A property owner cannot sue a city for failure to abate a nuisance based on how the city developed a subdivision more than 10 years earlier.

The Wisconsin Court of Appeals held on June 4 that the 10-year statute of repose in sec. 893.89 bars the action, because the only actions causing the nuisance occurred outside the statute’s exposure period; failure to take any action to abate the nuisance doesn’t count.

The court concluded that the effect of allowing the nuisance action to proceed would “be to impose on [the city] liability after the end of the exposure period based on their actions -– and the actions of others -– during involvement in improving the property. This is contrary to the purpose of the statute.”

Glen D. and Louann Hocking purchased a home in Dodgeville in 1978 when the surrounding land was undeveloped.

Between 1989 and 1993, a subdivision was developed uphill from the Hockings. As a result, storm water now runs off from city property and other private properties to collect on the Hockings’ property and flood their home. For 10 years, the city said it would remedy the problem, but never did.

In 2006, the Hockings sued the city and the developers, alleging negligent and intentional creation and maintenance of a nuisance.

The circuit court granted summary judgment in favor of the defendants, and the Hockings appealed with respect to the city only.

In an opinion by Judge Margaret J. Vergeront, the Court of Appeals affirmed.

Under the statute, owners and occupiers, as well as anyone involved in the development, are immune from liability for any defect in the construction of an improvement to real property.

However, subsec. (4)(c) creates an exemption for “An owner or occupier of real property for damages resulting from negligence in the maintenance, operation or inspection of an improvement to real property.”

The Hockings contended that this exception applied, because the city has negligently maintained the streets by not altering them to alleviate the water damage to their property.

However, the court disagreed, concluding that, even if the city created the nuisance, their failure to take corrective action is not “maintenance, operation or inspection” of the improvement.

The court concluded that it does not fit within the common meaning of “maintain” to include failure to alter the streets to remedy the problem.

The court further found that it would undermine the purpose of the statute to adopt the Hockings’ construction.

The court reasoned that the effect of the Hockings’ interpretation would be to impose liability on owners and occupiers for damage resulting from the improvement itself, after the end of the 10-year period, contrary to the purpose of the statute.

Analysis

Given how narrowly the Wisconsin Supreme Court has interpreted the exception in subsec. 893.89(4)(c), the court can’t be faulted for its narrow interpretation.

However, in light of the legislative history, the court goes astray when it defends its interpretation as consistent with the purpose of the statute.

The original statute of repose for defects in building design, sec. 893.155, applied only to those engaged in the construction, but did not include owners, occupiers, or suppliers of material.

However, the Supreme Court held this unconstitutional on equal protection grounds, concluding it is “ludicrous” to give immunity to architects, but not materialmen. Kallas v. Millwork Corp. v. Square D Co., 66 Wis.2d 382, 391-92, 225 N.W.2d 454 (1975).

The state Legislature responded by adding materialmen and land surveyors to the statute.

But, in Funk v. Wollin Silo & Equipment, Inc., 148 Wis.2d 59, 77, 435 N.W.2d 244 (1989), the Supreme Court again struck the statute down, finding this insufficient to cure the under-inclusiveness problem. This time, the court found it arbitrary to allow suit against owners and occupiers for negligence during construction, while exempting everyone else engaged in the construction.

So, in 1993, the Legislature amended the statute again, making owners and occupiers immune (after 10 years) for any actions occurring in the design or construction of the property improvement, but leaving them liable for negligence in the “maintenance, operation or inspection” of the property.

The legislative intent is crystal clear -- to whatever extent possible, without running afoul of the Equal Protection Clause, the Legislature wants to keep owners of property liable for failing to inspect property and remedy design defects, while eliminating potential liability for everyone else involved in the improvement after 10 years.

Here, the Hockings did not appeal the grant of summary judgment to the engineer who platted, designed, and installed the subdivision that created the nuisance. Given the statute of repose, appeal would be clearly futile. He could be negligent only for creating the nuisance, not maintaining it.

However, the Hockings sued the city for maintaining the nuisance, as well as creating it.

The Hockings presented evidence that the city was aware of the problem through numerous conversations between the Hockings and city officials, yet they did nothing to abate the nuisance.

Based on these facts, it would not violate the Equal Protection Clause to permit suit against the city for maintaining a nuisance, while dismissing as time-barred any action against all others who created the nuisance and then left the scene entirely.

Thus it would be perfectly consistent with the purpose of the statute to allow the suit to proceed -- the legislative intent being to keep owners liable to whatever extent would not be an equal protection violation.