.2d 447. Because Bostco does not assert

that it is a member of a protected class, or that recovery in

tort from a governmental entity is a fundamental right, we must

uphold the damage limitations in Wis. Stat. § 893.80(3), if

there exists a rational basis for the legislature to limit the

amount of damages recoverable by plaintiffs against governmental

entities. See Stanhope, 90 Wis. 2d at 837–842. "The basic test

is not whether some inequality results from the classification,

but whether there exists any reasonable basis to justify the

classification." Sambs, 97 Wis. 2d at 371 (emphasis added)

(quoting Omernik v. State, 64 Wis. 2d 6, 19, 218 N.W.2d 734

(1974)).

¶77 In Holytz, 17 Wis. 2d at 40, we recognized that the

legislature was free to limit the amount of damages that

plaintiffs may recover from governmental entities for the torts

of those entities or their officers. We have since reiterated

that principle in Sambs, 97 Wis. 2d at 371–78, and Stanhope, 90

Wis. 2d at 837–42. We now reaffirm the legislature's valid

limitation of the amount of damages recoverable under Wis. Stat.

§ 893.80(3). The principle we expressed in Stanhope, 90 Wis. 2d

at 842, is as applicable today as it was over 30 years ago:

It is within the legitimate power of the legislature

to take steps to preserve sufficient public funds to

ensure that the government will be able to continue to

provide those services which it believes benefits the
No. 2007AP221 & 2007AP1440

43

citizenry. We conclude that the legislature's

specification of a dollar limitation on damages

recoverable allows for fiscal planning and avoids the

risk of devastatingly high judgments while permitting

victims of public tortfeasors to recover their losses

up to that limit.

Accordingly, we conclude that a rational basis exists for the

damage limitations in § 893.80(3), and therefore reject Bostco's

facial challenge to that provision.

¶78 In its as-applied challenge to the damage limits in

Wis. Stat. § 893.80(3), Bostco asserts that there exists no

rational basis for MMSD to treat its claim any differently than

those claims that MMSD paid before June 30, 1994, which were not

subject to the statutory damage limitations. During the time of

construction of the Deep Tunnel, MMSD paid certain property

owners for damages caused by soil settlement in the area in

which the Deep Tunnel was being constructed. With the belief

that it had properly addressed that issue as pertained to

affected landowners, MMSD established the June 30, 1994, date as

a cutoff for claims, after which MMSD would no longer compensate

local landowners for property damage allegedly caused by soil

settlement.

¶79 Bostco asserts that the establishment of the June 1994

date was arbitrary, thereby violating the precept that "every

person within the state's jurisdiction will be protected against

intentional and arbitrary discrimination, whether arising out of

the terms of a statute or the manner in which the statute is

executed by officers of the state." State ex rel. Murphy v.

Voss, 34 Wis. 2d 501, 510, 149 N.W.2d 595 (1967). The necessary

corollary, however, is that some inequality is generally
No. 2007AP221 & 2007AP1440

44

insufficient to demonstrate unconstitutional disparate

treatment——again, where there exists a rational basis for the

unequal treatment, we will sustain the official action as within

the legislature's power. See State v. McManus, 152 Wis. 2d 113,

131, 447 N.W.2d 654 (1989).

¶80 Here, MMSD made the decision to stop paying claims at

the end of June 1994, based on its understanding that the

situation that had necessitated a dedicated claims procedure had

been ameliorated. MMSD provided notice to property owners

before November 1993, affording the owners sufficient time to

prepare any claims before the cutoff date. Although any time

limit for claims against a governmental entity may be deemed

arbitrary by those whose claims are made after the deadline, the

same primary principle that justifies limits on damage amounts——

protection of the public fisc——supports the reasonableness of

imposing a deadline for claims, especially when the deadline is

avowedly tied to the governmental entity's asserted belief that

it has addressed the problem necessitating the claims procedure.

On these bases, Bostco's equal protection challenge fails.

35

35 As a final challenge to the damage cap, Bostco asserts

that continuing nuisances are not subject to Wis. Stat.

§ 893.80(3)'s damage cap because that section limits the damages

recoverable in "any action founded on tort," and a continuing

nuisance constitutes multiple, constantly recurring actions.

See, e.g., Stockstad v. Town of Rutland, 8 Wis. 2d 528, 534, 99

N.W.2d 813 (1959) ("It is well settled that every continuance of

a nuisance is in law a new nuisance and gives rise to a new

cause of action."). As the court of appeals noted, only one

nuisance action is before the court, and we therefore need not

conclude whether the damage cap would apply in a subsequent

action allegedly based on the same continuing nuisance.
No. 2007AP221 & 2007AP1440

45

2. Bostco's forfeiture of inverse condemnation arguments

¶81 In its complaint to the circuit court, Bostco alleged

that MMSD inversely condemned Boston Store's property when it

"physically took portions of the timber pilings which rendered

them unusable and damaged the Boston Store Building and Parking

Garage." (Emphasis added.) Bostco also alleged that MMSD's

conduct amounted to a taking of private property for public use

without providing just compensation. Bostco made the same

argument in opposing MMSD's motion for summary judgment and at

the summary judgment hearing. Bostco, however, did not allege

that the groundwater beneath Boston Store was taken. At the

court of appeals, Bostco added to its inverse

condemnation/takings claim, alleging that in addition to the

timber piles, MMSD also took the groundwater beneath Boston

Store.

¶82 The court of appeals addressed both the timber piles

and the groundwater arguments, and held that Bostco could not

establish that either claim met the standard for inverse

condemnation, namely, that neither the timber piles nor the

groundwater was physically occupied by MMSD and that Boston

Store was not "practically or substantially" rendered "useless

for all reasonable purposes." Bostco, 334 Wis. 2d 620, ¶¶111-

17. (quoting Howell Plaza, Inc. v. State Highway Comm'n, 92

Wis. 2d 74, 85, 284 N.W.2d 887 (1979)). The court of appeals

therefore affirmed the circuit court's dismissal of Bostco's

inverse condemnation/takings claim on summary judgment. Id.,

¶117.
No. 2007AP221 & 2007AP1440

46

¶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.
No. 2007AP221 & 2007AP1440

47

Because Bostco has not preserved the groundwater–based

contention for appeal, we decline to address its inverse

condemnation/takings claim, and therefore affirm the court of

appeals, albeit on modified grounds.

3. Bostco's notice of claim

¶86 Finally, in its cross-appeal, MMSD asserts that Bostco

did not serve MMSD with a notice of injury and itemization of

relief as required by Wis. Stat. § 893.80(1) (2005–06),

36 and

that Bostco's claims therefore should have been dismissed.

Specifically, MMSD argues that the notice it received was

insufficient because the notices informing MMSD of the damages

to the Boston Store buildings and the relief sought were

submitted by entities who are not parties to this action. Those

entities named in the notice of claim and itemization of relief

were Saks, Inc., a corporation that owns Parisian, Inc., and

WISPARK Holdings LLC, an LLC owned by the same holding company

that owns Bostco. For its part, Bostco argues that the notice

of claim and itemization of relief from the related entities

amounted to substantial compliance with § 893.80(1), and that,

under our case law, such notice is sufficient.

¶87 In pertinent part, Wis. Stat. § 893.80(1) provides

[N]o action may be brought or maintained against any

volunteer fire company organized under ch. 213,

political corporation, governmental subdivision or

agency thereof nor against any officer, official,

agent or employee of the corporation, subdivision or

36 For ease of reference to the parties' arguments, which

are based on the 2005–06 version of Wis. Stat. § 893.80(1), we

refer to that version of the statutes in this section of the

opinion.
No. 2007AP221 & 2007AP1440

48

agency for acts done in their official capacity or in

the course of their agency or employment upon a claim

or cause of action unless:

(a) Within 120 days after the happening of the

event giving rise to the claim, written notice of the

circumstances of the claim signed by the party, agent

or attorney is served on the volunteer fire company,

political corporation, governmental subdivision or

agency and on the officer, official, agent or employee

under s. 801.11. Failure to give the requisite notice

shall not bar action on the claim if the fire company,

corporation, subdivision or agency had actual notice

of the claim and the claimant shows to the

satisfaction of the court that the delay or failure to

give the requisite notice has not been prejudicial to

the defendant fire company, corporation, subdivision

or agency or to the defendant officer, official, agent

or employee; and

(b) A claim containing the address of the

claimant and an itemized statement of the relief

sought is presented to the appropriate clerk or person

who performs the duties of a clerk or secretary for

the defendant fire company, corporation, subdivision

or agency and the claim is disallowed.

¶88 The notice of claim provisions serve two purposes:

37

"(1) to give governmental entities the opportunity to

investigate and evaluate potential claims, and (2) to afford

governmental entities the opportunity to compromise and budget

for potential settlement or litigation." E-Z Roll Off, LLC v.

Cnty. of Oneida, 2011 WI 71, ¶34, 335 Wis. 2d 720, 800 N.W.2d

421. In keeping with these purposes, we have recognized that

37 We refer to "the notice of claim provisions" collectively

here; these provisions include the "notice of injury provision"

under Wis. Stat. § 893.80(1)(a), and the "itemization of relief

provision" under § 893.80(1)(b), also referred to as the actual

"notice of claim provision." See Thorp v. Town of Lebanon, 2000

WI 60, ¶¶23, 28, 235 Wis. 2d 610, 612 N.W.2d 59. Reference to

the "notice of claim provisions" is intended to refer to the

notices required under both subsections of § 893.80(1).
No. 2007AP221 & 2007AP1440

49

the notice of claim provisions may be satisfied with

substantial, rather than strict compliance. See Figgs v. City

of Milwaukee, 121 Wis. 2d 44, 55, 357 N.W.2d 548 (1984).

Accordingly, where a claimant fails to strictly comply with the

notice of injury provision under Wis. Stat. § 893.80(1)(a), the

claimant may nonetheless satisfy that provision by showing that

(1) the governmental entity had actual notice of the claim, and

(2) the governmental entity was not prejudiced by the claimant's

failure to strictly comply. See § 893.80(1)(a); see also State

v. Town of Linn, 205 Wis. 2d 426, 435, 556 N.W.2d 394 (Ct. App.

1996).

¶89 Additionally, with regard to Wis. Stat.

§ 893.80(1)(b), referred to as the itemization or notice of

claim provision, see Thorp v. Town of Lebanon, 2000 WI 60, ¶28,

235 Wis. 2d 610, 612 N.W.2d 59, we have noted that two

principles guide our analysis of whether a claim is sufficient

under that section. First, the claim must provide the

governmental entity with enough information to decide whether to

settle the claim. See Gutter v. Seamandel, 103 Wis. 2d 1, 10–

11, 308 N.W.2d 403 (1981). Second, we will construe claims so

as to preserve bona fide claims for judicial adjudication,

rather than cutting them off without a trial. See id.

¶90 Here, Bostco's notice of injury informed MMSD that the

Boston Store buildings had been damaged by MMSD's operation of

the Deep Tunnel. Although the notice and the itemized statement

of relief were submitted on behalf of Saks, Inc. and WISPARK

Holdings LLC, the naming of these parties cannot reasonably be
No. 2007AP221 & 2007AP1440

50

said to have compromised MMSD's ability to investigate and

evaluate the nature of the claim, which was the substantial

damage to the Boston Store buildings. Moreover, MMSD has not

suffered any prejudice by not knowing precisely which entity

owned the property that MMSD was alleged to have damaged; merely

being required to litigate, without more, does not demonstrate

prejudice. See Luckett v. Bodner, 2009 WI 68, ¶43, 318 Wis. 2d

423, 769 N.W.2d 504.

¶91 Furthermore, the itemization of relief informed MMSD

of what relief was being sought, thereby apprising MMSD of

potential costs for which it might have wanted to budget, and

allowing MMSD to contemplate settlement for the asserted

injuries. Had MMSD sought to compromise or settle the claim

(which is not the case here), the naming of different corporate

entities did not interfere with the purposes of the notice of

claim provisions. Most notable for purposes of compromise or

settlement, the same law firm represented Saks, WISPARK, Bostco,

and Parisian. See DNR v. City of Waukesha, 184 Wis. 2d 178,

198, 515 N.W.2d 888, (1994) (recognizing that notice of claim

statute is satisfied when attorney's address is provided),

abrogated on other grounds by State ex rel. Auchinleck v. Town

of LaGrange, 200 Wis. 2d 585, 547 N.W.2d 587 (1996).

Furthermore, the close relationships of the entities involved

would have allowed for meaningful exploration into the

possibilities of settlement, since the same executives were

involved in the operation and control of the various entities.
No. 2007AP221 & 2007AP1440

51

¶92 In support of its argument that Bostco failed to

comply with the notice of claim requirements, MMSD relies on the

court of appeals' statement in Markweise v. Peck Foods Corp.,

205 Wis. 2d 208, 220–21, 556 N.W.2d 326 (Ct. App. 1996), that

"unless the government entity has 'actual knowledge' of both the

claimant and his or her claim, the investigation and evaluation

envisioned by the statute is impossible." That statement,

however, arose in the context of thousands of potential

claimants against the City of Milwaukee, many of whom remained

unknown after the notice of claim. See id. at 221, 232.

¶93 Such was not the case here. MMSD was aware of the

property damaged, it was aware of the relief sought, and it had

sufficient information to contact the claimants. Accordingly,

we conclude that Bostco substantially complied with the notice

of claim requirements of Wis. Stat. § 893.80(1), and therefore

affirm the court of appeals.

III. CONCLUSION

¶94 We conclude that MMSD is not entitled to immunity.

Once MMSD had notice that the private nuisance it negligently

maintained was a cause of significant harm, immunity under Wis.

Stat. § 893.80(4) was not available for MMSD. The proper

immunity analysis in this case rests on our holding in City of

Milwaukee, 277 Wis. 2d 635, ¶59, that "[w]hether immunity exists

for nuisance founded on negligence depends upon the character of

the negligent acts." Where the negligent act was undertaken

pursuant to one of those functions set forth in § 893.80(4)——

that is, legislative, quasi-legislative, judicial or quasi-
No. 2007AP221 & 2007AP1440

52

judicial functions——immunity may apply. See id.; see also

§ 893.80(4).

¶95 Here, Bostco's nuisance claim is grounded in MMSD's

negligent maintenance of its Deep Tunnel, which maintenance

constituted a continuing private nuisance. See Physicians Plus,

254 Wis. 2d 77, ¶2-3 (explaining that when all the elements of

nuisance are proved and the municipal entity has notice that the

nuisance is a cause of significant harm, the entity has a duty

to abate). Because MMSD's maintenance of the continuing private

nuisance is not a legislative, quasi-legislative, judicial or

quasi-judicial function, MMSD is not entitled to immunity. See

Hillcrest Golf, 135 Wis. 2d at 439-40 (explaining that the

"creation and maintenance of private nuisances are simply not

recognized as legislative acts subject to protection under sec.

893.80(4)"); see also Welch, 265 Wis. 2d 688, ¶8 (explaining

that "no statutory or common law immunity doctrine empowers a

public body to maintain a private nuisance"); Menick, 200

Wis. 2d at 745 (concluding "there is no discretion as to

maintaining the [sewer] system so as not to cause injury"); Wis.

Stat. §§ 844.01(1) and 844.20(2) (providing statutory procedure

for seeking abatement of private nuisances).

38 The court of

appeals' determination that MMSD is not entitled to immunity is

therefore affirmed.

¶96 Because MMSD does not have immunity for its negligent

maintenance of the Deep Tunnel, we also conclude as follows: On

38 See also Winchell, 110 Wis. at 109 (concluding that the

"legislative authority to install a sewer system carries no

implication of authority to create or maintain a nuisance").
No. 2007AP221 & 2007AP1440

53

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
No. 2007AP221 & 2007AP1440

54

court of appeals' reversal of the circuit court's order for

abatement, in part. That is, while we affirm the court of

appeals on all other issues, we reverse that court's decision

that Bostco was not entitled to equitable relief in the form of

an order for abatement. Therefore, we affirm the circuit court

decision that abatement is required, and we remand this matter

to the circuit court. Upon remand, a hearing may be held to

establish whether an alternate method will abate the continuing

private nuisance MMSD maintains or whether lining the Deep

Tunnel with concrete is required for abatement.

¶101 By the Court.—The decision of the court of appeals is

affirmed in part, reversed in part and the cause remanded to the

circuit court.

¶102 DAVID T. PROSSER, J., did not participate.
No. 2007AP221 & 2007AP1440.mjg

1

¶103 MICHAEL J. GABLEMAN, J. (concurring). I join the

majority opinion in toto as I believe it reaches the correct

result under our existing immunity law. I write separately,

however, to express my dismay that this court continues to apply

a series of doctrines that have no connection to the text of the

municipal immunity statute (Wis. Stat. § 893.80) or our decision

to abrogate all governmental immunity in Holytz v. City of

Milwaukee, 17 Wis. 2d 26, 115 N.W.2d 618 (1962). Rather than

utilizing the nuisance approach adopted by the majority, I would

instead do away with the ministerial duty and known danger

exceptions and restore our immunity jurisprudence to conform

with § 893.80(4) and Holytz. That is, governmental entities,

officials, and employees should be entitled to immunity only for

"acts done in the exercise of legislative, quasi-legislative,

judicial, or quasi-judicial functions."

1 § 893.80(4); see also

Holytz, 17 Wis. 2d at 40. As this court has never fashioned a

precise definition of that phrase, I recommend that we adopt the

"planning-operational distinction" to determine whether

governmental action is "legislative, quasi-legislative,

judicial, or quasi-judicial." This test "grants immunity only

to upper-level legislative, judicial, executive and

administrative policy and planning decisions rather than to any

decision that might be made." 18 Eugene McQuillin, The Law of

Municipal Corporations § 53:16 (3d ed., rev. vol. 2013). If a

decision or action does fall into that category, it is

1 Per the immunity statute, municipalities would still be

shielded from liability for intentional torts committed by

employees. Wis. Stat. § 893.80(4).
No. 2007AP221 & 2007AP1440.mjg

2

considered "planning level" and is immune from suit. Id. On

the other hand, "[a] decision resulting from a determination

based on preexisting laws, regulations, policies, or standards

usually indicates that its maker is performing an operational

act." Id. Immunity would not apply to activities of this

nature. Id. Because the operation and maintenance of a

sewerage system is by definition "operational," it does not fall

into the category of actions that are legislative, quasilegislative, judicial, or quasi-judicial. Our immunity analysis

need not go any further to determine that MMSD is not shielded

by governmental immunity.

I. THE HISTORY OF GOVERNMENTAL IMMUNITY

¶104 To better understand our current governmental immunity

quagmire, it will be helpful to briefly survey the historical

development of the doctrine. The concept of governmental

immunity goes back to the 18th-century English common law notion

that "the king could do no wrong," Linda M. Annoye, Comment,

Revising Wisconsin's Government Immunity Doctrine, 88 Marq. L.

Rev. 971, 973-74 (2005). Or, as Sir William Blackstone put it,

"The king . . . is not only incapable of doing wrong, but even

of thinking wrong." 1 Blackstone's Commentaries on the Laws of

England 187 (Wayne Morrison ed., Cavendish Publishing Limited

2001). The first known case to apply this concept was Russell

v. The Men of Devon, (1788) 100 Eng. Rep. 359 (K.B.), in which

the Court of King's Bench in England held that an unincorporated

county was not liable for damages caused by a faulty bridge. In

setting forth the court's ruling, Justice Ashhurst reasoned that
No. 2007AP221 & 2007AP1440.mjg

3

"it is better that an individual should sustain an injury than

that the public should suffer an inconvenience." Id. at 362.

Governmental immunity eventually migrated to the United States,

first landing in Massachusetts with Mower v. Leicester, 9 Mass.

247 (1812). Wisconsin subsequently adopted the doctrine in

Hayes v. City of Oshkosh, 33 Wis. 314 (1873). There, we

utilized reasoning similar to Russell, stating that

"[i]ndividual hardship or loss must sometimes be endured in

order that still greater hardship or loss to the public at large

or the community may be averted." Hayes, 33 Wis. at 319.

¶105 In 1962 this court abrogated the longstanding common

law rule of governmental immunity in Holytz, 17 Wis. 2d at 33,

noting, "[t]here are probably few tenets of American

jurisprudence which have been so unanimously berated as the

governmental immunity doctrine." That decision reversed the

relationship between injured plaintiffs and government

tortfeasors, as we held that "henceforward, so far as

governmental responsibility for torts is concerned, the rule is

liability——the exception is immunity." Id. at 39. However, we

qualified this sea change in the law by cautioning that

liability should not attach to a governmental body when it

exercises its "legislative or judicial or quasi-legislative or

quasi-judicial functions." Id. at 40 (citation omitted). We

also said that "[i]f the legislature deems it better public

policy, it is, of course, free to reinstate immunity." Id. As

the majority opinion observes, the year after Holytz was

decided, the legislature enacted an immunity statute that
No. 2007AP221 & 2007AP1440.mjg

4

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 quasijudicial functions."

2 Wis. Stat. § 893.80(4). But while the

2 The text of the immunity statute does not mention the

state or its employees. Townsend v. Wis. Desert Horse Ass'n, 42

Wis. 2d 414, 422-23, 167 N.W.2d 425 (1969). However, Holytz v.

City of Milwaukee, 17 Wis. 2d 26, 40, 115 N.W.2d 618 (1962),

abrogated the common law doctrine of immunity for all

governmental entities, state or municipal. Given our open

invitation for the legislature to reinstate governmental

immunity if it thought our decision unwise, the legislative

silence with respect to state employees amounted to acceptance

of our decision that "so far as governmental responsibility for

torts is concerned, the rule is liability——the exception is

immunity." Holytz, 17 Wis. 2d at 39; see Progressive N. Ins.

Co. v. Romanshek, 2005 WI 67, ¶52, 281 Wis. 2d 300, 697 N.W.2d

417 ("[G]enerally, legislative silence with regard to new courtmade decisions indicates legislative acquiescence in those

decisions.") (internal quotation marks and citation omitted).

Strangely, though, this court has said that "unlike governmental

immunity as applied to state employees where immunity is the

rule and liability is the exception, the opposite is true for

municipal actors, i.e., liability is the rule and immunity is

the exception." Pries v. McMillon, 2010 WI 63, ¶20 n.11, 326

Wis. 2d 37, 784 N.W.2d 648 (emphasis added) (citation omitted).

This observation is incorrect because the underlined language is

plainly at odds with our decision in Holytz, and accordingly

there should be no distinction in the treatment of state and

municipal entities or their employees. Four years ago, Justice

Prosser (joined by Justice Crooks) noted this anomaly in his

scholarly concurrence in Umansky v. ABC Ins. Co., 2009 WI 82,

¶¶46-57, 319 Wis. 2d 622, 769 N.W.2d 1. I now express my

agreement with Justice Prosser's conclusion that liability is

the rule and immunity the exception for both municipalities and

the state.
No. 2007AP221 & 2007AP1440.mjg

5

legislature codified Holytz's abrogation of governmental

immunity, for the past five decades this court has been chipping

away at the Holytz decision and the immunity statute.

II. THE MINISTERIAL DUTY AND KNOWN DANGER "EXCEPTIONS"

¶106 The first thread of Holytz's newly woven tapestry to

unravel was Lister v. Bd. of Regents, 72 Wis. 2d 282, 300-01,

240 N.W.2d 610 (1976), where this court laid down the

discretionary/ministerial test for whether governmental immunity

applied. In holding that the University of Wisconsin-Madison

Registrar could not be sued for allegedly misclassifying a group

of law students as "non-residents" for tuition purposes, we held

that government employees are immune when exercising discretion,

but that no immunity attaches to the negligent performance of a

"ministerial duty." Id. at 300-01. We opined that within the

context of governmental immunity a "duty is ministerial only

when it is absolute, certain and imperative, involving merely

the performance of a specific task when the law imposes,

prescribes and defines the time, mode and occasion for its

performance with such certainty that nothing remains for

judgment or discretion." Id. at 301 (footnote omitted). As the

decision on whether to classify a student as a Wisconsin

resident for purposes of in-state tuition required "some

discretion and judgment," the Registrar was entitled to immunity

and the hapless law students were not allowed to make their case

that they paid too much tuition. Id. at 301-02.

¶107 The ministerial duty concept, though, came directly

from our decision in Meyer v. Carman, 271 Wis. 329, 332, 73
No. 2007AP221 & 2007AP1440.mjg

6

N.W.2d 514 (1955). See Lister, 72 Wis. 2d at 301 n.18, 19

(citing Meyer). The problem with relying on a test from Meyer,

however, was that case was decided before we abrogated

governmental immunity in Holytz. So while it made sense for

Meyer to speak of an exception to immunity when immunity was the

rule, it made no sense for Lister to adopt an exception to a

concept that had already been retired both judicially and

legislatively.

¶108 Justice Prosser has also commented on the bizarre

development of the ministerial duty exception "from a context in

which it was valuable and necessary" to "a context in which it

is unfair and absurd." Umansky v. ABC Ins. Co., 2009 WI 82,

¶64, 319 Wis. 2d 622, 769 N.W.2d 1 (Prosser, J., concurring).

By "shift[ing] the focus from liability to immunity," Lister

turned the Holytz decision upside down without even citing to

that momentous case. Id., ¶75. With a sleight-of-hand, Lister

cut the guts out of Holytz and essentially restored governmental

immunity. As Justice Prosser accurately and poignantly put it:

"[s]o far as government responsibility for torts is concerned,

immunity has become the rule and liability has become the rare

exception. Justice has been confined to a crawl space too

narrow for most tort victims to fit." Id., ¶78.

¶109 Following Lister, this court repeatedly relied on the

ministerial duty exception to stretch governmental immunity

beyond both the text of the statute and the Holytz decision.

For example, we have immunized such conduct as a road test

examiner's purported negligence in issuing a driver's license to
No. 2007AP221 & 2007AP1440.mjg

7

an applicant who was allegedly too overweight to drive,

3 a

university instructor's construction of a volleyball net,

4 a

school district benefits specialist's incorrect advice,

5 a police

officer's allegedly negligent management of a busy intersection

during a rain storm,

6 and a high school guidance counselor

providing inaccurate information regarding a student's

scholarship eligibility requirements.

7 All of these decisions

3 Lifer v. Raymond, 80 Wis. 2d 503, 512, 259 N.W.2d 537

(1977). Justice Robert Hansen colorfully summed up the issue

presented in Lifer:

How fat is too fat? Who is too fat to be

licensed to get behind the wheel and drive an

automobile? Plaintiff alleges that the 320-pound

driver of the auto in which he was a passenger was so

fat that she should not have been granted a

probationary license to drive an automobile, even

though she passed the road test portion of the

examination.

At what point on the scales does an overweight

person suffer a physical disability that prevents him

or her from exercising reasonable control over a motor

vehicle? The plaintiff answers that the duty to

determine when corpulency becomes disabling is on the

road test examiner at the time a road test is

administered. The plaintiff sues the defendant

examiner for breaching a duty owed to the plaintiff

passenger when he passed Jeannine M. Yingling in the

road test portion of her examination.

Id. at 506-07.

4 Kimps v. Hill, 200 Wis. 2d 1, 5, 546 N.W.2d 151 (1996).

5 Kierstyn v. Racine Unified Sch. Dist., 228 Wis. 2d 81, 85,

95, 596 N.W.2d 417 (1999).

6 Lodl v. Progressive N. Ins. Co., 2002 WI 71, ¶¶11, 31, 253

Wis. 2d 323, 646 N.W.2d 314.

7 Scott v. Savers Prop. & Cas. Ins. Co., 2003 WI 60, ¶¶9,

18, 262 Wis. 2d 127, 663 N.W.2d 715.
No. 2007AP221 & 2007AP1440.mjg

8

are at odds with Holytz and the immunity statute in that none of

these actions can fairly be described as "legislative, quasilegislative, judicial, or quasi-judicial functions." Wis. Stat.

§ 893.80(4); Holytz, 17 Wis. 2d at 40. Yet that is where this

court has taken immunity law courtesy of the misappropriated

ministerial duty exception.

¶110 In addition to having no connection whatsoever to the

governing statute, the other flaw with the ministerial duty test

is that it is excruciatingly narrow. As one court has put it,

"it would be difficult to conceive of any official act, no

matter how directly ministerial, that did not admit of some

discretion in the manner of its performance, even if it involved

only the driving of a nail." Ham v. Los Angeles Cnty., 189 P.

462, 468 (Cal. Ct. App. 1920); see also Swanson v. United

States, 229 F. Supp. 217, 219-20 (N.D. Cal. 1964) ("In a strict

sense, every action of a government employee, except perhaps a

conditioned reflex action, involves the use of some degree of

discretion."). The upshot of this court's adoption of the

ministerial duty exception is that we have in essence overturned

Holytz and rewritten Wis. Stat. § 893.80.

¶111 The ministerial duty exception is also the progenitor

responsible for the illegitimate birth of the known danger

exception. In Cords v. Anderson, 80 Wis. 2d 525, 531-32, 536-

38, 259 N.W.2d 672 (1977), a group of college students were

injured while hiking at a state park when they fell from an

unguarded and unmarked 90-foot cliff into a gorge. The

plaintiffs sued the manager of the park (a state employee) for
No. 2007AP221 & 2007AP1440.mjg

9

failing to put up warning signs along the trail. Id. at 537-38.

The manager, naturally, asserted governmental immunity. Id.

However, instead of asking whether the manager's actions were

legislative, quasi-legislative, judicial, or quasi-judicial, as

Holytz requires for state employees, this court (relying on

Lister) framed the question as whether the manager had "an

absolute, certain, or imperative duty to either place the signs

warning the public of the dangerous conditions existing on the

upper trail or to advise his superiors of the condition with a

view toward adequate protection of the public responding to the

invitation to use this facility." Cords, 80 Wis. 2d at 541.

Inexplicably, the court held that because the park manager knew

the park terrain was dangerous, "the duty to either place

warning signs or advise superiors of the conditions is, on the

facts here, a duty so clear and absolute that it falls within

the definition of a ministerial duty." Id. at 542 (emphasis

added). I say inexplicably because the choice to use one of two

options quite obviously renders the decision discretionary

rather than ministerial.

8 In any event, to circumvent the

8 This court has also inconsistently applied the known

danger exception, most significantly in Lodl. In that case, a

heavy rain storm triggered a power outage that caused the

traffic lights to go out at a busy intersection. 253 Wis. 2d

323, ¶6. A police sergeant investigated the blackout and

decided to open the folded stop signs that were affixed to the

poles of the traffic control signals. Id., ¶7. Another officer

arrived on the scene, called for backup, and requested that

portable stop signs be brought to the intersection. Id., ¶8.

An accident occurred minutes later, before the police backup or

portable signs arrived. Id., ¶10. The injured plaintiff sued,

alleging that the second officer who arrived on the scene had a

ministerial duty to manually control traffic at the

intersection. Id., ¶¶11-12. Extrapolating from our reasoning
No. 2007AP221 & 2007AP1440.mjg

10

judicially created ministerial duty test we invented what became

known as the "known danger exception," thus creating an

exception to an exception. Unfortunately, neither the

ministerial duty test nor the known danger test is grounded in

Holytz or the immunity statute, so although we reached the

correct ultimate conclusion in Cords (immunity does not apply),

we took an incorrect route.

III. A NEW APPROACH FOR GOVERNMENTAL IMMUNITY JURISPRUDENCE

¶112 If we were to do away with the ministerial duty and

known danger exceptions, what test would we use to determine

whether an action is "legislative, quasi-legislative, judicial,

or quasi-judicial?" I recommend that this court adopt the

"planning-operational distinction." This test, which is used in

in Cords v. Anderson, 80 Wis. 2d 525, 259 N.W.2d 672 (1977), we

explained that a dangerous situation constitutes a known danger

for immunity purposes only when "there exists a known present

danger of such force that the time, mode and occasion for

performance is evident with such certainty that nothing remains

for the exercise of judgment and discretion." Id., ¶38 (quoting

C.L. v. Olson, 143 Wis. 2d 701, 717, 422 N.W.2d 614 (1988)).

With that principle in mind, we concluded that there was no

known danger, as the second officer had discretion in deciding

how to respond when he arrived at the intersection. Lodl, 253

Wis. 2d 323, ¶¶46-47. Yet this conclusion was clearly at odds

with Cords, where we held that the park manager was required to

take one of two options. 80 Wis. 2d at 542. For a further

elaboration of this point, see Justice Bradley's dissent in

Lodl. 253 Wis. 2d 323, ¶¶64, 68-69.
No. 2007AP221 & 2007AP1440.mjg

11

some form by a majority

9 of states that no longer recognize

governmental immunity,

10 grants immunity to "planning level

conduct" but not to "operational level decisions." McQuillin,

The Law of Municipal Corporations § 53:16. Planning level

conduct touches on questions of public policy and includes those

governmental decisions that involve "the balancing of priorities

9 See Indus. Indem. Co. v. Alaska, 669 P.2d 561, 563 (Alaska

1983); Doe v. Arizona, 24 P.3d 1269, 1271 (Ariz. 2001) (en

banc); Steed v. Dep't of Consumer Affairs, 138 Cal. Rpt. 3d 519,

528 (Ct. App. 2012); Cooper v. Hollis, 600 P.2d 109, 111 (Colo.

Ct. App. 1979); Dep't of Transp. v. Neilson, 419 So.2d 1071,

1077-78 (Fla. 1982); Julius Rothschild & Co. v. Hawaii, 655 P.2d

877, 880-81 (Haw. 1982) (per curiam); Jones v. City of St.

Maries, 727 P.2d 1161, 1163-64 (Idaho 1986); Peavler v. Bd. of

Comm'rs of Monroe Cnty., 528 N.E.2d 40, 45 (Ind. 1988); Fowler

v. Roberts, 556 So.2d 1, 15 (La. 1989); Jorgensen v. Dep't of

Transp., 969 A.2d 912, 917 (Me. 2009); Whitney v. City of

Worcester, 366 N.E.2d 1210, 1216 (Mass. 1977); Ross v. Consumers

Power Co., 363 N.W.2d 641, 647 (Mich. 1984) (per curiam); Conlin

v. City of Saint Paul, 605 N.W.2d 396, 400 (Minn. 2000); Jasa v.

Douglas Cnty., 510 N.W.2d 281, 288 (Neb. 1994); Schoff v. City

of Somersworth, 630 A.2d 783, 787 (N.H. 1993); Costa v. Josey,

415 A.2d 337, 341-43 (N.J. 1980); Enghauser Mfg. Co. v. Eriksson

Eng'g Ltd., 451 N.E.2d 228, 232 (Ohio 1983), superseded by

Ohio's Political Subdivision Tort Liability Act, Ohio Rev. Code

Ann. Ch. 2744 (West 2013); Nguyen v. Oklahoma, 788 P.2d 962,

964-65 (Okla. 1990); Costopoulos v. Gibboney, 579 A.2d 985, 988

(Pa. Commw. Ct. 1990); Bowers v. City of Chattanooga, 826 S.W.2d

427, 430-31 (Tenn. 1992); Stephen F. Austin State Univ. v.

Flynn, 228 S.W.3d 653, 657-58 (Tex. 2007); Johnson v. Utah Dep't

of Transp., 133 P.3d 402, 409 (Utah 2006); Avellaneda v.

Washington, 273 P.3d 477, 482-83 (Wash. Ct. App. 2012); Darrar

v. Bourke, 910 P.2d 572, 577 (Wyo. 1996).

10 "The majority rule is that in the absence of a statute

granting immunity, a municipality is liable for its negligence

in the same manner as a private person or corporation. The

common-law doctrine of sovereign or governmental immunity is a

viable defense in this country only in a minority of states [14]

and only in certain circumstances." 18 Eugene McQuillin, The

Law of Municipal Corporations § 53:3 (3d ed., rev. vol. 2013).
No. 2007AP221 & 2007AP1440.mjg

12

and the weighing of budgetary considerations." Id. Operational

decisions, on the other hand, "concern the day-to-day operation

of government and include decisions based solely upon

engineering or scientific considerations." Id. In other words,

a decision to adopt (or not adopt) a certain policy would be

shielded by immunity, but the implementation of the policy would

be subject to traditional tort standards. Cf. Bowers v. City of

Chattanooga, 826 S.W.2d 427, 431 (Tenn. 1992).

¶113 This approach is most consistent with the municipal

immunity statute and Holytz. To begin with, it would protect

"the essential acts of governmental decision-making" from

"judicial second-guessing or harassment by the actual or

potential threat of litigation." Enghauser Mfg. Co. v. Eriksson

Eng'g Ltd., 451 N.E.2d 228, 232 (Ohio 1983), superseded by

Ohio's Political Subdivision Tort Liability Act, Ohio Rev. Code

Ann. Ch. 2744 (West 2013). Specifically, budgetary decisions

would be immunized such that a governmental entity could not be

sued for inadequately funding a project. Indus. Indem. Co. v.

Alaska, 669 P.2d 561, 566 (Alaska 1983). The planningoperational distinction, however, would ensure that citizens are

protected from the negligent acts of governmental employees "at

the operational level, where there is no room for policy

judgment." Jasa v. Douglas Cnty., 510 N.W.2d 281, 288 (Neb.

1994) (citation omitted). Finally, it would restore Holytz by

placing the burden on the government to show that it is entitled

to immunity, as opposed to the status quo in Wisconsin, where it

is now the plaintiff's responsibility to prove that immunity was
No. 2007AP221 & 2007AP1440.mjg

13

pierced. McQuillin, The Law of Municipal Corporations § 53:16

(under the planning-operational test, "[t]he governmental entity

seeking to establish immunity bears the burden of proving that

the challenged act or omission was a policy decision made by

consciously balancing risks and benefits.").

¶114 How would this test apply to the present case? MMSD's

decision to build the Deep Tunnel system is a planning level

decision entitled to immunity. Conversely, had the Deep Tunnel

never been built, a plaintiff could not successfully allege that

his basement was flooded as a result of MMSD's inaction. The

decision not to build is shielded for the same reasons as the

decision to build: it is a question of public policy that

involves the evaluation of financial, political, economic, and

social factors. See Conlin v. City of Saint Paul, 605 N.W.2d

396, 400 (Minn. 2000).

¶115 The day-to-day operation and maintenance of the Deep

Tunnel is, quite obviously, "operational," and thus standard

negligence principles apply in the same fashion as if the tunnel

were built by a private organization. See Whitney v. City of

Worcester, 366 N.E.2d 1210, 1216 (Mass. 1977) ("[A] governmental

entity is not liable for negligence in the planning of sewers

but may be liable for negligence in their construction and

maintenance.") (citation omitted). Contrary to MMSD's

assertions, this case was tried to the jury as one of operation

and maintenance, not design. At a pre-trial hearing, the

circuit court stated, "[t]he issue is, okay, as the tunnel is

being maintained, operated and inspected by [MMSD], is it
No. 2007AP221 & 2007AP1440.mjg

14

creating a nuisance[?]" The court made clear that the case

"doesn't have anything to do with the way [the Deep Tunnel] was

designed or constructed." Instead, "it has to do with the

manner in which it is being operated, which is causing the

nuisance."

¶116 The circuit court asked each of the parties to submit

a date as to when MMSD took over the operation and maintenance

of the Deep Tunnel. Both parties agreed that the date MMSD

began operating the Deep Tunnel was the date the jury would use

"in determining what, if any acts of negligence . . . MMSD

committed." After briefing and argument, the court settled on

August 7, 1992, the date MMSD offered as to when the contractor

certified that the Deep Tunnel project was substantially

completed. The court then made the nature of the case clear to

the attorneys:

[MMSD] is only responsible[,] and the jury will only

be asked to assess assuming they find negligence,

assess damages that occurred to the Boston Store from

that day forward.

So if the proof were, for example, that all of

the damages that the foundation, the Boston Store

suffered occurred before August 7, 1992, then the jury

should enter zero dollars.

On the other hand, if all the damages occurred

after August 7, 1992, then whatever those amounts are,

that's the number the jury should assess.

¶117 The negligence question submitted to the jury was

consistent with the circuit court's remarks to the lawyers at

the pre-trial conference: "On or after August 7, 1992 was

[MMSD] negligent in the manner in which it operated or

maintained the tunnel near Boston Store?" After a two-and-a-
No. 2007AP221 & 2007AP1440.mjg

15

half week trial, the jury found that MMSD was negligent and that

this negligence was the cause of the damage to Boston Store's

foundation. Bostco produced a number of expert witnesses during

the trial to support its argument that the negligent operation

and maintenance of the Deep Tunnel caused damage to the Boston

Store, including an engineer who testified that "[t]he Boston

Store has experienced large structural column movement as a

result of the operation of the [Deep] Tunnel," and, "[i]f the

operation of the [Deep] Tunnel continues under the current

conditions, the Boston Store will experience large structural

column movements requiring future repair." (Emphasis added).

It is our job as an appellate court to search the record for

evidence to support, not contradict, the jury's findings.

Morden v. Cont'l AG, 2000 WI 51, ¶39, 235 Wis. 2d 325, 611

N.W.2d 659. Here, there is ample evidence in the record to

buttress the factual conclusion that MMSD's negligent operation

and maintenance of the Deep Tunnel unsettled Boston Store's

foundation, causing millions of dollars of damage.

¶118 As the operation and maintenance of a sewerage system

is an "operational" rather than "planning-level" decision, this

is as far as our immunity analysis needs to go. The conclusion

that MMSD is liable for damages under this test would also be in

harmony with more than a century of Wisconsin case law, which

has reaffirmed that while the decision to build a public works

project is entitled to immunity, a governmental entity is liable

if its negligent operation and maintenance of the project causes
No. 2007AP221 & 2007AP1440.mjg

16

damages or injury.

11 However, I would also add that even if MMSD

were correct that any negligence on its part related solely to

the design of the Deep Tunnel, this is not the type of planninglevel decision that should be entitled to immunity. As the

Minnesota Supreme Court has held in interpreting that state's

governmental immunity statute, "immunity does not bar an action

11 See Lange v. Town of Norway, 77 Wis. 2d 313, 320, 253

N.W.2d 240 (1977) ("[G]overnmental immunity would apply to

acquisition of the [dam and floodgate] by the town. However,

such governmental immunity would not include a failure to

maintain as to a condition of disrepair or defect or a failure

to properly operate said floodgate."); Naker v. Town of Trenton,

62 Wis. 2d 654, 660, 217 N.W.2d 665 (1974) (per curiam) ("Once

the decision is made and the sign is erected, the legislative

function is terminated and the doctrine of Holytz that imposes

liability for want of ordinary care takes over."); Christian v.

City of New London, 234 Wis. 123, 129, 290 N.W. 621 (1940)("The

doctrine of the cases dealing with municipally owned waterworks

is that the municipality must use proper care in maintaining the

means of storage and distribution, or respond in damages to

anyone injured."); Mitchell Realty Co. v. City of West Allis,

184 Wis. 352, 363, 199 N.W. 390 (1924) ("In creating a nuisance

[in managing a sewage disposal plant] . . . , [the City] must

respond in damages . . . ."); Winchell v. City of Waukesha, 110

Wis. 101, 109, 85 N.W. 668 (1901) (the legislative authority to

"install a sewer system carries no implication of authority to

create or maintain a nuisance, and . . . it matters not whether

such nuisance results from negligence or from the plan adopted.

If such nuisance be created, the same remedies may be invoked as

if the perpetrator were an individual."); Welch v. City of

Appleton, 2003 WI App 133, ¶24, 265 Wis. 2d 688, 666 N.W.2d 511

("Maintenance of sewers so as not to cause injury is generally

considered ministerial compared to the discretionary decision

relating to design or implementation of a system.") (citation

omitted); Menick v. City of Menasha, 200 Wis. 2d 737, 745, 547

N.W.2d 778 (Ct. App. 1996) ("[W]hile the decision to install and

provide a sewer system in a community is a discretionary

decision, there is no discretion as to maintaining the system so

as not to cause injury to residents. The actions of the City in

operating and maintaining the sewer system do not fall within

the immunity provisions of [Wis. Stat.] § 893.80.").
No. 2007AP221 & 2007AP1440.mjg

17

when the conduct was merely a professional or scientific

judgment." Fisher v. Cnty. of Rock, 596 N.W.2d 646, 652 (Minn.

1999) (citation omitted). Immunity only attaches "if in

addition to professional or scientific judgments, policy

considerations played a part in making a decision . . . ." Id.

(citation omitted). There is nothing in the record to indicate

that the design of the Deep Tunnel was anything but a

technocratic decision that was farmed out to an engineering firm

that MMSD contracted with. While the decision to build the Deep

Tunnel was planning-level conduct, the implementation of that

decision was operational and thus not entitled to immunity.

IV. CONCLUSION

¶119 We stated in Holytz that the legislature was free to

reinstate governmental immunity. In the five decades since that

decision, it has not done so. That choice should be respected

by this court rather than undermined.
No. 2007AP221.ssa

1

¶120 SHIRLEY S. ABRAHAMSON, C.J. (dissenting). I

conclude that the Milwaukee Metropolitan Sewerage District (the

District or MMSD) is immune from suit for any monetary damages

or injunctive relief in the present case. The District is

immune because the Deep Tunnel is being operated and maintained

in the manner in which it was designed. Neither Bostco nor the

majority opinion has shown otherwise.

¶121 Decisions regarding the design of a municipal

improvement project are, according to case law, legislative,

discretionary decisions, the type of core decisions for which

government entities are immune from suit.

1 Government entities

are immune from suit even if the planning, design, and

implementation of the project are negligent and lead to a

harmful result, including the maintenance of a nuisance.

2

¶122 If the District were not immune, I would conclude that

any monetary damages or injunctive relief in the present case is

limited by the statutory cap set forth in Wis. Stat.

§ 893.80(3).

3 Permitting a circuit court to order ad hoc

abatement of a private nuisance, at unlimited cost, circumvents

the monetary damage cap and eviscerates the statutory text and

1 Milwaukee Metro. Sewerage Dist. v. City of Milwaukee (City

of Milwaukee), 2005 WI 8, ¶9, 277 Wis. 2d 635, 691 N.W.2d 658.

See also Allstate Ins. Co. v. Metro. Sewerage Comm'n, 80

Wis. 2d 10, 15-17, & n.3 (collecting cases), 258 N.W.2d 148

(1977).

2 City of Milwaukee, 277 Wis. 2d 635, ¶¶8, 44, 50, 58, 59,

60; Allstate, 80 Wis. 2d at 16.

3 I agree that Bostco forfeited its inverse condemnation

claim and that Bostco substantially complied with the Notice of

Claim requirements. See majority op., ¶¶7-8.
No. 2007AP221.ssa

2

legislatively enacted protection of the taxpayer and the public

purse.

¶123 Before examining the numerous errata in the majority

opinion, let me sound an A*L*A*R*M. The majority opinion

drastically and fundamentally increases government liability.

This case alone may result in a mandatory expenditure of over

$10 million by the District.

¶124 As a matter of courtesy and comity to the legislative

branch, the majority opinion should, in my opinion, apply its

new-found law only to tortious causes of action occurring after

July 15, 2015. Such a delayed effective date would give public

bodies time "to enable [them] to make financial arrangements to

meet the new liability implicit in this holding"

4 and would give

the state legislature time to consider the enactment of a new

state policy on government immunity and liability. Delaying the

effective date of an opinion that substantially increases

government liability is not an original thought. This is

exactly what the court did in Holytz v. City of Milwaukee, 17

4 In Holytz v. City of Milwaukee, 17 Wis. 2d 26, 42, 115

N.W.2d 618 (1962), the court explained:

To enable the various public bodies to make financial

arrangements to meet the new liability implicit in

this holding, the effective date of the abolition of

the rule of governmental immunity for torts shall be

July 15, 1962. See sec. 66.18, Stats., regarding

liability insurance for both the state and

municipalities. The new rule shall not apply to torts

occurring before July 15, 1962. However, for the

reasons set forth in the supplemental opinion in Kojis

v. Doctors Hospital (1961), 12 Wis. 2d 367, 373, 374,

107 N.W.2d 131, 292, this decision shall apply to the

case at bar.
No. 2007AP221.ssa

3

Wis. 2d 26, 42, 115 N.W.2d 618 (1962), the seminal Wisconsin

case abrogating government immunity, at least in part.

¶125 I now turn to a critique of the majority opinion. The

first step is to put the case in perspective.

¶126 Bostco asserts (and the majority opinion agrees) that

the District is liable in tort for negligently maintaining a

private nuisance——a sewer system called the Deep Tunnel——that

has interfered with Bostco's real property, regardless of the

nature of the District's action that created the nuisance.

5

¶127 The District derives its power to design and construct

sewer systems from the legislature. The legislature has

delegated that authority to cities and their sewerage districts.

Wis. Stat. § 62.18. In accordance with its legislatively

delegated powers, the District designed the Deep Tunnel to be

built beneath the City of Milwaukee to collect and store excess

sewage and storm water to prevent basement backups and sewer

overflows. Taking into account a plethora of policy, planning,

regulatory, and budget considerations, the District designed

Phase One of the Deep Tunnel to be built beneath downtown

Milwaukee. One of the District's design decisions dictated that

nearly half of the Tunnel would be lined with concrete while the

other half would be porous, allowing groundwater to seep through

the soil and bedrock beneath downtown Milwaukee and into the

5 See majority op., ¶¶3, 4, 43, 67, 71, 72.
No. 2007AP221.ssa

4

Tunnel.

6 Decisions regarding the design of a municipal

improvement project are, according to case law, legislative,

discretionary decisions, the type of core decisions for which

government entities are immune from suit.

7

¶128 Since going into service in 1993, the Tunnel,

according to the record, has been operated and maintained by the

District in the manner in which it was designed to function.

Both Bostco and the majority opinion have failed to demonstrate

any way in which the Deep Tunnel is failing to function as it

was designed to function. Moreover, neither Bostco nor the

majority opinion has pointed to any applicable standard, that

is, to any applicable statute, guideline, or regulation,

requiring the District to operate or maintain the Deep Tunnel in

6 Some of the other decisions the District made include:

the route of the Tunnel beneath the City, the Tunnel's length

(19.4 miles) and diameter (varying between 17 and 32 feet), the

Tunnel's depth (300 feet below ground), and the Tunnel's

capacity (405 million gallons of water).

A stipulation during litigation between the District and

the Department of Natural Resources in 1986 permitted the

District to line only portions of the Tunnel. The District's

current permit from the DNR requires the Tunnel to have a

positive inward gradient, that is, to allow water to flow into

the Tunnel in order to prevent the possible exfiltration of

wastewater.

7 City of Milwaukee, 277 Wis. 2d 635, ¶9. See also

Allstate, 80 Wis. 2d at 15-17 & n.3 (collecting cases).

In City of Milwaukee, the court referred to these types of

design decisions as "legislative" functions. See City of

Milwaukee, 277 Wis. 2d 635, ¶¶9, 55, 57, 58, 60, 91. For the

sake of consistency, I will refer to them as "legislative" as

well.
No. 2007AP221.ssa

5

a manner different than the way in which it was designed to

function.

8

¶129 Even if the District designed the Tunnel in a poor and

negligent manner and has created a nuisance and injured Bostco,

the District is immune from suit for that design and for the

operation and maintenance of the Tunnel in accordance with that

design.

9

¶130 I dissent because the majority opinion reaches the

wrong result by revising history, erroneously interpreting cases

and statutes, isolating and citing language from cases out of

context, relying on and reinvigorating recanted cases, and

silently and surreptitiously overturning precedent.

¶131 This criticism is, alas, easy to level and to prove

(and I shall). At the same time it is important to acknowledge,

and I do, that the law of government tort immunity over the last

50 years since Holytz has become encrusted with not-alwaysconsistent case law. Indeed the law may be described as having

become once again "knee-deep in legal esoterica," and replete

with "highly artificial judicial distinctions."

10

8 When the court of appeals commented on this court's City

of Milwaukee decision, it explained in DeFever v. City of

Waukesha that "[b]ecause MMSD could not point to laws directing

the City how to inspect, monitor, and repair or replace the

water main, the City's duty was discretionary rather than

ministerial." DeFever v. City of Waukesha, 2007 WI App 266,

¶12, 306 Wis. 2d 766, 743 N.W.2d 848 (citing City of Milwaukee,

277 Wis. 2d 635, ¶¶56-60).

9 City of Milwaukee, 277 Wis. 2d 635, ¶¶8, 44, 50, 58, 59,

60; Allstate, 80 Wis. 2d at 16.

10 Holytz, 17 Wis. 2d at 30, 32.
No. 2007AP221.ssa

6

¶132 The concurrence bemoans the fact that courts have

drifted away from the text of Wis. Stat. § 893.80, never having

"fashioned a precise definition of [the] phrase" "legislative,

quasi-legislative, judicial, or quasi-judicial functions."

Concurrence, ¶1. Not completely true!

¶133 Case after case has explained that these terms "have

been collectively interpreted to include any act that involves

the exercise of discretion and judgment."

11 The concurrence

might not characterize this definition as "precise," but it is

just as precise (or imprecise) as the concurrence's recommended

"planning-operational" distinction as a sound interpretation of

the statutory words.

12

¶134 Indeed, this court has explicitly "decline[d] the

invitation to create a planning/operational distinction to be

utilized in the analysis of state employee immunity," because

the distinction is "ill-defined and difficult to apply." Kimps

v. Hill, 200 Wis. 2d 1, 24, 546 N.W.2d 151 (1996). The

planning/operational distinction has not become better defined

or easier to apply since Kimps. Cases from other jurisdictions

(both before and after Kimps) demonstrate that using a

"planning-operational" distinction between acts that are immune

11 City of Milwaukee, 277 Wis. 2d 635, ¶54. For similar

statements, see Lodl v. Progressive N. Ins. Co., 2002 WI 71,

¶21, 253 Wis. 2d 323, 646 N.W.2d 314; Willow Creek Ranch, L.L.C.

v. Town of Shelby, 2000 WI 56, ¶¶25, 27, 235 Wis. 2d 409, 611

N.W.2d 693; Lifer v. Raymond, 80 Wis. 2d 503, 509, 511-12, 259

N.W.2d 537 (1977); Lister v. Bd. of Regents, 72 Wis. 2d 282,

301, 240 N.W.2d 610 (1976).

12 See concurrence, ¶¶1, 10-11.
No. 2007AP221.ssa

7

and those for which a government entity is liable provides no

silver bullet piercing the difficulties associated with

interpreting and applying rules of government immunity and

liability.

13

¶135 Government immunity and liability is a complicated

area of jurisprudence with 50 years of Wisconsin case law

precedent that is not always easy to explain or justify.

Periodically the court has attempted to synthesize and clarify

our cases. This court's decision in Milwaukee Metropolitan

Sewerage District v. City of Milwaukee (City of Milwaukee), 2005

WI 8, 277 Wis. 2d 635, 691 N.W.2d 658, just eight years ago,

went a long way to clarify the issues presented in the instant

case——nuisance, negligence, liability, and immunity. And here

we are moving away from that decision.

14

¶136 Perhaps our whole body of case law interpreting Wis.

Stat. § 893.80 needs to be carefully revisited. Indeed, ten

years ago I wrote that the court has struggled to define the

proper scope of government immunity, that revisiting the scope

13 The courts have not found this distinction easy to apply

and decisions have not been consistent within a state or from

state to state. For a discussion of this distinction and cases,

see 18 Eugene McQuillin, Municipal Corporations § 53:16 (3d ed.

rev. 2013).

14 When a court has "authoritatively construed a statute,

well-established principles of judicial decision-making require

that the chosen construction be maintained unless and until the

legislature either amends or repeals the statute." Reiter v.

Dyken, 95 Wis. 2d 461, 470, 290 N.W.2d 510 (1980); Zimmerman v.

Wis. Elec. Power Co., 38 Wis. 2d 626, 633-34, 157 N.W.2d 648

(1968). The majority opinion does not adhere to this rule of

statutory interpretation.
No. 2007AP221.ssa

8

and limits of government immunity has far-reaching impact, and

that if this court should undertake such a task it should do so

only with the benefit of full information, including briefs from

tort victims, the State of Wisconsin, the League of Wisconsin

Municipalities, the Wisconsin Counties Association, and the

Wisconsin Insurance Alliance.

15

¶137 The majority opinion does not carefully revisit the

law and does not have full information. Instead, unfortunately,

the majority opinion further muddies the waters.

¶138 I am writing this dissent to focus attention on the

mistaken premises upon which the majority opinion is based. I

shall proceed by listing each erratum with a brief description,

followed by a more extensive discussion.

16

ERRATUM I. (¶¶44-65, infra)

¶139 THE INITIAL BAIT-AND-SWITCH. The majority opinion

rests heavily on the old bait-and-switch trick.

¶140 Here's the basic bait: The majority opinion (at ¶3)

declares that it "rests on our holding in Milwaukee Metro.

Sewerage District v. City of Milwaukee." I joined this City of

Milwaukee opinion. I agreed with it then. I agree with it now.

15 Scott v. Savers Prop. & Cas. Ins. Co., 2003 WI 60, ¶¶58-

59, 262 Wis. 2d 127, 663 N.W.2d 715 (Abrahamson, C.J.,

concurring).

16 I have tried to point out what I view as the major errors

in the majority opinion. There are others. Inconsistent

statement of legal principles, inconsistent application of legal

principles, and inconsistent use of language cause additional

problems.
No. 2007AP221.ssa

9

¶141 Here's the switch: The majority opinion fails to

adhere to City of Milwaukee and to Physicians Plus Insurance

Corp. v. Midwest Mutual Insurance Co., 2002 WI 80, 254

Wis. 2d 77, 646 N.W.2d 777, upon which City of Milwaukee relies.

¶142 Here's the bait again: The majority opinion (at ¶3)

correctly states the rule of law set forth in City of Milwaukee:

"Whether immunity exists for nuisance founded on negligence

depends upon the character of the negligent acts."

17

¶143 City of Milwaukee then declares the following rule of

law regarding the character of the negligent act:

A municipality is immune from suit for nuisance if the

nuisance is predicated on negligent acts that are

discretionary in nature. A municipality does not

enjoy immunity from suit for nuisance when the

underlying tortious conduct is negligence and the

negligence is comprised of acts performed pursuant to

a ministerial duty.

18

¶144 The City of Milwaukee court did not decide whether the

City was immune from suit for failing to repair a leaking main

17 City of Milwaukee, 277 Wis. 2d 635, ¶59. See also id.,

¶90.

18 City of Milwaukee, 277 Wis. 2d 635, ¶8. See also id.,

¶¶59-60, 90-91.

See also id., ¶9:

Decisions concerning the adoption, design, and

implementation of a public works system are

discretionary, legislative decisions for which a

municipality enjoys immunity. Thus, the City is

immune from suit relating to its decisions regarding

the adoption of a waterworks system, the selection of

the specific type of pipe, the placement of the pipe

in the ground, and the continued existence of such

pipe.
No. 2007AP221.ssa

10

before it ruptured. The court declared that the record was not

sufficiently developed to determine whether the City was under a

ministerial duty (a non-legislative duty) or a discretionary

duty (a legislative duty) to repair the leaking main prior to

its rupture. The City of Milwaukee court directed that "the

circuit court must consider this issue on remand."

19

¶145 Here's the switch: The majority opinion (at ¶41)

recasts City of Milwaukee to state: "The duty to fix the pipe,

if the City knew it was leaking, was 'absolute, certain and

imperative,'——in other words, ministerial——even though a

particular method of repairing the leak was not 'absolute,

certain and imperative.'"

¶146 According to the majority opinion (at ¶43 n.25):

"[I]t is the manner in which MMSD complies with the ministerial

duty to fix the problem that is subject to discretion; no such

discretion exists as to whether MMSD must fix the known

problem." The majority opinion further states (at ¶51):

19 City of Milwaukee, 277 Wis. 2d 635, ¶62:

Having reviewed the record, we determine that the

facts of the present case are not sufficiently

developed for us to determine whether the City was

under a ministerial duty to repair the leaking main

prior to its break on December 9, 1999. . . . [W]e

cannot conclude whether [the City's] duty to repair

the leaking main with reasonable care before it broke

was "absolute, certain and imperative," or whether the

City's decision not to repair the main before the

break was discretionary. As such, we cannot determine

whether the City is entitled to governmental immunity

under § 893.80(4) based on the record before us

(internal citations omitted).

See also id., ¶¶90-91.
No. 2007AP221.ssa

11

[A]lthough a municipal entity escapes liability for

its legislative or quasi-legislative decision

regarding whether to install a particular system or

structure, once the municipal entity makes the

decision to install, the entity is under a subsequent

ministerial duty to maintain the system or structure

in a safe and working order.

20

¶147 In other words, according to the majority opinion

(¶¶51, 64), once a municipal entity installs a particular system

or structure, the entity is under a subsequent ministerial duty

to maintain the system or structure in a safe manner and is

liable for any damages negligently caused, no matter the act

that caused the nuisance or the damage.

21

20 This sentence is an example of the majority opinion's

inconsistent and confusing use of the word "maintain."

"Maintain" is sometimes used to mean "to keep a structure in a

state of repair." At other times, the majority opinion uses the

word "maintain" to mean that a municipality "maintains a

nuisance," after its actions "created" or "caused" or "resulted

in" the existence of the nuisance.

Before a sewer system can be "maintained" in a proper state

of repair, the system must first be "created." At times, the

majority opinion alludes to the fact that the District has

"created and maintained a nuisance," while at other times, the

majority opinion simply concludes that the District has

"maintained a nuisance." See also ¶77, infra.

This case is unlike Physicians Plus, where an act of nature

created, caused, or resulted in a nuisance——a tree hanging over

and obstructing a stop sign. In the present case, the Tunnel is

a man-made object created by the District, the existence of

which has resulted in a nuisance. The majority opinion

repeatedly asserts that the District "maintains" the nuisance or

"keeps [the Tunnel] in that state."

21 According to the majority opinion, "[A] municipal

entity's failure to abate a continuing nuisance caused by

negligent maintenance of a system" after the entity has notice

does not constitute a discretionary act. Majority op., ¶64.
No. 2007AP221.ssa

12

¶148 The majority opinion flouts the City of Milwaukee rule

of law that distinguishes between operation and maintenance of

the Tunnel that may in particular circumstances be legislative

actions, and operation and maintenance of the Tunnel that may in

other circumstances be ministerial actions. The majority

opinion then imposes liability in a limited amount for damages

for negligent operation and maintenance of a nuisance and

unlimited injunctive relief for a nuisance, regardless of

whether the negligently created nuisance is a result of

discretionary action or a failure to fulfill a ministerial duty.

ERRATUM II. (¶¶66 to 86, infra)

¶149 A CONTINUED BAIT-AND-SWITCH. After promising to

adhere to City of Milwaukee, the majority opinion contravenes

City of Milwaukee in a second way: It repeatedly relies on

cases explicitly called into doubt by City of Milwaukee

22 and

asserts (sometimes in slightly different language) that "there

is no discretion as to maintaining the [sewer system] so as not

to cause injury."

¶150 Some cases upon which the majority opinion depends

were decided before Holytz and the enactment of Wis. Stat.

There are, however, contradictory statements scattered in

the majority opinion. See, for example, majority op., ¶66,

requiring a court to determine first whether immunity applies to

the actions that caused the nuisance the plaintiff is asking to

stop. If immunity applies to the actions, then no relief is

available, no matter the result. This is the rule clearly laid

down in City of Milwaukee.

22 City of Milwaukee, 277 Wis. 2d 635, ¶¶55 n.14, 58 n.15,

59 n.17.
No. 2007AP221.ssa

13

§ 893.80 (Winchell).

23 Others were decided after Holytz and

§ 893.80 (Costas,

24 Hillcrest,25 Menick,26 and Welch27). These

cases have all been called into question by subsequent case law,

especially by City of Milwaukee.

28 Thus once again the majority

opinion has baited us with a promise to adhere to the City of

Milwaukee case but has switched to repudiating City of

Milwaukee.

ERRATUM III. (¶¶87 to 99, infra)

¶151 EQUITABLE CLAIM: WIS. STAT. § 893.80(3). The majority

opinion bends the text of Wis. Stat. § 893.80(3) to conclude

23 Winchell v. City of Waukesha, 110 Wis. 101, 85 N.W. 668

(1901). See majority op., ¶¶4 n.4, 35 n.18, 69, 98 n.3p.

24 Costas v. City of Fond du Lac, 24 Wis. 2d 409, 129

N.W.2d 217 (1964). See majority op., ¶¶31, 33, 35, 41 n.22, 64,

69, 70.

25 Hillcrest Golf & Country Club v. City of Altoona, 135

Wis. 2d 431, 400 N.W.2d 493 (Ct. App. 1986). See majority op.,

¶¶4, 63, 64, 98.

26 Menick v. City of Menasha, 200 Wis. 2d 737, 547

N.W.2d 778 (Ct. App. 1995). See majority op., ¶¶4, 36, 37, 60,

98.

27 Welch v. City of Appleton, 2003 WI App 133, 265

Wis. 2d 688, 666 N.W.2d 511. See majority op., ¶¶4, 34, 37 &

n.20, 98.

28 Anhalt v. Cities & Vills. Mut. Ins. Co., 2001 WI App 271,

249 Wis. 2d 62, 637 N.W.2d 422, repeats the mantra oft repeated

in the majority opinion: In a suit against a municipal entity

for negligent operation and failure to maintain an adequate

sewerage system, the complainant has to show only that the

sewerage system failed due to negligence, rather than showing

the negligence stemmed from the municipal entity's failure to

perform a ministerial duty. The Anhalt holding, however, does

not support this refrain. See discussion at ¶¶80-91, 83-85,

infra.
No. 2007AP221.ssa

14

that the $50,000 statutory cap does not apply to a court order

directing a municipal entity to abate a nuisance founded on tort

for which it is liable.

29

¶152 Espousing an ordinary and reasonable interpretation of

the phrase "the amount recoverable by any person for any

damages . . . in any action founded on tort" in § 893.80(3), the

majority opinion concludes that this phrase means only money

damages awarded to the complainant. The majority opinion

disregards the fact that in many instances there may be no

substantial difference for both the complainant and the

government entity between a monetary sum awarded to a

complaining party to remedy its injury and injunctive relief

directed to a government entity forcing it to remedy the

complaining party's injury.

30 In either event, the complainant

recovers and gets the relief sought, and the government entity

must expend funds. This statutory phrase, given its ordinary

29 Wisconsin Stat. § 893.80(3) provides in relevant part as

follows:

Except as provided in this subsection, the amount

recoverable by any person for any damages, injuries or

death in any action founded on tort against

any . . . political corporation, governmental

subdivision or agency thereof and against their

officers, officials, agents or employees for acts done

in their official capacity or in the course of their

agency or employment, whether proceeded against

jointly or severally, shall not exceed $50,000. . . .

30 Bostco LLC v. Milwaukee Metro. Sewerage Dist., 2011 WI

App 76, ¶133, 334 Wis. 2d 620, 800 N.W.2d 518 ("From the

standpoint of the public treasury, there is little difference in

practice between a monetary damage award given to a plaintiff to

remedy its harm and in injunction order requiring the defendant

to abate the harm.").
No. 2007AP221.ssa

15

and reasonable meaning, governs both monetary damages and

injunctive relief in any action founded on tort.

¶153 The majority opinion is oblivious to the extreme irony

in limiting monetary damages to $50,000 for public policy

reasons while requiring government entities to pay as much as it

takes to abate a nuisance.

¶154 The majority opinion's interpretation of Wis. Stat.

§ 893.80(3) is unreasonable and absurd, as it renders

meaningless the $50,000 legislatively mandated limit on the

amount a government entity must expend when liable for its

tortious conduct.

ERRATUM IV. (¶¶100 to 132, infra)

¶155 EQUITABLE CLAIM CONTINUED: WIS. STAT. § 893.80(3),

(4), and (5). The majority opinion offers up a potpourri of

arguments to support its thesis that Wis. Stat. § 893.80(3),

(4), and (5) do not apply to injunctive relief in a tort action

such as the present case. In all of its analysis, the majority

opinion overlooks the plain text of Wis. Stat. § 893.80(3), (4),

and (5). The texts are broadly worded, regulating "any action

founded on tort," "any suit," and "all claims against

a . . . governmental subdivision," and declaring that § 893.80

shall be "exclusive."

¶156 Clearly Bostco's request for injunctive relief in this

tort action is encompassed in "any suit." It is labeled a claim

and is a "claim" that fits within the statutory phrase "all

claims."
No. 2007AP221.ssa

16

¶157 Section 893.80 uses all-encompassing words, like"any

action founded on tort," "any suit," "exclusive," and "all

claims" to include injunctive and "all" types of relief for

negligent tortious conduct within the confines of § 893.80.

¶158 The majority opinion offers no statute (or precedent)

excluding injunctive relief from Wis. Stat. § 893.80 or

excluding the facts of the present case from § 893.80.

¶159 The majority opinion enables a court to order

abatement of a private nuisance at unlimited cost, thereby

eviscerating the text and legislatively enacted protection of

the taxpayer and the public purse.

ERRATUM V. (¶¶133 to 152, infra)

¶160 EQUITABLE CLAIM: MANY UNANSWERED QUESTIONS. The

majority opinion fails to discuss injunctive relief in any

meaningful manner. The injunctive remedy adopted by the

majority opinion leaves more questions than answers. In

ordering injunctive relief, the majority opinion does not pay

particular attention to the public consequences and hardships of

granting injunctive relief, as required by law. It does not

recognize that the legislature has declared that the statutorily

allowed damages are sufficient. It does not determine whether

Bostco's contributory negligence reduces the available equitable

relief. It disregards the practicability of a court's framing

and enforcing an injunctive order when the Deep Tunnel is a

municipal structure highly regulated by state and federal laws

and overseen by the Department of Natural Resources.

ERRATUM VI. (¶¶153 to 158)
No. 2007AP221.ssa

17

¶161 UNFUNDED MANDATE: CONTRARY TO PUBLIC POLICY. The

majority opinion expands government liability and increases

costs for government entities and taxpayers. This results in an

unfunded mandate on government entities. Increased government

liability is contrary to recent legislative expressions of state

policy that reduce government liability and reduce potential

recovery for tort victims. The majority opinion is marching in

the opposite direction from the legislature.

¶162 On consideration of these serious errata, I dissent.

I

¶163 I agree with the majority opinion that the proper

negligence, nuisance, liability, and immunity analyses rest upon

City of Milwaukee. Majority op., ¶3. The decision in City of

Milwaukee builds on the Physicians Plus decision and carefully

analyzes half a century of precedent.

31 The rub, as I have

stated, is that the majority opinion does not adhere to the City

of Milwaukee decision.

¶164 The negligent creation and known existence of a

nuisance are alone insufficient to impose liability on a

municipal entity. As City of Milwaukee instructs, once a

property owner proves the existence of a nuisance and notice to

the entity, the owner must also prove that the underlying

tortious conduct giving rise to the nuisance constitutes

actionable negligence.

32

31 City of Milwaukee, 277 Wis. 2d 635, ¶¶24-49.

32 Id., ¶¶6, 7.
No. 2007AP221.ssa

18

¶165 Once actionable negligence is established, the next

step under City of Milwaukee is to determine the nature of the

municipal entity's negligent acts in order to determine whether

the entity is liable or immune. As City of Milwaukee explained:

"[A] municipality may be immune from nuisance suits depending on

the nature of the tortious acts giving rise to the nuisance. A

municipality is immune from suit for nuisance if the nuisance is

predicated on negligent acts that are discretionary in nature."

33

¶166 City of Milwaukee further explained that "[d]ecisions

concerning the adoption, design, and implementation of a public

works system are discretionary, legislative decisions for which

a municipality enjoys immunity."

34 Thus, if the nuisance in the

present case is predicated on negligent "[d]ecisions concerning

the adoption, design and implementation of" the Deep Tunnel,

then such actions are "discretionary, legislative decisions" for

which the District enjoys immunity.

35

33 City of Milwaukee, 277 Wis. 2d 635, ¶8 (emphasis added);

see also id., ¶¶58-59, 62, 90.

34 Id., ¶9.

35 Id.

City of Milwaukee makes clear that some of these

discretionary, immune decisions include "decisions regarding the

adoption of a waterworks system, the selection of the specific

type of pipe, the placement of the pipe in the ground, and the

continued existence of such pipe." City of Milwaukee, 277

Wis. 2d 635, ¶9. Applying these principles to this case, some

of the District's discretionary decisions, which are immune from

suit, include decisions regarding the adoption of a Deep Tunnel

system, the selection of the specific type of Tunnel system, the

placement of the Tunnel in the ground, and the continued

existence of the Tunnel.
No. 2007AP221.ssa

19

¶167 In contrast, if the nuisance is predicated on a

negligent act in performing a ministerial duty to operate or

maintain the Deep Tunnel that caused the nuisance, then the

District is liable.

36

¶168 In City of Milwaukee, the City's water main was

obviously neither designed nor constructed to leak. All agreed

that the water main leaked and then ruptured, causing damage to

MMSD's sewer. MMSD in that case did not allege that the City

was negligent in failing to repair the main after it ruptured.

MMSD alleged that the City was negligent and created a nuisance

by failing to monitor and inspect the system to detect leaks,

and by failing to repair the main before it ruptured. The

question before the Supreme Court was whether the City had a

ministerial duty to act while the water main was leaking before

the main ruptured.

37

¶169 At no time in City of Milwaukee did this court decide

that the City had a ministerial duty to abate a nuisance merely

because it had notice of the nuisance. The court decided only

that the City may be liable if it had sufficient notice that

created an "absolute, certain, and imperative" duty to act.

38

36 City of Milwaukee, 277 Wis. 2d 635, ¶9.

37 Id., ¶¶8, 9, 61.

38 The majority opinion, ¶¶38-41, 43, recasts City of

Milwaukee by zeroing in on some sentences of the opinion but not

reading them in context of the entire opinion. City of

Milwaukee did not create a rule whereby a government entity's

notice of a nuisance automatically creates a general ministerial

duty to abate the nuisance, as the majority opinion in the

present case claims.
No. 2007AP221.ssa

20

¶170 The majority opinion (at ¶¶41, 51) recasts City of

Milwaukee to state that once the District had notice that it had

negligently created a private nuisance that caused damage, it

had a ministerial duty to abate the nuisance. According to the

majority opinion, "[O]nce the municipal entity makes the

decision to install, the entity is under a subsequent

ministerial duty to maintain the system or structure in a safe

and working order." Majority op., ¶51 (footnote omitted).

¶171 This recasting of City of Milwaukee contradicts

precedent. Case law instructs that the court must look at the

act, and not simply the result. In Allstate Insurance Co. v.

Metropolitan Sewerage Commission, 80 Wis. 2d 10, 258 N.W.2d 148

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 (Prosser, J., concurring) (internal citations

omitted).

Butler v. Advance Drainage Systems, Inc., 2005 WI App 108,

¶40, 282 Wis. 2d 776, 698 N.W.2d 117, quotes City of Milwaukee

and states that the first step in a negligent nuisance action is

to determine whether a nuisance is present; the second step is

to determine the underlying tortious conduct; and the third step

is to decide whether the defendant's conduct "is 'otherwise

actionable under the rules governing liability for negligent

conduct.'"
No. 2007AP221.ssa

21

(1977), the court explained that "[w]here, when and how to build

sewer systems are legislative determinations imposed upon a

governmental body."

39 So long as the parts of the sewer system,

in that case a manhole, were placed at a location in compliance

with the plans, their placement is an act in compliance with a

legislative function that is subject to immunity.

40 Initial

planning and implementation decisions are immune even though

"the placement and subsequent use of the manhole may have

created a danger."

41

¶172 Allstate teaches that the District may have a

ministerial duty to operate and maintain the Deep Tunnel

functioning in its original, intended state. The ministerial

duty to operate and maintain the Tunnel does not, however,

require making improvements to the Tunnel, even if an

improvement is necessary to avoid harm.

42

¶173 The problem in the present case is that no one

examines the District's acts. No one——not Bostco, not the

witnesses, not the jury, not the circuit court, not the court of

appeals, and not the majority opinion——identifies the District's

allegedly negligent acts that caused the nuisance or

characterizes the negligent acts as either discretionary

39 Allstate, 80 Wis. 2d at 16.

40 City of Milwaukee, 277 Wis. 2d 635, ¶58 (citing Allstate,

80 Wis. 2d at 16).

41 Allstate, 80 Wis. 2d at 16.

42 Id. at 15-16; cf. Hocking v. City of Dodgeville, 2010 WI

59, ¶¶45, 48, 326 Wis. 2d 155, 785 N.W.2d 398.
No. 2007AP221.ssa

22

(legislative) or ministerial (non-discretionary, nonlegislative).

¶174 Bostco's complaint broadly alleges that two District

actions led to the continuing private nuisance: 1) the

District's negligent design and construction of the Tunnel; and

2) the District's failure to exercise ordinary care in the

inspection, repair, maintenance, and operation of the Tunnel.

¶175 The record does not identify any District actions that

are not related to design and construction.

¶176 The jury in the present case was never instructed to

identify which negligent conduct caused the nuisance. The jury

was not asked to determine whether the negligent conduct was

related to the District's design and construction of the Tunnel

or to the District's maintenance and operation of the Tunnel

unrelated to the design and its implementation. The jury was

thus not instructed about or asked about disaggregating the

District's negligent legislative acts and the harm caused

thereby and the District's negligent non-legislative acts and

the harm caused thereby.

43

43 The pertinent portion of the jury instructions reads as

follows:

The District is specifically required by law to

project, plan, design, construct, maintain and operate

the sewerage system including the collection,

transmission and disposal of storm water and

groundwater.

As I [the circuit court judge] told you earlier, the

planning, design and construction of the tunnel are

not issues in this case.
No. 2007AP221.ssa

23

¶177 The circuit court did not differentiate between

legislative and non-legislative acts in analyzing the District's

conduct in operating and maintaining the Tunnel.

¶178 The majority opinion does not attempt to do so,

although, as I have explained, this distinction is crucial under

City of Milwaukee.

¶179 City of Milwaukee clearly instructs that "the proper

inquiry is to examine the character of the underlying tortious

acts,"

44 because "liability depends upon the existence of

underlying tortious acts that cause the harm."

45 The Restatement

(Second) of Torts illustrates this point as follows:

[F]or a nuisance to exist there must be harm to

another or the invasion of an interest, but there need

not be liability for it. If the conduct of the

defendant is not a kind that subjects him to

liability . . . the nuisance exists, but he is not

liable for it.

46

The claims in this case involve claims for negligence

based on the operation, maintenance and inspection of

the tunnel on or after August 7, 1992. Evidence of

events prior to August 7, 1992, was admitted and may

be considered by you insofar as it bears on the

knowledge of the parties and actions of the parties

after August 7, 1992.

44 City of Milwaukee, 277 Wis. 2d 635, ¶59.

An accompanying footnote at ¶59 n.18 in City of Milwaukee

reads: "Thus, the court of appeals in the instant case

misstated the law when it concluded that § 893.80(4) immunizes a

municipality from a cause of action alleging negligence but not

a nuisance claim that is based in negligence. Milwaukee Metro.

Sewerage Dist. [v. City of Milwaukee], 2003 WI App 209, ¶22, 267

Wis. 2d 688, 671 N.W.2d 346."

45 City of Milwaukee, 277 Wis. 2d 635, ¶25.

46 Id. (quoting Restatement (Second) of Torts § 821A cmt. c

(emphasis in City of Milwaukee)).
No. 2007AP221.ssa

24

¶180 As City of Milwaukee made clear:

[I]t is incorrect to speak of nuisance "as itself a

type of liability-forming conduct . . . ."

47

. . . .

Focusing the immunity analysis on the character of the

tortious acts underlying the nuisance is important for

two reasons. First, . . . liability for nuisance is

itself dependent upon whether the underlying tortious

conduct is actionable. Second, and more importantly,

Wis. Stat. § 893.80(4) does not immunize

municipalities for certain results; rather, immunity

is provided for certain acts.

48

¶181 Indeed, in contrast to its other statements, the

majority opinion itself recognizes that "when a plaintiff seeks

equitable or injunctive relief against a municipal entity, a

court must first answer the threshold question of whether

immunity applies. If a court concludes that the actions the

plaintiff is seeking to stop through a suit in equity are

legislative, quasi-legislative, judicial or quasi-judicial, then

the suit must be dismissed because the governmental entity is

protected by immunity." Majority op., ¶66; see also id., ¶64.

¶182 In sum, the majority opinion cannot use the District's

alleged negligent design or construction of the Tunnel in

determining the District's liability, because those actions

would be protected by immunity. The majority has not pointed to

any of the District's alleged negligent operation and

maintenance of the Tunnel that is not in compliance with the

47 City of Milwaukee, 277 Wis. 2d 635, ¶26 (quoting

Restatement (Second) of Torts § 822 cmt. c (emphasis added)).

48 City of Milwaukee, 277 Wis. 2d 635, ¶59 n.17 (emphasis in

original).
No. 2007AP221.ssa

25

manner in which the Tunnel was designed. The Tunnel is not

broken; it is functioning in compliance with the "plan adopted,"

as it was designed to function. Therefore, to create liability,

the majority opinion must assert that the District negligently

maintained a private nuisance, that is, that its conduct (its

failing to repair the Tunnel, which was operating as designed)

failed to fulfill a ministerial duty to abate.

¶183 The majority opinion ignores the clear directive in

City of Milwaukee that "[a] municipality is immune from suit for

nuisance if the nuisance is predicated on negligent acts that

are discretionary in nature."

49 The majority opinion bends that

clear rule to hold that the maintenance of a nuisance itself is

the act which is not discretionary in nature. According to the

majority opinion, no longer is the act (that creates the result)

the basis for liability, but rather the result (the nuisance)

creates liability no matter what act caused that result.

50

¶184 To repeat, neither Bostco nor the majority opinion has

alleged that the Tunnel is malfunctioning. If the Deep Tunnel

is functioning as designed, in compliance with the "plan

adopted" and it is not broken, then, according to City of

Milwaukee and Allstate (and Welch & Anhalt), the District does

not have a ministerial duty to repair it.

49 Id., ¶8 (emphasis added).

50 Case law and black letter law instruct that a nuisance

itself is not a type of liability-forming conduct and that

immunity is granted for certain acts, notwithstanding their

results. City of Milwaukee, 277 Wis. 2d 635, ¶59 n.17 ("Wis.

Stat. § 893.80(4) does not immunize municipalities for certain

results; rather, immunity is provided for certain acts.").
No. 2007AP221.ssa

26

II

¶185 The second erratum is a continuation of the majority

opinion's bait-and-switch approach to City of Milwaukee and

precedent. After promising to adhere to City of Milwaukee, the

majority opinion contravenes City of Milwaukee by reviving and

reinvigorating cases that City of Milwaukee significantly pulled

back.

¶186 The majority opinion repeatedly asserts (sometimes in

slightly different language) the proposition that "there is no

discretion as to maintaining the [sewer system] so as not to

cause injury."

51 In doing so, the majority opinion depends in

large part for this refrain on cases that have been called into

doubt by subsequent case law, especially City of Milwaukee. In

City of Milwaukee, this court explicitly cast doubt on case law

preceding Holytz and the enactment of Wis. Stat. § 893.80

(Winchell)

52 and on some post-Holytz and post-§ 893.80 cases

51 Majority op., ¶¶4, 60, 95 (quoting Menick, 200 Wis. 2d at

745). See also majority op., ¶¶33, 43 n.25, 51.

52 Winchell v. City of Waukesha, 110 Wis. 101, 85 N.W. 668

(1901), is cited by the majority opinion at ¶¶4 n.4, 35 n.18,

69, 95 n.38, for the proposition that the "legislative authority

to install a sewer system carries no implication of authority to

create or maintain a nuisance"; the "authority granted to

municipalities . . . to construct sewers, [is] subject to the

general legal restrictions resting upon such corporations

forbidding invasion of private rights by creation of nuisance or

otherwise,"; the "legislative authority to install a sewer

system carries no implication of authority to create or maintain

a nuisance, and that it matters not whether such nuisance

results from negligence or from the plan adopted. If such

nuisance be created, the same remedies may be invoked as if the

perpetrator were an individual"; and thus, the municipal entity

has an obligation to abate a private nuisance the entity caused,

which may include equitable relief.
No. 2007AP221.ssa

27

(Costas,

53 Hillcrest,54 Menick,55 and Welch56). Thus once again

the majority opinion has baited us with a promise to adhere to

City of Milwaukee but has audaciously repudiated City of

Milwaukee.

53 Costas v. City of Fond du Lac, 24 Wis. 2d 409, 129

N.W.2d 217 (1964), is cited by the majority opinion at ¶¶31, 33,

35, 41 n.22, 64, 69, 70, for the proposition that a nuisance can

exist even though a sewage plant was built and operated in

compliance with state plans and regulations; a private

individual can bring an action for the injunctive relief of

abatement of a private nuisance against a municipal entity; the

municipal entity's failure to abate that nuisance caused by the

negligent maintenance of the system or structure after it has

notice is not a discretionary act that may be entitled to

immunity; but "generally the means whereby [a] nuisance is to be

abated is left to the direction of the defendant tortfeasor."

54 Hillcrest Golf & Country Club v. City of Altoona, 135

Wis. 2d 431, 400 N.W.2d 493 (Ct. App. 1986), is cited by the

majority opinion at ¶¶4, 63, 64, 95, for the proposition that

the "creation and maintenance of private nuisances are simply

not recognized as legislative acts subject to protection under

sec. 893.80(4)," and the municipal entity's failure to abate

that nuisance caused by the negligent maintenance of the system

or structure after it has notice is not a discretionary act that

may be entitled to immunity.

55 Menick v. City of Menasha, 200 Wis. 2d 737, 547

N.W.2d 778 (Ct. App. 1995), is cited by the majority opinion at

¶¶4, 36, 37, 60, 95, for the proposition that a municipal entity

does not enjoy immunity from an action for negligent creation of

a private nuisance; and "there is no discretion as to

maintaining [a sewer] system so as not to cause injury to

residents."

56 Welch v. City of Appleton, 2003 WI App 133, 265

Wis. 2d 688, 666 N.W.2d 511, is cited by the majority opinion at

¶¶4, 34, 37 & n.20, 95, for the proposition that there is a

longstanding rule that generally municipal entities are not

shielded from liability for maintaining a private nuisance; and

"no statutory or common law immunity doctrine empowers a public

body to maintain a private nuisance." Ultimately though, the

court of appeals concluded that the City's maintenance of its

storm sewer was not a private nuisance.
No. 2007AP221.ssa

28

¶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, postWis. Stat. § 893.80 world.

57

¶188 Even Holytz itself called into question all of the

case law that came before it and gave credence to the idea that

any court decision published before June 5, 1962, relating to

government immunity is suspect.

58 Holytz aimed to change the law

that was in the court's view "knee-deep in legal esoterica:

e.g., governmental function v. proprietary function;

relationship of governor to governed," and had "resulted in some

highly artificial judicial distinctions."

59

¶189 Although the majority opinion relies on Winchell, it

spends even more time and space on Costas v. City of Fond du

Lac, 24 Wis. 2d 409, 129 N.W.2d 217 (1964). Majority op., ¶¶31,

57 See, e.g., City of Milwaukee, 277 Wis. 2d 635, ¶¶51-53

n.12, 14. The court of appeals in City of Milwaukee relied on

Winchell. The supreme court then characterized Winchell as a

case based on obsolete logic.

58 Also see pre-Holytz cases cited in the concurrence at ¶16

n.11 (citing Christian v. City of New London, 234 Wis. 123, 129,

290 N.W. 621 (1940); Mitchell Realty Co. v. City of West Allis,

184 Wis. 352, 363, 199 N.W. 390 (1924)).

59 Holytz, 17 Wis. 2d at 30.
No. 2007AP221.ssa

29

33, 35, 41 n.21, 64, 70. Even though Costas was decided in

1964——post-Holytz and post-§ 893.80——the Costas court based its

holding on Winchell and did not mention either Holytz or Wis.

Stat. § 893.80.

60 Indeed, Costas does not even mention the

phrase or notion of government immunity.

¶190 Costas relied heavily on Winchell and overturned an

observation made in Hasslinger v. Village of Hartland, 234 Wis.

201, 207, 290 N.W. 647 (1940), that if the sewage treatment

plant was built according to government specification and was

operating according to specification, the plant was not a

nuisance in its creation or operation.

61 The Costas court

disavowed this observation.

¶191 With regard to Costas, City of Milwaukee noted that

"the holdings in Allstate Ins. Co. v. Metropolitan Sewerage

Commission, 80 Wis. 2d 10, 15, 258 N.W.2d 148 (1977), and Lange

v. Town of Norway, 77 Wis. 2d 313, 318, 321, 253 N.W.2d 240

(1977), effectively overruled, sub silencio," the language in

Costas that a city has no immunity for the "plan adopted" for a

public works system.

62 Costas has limited shelf-life and

relevancy for the present case.

¶192 The majority opinion then discusses Hillcrest, Menick,

and Welch. These cases are not good law standing for the

proposition for which the majority opinion cites them, namely

60 City of Milwaukee, 277 Wis. 2d 635, ¶55 n.14.

61 See Hillcrest, 135 Wis. 2d at 440-41 (similarly

interpreting Costas).

62 City of Milwaukee, 277 Wis. 2d 635, ¶¶55 n.14, 58 n.15.
No. 2007AP221.ssa

30

that the "creation and maintenance of private nuisances are

simply not recognized as legislative acts subject to protection

under sec. 893.80(4)."

63

¶193 The majority opinion cites Hillcrest, the first in the

series of storm sewer decisions by the court of appeals, to

support its view that municipal entities are not shielded from

liability for maintaining a private nuisance. The allegation

was that the system discharged water that damaged the

complainant's land. Citing and quoting Winchell and Costas, the

court of appeals concluded that "[t]he creation and maintenance

of private nuisances are simply not recognized as legislative

acts subject to protection under sec. 893.80(4)."

64

¶194 In another sewer case, Menick, the sewer system

flooded the complainant's basement. Relying on Hillcrest, the

Menick court concluded that "[t]he actions of the City in

operating and maintaining the sewer system do not fall within

the immunity provision of § 893.80."

65

¶195 The majority opinion then cites Welch, another

overflowing sewer case. The majority opinion cites Welch as

supporting the following: "This duty to abate arises from the

longstanding rule that generally municipal entities are not

shielded from liability for maintaining a private nuisance."

Majority op., ¶34. In contrast, the court of appeals stated in

63 Majority op., ¶¶4, 63, 95 (quoting Hillcrest, 135

Wis. 2d at 439-40).

64 Hillcrest, 135 Wis. 2d at 439-40.

65 Menick, 200 Wis. 2d at 745.
No. 2007AP221.ssa

31

Welch that there was no private nuisance in that case (as the

majority opinion admits in footnote 20); that the city was not

liable because the evidence was that the sewer system was in

working order, functioning as planned; and that the municipal

government was immune for the discretionary act of poor design.

66

¶196 The court of appeals further explained in Welch that

the verb "maintain" means "to keep in a state of repair."

67

There, as here, "it is undisputed" that the sewer system was

working as designed. Thus, according to Welch, "there was no

required pipe 'maintenance.'"

68

¶197 Hillcrest, Menick, and Welch comprise a set of court

of appeals decisions based on Winchell, Costas, and each other.

The majority opinion ignores the fact that City of Milwaukee and

other cases rendered these cases ineffectual.

69

¶198 Although language isolated from the full opinions in

Winchell, Hillcrest, Menick, and Welch can be made to support

the majority opinion, these cases do not buttress the majority

opinion's stance. The language and the cases are suspect.

¶199 In City of Milwaukee, Justice Wilcox, writing for the

six-person majority, called into doubt the validity of the

explanations for government immunity or liability in the

66 Welch, 265 Wis. 2d 688, ¶¶12, 13, 25-27 (citing Anhalt,

249 Wis. 2d 62, ¶12 (quoting Allstate, 80 Wis. 2d at 15-16)).

67 This court adopted a similar definition of "maintenance"

in Hocking, 326 Wis. 2d 155, ¶48.

68 Welch, 265 Wis. 2d 688, ¶25.

69 See, e.g., Butler, 282 Wis. 2d 776, ¶41.
No. 2007AP221.ssa

32

majority opinion's favorite court of appeals decisions as

follows:

Several court of appeals decisions . . . have applied

the immunity statute to a variety of nuisance claims

involving sanitary and storm sewers and have utilized

conflicting rationales to reach results that are not

entirely consistent. See, e.g., Welch v. City of

Appleton, 2003 WI App 133, 265 Wis. 2d 688, 666

N.W.2d 511; Anhalt v. Cities and Vills. Mut. Ins. Co.,

2001 WI App 271, 249 Wis. 2d 62, 637 N.W.2d 422;

Menick v. City of Menasha, 200 Wis. 2d 737, 547

N.W.2d 778 (Ct. App. 1996); Hillcrest Golf & Country

Club v. City of Altoona, 135 Wis. 2d 431, 400

N.W.2d 493 (Ct. App. 1986)[hereinafter Hillcrest].

To the extent these decisions have created confusion

in the area of municipal immunity for nuisances, such

confusion is a result of three factors. First, some

decisions have continued to rely on immunity

jurisprudence that predated Holytz and § 893.80(4).

See, e.g., Hillcrest, 135 Wis. 2d at 438-41, 400

N.W.2d 493. Second, some decisions employ separate

analyses for negligence and nuisances grounded in

negligence. See, e.g., Welch, 265 Wis. 2d 688, ¶¶8-

13, 666 N.W.2d 511. Third, some decisions fail to

stress that a municipality is liable for its negligent

acts only if those acts are performed pursuant to a

ministerial duty. See, e.g., Anhalt, 249 Wis. 2d 62,

¶26, 637 N.W.2d 422.

Focusing the immunity analysis on the character of the

tortious acts underlying the nuisance is important for

two reasons. First, as discussed supra, liability for

nuisance is itself dependent upon whether the

underlying tortious conduct is actionable. Second,

and more importantly, Wis. Stat. § 893.80(4) does not

immunize municipalities for certain results; rather,

immunity is provided for certain acts.

City of Milwaukee, 277 Wis. 2d 635, ¶59 n.17.

70

70 See also City of Milwaukee, 277 Wis. 2d 635, ¶¶50-62.

In Butler v. Advanced Drainage Systems, Inc., 2005 WI App

108, ¶41, 282 Wis. 2d 776, 698 N.W.2d 117, which the majority

opinion ignores, the court of appeals recognized this court's

abrogation of Welch and similar cases, explaining:
No. 2007AP221.ssa

33

¶200 Although City of Milwaukee casts a significant shadow

on these cases as "utiliz[ing] conflicting rationales to reach

results that are not entirely consistent,"

71 the majority opinion

reinstates, reinvigorates, and perpetuates these incompatible

opinions.

¶201 The majority opinion points to no authority aside from

the out-of-context language in this small subset of court of

appeals decisions that appears to state that a municipal entity

has a general ministerial duty to operate and maintain a sewer

system in a safe condition for neighboring property owners.

¶202 Indeed, the majority opinion at ¶41 n.21 dismisses a

more recent 2001 court of appeals storm sewer case, Anhalt v.

Cities & Villages Mutual Insurance Co.,

72 that is on point here

Welch v. City of Appleton, 2003 WI App 133, 265

Wis. 2d 688, 666 N.W.2d 511, and Anhalt v. Cities and

Vills. Mut. Ins. Co., 2001 WI App 271, 249 Wis. 2d 62,

637 N.W.2d 422 were among those [cases] expressly

noted by the [supreme] court in Milwaukee Metro.

Sewerage as applying the immunity statute (because all

involved municipalities) "utilizing conflicting

rationales to reach results that are not entirely

consistent." 277 Wis. 2d 635, ¶59 n.17, 691

N.W.2d 658. Welch, the court observed, erred in

employing a separate analysis for negligence and

nuisances grounded in negligence, and Anhalt "fail[ed]

to stress that a municipality is liable for its

negligent acts only if those acts are performed

pursuant to a ministerial duty." Id. To the extent

that either Welch or Anhalt support the proposition

that a nuisance claim need not be grounded either in

intentional conduct or in otherwise actionable

negligence, they are no longer good law on that point

after Milwaukee Metro. Sewerage.

71 City of Milwaukee, 277 Wis. 2d 635, ¶59 n.17.

72 Anhalt v. Cities & Vills. Mut. Ins. Co., 2001 WI App 271,

249 Wis. 2d 62, 637 N.W.2d 422.
No. 2007AP221.ssa

34

and undercuts Winchell, Costas, Hillcrest, Menick, and Welch,

the cases the majority opinion highlights. In Anhalt, yet one

more sewer system case, residents claimed destruction to their

real property from flooding. The thrust of the residents'

complaint was that the city negligently designed, planned, and

implemented an inadequate sewer system that caused a private

nuisance. The court of appeals reviewed Winchell, Hillcrest,

and Menick, the "prominent cases that apply the law of nuisance

to hold municipalities liable for damages resulting from the

operation of sewage systems."

73

¶203 The court of appeals declared in Anhalt that no

authority exists imposing a positive duty on a municipal entity

to keep its sewer system current with developing needs or to

remedy an untenable situation.

74 Anhalt adheres to Allstate, and

holds that "the acts of designing, planning and implementing a

sewer system are discretionary acts protected under Wis. Stat.

§ 893.80(4)."

75 The system in Anhalt was operating in the manner

in which it was designed to operate. Even though 46 residential

properties were substantially damaged by the City's operation

and maintenance of the system according to the design it

selected, the court of appeals held that the remedy for the

residents "lies in their power to vote rather than in the

judicial system."

76

73 Anhalt, 249 Wis. 2d 62, ¶18.

74 Id., ¶16.

75 Id., ¶12 (citing Allstate, 80 Wis. 2d at 15-16).

76 Anhalt, 249 Wis. 2d 63, ¶16.
No. 2007AP221.ssa

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¶204 Anhalt, a 2001 court of appeals decision, was followed

by Welch in 2003, and although the two cases "utilized

conflicting rationales," they reached the same conclusion: A

municipal entity is immune from suit for injuries arising from

the design, planning, and implementation of a sewer system. The

older court of appeals decisions that reached a different

conclusion, Hillcrest (1986) and Menick (1996), are the basis

for the majority opinion, which refuses to make the slightest

admission that the most recent decisions directly contradict its

holding.

¶205 Eight years ago in City of Milwaukee and shortly

before that in Physicians Plus, this court labored to synthesize

the case law on negligence, nuisance, and government immunity

and liability. Today, the majority opinion ignores that

guidance and reinvigorates and propels repudiated precedent to

reach a result that neither Wis. Stat. § 893.80 nor our case law

presently supports.

III

¶206 I come to the third erratum——the majority opinion's

interpretation of the statutory cap on damages in Wis. Stat.

§ 893.80(3). Even if I agreed with the majority opinion that

the District is liable in tort for damages and injunctive relief

for the creation and maintenance of the private nuisance in the

I agree with City of Milwaukee and Butler, which criticize

Anhalt, 249 Wis. 2d 62, ¶26, as failing "to stress that a

municipality is liable for its negligent acts only if those acts

are performed pursuant to a ministerial duty." City of

Milwaukee, 277 Wis. 2d 635, ¶59 n.17; Butler, 282 Wis. 2d 776,

¶41.
No. 2007AP221.ssa

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present case, and I do not, the majority opinion errs in

concluding that the statutory cap in Wis. Stat. § 893.80(3) does

not limit the expenditures a government entity must make to

comply with an order for injunctive relief in a tort action.

¶207 Wisconsin Stat. § 893.80(3) provides in relevant part:

Except as provided in this subsection, the amount

recoverable by any person for any damages, injuries or

death in any action founded on tort against

any . . . political corporation, governmental

subdivision or agency thereof and against their

officers, officials, agents or employees for acts done

in their official capacity or in the course of their

agency or employment, whether proceeded against

jointly or severally, shall not exceed

$50,000. . . . (emphasis added).

¶208 The majority opinion (at ¶¶54-58) concludes that

although the statutory cap on damages, injuries, or death

applies to monetary damages in a tort action, the statutory cap

does not similarly extend to a court order directing a

municipality to abate a nuisance founded on tort for which it is

liable.

¶209 The majority opinion reaches its unreasonable and

absurd result by not adhering to the basic rules of statutory

interpretation.

¶210 The majority opinion's reasoning turns on the words

"the amount recoverable by any person" in Wis. Stat.

§ 893.80(3). It claims to give the phrase an ordinary and

reasonable meaning. It does not. The majority opinion

concludes that injunctive relief is not an "amount recoverable

by any person," without examining the ordinary meaning of these
No. 2007AP221.ssa

37

words or the meaning of these words in the context of Wis. Stat.

§ 893.80(3) and in the context of § 893.80 as a whole.

¶211 The majority opinion fails to acknowledge that insofar

as a complainant and a government entity are concerned, in many

instances there is no substantial difference between monetary

damages awarded to the complaining party so that it can remedy

its injury and injunctive relief directing a government entity

to remedy the complaining party's injury.

77 In either event, the

complainant benefits and gets the relief it sought, and the

government entity must expend funds.

¶212 I conclude that the phrase "the amount recoverable by

any person for any damages" in its ordinary and reasonable

meaning includes monetary damages and equitable, injunctive

relief against a municipal entity in any action founded on tort.

¶213 My reading of this phrase is bolstered by the

legislative policy underlying Wis. Stat. § 893.80(3), namely to

limit the amount of funds expended by a government entity when

liable "in any action founded on tort."

77 The word "damages" is used in its ordinary and reasonable

meaning in Wis. Stat. § 893.80(3). In cases involving insurance

policies in which the insurance company agreed to pay "all sums

which the insured shall become legally obligated to pay as

damages," the court has rejected an overly restrictive

definition of the word "damages," as understood by a reasonable

insured. The court rejected the notion that the word "damages"

does not encompass the insured's costs of complying with an

injunctive decree, recognizing that mandatory injunctive relief

may also be compensatory in nature. See Johnson Controls, Inc.

v. Employers Ins. of Wausau, 2003 WI 108, ¶¶31-44, 264

Wis. 2d 60, 665 N.W.2d 257.
No. 2007AP221.ssa

38

¶214 The justification for limitations on the amount the

government expends in any action founded on tort is to protect

the public purse while providing some relief for damage caused

by government entities acting in a non-immune manner.

78

Wisconsin adopted the concept of government immunity in Hayes v.

City of Oshkosh, 33 Wis. 314, 318 (1873), holding: "Individual

hardship or loss must sometimes be endured in order that still

greater hardship or loss to the public at large or the community

may be averted." Although the majority opinion reaffirms the

constitutionality and rational basis for such caps,

79 the

majority opinion is oblivious to the extreme irony in limiting

monetary damages in any action founded on tort to $50,000 for

public policy reasons, while requiring government entities to

pay as much as it takes to abate a nuisance.

80 The injunctive

78 Willow Creek, 235 Wis. 2d 409, ¶33:

The concerns over the expenditure of both time and

resources apply with equal force to actions seeking

injunctive relief as they do to actions for money

damages. We recognize, however, that the suits must

be based in tort to garner the protection of immunity

consistent with the statute.

79 See majority op., ¶¶78-80, 83; Sambs v. City of

Brookfield, 97 Wis. 2d 356, 377, 383, 293 N.W.2d 504 (1980);

Stanhope v. Brown County, 90 Wis. 2d 823, 842, 280 N.W.2d 711

(1979).

80 Other courts have recognized this extreme irony. See,

e.g., Andrews v. Chevy Chase Bank, 545 F.3d 570, 575 (7th Cir.

2008) ("'[T]he notion that Congress would limit liability to

$500,000 with respect to one remedy while allowing the sky to be

the limit with respect to another for the same violation strains

credulity.'" (quoting McKenna v. First Horizon Home Loan Corp.,

475 F.3d 418, 424 (1st Cir. 2007))).
No. 2007AP221.ssa

39

relief granted in the present case might cost the District 200

times the statutory damage cap of $50,000.

¶215 As this court explained in Sambs v. City of

Brookfield, 97 Wis. 2d 356, 293 N.W.2d 504 (1980), "The

legislature's goal after Holytz was to delineate the liability

to which governmental units would be exposed as a result of

Holytz, to reduce the financial strain, and to enable the

governmental units to plan for the risk of such liability."

81

¶216 The court of appeals got it right:

The "'notion that [the legislature] would limit

liability . . . with respect to one remedy while

allowing the sky to be the limit with respect to

another for the same violation strains credulity'"

(citation omitted).

From the standpoint of the public treasury, there is

little difference in practice between a monetary

damage award given to a plaintiff to remedy its harm

and an injunction order requiring the defendant to

abate the harm.

82

¶217 We are required to read statutes so that no part is

rendered meaningless or superfluous and so that the statute is

not rendered unreasonable or absurd. The majority opinion

renders the statutory damage cap in the statute meaningless and

81 Sambs, 97 Wis. 2d at 373. For purposes of planning and

budgeting for liability and litigation, damages up to $50,000

and unlimited injunctive relief are not interchangeable. See

Figgs v. City of Milwaukee, 121 Wis. 2d 44, 52, 357 N.W.2d 548

(1984).

82 Bostco, 334 Wis. 2d 620, ¶¶131, 133 (citing Andrews v.

Chevy Chase Bank, 545 F.3d 570, 575 (7th Cir. 2008)).
No. 2007AP221.ssa

40

superfluous, unreasonable, and absurd to a significant extent by

granting unlimited injunctive relief.

83

¶218 For the reasons set forth, I conclude that the Wis.

Stat. § 893.80(3) cap applies to injunctive relief in the

present case.

IV

¶219 I now turn to the majority opinion's erroneous

interpretation of Wis. Stat. § 893.80(3), (4), and (5).

83 The majority opinion cites to Lister v. Board of Regents

of the University of Wisconsin System, 72 Wis. 2d 282, 304, 240

N.W.2d 610 (1976) and Scarpaci v. Milwaukee County., 96

Wis. 2d 663, 691, 292 N.W.2d 816 (1980), for the proposition

that "the public policy considerations that have prompted courts

to grant substantive immunity for monetary damages do not apply

with equal force to actions for declaratory or injunctive

relief." Majority op., ¶62. These cases are not pertinent to

the present case. Both Lister & Scarpaci addressed the

liability of individual government officers and enjoined them

from acting in the future, unlike the present case in which

injunctive relief will require the District to act and to incur

expenses in the future. Lister, 72 Wis. 2d at 303.

For comments indicating that provisions and limits in Wis.

Stat. § 893.80 apply to injunctive relief, see Willow Creek, 235

Wis. 2d 409, ¶36 (government immunity provisions in Wis. Stat.

§ 893.80(4) govern suit founded on tort against a town for money

damages and injunctive relief; "Although immunity serves as a

bar to both money damages and injunctive relief based in tort,

municipalities do not benefit from the shield of immunity in

actions seeking declaratory relief" (emphasis added)). The

majority opinion (¶59 n.32) rewrites Willow Creek to mean that

because Wis. Stat. § 893.80(3) allows a declaratory judgment

action (an equitable non-monetary remedy), then injunctive

relief in a tort suit (also an equitable monetary remedy) is

similarly permitted. See also E-Z Roll Off, LLC v. County of

Oneida, 2011 WI 71, ¶¶21-24, 28, 335 Wis. 2d 720, 800 N.W.2d 421

(explaining the factors to consider to determine whether certain

actions are exempt from notice of claim requirements found in

Wis. Stat. § 893.80; court held that a claim for violation of a

state antitrust statute, ch. 133, which provides for injunctive

relief, is subject to § 893.80(1)).
No. 2007AP221.ssa

41

According to the majority opinion, these provisions do not apply

to suits for or claims for injunctive relief in actions founded

on tort. Majority op., ¶¶59-80. The majority opinion delivers

a potpourri of arguments to support its thesis but ignores the

text of Wis. Stat. § 893.80(3), which we discussed above; the

texts of § 893.80(4) and § 893.80(5); and case law precedent

interpreting these provisions.

¶220 Subsection (4) is broadly worded: "[N]or may any suit

be brought against such corporation, subdivision or agency or

volunteer fire company or against its officers, officials,

agents or employees for acts done in the exercise of

legislative, quasi-legislative, judicial or quasi-judicial

functions" (emphasis added).

84 Subsection (4) bars "any suit"

against any governmental subdivision for acts done in the

exercise of legislative, quasi-legislative, judicial, or quasijudicial functions. Subsection (4) applies to Bostco's lawsuit.

¶221 The Court explained in Willow Creek Ranch, L.L.C. v.

Town of Shelby, 2000 WI 56, 235 Wis. 2d 409, 611 N.W.2d 693,

that the term "any suit" includes injunctive relief based on

tort:

84 Wisconsin Stat. § 893.80(4) provides as follows:

No suit may be brought against any volunteer fire

company organized under ch. 213, political

corporation, governmental subdivision or any agency

thereof for the intentional torts of its officers,

officials, agents or employees nor may any suit be

brought against such corporation, subdivision or

agency or volunteer fire company or against its

officers, officials, agents or employees for acts done

in the exercise of legislative, quasi-legislative,

judicial or quasi-judicial functions.
No. 2007AP221.ssa

42

The "any suit" language contained in the immunity

statute, however, does not limit suits to money

damages in tort but also encompasses injunctive relief

based in tort. This interpretation furthers the

policy rationales underlying tort immunity that

officials not be "unduly hampered or intimidated in

the discharge of their functions by threat of lawsuit

or personal liability."

85

¶222 Permitting Bostco to get relief for a negligence claim

through the back door by bringing a suit for injunctive relief

for a nuisance (based on negligence) "contravenes the government

immunity policy of this State set forth in Wis. Stat.

§ 893.80(4) and consequently would not serve the ends of

justice."

86

¶223 Subsection (5) is also very broadly worded: "[T]he

provisions and limitations of this section [893.80] shall be

exclusive and shall apply to all claims against . . . a

governmental subdivision" (emphasis added).

¶224 Wisconsin Stat. § 893.80(5) reads as follows:

Except as provided in this subsection, the provisions

and limitations of this section shall be exclusive and

shall apply to all claims against a volunteer fire

company organized under ch. 213, political

corporation, governmental subdivision or agency or

against any officer, official, agent or employee

thereof for acts done in an official capacity or the

course of his or her agency or employment. When

rights or remedies are provided by any other statute

against any political corporation, governmental

subdivision or agency or any officer, official, agent

85 Willow Creek, 235 Wis. 2d 409, ¶33 (quoting Scarpaci, 96

Wis. 2d at 682 (citing Lister, 72 Wis. 2d at 299)).

86 Scott, 262 Wis. 2d 127, ¶4; see also id., ¶55 (declaring

that permitting damages through the back door of a promissory

estoppel claim, an equitable claim, based on the same

allegations as a negligence claim contravenes Wis. Stat.

§ 893.80(4) and does not serve the ends of justice).
No. 2007AP221.ssa

43

or employee thereof for injury, damage or death, such

statute shall apply and the limitations in sub. (3)

shall be inapplicable.

¶225 Two sentences comprise subsection (5). I shall

examine each in turn.

¶226 The plain language of the first sentence of Wis. Stat.

§ 893.80(5) includes the words "exclusive" and "all claims" to

explain that the provisions and limitations (including the

monetary limitations in subsection (3)) are "exclusive" and

apply to "all claims" brought in tort. This very broad, allinclusive language sets the stage and tone for interpreting this

subsection.

¶227 The majority opinion curiously skips over the word

"exclusive" and the phrase "shall apply to all claims." Instead

the majority opinion reasons that Wis. Stat. § 893.80(3) (indeed

all of § 893.80) is silent about equitable relief and therefore,

that subsections (3), (4), and (5) do not govern actions in

equity founded on tort. Majority op., ¶¶55-59, 61.

¶228 Clearly a request for injunctive relief founded on

tort is a claim that fits within the statutory phrase in Wis.

Stat. § 893.80(5): "all claims." Indeed, Count II of Bostco's

complaint is labeled "Claim" and requests equitable relief.

Count II of the complaint alleges the claim of a continuing

nuisance (based on negligence) and asserts that abatement by

concrete lining or recharge wells is the proper relief.

¶229 Section 893.80 is not silent about injunctive relief

in tort claims, as the majority opinion proclaims. Subsection

(4) addresses "any suit" and subsection (5) addresses "all

claims" against a government entity. The words "any suit,"
No. 2007AP221.ssa

44

"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
No. 2007AP221.ssa

45

overrule . . . Harkness . . . to the extent [it] hold[s] that

sec. 893.80(1) applies only to tort claims and claims for money

damages."

87

¶233 Because Harkness based its interpretation of

subsection (4) on case law relating to subsection (1), which DNR

explicitly overruled, Harkness no longer retains any

precedential value regarding subsection (4).

¶234 Johnson v. City of Edgerton, 207 Wis. 2d 343, 558

N.W.2d 653 (Ct. App. 1996), got it right, as explained by Willow

Creek. The narrow issue presented in Johnson was whether the

complainants were permitted to seek injunctive relief based on

their claim of negligence against the city. After reviewing the

Harkness and DNR cases, the court of appeals concluded, as

limited by Willow Creek, "that the official immunity provisions

of § 893.80(4), Stats., . . . are not limited to . . . moneydamage actions [founded on tort], but are equally applicable to

[tort] actions which . . . seek injunctive relief . . . ."

88

87 DNR v. City of Waukesha, 184 Wis. 2d 178, 191, 515

N.W.2d 888 (1994), overruled the following language in prior

cases: Kaiser v. City of Mauston, 99 Wis. 2d 345, 356, 299

N.W.2d 259 (Ct. App. 1980) ("[t]his statute applies to claims

for money damages. It does not apply to a claim for equitable

relief"); Harkness v. Palmyra–Eagle School Dist., 157

Wis. 2d 567, 579, 460 N.W.2d 769 (Ct. App. 1990) ("[w]e have

found no authority indicating that it applies to equitable or

injunctive relief"); Nicolet v. Village of Fox Point, 177

Wis. 2d 80, 86, 501 N.W.2d 842 (Ct. App. 1993) ("[t]he full

legislative history clarifies that sec. 893.80 never was

intended to apply to equitable actions").

88 Johnson v. City of Edgerton, 207 Wis. 2d 343, 352, 558

N.W.2d 653 (Ct. App. 1996). See Willow Creek, 235 Wis. 2d 409,

¶¶33-34 (limiting the Johnson language to tort actions).
No. 2007AP221.ssa

46

¶235 The Harkness case has been relegated to the waste bin

of history. The majority opinion's reliance on Harkness is

misplaced.

¶236 I now turn to the second sentence of Wis. Stat.

§ 893.80(5). It tells us how to harmonize the "exclusive" and

"all claims" language of § 893.80(5) with other statutes in

which the legislature may provide rights or remedies against a

government entity for damage, injury, or death. The second

sentence of (5) directs that when a claim is based on another

statute, the damage limitations of subsection (3) no longer

apply.

89

¶237 The majority opinion seems to assert that Wis. Stat.

§ 844.01 trumps Wis. Stat. § 893.80, making § 893.80(3)

inapplicable in the present case. Majority op., ¶¶768-71.

¶238 Wisconsin Stat. § 844.01 governs a person claiming

interference with property who brings an action to redress past

or further injury to property. The statute reads as follows:

Any person owning or claiming an interest in real

property may bring an action claiming physical injury

to, or interference with, the property or the person's

interest therein; the action may be to redress past

injury, to restrain further injury, to abate the

source of injury, or for other appropriate relief.

¶239 Section 844.17(1) explains that a defendant in a Wis.

Stat. § 844.01 suit may be "[a]ny person whose activities have

injured or will injure the plaintiff's property or interests"

(emphasis added). To define the word "person," the majority

opinion turns to Wis. Stat. § 990.01(26). Section 990.01 sets

89 DNR v. City of Waukesha, 184 Wis. 2d at 192.
No. 2007AP221.ssa

47

forth definitions of words to be used in interpreting all

statutes "unless such construction would produce a result

inconsistent with the manifest intent of the legislature."

Section 990.01(26) defines "person." "Person includes all

partnerships, associations and bodies politic or corporate"

(emphasis added).

¶240 The majority opinion reasons as follows: Chapter 844

contemplates that a body politic, such as the District, may be a

defendant in an action brought by an owner of property to

redress injury caused by the District's negligent maintenance of

a private nuisance and to abate the source of injury. Thus,

according to the majority opinion, Wis. Stat. § 893.80 does not

apply to injunctions that fall within Chapter 844.

¶241 This reasoning is faulty.

¶242 First, Chapter 844 is a remedial and procedural

statute; it does not create liability. Chapter 844 applies only

when an owner of real estate has a cause of action under common

law or otherwise. Chapter 844 is a codification of remedies

involving real estate, not "the creation of new or the revision

of old rights or duties" (emphasis added). Shanak v. City of

Waupaca, 185 Wis. 2d 568, 597, 518 N.W.2d 310 (Ct. App. 1994).

In Menick v. City of Menasha, 200 Wis. 2d 737, 746-47, 547

N.W.2d 778 (Ct. App. 1995), the court of appeals, relying on

Shanak, concluded that a complainant could not base her

substantive claim for private nuisance against the City of
No. 2007AP221.ssa

48

Menasha on § 844.01(1). The substantive basis of the claim must

be found elsewhere, wrote the court of appeals in Menick.

90

¶243 The substantive basis of Bostco's claim is not Wis.

Stat. § 844.01, but common law tort and § 893.80 governing a

government entity's immunity and liability for tortious conduct.

¶244 Second, the majority opinion is inconsistent when it

applies Chapter 844 to authorize injunctive relief free of Wis.

Stat. § 893.80, but does not hold that Chapter 844 authorizes

monetary damages free of § 893.80.

¶245 Chapter 844 governs both injunctive relief and

monetary damages for physical injury to or interference with

real property. If the majority opinion is correct that Chapter

844 trumps the cap in Wis. Stat. § 893.80(3) (as well as

subsections (4) and (5)), then the majority opinion should hold,

but does not, that Chapter 844 trumps the cap on monetary

damages awarded to Bostco for the past and future injury to its

real property caused by the District.

¶246 Third, in its reliance on Chapter 844, the majority

opinion pays no attention to an oft-used rule of statutory

interpretation: A specific statute trumps a general statute.

Sometimes it is difficult to determine which is the general

statute and which is the specific statute. Not here. Chapter

844 is a remedial, procedural statute and is also a general

statute governing owners of real property bringing a real

property action against any person. Wisconsin Stat. § 893.80 is

90 See also Schultz v. Trascher, 2002 WI App 4, ¶¶24-29, 249

Wis. 2d 722, 640 N.W.2d 130 (Wis. Stat. § 844.01 is a remedial

and procedural statute).
No. 2007AP221.ssa

49

a specific, substantive, "exclusive" statute governing the

liability and immunity of a government entity named as a

defendant.

¶247 When the legislature wants to create a specific

statute that trumps Wis. Stat. § 893.80, it knows how to do so.

An example of a specific statute that creates government entity

tort liability was discussed in Morris v. Juneau County, 219

Wis. 2d 543, 579 N.W.2d 690 (1998).

¶248 In Morris,

91 a statute, then-Wis. Stat. § 81.15 (1991-

92), entitled "Damages caused by highway defects; liability of

town and county," was specific to highway damages and specific

to the liability of the town and county. The statute created a

right to recover from a government entity for want of repairs of

a highway.

92 Section 81.15 explicitly imposed liability on a

91 Just as the legislature knows how to create liability, it

also knows how to nullify liability. The legislature has

essentially nullified Morris. The statute imposing liability on

government entities for highway defects discussed in Morris,

then-Wis. Stat. § 81.15 (1991-92), was renumbered by 2003 Wis.

Act 214, and joined with the statute relating to damages and

injuries caused by snow and ice accumulation. See Comment, Wis.

Stat. Ann. § 893.83 (West 2006).

In 2011, the legislature enacted 2011 Wis. Act 132, which

removed language holding government entities liable for highway

defects. Now Wis. Stat. § 893.83 (2011-12) addresses only an

action to recover damages for injuries sustained by reason of an

accumulation of snow or ice that has existed for three weeks or

more upon any bridge or highway. See Jessica Vanegeren, Man

suffers after odd accident; Fall River resident has little legal

recourse after concrete fell from bridge and hit him, Portage

Daily Register, Jan. 27, 2013, available at

http://www.wiscnews.com/news/local/article_5790d188-690c-11e2-

ac15-001a4bcf887a.html (last visited July 5, 2013).

92 Morris, 219 Wis. 2d at 558.
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government entity for certain conduct and limited the amount

recoverable; it explicitly applied the procedures under

§ 893.80.

93

¶249 This court concluded that Wis. Stat. § 81.15 provided

"an exception to the general grant of immunity under Wis. Stat.

§ 893.80(4)"

94 for legislative acts, noting "that the general

immunity given counties under Wis. Stat. § 893.80(4) is not

applicable when the conditions of Wis. Stat. § 81.15 are met."

95

Section 81.15, stated the Morris court, is "a specific statute

tak[ing] precedence over a general statute."

96

¶250 Unlike the specific statute in Morris creating

government liability for particular acts, Wis. Stat. § 844.01

does not explicitly apply to government entities and does not

impose liability on government entities. Chapter 844 simply

does not override the substantive rules in Wis. Stat. § 893.80

as the specific provisions of § 81.15 once did.

¶251 In sum, Wis. Stat. § 893.80(3), (4), and (5), as

applicable to actions founded on tort, govern "any suit," "all

claims," and are "exclusive." The majority opinion's potpourri

of arguments does not demonstrate that injunctive relief is

excluded in the present case. The broadly worded texts of Wis.

Stat. § 893.80(3), (4), and (5) govern a government entity's

93 Id. at 551-57.

94 Id. at 552.

95 Id. at 546.

96 Id. at 552, 557.
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tortious acts that cause harm and govern claims for injunctive

relief for private nuisances founded on tort. "A nuisance is

nothing more than a particular type of harm suffered; liability

depends upon the existence of underlying tortious acts that

cause harm."

97

V

¶252 The fifth erratum relates to the majority's discussion

of——or rather its failure to discuss in any meaningful way——

injunctive relief. The majority opinion says that injunctive

relief may be ordered in excess of the statutory caps, no dollar

limits. The End! The majority opinion offers no analysis or

directions to the circuit court about injunctive relief and

leaves unanswered numerous questions. Let me offer several

comments.

¶253 First: When a court exercises its discretion in

granting an equitable remedy, it "should pay particular regard

for the public consequences in employing the extraordinary

remedy of injunction."

98 "Where an important public interest

would be prejudiced, the reasons for denying the injunction may

be compelling."

99 An injunction against maintaining a nuisance

should not be granted where "the inconveniences and hardships

caused outweigh the benefits." McKinnon v. Benedict, 38

97 City of Milwaukee, 277 Wis. 2d 635, ¶25.

98 Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982)

(citing Railroad Comm'n v. Pullman Co., 312 U.S. 496, 500

(1941)) (emphasis added).

99 City of Harrisonville v. W.S. Dickey Clay Mfg. Co., 289

U.S. 334, 338 (1933).
No. 2007AP221.ssa

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Wis. 2d 607, 616-17, 157 N.W.2d 665 (1968) (citing Maitland v.

Twin City Aviation Corp., 254 Wis. 541, 549, 37 N.W.2d 74

(1949)).

100

¶254 The circuit court did not exercise its discretion in

the present case by paying particular regard for the public

consequences or weighing the inconveniences and hardships to the

parties. Without holding a hearing, the circuit court based its

ruling on injunctive relief on the grounds that the monetary

damages were inadequate and that Bostco was suffering

irreparable harm.

101

¶255 Nor does the majority opinion pay any regard to the

public consequences of injunctive relief in the present case or

the weighing of hardships and inconveniences.

¶256 Second: Ordinarily, if injunctive relief would cause

substantial harm to a defendant, the injunction should be denied

100 In granting an injunction, a court considers the

relative hardship likely to result to the defendant if the

injunction is granted and to the plaintiff if it is denied.

"The appropriateness of injunction against tort finally depends

upon a comparative appraisal of all of the factors in the case,

balanced against each other, and considered together." 4

Restatement of Torts § 936 cmt b. at 695 (1939).

101 The circuit court erred in the present case by granting

injunctive relief without holding a hearing, taking evidence, or

making findings about the merits of the relief proposed. See

Hoffmann v. Wis. Elec. Power Co., 2003 WI 64, ¶27, 262

Wis. 2d 264, 664 N.W.2d 55 (An ordering of injunctive relief

"must be based on the merits of the [proposed relief] with a

record to support that order.").
No. 2007AP221.ssa

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when monetary damages are available to the complainant.

102 In

the present case, the circuit court and the majority opinion

conclude that the monetary damages available to Bostco are

insufficient in amount. But the legislature has declared that

the statutorily allowed amount of damages is sufficient.

¶257 Both the circuit court and the majority opinion defy

the legislative determination that the government has rendered

itself immune from liability in excess of the statutory amount.

As the court held in Sambs, "whatever the monetary limitation on

recovery, the amount will seem arbitrary because it is based on

imponderables, [but] the legislature, not the court, must select

the figure."

103 Stanhope echoes the same point: The "monetary

limitation is one which the legislature determines balancing the

ideal of equal justice and need for fiscal security."

104

¶258 The balancing of damages, liability, and immunity with

regard to a government entity is for the legislature, not the

courts. Unless a constitutional violation exists, the court

should respect the legislature's decisions about what amount

constitutes adequate monetary relief against a government entity

and about the important public policy of protecting the fisc.

105

102 Harrisonville v. W.S. Dickey Clay Mfg. Co., 289 U.S.

334, 337-38 (1933); Pure Milk Prods. Co-Op v. Nat'l Farmers

Org., 90 Wis. 2d 781, 800, 280 N.W.2d 691 (1979) ("To invoke the

remedy of injunction the plaintiff must moreover establish that

the injury is irreparable, i.e. not adequately compensable in

damages."); Kohlbeck v. Reliance Const. Co., Inc., 2002 WI App

142, ¶13, 256 Wis. 2d 235, 647 N.W.2d 277.

103 Sambs, 97 Wis. 2d at 367.

104 Stanhope, 90 Wis. 2d at 843.

105 Stanhope, 90 Wis. 2d at 844:
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The mere fact that a judgment for damages is not as

adequate relief from the point of view of the

plaintiff as an injunction would be is not wholly

determinative of the question as to whether an

injunction will be given. A judgment for damages

merely shifts to the defendant a harm equal to that

which the plaintiff has suffered. This is not true in

the case of the issuance of an injunction. The harm

to the defendant which may follow the granting of an

injunction against him may be entirely

disproportionate to the benefit resulting to the

plaintiff.

5 Restatement of Property § 528 cmt. f at 3188 (1944), cited in

part by McKinnon v. Benedict, 38 Wis. 2d 607, 618-19, 157 N.W.2d

665 (1968).

¶259 Third: Although the jury verdict plays a very minor

role in the present case in the appellate courts, the jury

verdict is instructive on the issue of injunctive relief. In

its answer to a special verdict question, the jury concluded

that the nuisance could be abated by reasonable means and at a

reasonable cost. The jury was not asked what the reasonable

means or costs were and was not instructed on this special

verdict question.

106 The majority opinion does not reveal

whether this jury finding of reasonableness is binding on the

circuit court in exercising its discretion in an equity matter.

Courts are not equipped or empowered to make

investigations into the financial resources of various

public bodies in Wisconsin; the coverage, policy

limits and cost of available liability insurance; or

the number of victims of governmental tortfeasors and

a profile of the losses they have suffered.

Information derived from such investigation must

necessarily precede any reasoned evaluation of either

a limitation on recovery or a requirement of purchase

of insurance.

106 Majority op., ¶35 n.19. See jury instruction at note

44, supra.
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¶260 At trial, Bostco's experts testified that abatement

could be accomplished by lining the Tunnel or by installing a

system of groundwater monitoring and recharge wells. Majority

op., ¶16 n.10. The only evidence regarding the cost of

abatement was a $10 million estimate proposed by one of Bostco's

experts.

107 In contrast, the jury found that Bostco was entitled

to $3 million for past damages and $6 million for future

damages. Taking into account Bostco's comparative negligence,

this $9 million figure was reduced to $6.3 million; the jury

found Bostco 30% liable for the damage to the Boston Store

building.

¶261 The injunctive relief, which might cost $10 million,

appears out of sync with the monetary damages.

¶262 Furthermore, although the majority opinion (¶31)

adopts the concept that the law of negligence applies to the

nuisance in the present case, it is silent about whether the

contributory negligence the jury attributed to Bostco reduces

any equitable relief founded on tort and negligence.

¶263 Case law instructs that all the usual rules and

defenses to negligence apply to nuisance claims predicated on

negligence.

108 One of those defenses is contributory

107 No estimate was offered at trial about the District's

costs of installing and maintaining a system of groundwater

monitoring and recharge wells to replenish groundwater siphoned

into the Deep Tunnel. Majority op., ¶15 n.10.

108 City of Milwaukee, 277 Wis. 2d 635, ¶¶7, 45. See also

Physicians Plus Ins. Corp., 2002 WI 80, ¶¶25, 31, 254

Wis. 2d 77, 646 N.W.2d 777.
No. 2007AP221.ssa

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negligence.

109 Does Bostco have to pay 30% of the cost of

abatement?

¶264 Fourth: What is a reasonable sum that the District

should be required to expend on abatement under these

circumstances? An analysis of the injunctive relief ordered

shines light once more on the glaring short-sightedness of the

majority opinion. Its statutory interpretation undermines the

purpose of Wis. Stat. § 893.80: to "compensate victims of

government tortfeasors while at the same time protecting the

public treasury."

110 Interpreting Wis. Stat. § 893.80 to allow

unlimited injunctive relief in the present case circumvents the

monetary cap set by Wis. Stat. § 893.80(3) and nullifies the

statute's purpose.

111

¶265 Fifth: There is a legitimate question about whether

and how the majority opinion's order that the District "abate

the nuisance" is to be framed and enforced.

¶266 The majority opinion explains at one point that "the

means whereby [a] nuisance is to be abated is left to the

direction of the defendant tortfeasor." Majority op., ¶33.

109 Physicians Plus Ins. Corp., 254 Wis. 2d 77, ¶31 (citing

Schiro v. Oriental Realty Co., 272 Wis. 537, 547, 76 N.W.2d 355

(1956) ("[C]ontributory negligence is a defense in an action for

damages occasioned by a nuisance grounded upon negligence.");

McFarlane v. City of Niagara Falls, 160 N.E. 391, 392 (N.Y.

1928) (Chief Judge Cardozo writing that when negligence is the

basis of the nuisance, contributory negligence principles

apply)).

110 See Stanhope, 90 Wis. 2d at 842.

111 See Bostco, 334 Wis. 2d 620, ¶130.
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Nevertheless, the majority opinion sends the issue back to the

circuit court to establish the method of abatement.

¶267 Courts, however, "traditionally have been reluctant to

enjoin as a public nuisance activities which have been

considered and specifically authorized by the government."

112

The same principle should apply to a private nuisance.

Moreover, the United States Supreme Court recently commented on

the relative competence of courts and agencies to solve

technical problems as follows: An "expert agency is surely

better equipped to do the job than individual [trial] judges

issuing ad hoc, case-by-case injunctions." Am. Elec. Power Co.

v. Connecticut, 131 S. Ct. 2527, 2539 (2011).

113

¶268 The Deep Tunnel is a municipal improvement project

that is regulated by an agency with expertise——the DNR——pursuant

to state and federal law. The DNR is not a party in the present

case, but the District submitted two affidavits from DNR

employees to the circuit court. According to the affidavits,

any changes to the Tunnel must be undertaken in compliance with

DNR regulations, the Federal Clean Water Act, and other

applicable law. The affidavits indicate that the DNR had no

112 North Carolina ex rel. Cooper v. TVA, 615 F.3d 291, 309

(4th Cir. 2010) (citing New England Legal Found. v. Costle, 666

F.2d 30, 33 (2d Cir. 1981)).

113 The United States Court of Appeals for the Seventh

Circuit recently made a similar comment: "Environmental problems

require the balancing of many complicated interests, and

agencies are better suited [than judges] to weigh competing

proposals and select among solutions." Michigan v. U.S. Army

Corps of Eng'rs, 667 F.3d 765, 797 (7th Cir. 2011).
No. 2007AP221.ssa

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intention of approving the concrete lining that Bostco and the

circuit court sought.

¶269 Abatement may also require a study of the

environmental impact, costs, and benefits of both concrete

lining and alternatives to lining, and other matters regulated

by state and federal law.

¶270 The ultimate unanswered question is whether this

court, or the circuit court, or the DNR, an independent agency

that is not a party to this action, governs abatement.

¶271 The injunction remedy adopted by the majority opinion

leaves more questions than answers. Litigation may abound.

VI

¶272 The final erratum: The majority opinion imposes an

unfunded mandate on government entities and is contrary to

legislative policy. The legitimate legislative concerns of

protecting the fisc, ensuring funds are available to pay for

essential services, and keeping property taxes at reasonable

rates are undermined by the majority opinion.

¶273 By means of this majority opinion, the court imposes

an unfunded mandate. Government entities will now be subject to

unlimited liability in the form of injunctive relief in cases

founded on tort, and may not have the concurrent ability to

raise additional taxes or request additional funds from the

legislature to pay for the liability the court imposes.

¶274 Government entities are struggling to fund essential

services without overburdening the tax base. State aid to

government subdivisions has been reduced. The legislature has
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constrained the ability of government entities to raise funds by

imposing levy limits.

¶275 Without question, the majority opinion expands

government liability and increases expenses for government

entities and taxpayers. This expansion of government liability,

this increase in the expenditures of government entities, and

this increase in costs to taxpayers are contrary to recent

legislative expressions of state policy: One, reduce government

liability, and two, reduce recovery for tort victims.

¶276 The legislature has always been less zealous in

abrogating government immunity than the courts.

114 The majority

opinion repeats the oft-quoted, poorly understood line from

Holytz that says "the rule is liability——the exception is

immunity." Majority op., ¶50. The legislature never codified

the mantra that "the rule is liability." The 1963 statute the

legislature enacted in response to Holytz does not direct that

"the rule is liability——the exception is immunity." Rather, the

legislature rendered government entities immune for broadly

enumerated acts. And the legislature severely limited the

dollar amounts for which a government entity would be liable.

¶277 Of late, the legislature has been decreasing and

eliminating tort liability for government entities and

114 "[J]udicial abrogation of common law immunity did not

bind the legislature." Sambs, 97 Wis. 2d at 372.
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decreasing the recovery of tort victims.

115 The majority opinion

is marching in the opposite direction from the legislature.

* * * *

¶278 This court attempted to synthesize the law on

negligence, nuisance, liability, and immunity in City of

Milwaukee. The majority opinion retreats from City of Milwaukee

and confuses the law instead of developing the law in a clear

manner.

¶279 Because of the numerous errata in the majority opinion

(many of which I do not enumerate), I dissent.

¶280 I am authorized to state that Justice ANN WALSH

BRADLEY joins this opinion.

115 See, e.g., 2011 Act 132 (removing statutory language

holding government entities liable for highway defects); 2011

Act 2 (e.g., restricting recovery for products liability and

placing caps on punitive damages and noneconomic health care

damages).
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