Sovereign immunity is broad, and the exceptions to it that are
permitted are few and narrow. Corporate entities and their officers
are immune to tort prosecutions for all deliberate acts and for most
other acts. Discretionary acts are protected. Whether an act enjoys
immunity often depends upon the way an act is defined by the Court.
With regard to flooding from municipal sewers, for instance, the Court
has found that immunity is preserved, because the decision to build a
sewer system and the design chosen were discretionary.
MUNICIPAL LITIGATION: CLAIMS AND DEFENSES
Immunity Defenses for Claims Involving Wisconsin Municipalities
http://www.wmmic.com/MunLit.pdf
"1. Anhalt v. Cities and Villages Mut. Ins. Co., 2001 WI App. 271, 249
Wis. 2d 62, 637 N.W.2d 422, rev. filed
a. residents of Sheboygan sustained damage to their homes from
flooding and alleged that the City was responsible based on claims of
negligence, private nuisance, inverse condemnation, waste and s
unconstitutional
b. the acts of designing, planning and implementing a sewer system re
discretionary acts protected under § 893.80(4), Stats."
[...]
"c. knowledge that the sewer system was inadequate to drain storm
water does not necessarily establish a claim based on nuisance."
However, the Wisconsin courts have not been consistent in supporting
even the discretionary immunity.
[Wisconsin Lawyer December 2000]
Vol. 73, No. 12, December 2000
Fighting City Hall
http://www.wisbar.org/wislawmag/2000/12/pollack.html
http://www.wisbar.org/wislawmag/2000/12/pollack2.html
"Oddly, none of these cases overruled or even criticized a 1984
decision in Domino v. Walworth County, which found that a municipality
was not immune for failing to dispatch a sheriff's squad to
investigate a fallen tree that caused a motorcyclist to crash and
injure himself.16 Arguably, Domino was decided upon the "known danger"
exception to the "rule of immunity." However, application of an
exception normally follows a finding that the rule applies. That did
not happen in Domino. To the contrary, the Domino court criticized the
"discretionary" immunity test, noting, "Nearly every human action
involves the exercise of some discretion."17 Subsequent cases have
ignored that observation."
Also:
LEGAL LIABILITIES of Engineers, Building Officials
http://www.hpac.com/member/archive/pdf/2001/0501/elovitz.pdf
"The discretionary-function exception does not apply—and
municipalities are liable—when the activity is 'prescribed by statute,
regulation, or established agency practice.'
To be protected by the discretionary-function exception, the employee
or department apparently must have discretion in determining what
actions to take, not just how to implement those actions. Following
that reasoning, the discretionary-function exception did not protect a
city fire department in a case where the plaintiff claimed the fire
department was negligent in the way it divided the available water
supply between hose streams and automatic sprinklers in a building.
The discretionary-function exception seems to apply only to broad
policy-making decisions, not individual actions."
Ministerial duty is frequently argued as an exception in law, as you
note. Ministerial duty is an action that is clearly defined by
necessity or legislation so that no discretion is permissible in its
performance. Neglect of the the explicit duty can provide the basis
for a suit. If, for instance, the manner in which the broken water
main must be repaired was prescribed, i.e., no variation was
permitted, and the repair was not as specified, then the Village could
be liable. As an example, the failure to maintain an highway in proper
repair can be the basis for a finding of neglect of ministerial duty.
MUNICIPAL LITIGATION: CLAIMS AND DEFENSES
Immunity Defenses for Claims Involving Wisconsin Municipalities
http://www.wmmic.com/MunLit.pdf
"1. municipal liability for damages caused by highway defects (Wis.
Stat. § 81.15) but immunity regarding natural accumulation of ice and
snow existing for less than three weeks
a. highways include public sidewalks Smith v. City of Jefferson,
8 Wis. 2d 378, 99 N.W.2d 119 (1959), but not stairways, Henderson v.
Milwaukee County, 198 Wis. 2d 748, 543 N.W.2d 544 (App. 1995) rev.
denied"
From the same source:
"B. when there is negligent performance of a purely ministerial act;
“ministerial” = absolute, certain and imperative involving a specific
task when the law prescribes and defines the time, mode and occasion
for its performance with certainty such that nothing remains for
judgment or discretion, there is no immunity, Hjerstedt v. Schultz,
114 Wis. 2d 281, 338 N.W.2d 317 (App. 1983) rev. denied
1. Hawes v. Germantown Mutual Ins. Co., 103 Wis. 2d 524, 309 N.W.2d
356 (App. 1981)
a. plaintiff sued the masonry subcontractor, the City of Muskego
and its building inspector after his basement wall collapsed
b. the court held that it would be not against public policy for a
municipality to be liable for damages that resulted from improper
application of a building code."
While ministerial duty can be one foundation for an exception to the
sovereign immunity doctrine, there are others that can be cited.
CTCW Newsletter _ The Scope of Municipal Immunity
http://www.ctcw.org/newsletter/may-02/municipal_immunity.html
"Immunity for negligent acts is not absolute. Courts have recognized
exceptions to immunity where:
1. the conduct amounts to the performance of a ministerial duty;
2. an existing "known present danger" makes the duty to remedy the
danger "so clear and so absolute" that there is no room for
discretion;
3. the conduct arose out of the performance of "professional" or
"non-governmental" conduct; or
4. the conduct was "malicious, willful and intentional"."
Still, even though an official has failed in a ministerial duty, the
Court may find that immunity applies. Legislative direction appears to
be a requirement for ministerial duty.
"Ministerial duties have been recognized when an official fails to
follow statutes prescribing the manner in which to erect signs [Chart
v. Dvorak, 57 Wis. 2d 92, 203 N.W.2d 673 (1973)]; the failure to
strictly follow contract language governing conduct [Major v. County
of Milwaukee, 196 Wis. 2d 939, 539 N.W.2d 472 (Ct. App. 1995)]; and
the construction of sewers in accordance with specific designs.
Allstate v. Metropolitan Sewerage District, 80 Wis. 2d 10, 258 N.W.2d
148 (1977)"
The known present danger exception has been used successfully.
"In Cords v. Anderson, 80 Wis. 2d 525, 259 N.W.2d 672 (1977), a park
manager was aware of a trail with a sheer drop off which never had a
rail or a warning sign. The park manager testified that he knew the
trail would be hazardous at night. Despite this knowledge, he did not
erect a warning sign or advise superiors of the condition. Cords, 80
Wis. 2d at 538. The Cords court held that the duty to remedy the
situation based on the facts was a duty "so clear and so absolute"
that it fell within the definition of a ministerial duty. Cords, 88
Wis. 2d at 542."
MUNICIPAL LITIGATION: CLAIMS AND DEFENSES
Immunity Defenses for Claims Involving Wisconsin Municipalities
http://www.wmmic.com/MunLit.pdf
"D. Known and Compelling Danger
1. a known danger may present an immunity exception; two prong test:
(1) clear duty for a specific task; where, (2) official “knows” of a
specific danger, Larsen v. Wisconsin Power & Light, 120 Wis. 2d 508,
355 N.W.2d 557 (App. 1984); Cords v. Anderson, 80 Wis. 2d 525, 259
N.W.2d 672 (1977) (the park manager had actual knowledge that the
trail next to a inety-foot drop presented a dangerous condition but
did not post a sign)
2. the danger must be “known to the officer”, Hoskins v. Dodge County,
2002 WI App. 40, 251 Wis. 2d 276, 642 N.W.2d 213 rev. filed"
And from the same:
"2. Morris v. Juneau County, 219 Wis. 2d 244, 579 N.W.2d 690 (1998)
a. the Morris’ sustained injuries when their vehicle was hit by
another vehicle that had lost control of her car due to a rut between
the blacktop and the gravel shoulder of the road. The plaintiffs'
claim`was based on the County’s failure to properly repair/maintain
the roadway
b. The court determined that the term “highway” as used in §
81.15, Stats., does include the shoulder of that highway and,
therefore, § 81.15, Stats. would be applicable. In general, there is
municipal liability for damages caused by highway defects (i.e.
potholes, worn ruts, etc.) and, therefore, § 81.15, Stats. is an
exception to the immunity provisions delineated under § 893.80(4),
Stats."
Also, a municipality can be held liable by default when it is sued as
a co-defendant and the co-defendant is unable to pay the judgment:
"3. Van Cleve v. City of Marinette, 2002 WI App. 10, 250 Wis. 2d 211,
639 N.W.2d 792, rev. granted (oral argument October 7, 2002)
a. plaintiff was injured after tripping on a recently constructed
curb and gutter. The plaintiff sued both the City and contractor
responsible for constructing the curb"
[...]
"d. the court of appeals held that the § 81.17, Stats provides
conditional protection to a municipality when it is sued along with a
contractor or other third party for injuries caused by highway
defects. If both are found liable, regardless of the apportionment,
the contractor/third party is responsible for the entire award. The
municipality must pay only if the contractor is unable to pay"
Keeping a public nuisance is another exception that has proven
successful in suits.
Wisconsin Supreme Court Decisions Expand Municipal Immunity and
Municipal Liability
http://www.lwm-info.org/legal/2002/09september/comment.html
"Liability for Maintenance of or Failure to Abate Public Nuisance
Municipalities do not have immunity for unintentional torts although
damages are limited by sec. 893.80, Stats. In a recent case involving
an unintentional tort, the Wisconsin Supreme Court held that a county,
a town and private property owners were all liable for maintaining a
public nuisance where tree branches growing from a tree on private
property obscured a stop sign that the county had placed in its
right-of-way and partially in the town's right-of-way at a highway
intersection. Physicians Plus Ins. Corp. v. Midwest Mutual Ins. Co.,
2002 WI 80, __ Wis.2d __, 646 N.W.2d 777 (June 28, 2002)."
[...]
"The court defined a public nuisance as "a condition or activity which
substantially or unduly interferes with the use of a public place or
with the activities of an entire community."13 In determining whether
something constitutes a public nuisance, the court considers many
factors, including, among others, the nature of the activity, the
reasonableness of the use of the property, location of the activity,
and the degree or character of the injury inflicted or right impinged
upon. The court noted that as early as 1875, it had defined a public
nuisance with regard to highways, stating: "Any obstruction in or
encroachment upon a highway, which unnecessarily impedes or incommodes
the lawful use of such highway by the public, is a public nuisance. .
. ."14"
Quoted from the Court's opinion:
"First, liability for maintaining a public nuisance can be based on
either negligent or intentional conduct that maintains a condition or
activity which substantially or unduly interferes with the use of a
public place or with the activities of an entire community. Second,
both notice and causation, concepts oftentimes reserved for negligence
cases, are required to establish liability for maintaining a public
nuisance. Third, for the purposes of comparing and apportioning
responsibility for the accident, and for determining contribution
among culpable parties, we conclude that when all of the elements to
establish liability for maintaining a public nuisance are
affirmatively proven, a defendant's failure to abate a public nuisance
is analogous to negligence per se. Finally, similar to liability for
negligence, liability for maintaining a public nuisance can be limited
by public policy considerations."
It should be noted that, even if suit is brought and succeeds through
all appeals, there is a statutory limit on the liability for damages
of $50,000. This is an absolute limit, except when expressly waived.
The following is instructive:
SUPREME COURT OF WISCONSIN
Case No.: 94-1030, 94-2162
Complete Title of Case:
Shirley D. Anderson,
Plaintiff-Respondent,
v.
City of Milwaukee,
Defendant-Appellant-Petitioner,
REVIEW OF A DECISION OF THE COURT OF APPEALS
Reported at: 199 Wis. 2d 479, 544 N.W.2d 630
(Ct. App. 1996)
http://www.wisbar.org/Wis/94-1030.htm
"I.
¶ 2. On July 8, 1989, Shirley D. Anderson ("Anderson") was shopping at
the Fondy Farmer's Market when she tripped and fell on a raised line
of bricks located on the market's walkway. The City constructed,
owned, and maintained the market. Anderson broke her knee as a result
of this incident.
¶ 3. On October 6, 1989, Anderson filed what she designated as a
"notice of circumstances and claim" with the City, pursuant to Wis.
Stat. § 893.80(1)(a). Anderson made a claim for $200,000, but further
stated:
To the extent it is determined that Ms. Anderson's claim is limited to
the $50,000 amount set forth in section 893.80(3), Stats., Ms.
Anderson hereby makes claim for the full $50,000 without waiving her
right to claim the full amount of her compensatory damages should
Wisconsin law entitle her to recover such amount. (Respondent's
Appendix at 206.) The City did not respond to the claim; therefore, it
was deemed denied under § 893.80(1)(b) after the passage of 120 days.
¶ 4. On July 11, 1990, Anderson filed suit in the circuit court,
alleging that the City had violated Wis. Stat. § 101.11, the
safe-place statute, by negligently designing, constructing,
maintaining, and repairing the walkway. On August 3, 1990, the City
filed an answer denying the allegations and pleading the affirmative
defenses of contributory negligence and failure to mitigate damages.
The City did not raise the Wis. Stat. § 893.80(3) damage limitation or
the Wis. Stat. § 893.80(4) discretionary immunity defense in its
answer, or in any pre-trial motions."
[...]
"¶ 30. In conclusion, we hold that the damage limitation under Wis.
Stat. § 893.80(3) can only be expressly waived by a public entity in
situations such as outlined in Stanhope, where the purposes of §
893.80(3) are met. The damage limitation cannot be waived by omission.
We further conclude that the City waived the affirmative defense of
discretionary immunity under Wis. Stat. § 893.80(4), because it did
not plead it in its answer.(17) Thus, the cause is remanded to the
circuit court for purposes of entering a judgment consistent with the
$50,000 damage limitation of § 893.80(3)."
Public Duty Doctrine
LEGAL LIABILITIES of Engineers, Building Officials
http://www.hpac.com/member/archive/pdf/2001/0501/elovitz.pdf
"22) Adams v. State, 555 P2d 235 (Alaska 1976). Coffee v. Milwaukee,
74 Wis2d 526, 247 NW2d 132 (Wisconsin 1976). Coffee v. Milwaukee
reserved the right to impose the public-duty doctrine in six
situations."
INSURANCE COMPANY
Flooding is generally an excluded hazard, from whatever source, in
homeowner's policies. The Wisonsin Insurance Commisioner publishes an
informational guide.
Consumer's Guide to Homeowner's Insurance
http://oci.wi.gov/pub_list/pi-015.pdf
"Most homeowner’s policies do not provide coverage for loss of
animals, birds, fish, or damage to automobiles. Water damage caused by
flood, surface water, overflow of a body of water, or spray from any
of these whether or not driven by wind are usually excluded. Water
damage due to sewers or drains that have backed up are also excluded."
Although the homeowner's insurance policy regularly excludes flooding
as a covered hazard, there could be limited coverage for some
structural damage if it can be shown that a sinkhole, even one
resulting from flooding, was the immediate cause of the damage. That
is, water damage itself (ruined carpets, furnishings, personal
property, mold, mildew, etc.) might not be covered, but cracking or
collapse as result of a sinkhole caused by water could be covered.
Efficient proximate cause rule
State Farm Insurance Co. v. Bongen (11/8/96), 925 P 2d 1042
http://touchngo.com/sp/html/sp-4424.htm
"Safeco Insurance Co. v. Hirschmann, 773 P.2d 413 (Wash. 1989).
In Hirschmann, the Supreme Court of Washington held that an insurer is
obligated to pay for damages resulting from a combination of covered
and excluded perils if the efficient proximate cause is a covered
peril, regardless of a policy exclusion stating the contrary. Id. at
416-17. The court criticized the insurer's attempt to circumvent the
efficient proximate cause rule, id. at 414, but did not fully explain
why such a practice is prohibited. Instead, Hirschmann relied on an
earlier Washington case, Villella v. Public Employees Mutual Insurance
Co., 725 P.2d 957 (Wash. 1986), which, in turn, relied on California
cases holding that insurers could not circumvent the efficient
proximate cause rule. Villella, 725 P.2d at 962-64. In California,
insurers are statutorily required to provide coverage if the efficient
proximate cause is an insured risk. (EN3) See Cal. Ins. Code sec.sec.
530, 532; Howell v. State Farm Fire & Cas. Co., 267 Cal. Rptr.
708, 712 (Cal. App. 1990). Neither Hirschmann nor Villella notes the
unique statutory provision behind the California cases. (EN4)"
FICC HOT CASE - Federation of Insurance & Corporate Counsel
http://www.thefederation.org/Public/RecentNews/jan-mar01.htm
"3/19: Insurance Policy Covers Damage From a Sinkhole Collapse
Precipitated by a Flood Georgia Supreme Court Williams Seafood of
Albany suffered a complete loss when its restaurant building collapsed
into a sinkhole following a flood. Williams’ insurer, York Insurance
Company, brought a declaratory judgment action in federal district
court to determine coverage. The trial court held that the loss was
not covered. On appeal, the Eleventh Circuit Court of Appeals
certified to the Supreme Court the question of whether the policy
covers damage caused by a sinkhole collapse that was precipitated by a
flood. “Because the policy, when read as a whole, does not extend its
flood exclusion to the sinkhole coverage, we answer the question in
the affirmative and hold that the policy covers damage produced by a
sinkhole collapse that was precipitated by a flood,” the Presiding
Justice wrote."
U.S. State and Federal Cases
http://www.claimlaws.com/2Q2001.htm
"April 6, 2001 PROFESSIONAL LIABILITY / PROCEDURE
Although damage was caused by a sinkhole that was caused by a flood,
there is coverage despite flood exclusion."
However, the particular language of the policy may exclude sinkholes,
or it may exclude all earth movements from whatever cause, whether
natural (e.g., earthquake) or man-made (e.g., ruptured mains).
Generally speaking, if the previous repairs of the broken main were
done by a contractor rather than the city's own employees, then it
might be easier to sue the contractor for negligence than either the
municipality or the insurance company.
OTHER RESOURCES
Municipal Immunity For Claims Based On Snow or Ice Conditions
http://216.239.53.100/search?q=cache:wSMAmoHRPv4C:articles.corporate.findlaw.com/articles/file/00487/005663/title/Subject/topic/Injury%2520%2520Tort%2520Law_Personal%2520Injury/filename/injurytortlaw
(Google cache)
Municipal Responsibility for Stormwater Damage
COURTS CONTINUE TO STRUGGLE WITH MUNICIPAL RESPONSIBILITY FOR
STORMWATER DAMAGE TO PRIVATE LANDS
http://www.wisconsinplanners.org/law/muni_responsibility_for_stormwater_damage.htm
SEARCH TERMS
://www.google.com/search?hl=en&lr=&ie=ISO-8859-1&q=Wisconsin+municipal+negligence+liability
://www.google.com/search?hl=en&lr=&ie=ISO-8859-1&q=Wisconsin+municipal+immunity+challenge
://www.google.com/search?hl=en&lr=&ie=ISO-8859-1&q=Wisconsin+civil+code
://www.google.com/search?hl=en&lr=&ie=ISO-8859-1&q=Wisconsin+case+law
://www.google.com/search?hl=en&lr=&ie=ISO-8859-1&q=Wisconsin+insurance+stormwater
://www.google.com/search?hl=en&lr=&ie=ISO-8859-1&q=Wisconsin+insurance+subsidence+sinkhole
NOTE: All Google disclaimers apply. The above does not constitute
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