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Wisconsin

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Hocking v City of Dodgeville, 326 Wis 2d 155, 785 NW2d 398, 2008 AP 2812 (Wis, 2010).

Facts:Glen and Louann Hocking (the Hockings) owned a home in the city of Dodgeville since 1978. When the Hockings first purchased the property, the adjacent lots were empty. In 1989, Wallace Rogers (Rogers) purchased the adjacent undeveloped properties with the intent to develop and subdivide them into multiple lots. For this purpose, Rogers hired Lawrence Schmit (Schmit), a professional engineer, to design the subdivision. Schmit also designed and oversaw the installation of the streets, sewers, curbs, and street gutters in the subdivision for the city of Dodgeville.

The land in the subdivision was very uneven and Schmit had large amounts of dirt brought in to level the area. This landscaping created a steep slope between the subdivision and the Hocking property. The Hockings expressed concerns to city council members regarding this steep gradation, but the subdivision was nevertheless approved and construction was completed in 1992. In the years that followed, the Hockings experienced significant flooding from storm water run-off due to the steep hill.

From the early 1990s through 2003, the Hockings regularly spoke with city officials regarding the problem and were consistently told it would be resolved. City council members visited the Hocking home to assess the damage, and eventually a drainage system was considered, though it was never installed. In 2003, the city assessor and engineer informed the Hockings that the city could not resolve the issue.

The Hockings filed suit against Dodgeville, Rogers, and Schmit claiming negligence, and negligent and intentional creation and maintenance of a nuisance. The three moved for summary judgment against the Hockings on the grounds that the statute of repose in Wisconsin Statutes Section 893.89 barred the action. The Hockings contended that their case fit within the statute's exception. The trial court found otherwise and granted summary judgment. The Hockings appealed, and the court of appeals affirmed this order. The Hockings appealed again.

Holding:Affirmed. The Hockings contended before the courts in question that while Section 893.89 does serve as a statute of repose for actions for injury arising from improvements to real property, their case subject to an exception. They argued that their situation fell under either the exception under subsection (4)(b) or (4)(c) of Section 893.89.

The Wisconsin Supreme Court concluded that the Hockings did not fulfill the requirements of 4(b), which provides an exception to the statute of repose when a person expressly warrants or guarantees the improvement. The Hockings argued that the city official's constant reassurances that they would remedy the problem constituted a warranty. The Supreme Court, however, found that there was no evidence that the city officials had specifically created an express warranty and that the officials were authorized and capable of binding the city with such a warranty. As such, the court concluded that this exception did not apply.

The court further concluded that the subsection 4(c) exception did not apply either. The subsection 4(c) exception applies in cases where the damage results from negligence in maintenance, operation or inspection of an improvement to real property by the owner or occupier. The Hockings argued that the problem was caused by the streets, making the owner in question the city of Dodgeville. The court, however, found that the flooding problem suffered by the Hockings was a not a result of the failure to properly maintain the streets, which were kept in good repair and operation. The court concluded that, because the text of the statute makes clear distinction between defects in design and defects in maintenance, the Hockings could not argue that failing to fix a problem creating during design amounted to negligence in maintenance. As such, the exception under subsection 4(c) also did not apply. Therefore, the Supreme Court agreed with the lower courts' finding that, without an applicable exception, the statute of repose prevents the Hockings' claim. As such, the summary judgment order was affirmed.

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