Hocking v. City of Dodgeville

2009 WI 70, 768 N.W.2d 552, 318 Wis. 2d 681, 2009 Wisc. LEXIS 278

• Court: Wisconsin Supreme Court
• Decided: July 9, 2009
• Docket: 2007AP1754
• Status: Published

Opinions

ANNETTE KINGSLAND ZIEGLER, J.

¶ 1. 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 Dodgeville and a number of individuals for negligence, unlawful taking, and creating and maintaining a nuisance. Relevant to this appeal is the allegation of negligent maintenance of a nuisance against defendants Charles and Joan O'Rourke and Amy Crubaugh-Schrank (collectively hereinafter "the defendants").² The circuit court concluded that no liability could arise because these defendants did not owe a duty to the Hockings under these circumstances. The Hockings appealed, and the court of appeals certified this case to the supreme court, which we accepted.

¶ 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 hable 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. Rogers hired Laurence Schmit, a professional engineer, to develop the property as a residential subdivision. In 1991, the land surrounding the Hookings' home, which would include the land uphill from the Hockings, and the streets around the Hockings' property, were developed by Rogers. As a result of Rogers' development, the Hockings' property is now at the bottom of a bowl. Prior to Rogers' development, the Hockings never had water leakage into their basement, but since this development the Hockings have had significant water problems. The increased water flow allegedly has caused problems with the Hockings' foundation and led to mold. Due to these problems, the Hockings have had to move out of their home.

¶ 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 Rogers' development, the grading around the property has been altered and the land was converted from absorptive agriculture to impervious surfaces, but storm sewers were not installed. The manner in which Rogers developed the land allegedly caused the Hockings' problems.

¶ 5. On February 16, 2007, the Hockings filed an amended complaint³ against the City of Dodgeville, Wallace Rogers, Laurence E. Schmit and the defendants in this case. The complaint alleged, in part, negligent maintenance of a nuisance. Relevant to this appeal are the defendants who live or once lived at 1104 Roelli Street, Dodgeville, Wisconsin. The 1104 Roelli Street property is adjacent to and directly uphill from the Hockings' property and is one home in the 1991 development of the land surrounding the Hockings' property. Defendant Crubaugh-Schrank lived at 1104 Roelli Street beginning in 1999 and defendants O'Rourke moved to 1104 Roelli Street in 2004. These defendant landowners did not modify the property in any way that could affect water drainage onto the Hockings' property.

¶ 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 , 305 Wis. 2d 538, 742 N.W.2d 294. This court applies the same standards as those used by the circuit court, and these standards are set forth in Wis. Stat. § 802.08. Id. Whether a duty under the circumstances exists and the scope of such a duty are questions of law that we decide de novo. Hoida, Inc. v. M&I Midstate Bank, 2006 WI 69, ¶ 23 n.12, 291 Wis. 2d 283, 717 N.W.2d 17.

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. "Wisconsin courts have engaged a four-element analysis to determine whether an actionable claim for negligence has been stated." Hoida, 291 Wis. 2d 283, ¶ 23. The four elements are as follows: " '(1) the existence of a duty of care on the part of the defendant, (2) a breach of that duty of care, (3) a causal connection between the defendant's breach of the duty of care and the plaintiffs injury, and (4) actual loss or damage resulting from the [breach].'" Id. (citing Gritzner v. Michael R., 2000 WI 68, 235 Wis. 2d 781, ¶ 19, 611 N.W.2d 906).

1. Duty under Wisconsin law

¶ 11. Duty has always been a relevant element in Wisconsin's negligence analysis even though cases have more often been limited by the application of public policy factors. Nichols v. Progressive N. Ins. Co., 2008 , 308 Wis. 2d 17, 746 N.W.2d 220; see also Behrendtv. Gulf Underwriters Ins. Co., 2009 WI 71, 768 Wis. 2d 568, 768 N.W.2d 568 (Roggensack, J., concurring) (discussing duty under Wisconsin negligence law). The prevalence of a public policy factor analysis, however, does not eliminate consideration of the four elements of negligence. See Hoida, 291 Wis. 2d 283, ¶ 23 n.12 (reaffirming that there are four elements to a negligence analysis). Our focus in this case centers on the first element of "duty." Under the first element, "duty, involves two aspects: (1) the existence of a duty of ordinary care; and (2) an assessment of what ordinary care requires under the circumstances." Id., ¶ 27 (citing Hatleberg v. Norwest Bank Wis., 2005 WI 109, ¶¶ 17-18, 283 Wis. 2d 234, 700 N.W.2d 15).

¶ 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 Wis. 2d 283, ¶¶ 30-32. As a result, Wisconsin courts have in the past precluded negligence actions because a defendant did not owe a duty to the plaintiff under the circumstances. See Baumeister v. Automated Prods., Inc., 2004 WI 148, ¶¶ 18-21, 277 Wis. 2d 21, 690 N.W.2d 1 (concluding that the architect did not have a duty to supervise the construction of a church because the architect's contract stated he had no responsibility for construction of the church); Hatleberg, 283 Wis. 2d 234, ¶¶ 19-25 (concluding that a trustee of a bank did not have a duty to review a trust document to ascertain whether it worked for the stated purpose of the trust).

¶ 13. For example, in Hoida, we concluded that the plaintiffs 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." Id., ¶ 46. Thus, because there was no duty under the circumstances, no breach occurred, and there was not a viable negligence claim. Id. In Hoida, we relied on contractual provisions to evaluate the circumstances bearing on the scope of the defendant's duty of ordinary care. Id., ¶¶ 38-39. In the case at hand, we rely on common law doctrines governing surface water to ascertain the defendants' duty of ordinary care under the circumstances.

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 blockings' 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." Id., § 59.02(b)(7).

¶ 15. Prior to 1974, surface water cases in Wisconsin were governed by the common enemy doctrine. See State v. Deetz, 66 Wis. 2d 1, 8-10, 13-16, 224 N.W.2d 407 (1974) (rejecting the common enemy doctrine and adopting the reasonable use rule). The common enemy doctrine provided:

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 Wis. 432, 435-36, 63 N.W.2d 708 (1954) (emphasis added). Therefore, under the common enemy doctrine, "each landowner ha[d] a privilege to deal with, dispose of, block, or divert diffused surface water in any manner as he sees fit, without legal liability for the injurious consequences to his neighbors' lands." 5 Beck, supra, § 59.02(b)(2).

¶ 16. This court applied the common enemy rule in Watters where the defendant constructed a drive-in theater on property that adjoined the plaintiffs property. Watters, 266 Wis. at 433. The defendant's property was such that some water percolated into the soil and the remaining ran off and onto the plaintiffs property. Id. However, as a result of the drive-in theater construction, which included facilities, driveways, tile drains, and sewage-disposal facilities, the land was graded and filled up so as to "change the natural contour of said land, which [] caused the artificial and unnatural flow of surface waters" to drain onto the plaintiffs property. Id. This drainage caused damage to the plaintiffs roadway and resulted in losing the use of some property. Id. This court in Watters concluded that "[u]nder the established law of this state[, i.e., the common enemy doctrine,] the plaintiffs have no cause of action for damages caused by drainage of surface waters, either because of the installation of tile drains or by changing the natural flow of such waters." Id. at 436.

¶ 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 Wis. 2d at 138; Milwaukee Metro. Sewerage Dist., 277 Wis. 2d 635, ¶ 25 n.4.

¶ 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 Wis. 2d at 18. Under the reasonable use rule," '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.'" Id. at 14 (citation omitted).

¶ 19. In Deetz, the plaintiff brought an action to abate a nuisance caused by an uphill landowner. Id. at 6. The defendant developed land on top of a bluff overlooking Lake Wisconsin. Id. Prior to development, the bluff land was used for crops and pasture, and thus the erosion and runoff was minimal. Id. However, after construction, one of the roads at the bottom of the bluff was covered by unusual amounts of sand in many places and the downhill plaintiff noticed that substantial sand deltas had formed along the lakeshore and in the lake, which led to a lake that was not navigable in some places. Id. The court, in Deetz, remanded to the circuit court for a determination of reasonableness. Id. at 21. Remand was necessary because the factual record was undeveloped due to the circuit court's dismissal under the common enemy rule. Id.

¶ 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 Wis. 2d 631, 633, 277 N.W.2d 766 (1979); see also 5 Beck, supra, § 59.02(b)(2) (discussing the absolute freedom provided by the common enemy doctrine).

¶ 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 Wis. 2d at 635; Wis JI — Civil 1920; Restatement (Second) of Torts § 824 (1979). Consequently, the defendants here have a positive duty to abate this nuisance only if the use of their property had altered the flow of surface water and was an unreasonable use of their property.

¶ 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 Rogers allegedly caused these problems. The defendants, for example, did not create a trench that increased the flow of water to the Hockings' property. The defendants did not point oversized downspouts at the Hockings' property. The defendants did not landscape in such a way so to unreasonably increase water flow to the Hockings' property. Instead, the defendants purchased a home in a development and lived there. The defendants could not reasonably be required to take positive action that would affect rainwater runoff onto the Hockings' property.

¶ 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 Rogers allegedly caused the nuisance because it converted the land from absorptive agricultural to impervious surfaces, altered the grading around the Hockings' property, and altered the streets surrounding the Hockings' property. According to the Hockings' own expert, the problem should be remedied by the installation of storm sewers, the construction of retention ponds, and the installation of a storm water collection and draining system. These remedies could not possibly be carried out by the defendants — one neighboring landowner in an uphill development. What duty would then exist for the landowners who are uphill from these defendant landowners?

¶ 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 Wisconsin law even though cases have predominantly been analyzed under the public policy factors when there has been an assumption that a duty exists. The concurrence would conclude that mere home ownership employs a duty to all who could possibly be affected by the homeowner's property. Such a drastic implication of homeowner liability should not be assumed without further analysis under the circumstances. It is not the homeowner's duty to remedy every possible impact that could occur on a neighboring parcel. Sometimes, there is just no such duty to act under Wisconsin law.

¶ 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 Milwaukee Metro. Sewerage Dist., 277 Wis. 2d 635, ¶¶ 63-74 (referencing the Restatement (Second) of Torts § 839 (1979)). However, no negligence exists in this case because the defendants' conduct did not involve altering the flow of surface water, and therefore, there is no duty to abate. As a result, the Hockings' claim for negligent maintenance of a nuisance cannot survive.

¶ 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.

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 Dodgeville is pending. The circuit court dismissed all claims against the City of Dodgeville, the developer, and the survey engineer because it concluded that those claims were barred by the statutes of repose, pursuant to Wis. Stat. §§ 893.89 and 893.37, given the suit was filed at least ten years after substantial completion of the development. The Hockings did not appeal the circuit court's dismissal against Shaun and Wendy Sersch.

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 Wis. 2d 635, 691 N.W.2d 658. The court of appeals questioned whether the reasonable use doctrine and § 839 may be in conflict with one another. However, no conflict exists because § 839 specifically references § 822, which we have previously adopted, and the reasonable use doctrine is largely embodied within § 822. See Restatement (Second) of Torts § 839 cmt. g (referencing § 822); Crest Chevrolet-Oldsmobile-Cadillac, Inc. v. Willemsen, 129 Wis. 2d 129, 138, 384 N.W.2d 692 (1986) (stating "[t]he reasonable use doctrine is substantially embodied in sec. 822"); Milwaukee Metro. Sewerage Dist., 277 Wis. 2d 636, ¶ 25 n.4 (stating 'Wisconsin has adopted the Restatement (Second) of Torts § 822").

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 Wisconsin has not previously utilized the civil law rule. In short, "[i]t provides that drainage must be allowed to follow its natural courses. The upper landowner is not allowed to redirect drainage artificially, and the lower landowner is forbidden to obstruct natural drainage." 5 Robert E. Beck, Waters and Water Rights § 59.02(b)(3) (1991 ed., repl. vol. 2006) The purpose is to preserve natural drainage and prohibit one landowner from taking unfair advantage over another. Id.

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 (Mass. 1996) (citing Pendergrast v. Aiken, 236 S.E.2d 787 (N.C. 1977)). Moreover, we have found other examples of the rule being utilized in negligence cases. See, e.g., Franklin County Dist. Bd. of Health v. Paxson, 787 N.E.2d 59, 66-67 (Oh. Ct. App. 2003), DeSanctis, 666 N.E.2d at 1295-97. These examples, however, highlight the inconsistency with which courts around the country apply the rule. For example, in Franklin County, an Ohio court considered the reasonable use rule in terms of breach, i.e., a breach occurred if the land was not used reasonably. Franklin County, 787 N.E.2d at 66-67. Other courts, however, have failed to delineate where in the analysis the reasonable use rule should be considered and instead preclude liability if the land is used reasonably. See DeSanctis, 666 N.E.2d at 1295-97. Today, we simply conclude that given liability cannot arise unless there is a duty, the most sensible place to end the analysis is under duty since the landowner did absolutely nothing but live on his land and let the rain fall down to the earth. We have utilized surface water doctrines to illuminate our analysis, but today we do not apply the reasonable use rule in the traditional sense of weighing the gravity of the harm with the utility of the act. See Franklin County, 787 N.E.2d at 66-67.