2009 WI 70
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Supreme Court of |
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Case No.: |
2007AP1754 |
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Complete Title: |
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Glen D. Hocking and Louann Hocking, Plaintiffs-Appellants, v. City of Defendants, Charles C. O'Rourke, Joan R. O'Rourke, American Family Mutual Insurance Company and Amy Crubaugh-Shrank, Defendants-Respondents. |
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ON CERTIFICATION FROM THE COURT OF APPEALS |
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Opinion Filed: |
July 9, 2009 |
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Submitted on Briefs: |
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Oral Argument: |
April 15, 2009
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Source of Appeal: |
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Court: |
Circuit |
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County: |
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Judge: |
Edward E. Leineweber
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Justices: |
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Concurred: |
ABRAHAMSON, C.J., concurs (opinion filed). BRADLEY, J., joins the concurrence. |
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Dissented: |
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Not Participating: |
CROOKS, J., did not participate. |
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Attorneys: |
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For the plaintiffs-appellants there was a brief (in the
court of appeals) and a reply brief filed by Sheila S. Kelley, Matthew Allen, Tyler T. Kieler, Christopher D. Stombaugh, and Kopp, McKichan, Geyer, Skemp & Stombaugh, LLP, Platteville, and
oral argument by Christopher D.
Stombaugh.
For the defendants-respondents, Charles C. O’Rourke, Joan
R. O’Rourke, and American Family Mutual Insurance Company, there was a brief by
Patricia J. Epstein, Amy B.F. Tutwiler,
and
For the defendant-respondent, Amy Crubaugh-Schrank, there
was a brief (in the court of appeals) by Rick
J. Mundt and Winner, Wixson &
Pernitz,
An amicus curiae brief was filed by Carl A. Sinderbrand, Timothy M. Barber, and Axley Brynelson, LLP, Madison, on behalf of the Wisconsin Builders Association.
An amicus curiae brief was filed by Paul G. Kent and Anderson & Kent, S.C., Madison, on behalf of the Wisconsin REALTORS® Association.
2009
WI 70
notice
This opinion is subject to further editing and modification. The final version will appear in the bound volume of the official reports.
APPEAL from an order of the Circuit Court for
¶1 ANNETTE KINGSLAND ZIEGLER, J. This case is before
the court on certification by the court of appeals pursuant to Wis. Stat. §
(Rule) 809.61 (2007-08).[1] Glen and Louann Hocking (hereinafter,
"the Hockings") brought an action against the City of
¶2 The issue presented to us for review is whether the defendants in this case, who are or were uphill landowners from the Hockings, are liable to the Hockings for damages allegedly caused by surface water, i.e., storm water, running from the defendants' property to the Hockings' property. We conclude that the defendants are not liable because, under the circumstances, the defendants have no duty to abate the alleged nuisance.
I. BACKGROUND
¶3 The Hockings purchased their home in 1978, and at that time there
were no neighbors nearby. In 1989, Wallace
Rogers purchased the land adjacent to the Hockings.
¶4 A civil engineer consultant, Greg Stauder, inspected the Hockings'
property and concluded that the increased storm water runoff flowing over the
Hockings' property was due to the way in which Rogers developed the land. Because of
¶5 On February 16, 2007, the Hockings filed an amended complaint[3]
against the City of
¶6 The defendants moved the circuit court for summary judgment asserting that they had no duty to abate this nuisance. The circuit court concluded that, as a matter of law, the defendants could not be liable to the Hockings. It reasoned that the defendants had no duty to abate this nuisance because they were merely "possessors and titleholders in portions of upgrade property from the Hockings." Therefore, no duty to abate this nuisance arose. In addition, the circuit court concluded that even if a duty was owed and the defendants were negligent, liability should be precluded by the application of public policy factors. The Hockings appealed the circuit court's decision. The court of appeals certified the appeal to this court, which we accepted.[4]
II. STANDARD OF REVIEW
¶7 "Whether the circuit court properly granted summary judgment
is a question of law that this court reviews de novo." Schmidt v.
N. States Power Co., 2007 WI 136, ¶24,
305
III. ANALYSIS
¶8 The Hockings assert that these defendants are liable for negligently maintaining a nuisance, which has allegedly damaged the Hockings' property. The Hockings argue that the circuit court erred by conducting a duty analysis because under Wisconsin law a duty is owed to the world at large, and thus, the defendants owe a duty to the Hockings because they are landowners. In addition, the Hockings also assert that public policy factors do not preclude liability in this case. The defendants on the other hand, argue that a public policy analysis is unnecessary because the circuit court's duty analysis was appropriate. The defendants, relying primarily on Hoida, reason that duty is and always has been a prerequisite to negligence, and as a result, duty is a relevant determination in this case. We agree with the defendants and therefore affirm the circuit court's decision with respect to the defendants having no duty to the Hockings to abate this nuisance under the circumstances of this case.
¶9 To prevail on their claim of negligent maintenance of a nuisance,
the Hockings must first show that the defendants were negligent, which requires that defendants
failed to act when they had a duty to act. See Wis JI——Civil 1920; see also
Restatement (Second) of Torts §§ 822,
824, 839 (1979)
(discussing nuisance actions and providing that to prevail, the nuisance must
be "otherwise actionable" and the defendant must have a positive duty
to act). The analysis of this case
centers on duty under the circumstances herein presented.[5]
A. Negligence
¶10 We
first consider whether the Hockings can satisfy the fundamental elements of
negligence. "
1.
Duty under
¶11 Duty has always been a relevant element in
¶12 While Wisconsin has adopted the minority view from Palsgraf v.
Long Island Railroad Co., 162 N.E. 99 (N.Y. 1928), which established that
everyone owes a duty to the world at large, the duty owed to the world is not
unlimited but rather is restricted to what is reasonable under the
circumstances. Hoida, 291
¶13 For example, in Hoida, we concluded that the plaintiff's
claims were precluded because its "claim of a breach [wa]s based entirely
on the theory that the defendants' duty of ordinary care under the
circumstances required them to undertake certain tasks that we [] concluded
ordinary care under the circumstances did not require."
2. Duty under the circumstances of this case
¶14 This case concerns the allegation that uphill landowners have a
duty to abate naturally occurring surface water that runs downhill onto the
Hockings' property. Although three
distinct doctrines——the common
enemy doctrine, the civil law rule,[6]
and the reasonable use rule——have
developed over the years in order to analyze surface water problems, Wisconsin
has adopted the "reasonable use" rule. 2 Robert E. Beck et al., Waters and Water
Rights § 10.03(b)(3)
(1991 ed., repl. vol. 2008); 5 Robert E. Beck, Waters and Water Rights § 59.02(b) (1991 ed.,
repl. vol. 2006). "Over the past
sixty years, many states have shifted from the common enemy and civil law rules
to the reasonable use rule."
¶15 Prior to 1974, surface water cases in
The right of an owner of land to occupy and improve it in such manner and for such purposes as he may see fit, either by changing the surface or the erection of buildings or other structures thereon, is not restricted or modified by the fact that his own land is so situated with reference to that of adjoining owners that an alteration in the mode of its improvement or occupation in any portion of it will cause water, which may accumulate thereon by rains and snows falling on its surface or flowing onto it over the surface of adjacent lots, either to stand in unusual quantities on other adjacent lands, or pass into and over the same in greater quantities or in other directions than they were accustomed to flow.
Watters v. Nat'l Drive-in,
Inc., 266
¶16 This court applied the common enemy rule in Watters where
the defendant constructed a drive-in theater on property that adjoined the
plaintiff's property. Watters,
266
¶17 While this court had applied the common enemy doctrine prior to
1974, in Deetz, we rejected that doctrine in favor of the reasonable use
rule, which is embodied in the Restatement (Second) of Torts § 822, adopted by this court. Crest, 129
¶18 In Deetz, this court concluded that the reasonable use rule
as set forth in the "Restatement of Torts better comports with the
realities of modern society than does the common enemy doctrine." Deetz, 66
¶19 In Deetz, the plaintiff brought an action to abate a
nuisance caused by an uphill landowner.
¶20 Accordingly, under the common enemy doctrine, no duty and thus no
liability arose regardless of the defendants' actions. In other words, under the common enemy
doctrine, a landowner was privileged to do with his land what he wanted. CEW Mgmt. Corp. v. First Fed. Sav. &
Loan Ass'n, 88
¶21 However, with the adoption of the reasonable use rule we altered a
landowner's responsibility. Under this
rule, a landowner must use his land reasonably, and a duty to act will arise if
the landowner's use of his land that resulted in altering the flow of surface
waters is unreasonable. See 5
Beck, supra, § 59.02(b)(4)
(stating that the rule compares benefits and hardships with liability arising
when the hardships are unreasonable under all circumstances).[7] As a result, when the defendant's conduct is
unreasonable, that defendant has a positive duty to act to abate the
nuisance. A positive duty to act must
exist before liability will arise in a failure to abate claim such as the one
presented here. CEW, 88
¶22 In the case at hand, however, the defendants' conduct did not
involve a use of their property that altered the flow of surface water. Therefore, their use is not unreasonable, and
they have no duty to abate in the first instance. The defendants merely purchased a home, lived
in that home, paid property taxes, and established a tie to the community in
which they live. They are living the
American dream by owning a home. Their
conduct——living in
their home——does not
deviate from typical behavior. They did
not create the flow of rainwater or alter the property so to create this
problem on the Hockings' property. The
development by
¶23 Moreover, as a practical matter, the necessary remedy to address
the Hockings' problem could not be carried out by these defendants. Even the Hockings' civil engineer asserts
that the development of the land by
¶24 The defendants' conduct in this case is reasonable under the circumstances, and as a result, no positive duty to abate this nuisance arises and the Hockings' claims for maintaining a nuisance cannot survive.
¶25 Still, the Hockings and the concurrence assert that a duty is owed
to the world at large, and as a result, a duty here is assumed. As we stated above, however, duty is and
always has been relevant under
¶26 The Hockings assert that by failing to act, one can be liable for
continuing a nuisance even if the landowner did not cause the problem. We do not disagree that there are
circumstances where liability can be established for failing to abate a
nuisance. See
¶27 The Hockings spend significant time discussing the application of public policy factors in this case. However, we decline to address the public policy factors and instead resolve this case under a duty analysis because under the circumstances of this case, there is no doubt that the defendants did not have a duty to abate this nuisance.
¶28 Accordingly, under the reasonable use rule, a duty to act may arise when one uses his or her property unreasonably. If the property is being reasonably used, however, the landowner has no duty to abate the nuisance under the reasonable use rule. In this case, all the defendant landowners reasonably used their property, and as a result, they satisfied their duty of ordinary care under the circumstances.
IV. CONCLUSION
¶29 We have been asked to decide whether the defendants in this case, who are uphill landowners from the Hockings, are liable to the Hockings for damages allegedly caused by surface water, i.e., storm water, running from the defendants' property to the Hockings' property. We conclude that the defendants are not liable because, under the circumstances, the defendants have no duty to abate the alleged nuisance.
By the Court.—The order of the circuit court is
affirmed.
¶30 N. PATRICK CROOKS, J. did not participate.
¶31 SHIRLEY S. ABRAHAMSON, C.J. (concurring). I
concur in the mandate affirming the circuit court's order granting the
defendants' motion for summary judgment and dismissing them from the
action. I agree that as a matter of law
the defendants are not liable for a negligent failure to abate a private
nuisance.
¶32 The
majority opinion relies on several rationales in concluding that the defendants
are not liable, without clearly explaining the relationship between the
rationales, without identifying any single rationale as sufficient, and without
stating whether all are necessary to conclude that the defendants are not
liable.
¶33 The
majority opinion appears to argue (1) that this is a case of an omission, not
an affirmative act, and that in failing to abate the private nuisance (the omission)
the defendants are not liable because they had no duty to abate the private
nuisance (majority op., ¶¶10-22,
24-26); (2) that because the defendants did not create the private nuisance,
they are not liable for failing to abate the nuisance (majority op., ¶¶22, 26); (3) that the defendants did not
unreasonably interfere with the flow of surface water and therefore are not
liable under the "reasonable use" doctrine adopted in State v.
Deetz, 66 Wis. 2d 1, 224 N.W.2d 407 (1974) (majority op., passim); and (4) that it is
unreasonable to require the defendants to abate the private nuisance in view of
the extensive work and costs involved in abating this nuisance (majority op., ¶23).
¶34 I
conclude that the defendants are not liable because the private nuisance is not
abatable, meaning that abatement cannot be accomplished without unreasonable
hardship or expense. Restatement (Second) of Torts, § 829 cmts e & f.
¶35 First
I shall set forth what I think is the law applicable to the present case and
then I shall point out the errors of the majority opinion's way.
I
¶36 The
proper approach to this case is to recognize that three discrete areas of tort
law converge in the instant case: private nuisance law,[8]
negligence law,[9]
and the tort liability of a possessor of property.[10] When these three areas of law converge, as
they do in the instant case, special rules of law apply.
¶37 A
private nuisance is "a condition or activity which unduly interferes with
the use of land."[11] This case involves a private nuisance, in
contrast with a public nuisance.
¶38 Private
nuisances can be intentional or negligent.[12] Thus in the instant case principles of
negligence play a role in private nuisance law.
¶39 Furthermore,
private nuisance law and negligence law are intertwined with special rules that
have developed over the years relating to the tort liability of
possessors of land. Like nuisance and
negligence law, the law relating to the liability of land possessors has been
treated as a discrete field of tort law.
¶40 These
three discrete areas of the law have been synthesized in the Restatement
(Second) of Torts in §§ 822-840A. This court has expressly
adopted § 822 (stating the
general rule subjecting a person to liability for a private nuisance)[13]
and has referred to and followed other sections, including § 824 (describing the conduct essential to
liability for a private or public nuisance)[14]
and § 839 (stating the
rule governing liability for a possessor of land who fails to abate an
artificial condition),[15]
in deciding nuisance cases. I would use
our prior cases that rely on the Restatement to decide the present case.
¶41 The inquiry under the Restatement (and our prior case law) begins with Restatement (Second) § 822.[16]
¶42 Section 822 is the Restatement's general rule governing liability for a private nuisance.[17] Section 822 provides in full as follows:
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) intentional and unreasonable, or
(b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.
¶43 An action for the negligent failure to abate a private nuisance falls within § 822(b) rather than § 822(a). Under § 822(b), a person is subject to liability for the negligent failure to abate a private nuisance if three elements are met: (1) there is "an invasion of another's interest in the private use and enjoyment of land,"[18] (2) the person's conduct is "a legal cause of [the] invasion," and (3) the invasion is "otherwise actionable under the rules governing liability for negligent conduct."[19]
¶44 The first two elements are not at issue in the present case; the third element relating to liability for negligent conduct is at issue. I therefore focus my attention on the third element pertaining to whether a defendant's conduct is actionable under the rules governing liability for negligent conduct.
¶45 The comments to § 822
state that a court should look to Restatement (Second) § 824 for the standard used to determine "the
type of conduct necessary to liability under the rule stated in [§ 822]." See also CEW Mgmt. Corp. v.
First Fed. Sav. & Loan Ass'n, 88
¶46 Section 824 (titled "Type of Conduct Essential to Liability") provides in full as follows:
The conduct necessary to make the actor liable for either a public or a private nuisance may consist of
(a) an act; or
(b) a failure to act under circumstances in which the actor is under a duty to take positive action to prevent or abate the interference with the public interest or the invasion of the private interest.
¶47 The instant case may be viewed as a failure to act under § 824(b). If so, I must determine whether under the circumstances of the case the defendants were under a duty to take positive action to abate the invasion of the private interest.
¶48 Sections 838-840 of the Restatement (Second) set forth "the
circumstances under which the law imposes a duty on a person to take positive
action for the protection of another and subjects him to liability if he fails
to meet the standard of action required in the particular case."[20]
¶49 I
therefore focus on §§ 838-40 to determine whether any of these provisions
impose upon the defendants in the present case a duty to take positive action
to abate the private nuisance.
¶50 Restatement (Second) of Torts § 839, entitled "Possessor Who Fails to Abate Artificial Condition" is relevant to the instant case. The plaintiffs allege that the defendants are liable for their failure to abate a nuisance resulting in part from an artificial condition on the defendants' land. This court has relied upon § 839 in Milwaukee Metropolitan Sewerage District v. City of Milwaukee, 2005 WI 8, ¶¶73 & n.23, 76 n.24, 79, 85, 277 Wis. 2d 635, 691 N.W.2d 658.
¶51 Section 839 of the Restatement imposes a duty on a possessor of land[21] to take reasonable steps to abate an artificial condition on land causing a nuisance. The scope of the duty depends on the circumstances. A possessor of land has a duty to abate an abatable artificial condition when: (a) the land possessor knows or should know of the condition and the nuisance or unreasonable risk of nuisance involved, (b) the land possessor knows or should know that it exists without the consent of those affected by it, and (c) the land possessor has had a reasonable opportunity to take reasonable steps to abate the condition or to protect the affected persons against it. If a land possessor fails to take reasonable steps under the circumstances stated in § 839, the land possessor's conduct is actionable.
¶52 Restatement (Second) of
Torts § 839 provides in full as follows:
A possessor of land is subject to liability for a nuisance caused while he is in possession by an abatable artificial condition on the land, if the nuisance is otherwise actionable, and
(a) the possessor knows or should know of the condition and the nuisance or unreasonable risk of nuisance involved, and
(b) he knows or should know that it exists without the consent of those affected by it, and
(c) he has failed after a reasonable opportunity to take reasonable steps to abate the condition or to protect the affected persons against it. (Emphasis added.)
¶53 I will discuss only those aspects of § 839 that are at issue and apply specifically to the present case.
¶54 First, if the particular artificial physical condition is not
abatable, a possessor of land who did not create the artificial condition is
not liable. Restatement (Second) § 839 cmt. e. An abatable condition is "one that
reasonable persons would regard as being susceptible of abatement by reasonable
means." Restatement (Second) § 839 cmt. f. An artificial condition is not abatable
unless abatement can be accomplished without unreasonable hardship or
expense.
¶55 Second, a possessor of land may be liable under Restatement § 839 for failing to abate a private nuisance resulting from an abatable artificial condition on the possessor's land even though the possessor played no role in creating the artificial condition or the nuisance. The comments to § 839 explain that "a vendee or lessee of land upon which a harmful physical condition exists may be liable under [§ 839] for failing to abate it after he takes possession, even though it was created by his vendor, lessor or other person and even though he had no part in its creation." Restatement (Second) § 839 cmt. d. Liability under § 839 for the failure to abate an artificial condition on land causing nuisance to another "is not based upon responsibility for the creation of the harmful condition." Restatement (Second) § 839 cmt. d.
¶56 Third, Restatement § 839
imposes a duty of due care on a possessor of land. The scope of the duty (that is, the standard
of care) is "to do what is practicable and reasonable under the
circumstances" to abate a private nuisance resulting from an artificial
condition on the possessor's land.
Restatement § 839
cmt. e. A land possessor's liability
under Restatement (Second) § 839
is based "upon the fact that [a possessor of land] has exclusive control
over the land and the things done upon it and should have the responsibility of
taking reasonable measures to remedy conditions on it that are a source of harm
to others." Restatement (Second) § 839 cmt. d.
¶57 This case might be decided on a number of factors under § 839, but it is clear under the record in the instant case that the artificial condition at issue here is not abatable and that the defendants have not violated their duty to do what is practicable and reasonable under the circumstances. Even viewed most favorably to the plaintiffs, the record does not support the conclusion that the defendants could have abated the nuisance to the plaintiffs by using reasonable means.[22] As a matter of law, the defendants therefore did not breach their duty as possessors of land to do what is practicable and reasonable under the circumstances to abate a private nuisance resulting from an artificial condition on the land that they possess.
¶58 For these reasons, I agree with the majority opinion that the defendants are not liable for the private nuisance in the present case.
II
¶59 Here's why the majority opinion has lost its way:
¶60 First,
the majority opinion relies too heavily on classifying the defendants' conduct
as an omission to act and applying what it considers applicable rules of
negligence law in determining that the
defendants are not liable.[23]
¶61 As
I have written previously, the distinction between omission and commission is a
nebulous one.[24] This case proves the point. The defendants' conduct is an omission if
characterized as a failure to abate a private nuisance and is an affirmative
act if characterized as maintaining a private nuisance. Indeed, our nuisance cases appear to move
freely between characterizing a defendant's conduct as a failure to abate a
nuisance (an omission) and the maintenance of a nuisance (a commission).[25]
¶62 Restatement
§ 824(b) uses language consistent with the commission/omission
distinction, but the distinction between commission and omission is not
outcome-determinative in the present case because the possessor of land has a
duty relating to the maintenance of (or failure to abate) artificial conditions
on the land. Restatement § 839
imposes a duty upon a possessor of land to conform his or her conduct to a
standard of care by doing what is reasonable and practicable under the
circumstances to abate a nuisance resulting from an artificial condition on the
possessor's land.
¶63 In
sum, the majority opinion errs in ignoring the special tort rules applicable to
a case involving private nuisance, negligence, and possessors of land.
¶64 Second,
the majority opinion erroneously concludes that a possessor of land who did not
create an artificial condition on the land causing a nuisance cannot be liable
for merely failing to abate the condition.
The Restatement and our case law declare that a possessor may be liable
even if the possessor did not create the artificial condition.[26]
¶65 Third,
the majority opinion erroneously concludes that the defendants' liability is
precluded by the "reasonable use" doctrine relating to interference
with the flow of surface waters.
¶66 Interference
with the flow of surface water is treated in the Restatement as a
nuisance. Under Restatement § 833
(titled "Interference with the Flow of Surface Waters"), "[a]n
invasion of one's interest in the use and enjoyment of land [i.e., a
private nuisance] resulting from another's interference with the flow of
surface water may constitute a nuisance under the rules stated in
§§ 821A-831," setting forth the Restatement's general provisions
relating to nuisance. Put another way,
§ 833 provides that when an interference with the flow of surface waters
results in a private nuisance, "the same general rules apply in
determining liability for the invasion of the neighbor's interest in the use
and enjoyment of his land as apply when an invasion results through vibrations,
noise, smoke or the pollution of waters."[27]
¶67 The
Restatement adopts the reasonable use doctrine for intentional nuisances. This court adopted the reasonable use
doctrine in State v. Deetz, 66
¶68 Under
the reasonable use doctrine, "each possessor is legally privileged to make
a reasonable use of his land, even though the flow of surface waters is altered
thereby and causes some harm to others, but incurs liability when his harmful
interference with the flow of surface waters is unreasonable."[30]
¶69 The "reasonable use" doctrine codified in Restatement
§ 833 and adopted in Deetz governs intentional invasions of the
neighbor's interests, not negligent invasions such as in the present case. Deetz concerned an intentional invasion
of another's interest in the use and enjoyment of land. See Deetz, 66
¶70 In other words, when
a private nuisance results from an intentional interference with the flow of
surface water, "liability depends upon whether the invasion is
unreasonable" under Restatement of Torts (Second) §§ 826-831
(relating to the reasonableness of an intentional invasion of another's
interest in the use or enjoyment of land).[31]
¶71 In
contrast, when a private nuisance results from a negligent interference with
the flow of surface water, Restatement § 833 requires the same inquiry as
Restatement (Second) § 822(b), setting forth the general rule of liability
for a private nuisance based on negligent conduct.[32] I applied § 822(b)'s general rule in
Part I of the concurrence, as well as the more specific rules (§ 824 and
§ 839) to which § 822(b) directs the inquiry under the circumstances
of the present case. Although liability
for the negligent maintenance of a nuisance depends upon whether the
defendant's conduct is unreasonable, the
test is not whether the defendant has interfered with the flow of surface
waters through an unreasonable use of land.
¶72 For
the reasons set forth I conclude that the majority's legal analysis of the
instant case is faulty. I write
separately to set forth what I conclude is the correct legal analysis.
¶73 I
am authorized to state that Justice ANN WALSH BRADLEY joins this opinion.
[1] All subsequent references to the Wisconsin Statutes are to the 2007-08 version unless otherwise indicated.
[2] A separate appeal with
respect to the City of
[3] The original complaint was filed on August 22, 2006.
[4] In its certification,
the court of appeals inquired whether this case should be governed by the
reasonable use doctrine articulated in State v. Deetz, 66 Wis. 2d 1, 224 N.W.2d 407 (1974) or the
Restatement (Second) of Torts § 839
(1979), which we referenced in Milwaukee Metropolitan Sewerage District v.
City of Milwaukee, 2005 WI 8, ¶¶73,
85, and nn. 23 & 24, 277
[5] The concurrence is a mix of well-accepted principles and the chief justice's opinions. While the concurrence prefers to assume duty and evaluate the viability of the claim on the basis of breach, the majority prefers to tackle the issue of duty head-on. Here we conclude that no negligence exists because the Hockings do not satisfy the first element of negligence——duty. Thus, we need not reach the issue of breach.
[6]
[7] The concurrence
incorrectly asserts that the reasonable use doctrine applies only to
intentional torts and not negligence cases.
Some courts have noted, "'[r]egardless of the category into which
the defendant's actions fall [intentional and unreasonable or negligent,
reckless, or abnormally dangerous], the reasonable use rule explicitly, as in
the case of intentional acts, or implicitly, as in the case of negligent acts,
requires a finding that the conduct of the defendant was unreasonable.'" DeSanctis v. Lynn Water & Sewer Comm'n,
666 N.E.2d 1292, 1296 (
[8] Nuisance long has been treated as its own subject within tort law. See Restatement (Second) of
Torts § 821D
("Trespass and private nuisance are alike in that each is a field of tort
liability rather than a single type of tortious conduct.").
The Restatement (Second) of Torts, as well as leading treatises, address nuisance as a separate topic in the law. See Restatement (Second) of Torts, ch. 40 (§§ 821A-840E); 2 Dan B. Dobbs, The Law of Torts (2001), ch. 34, at 1319-42; W. Page Keeton et al., Prosser and Keeton on Torts (5th ed. 1984) ch. 15, at 616-54.
[9] This court has remarked that although liability for a nuisance may be
predicated on negligent conduct, "negligence and nuisance are distinct
torts." Physicians Plus
Ins. Corp. v.
[10] See Chapter 9, Restatement of the Law (Third) Torts: Liability for Physical and Emotional Harm (Tentative Draft No. 6, March 2, 2009), at xx (stating that "historically, land possessors' duties have been treated as a discrete subject" in the law of tort).
The Restatement (Second) of Torts includes a separate chapter relating to liability based on the condition or use of land, Restatement (Second) of Torts, ch. 13 (§§ 328E-387). The tentative draft of the Restatement (Third) of Torts similarly uses a separate chapter to "address[] the special case of the duty owed by land possessors." Restatement of the Law (Third) Torts: Liability for Physical and Emotional Harm, at 1 (Tentative Draft No. 6, 2009). Leading treatises follow suit. See 1 Dan B. Dobbs, The Law of Torts 587-630 (2001) (relating to liability for owners and occupiers of law); W. Page Keeton et al., Prosser and Keeton on Torts 386-450 (5th ed. 1984) (same).
[11]
See also
[12]
[13] State v. Deetz,
66
[14]
[15] See
[16] See
[17] Section 822 is titled "General Rule" and is the first section appearing in a Topic titled "Private Nuisance: Elements of Liability."
[18] This first element simply requires that a private nuisance exist. Restatement (Second) § 821D states that "[a] private nuisance is a nontrespassory invasion of another's interest in the private use and enjoyment of land."
[19] See
Having determined that the only actionable claim in this case is one for negligently failing to abate a nuisance, we lastly examine whether the circuit court properly granted summary judgment in this case. As we previously discussed, in order to prevail on a claim of nuisance based on negligence, the plaintiff must prove the following elements: 1) The existence of a private nuisance——the interference with another's interest in the private use and enjoyment of land; 2) The defendant's conduct is the legal cause of the private nuisance; and 3) The defendant's conduct is otherwise actionable under the rules governing liability for negligent conduct, including notice.
[20] Restatement (Second) § 824 cmt. e. See also Scope Note to Restatement (Second) of Torts ch. 40, Topic 4 (stating that ch. 40, Topic 4, Title B, which encompasses §§ 838-840A, "deals with liability for failure to act").
[21] The term "possessor of land" is defined in Restatement (Second) § 328E.
[22] See majority op., ¶23.
[23] Although the majority opinion
distinguishes omission and commission in ordinary negligence law and applies
the distinction to the present case to require a duty, the jury instruction for
negligence makes no distinction between acting and failing to act. Wis JI——Civil 1005 (titled "Negligence:
Defined") states that "[a] person is not using ordinary care and is
negligent, if the person, without intending to do harm, does something (or
fails to do something) that a reasonable person would recognize as creating an
unreasonable risk of injury or damage to a person or property."
In
contrast, Wis JI——Civil 1920 (titled "Private Nuisance: Negligent
Conduct") follows the language of Restatement (Second) of Torts § 824
(referring to a duty to take positive action) in private nuisance actions premised
on negligent conduct. Wis JI——Civil 1920
states that "[a] person is not using ordinary care and is negligent, if
the person, without intending to do harm, acts (or fails to act under
circumstances in which (he) (she) is under a duty to take a positive action)
that a reasonable person would recognize as creating an unreasonable risk of
(invading) (interfering) with another's use or enjoyment of property"
(emphasis added).
For further discussion of the concept of duty in negligence law, see Behrendt v. Gulf Underwriters Insurance Co., 2009 WI 71, ¶52 n.5, ___ Wis. 2d ___, ___ N.W.2d ___ (Abrahamson, C.J., concurring).
[24] For further discussion of the concepts of omission and commission in negligence law, see Behrendt v. Gulf Underwriters Insurance Co., 2009 WI 71, ¶¶54-55, ___ Wis. 2d ___, ___ N.W.2d ___ (Abrahamson, C.J., concurring).
[25] See, e.g.,
[26] See Restatement
(Second) § 839
cmt. d (stating that under § 839
"a vendee or lessee of land upon which a harmful physical condition exists
may be liable under [§ 839]
for failing to abate it after he takes possession, even though it was created
by his vendor, lessor or other person and even though he had no part in its
creation.");
In Brown,
the court determined that the complaint stated a claim for maintenance of a
nuisance when the complaint alleged that the defendant permitted a tree to
remain in a dangerous condition with notice and knowledge of the condition. Brown, 199
[27] Restatement (Second) of Torts § 833 cmt. b.
Prior to Deetz, the general rules for
determining liability did not apply when a private nuisance resulted from the
interference with the flow of surface water.
Deetz abolished the "common enemy" doctrine, under
which "'[s]urface water
is recognized as a common enemy, which each proprietor may fight off or control
as he will or is able, either by retention, diversion, repulsion, or altered
transmission; so that no cause of action arises for such interference, even if
some injury occurs, causing damage.'"
State v. Deetz, 66
The
Reporters' Note to Restatement (Second) of Torts § 833 states that
§ 833 replaces the "rigid and antagonistic" rules (including the
common enemy doctrine) that previously had governed when a private nuisance
resulted from interference with the flow of surface waters.
One of the defendants' briefs to this court argues that general principles of liability for a nuisance do not apply when the nuisance involves surface water. See Defendants-Respondents' Charles C. O'Rourke, Joan R. O'Rourke, and American Family Mutual Insurance Company's Response Brief at 12-13 (arguing that "surface water is a topic given distinct treatment in the law" and that the plaintiffs err in "seek[ing] to apply general nuisance principles in lieu of long-established standards developed by Wisconsin courts to address excess surface water problems"). In its certification memorandum, the court of appeals also asked this court to determine whether special rules apply in nuisance cases involving surface water.
Comment b to Restatement (Second) of Torts § 833 answers the defendants' argument and the question posed by the court of appeals. Under the rule codified in § 833 and adopted in Deetz, a nuisance case involving the flow of surface waters is treated like any other nuisance case. See also Restatement (Second) of Torts § 839 cmt. k (stating that a vendee or lessee of land may be liable under § 839 for the failure to abate a nuisance occurring when "an embankment on the land diverts water that washes away the roadbed of a railroad" or when "a gutter on a building discharges water upon the public sidewalk which freezes in cold weather and makes the walk unsafe for passage").
Although the majority opinion is not clear, it also seems to conclude that nuisance cases involving the flow of surface waters should be decided under the rules governing liability in nuisance cases generally. See majority op., ¶5 n.5.
[28] Deetz, 66
[29] Deetz, 66
[30] Deetz, 66
[31] Restatement (Second) of Torts § 833 cmt. b. See also § 822(a) (stating that one may be subject to liability for a private nuisance if the invasion of another's interest in the private use and enjoyment of land is "intentional and unreasonable").
[32] See Restatement
(Second) of Torts § 833 cmt. b ("When the invasion is not
intentional, the liability of the person harmfully interfering with the flow of
surface waters depends upon whether his conduct has been negligent, reckless or
abnormally dangerous, assuming that the other elements of liability stated in
§ 822 are present.").
Compare § 822(b) (stating that one is subject to liability for a private nuisance 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 . . . (b) unintentional and otherwise actionable under the rules controlling liability for negligent . . . conduct . . .").