WI Supreme Court rules public policy precludes negligence, nuisance claims.

Byline: David Ziemer

Public policy precludes negligence and nuisance claims against a contractor hired to reduce the water level in a lake, the Wisconsin Supreme Court held on July 13.

The decision affirms a published court of appeals decision, Butler v. Advanced Drainage Systems, Inc., 2005 WI App 108, 282 Wis.2d 776, 698 N.W.2d 117, but reaches the decision on different grounds.

The water level of Shell Lake, located entirely in the City of Shell Lake, rose during the 1980s and 1990s, and the Army Corps of Engineers recommended lowering it to protect riparian properties.

The city obtained a permit from the DNR to divert water from the lake into the Yellow River, by installing a 4.5 mile drainage pipe, and contracted with several contractors to perform various services on the project.

A group of riparian owners brought suit after the system initially failed to function properly, claiming negligence and maintenance of a nuisance. Sawyer County Circuit Court Judge Norman L. Yackel granted summary judgment in favor of the defendants.

The court of appeals affirmed, holding that the defendants were entitled to immunity under the Restatement (Second) of Torts 324A, which grants immunity to those acting as "Good Samaritans" for the benefit of a third party to a contract.

The Supreme Court granted review, and affirmed in a decision by Justice Patience Drake Roggensack. Roggen-sack wrote a concurrence to her own opinion, and Justice Ann Walsh Bradley wrote a dissent, joined by Justice Louis B. Butler, Jr., and Chief Justice Shirley S. Abrahamson.

Rather than relying on the Restatement, the lead opinion concluded that public policy barred the suit, specifically that allowing recovery would enter a field that has no sensible or just stopping point.

Noting that the hazard had been present for decades, that the potential for damage was well known, and that, even absent any action by the defendants, damages were still probable, the court concluded that the suit should be barred.

The court reasoned, "If we were to permit liability against the defendants before us, we would be opening the door to property owners' claims against any contractor who contracts with a municipality to remediate a naturally occurring hazard, when the contractor fails to completely abate the hazard's effects."

The court also found that allowing liability would both chill municipalities from attempting abatement projects and chill contractors from bidding on them.

Finally, the...