                                                                            2013 WI 78

                  SUPREME COURT                      OF   WISCONSIN
CASE NO.:                  2007AP221 & 2007AP1440
COMPLETE TITLE:
                           Bostco LLC and Parisian, Inc.,
                                     Plaintiffs-Appellants-Cross-
                           Respondents-Petitioners,
                                v.
                           Milwaukee Metropolitan Sewerage District,
                                     Defendant-Respondent-Cross-Appellant-
                           Petitioner.
                                REVIEW OF A DECISION OF THE COURT OF APPEALS
                                Reported at 334 Wis. 2d 620, 800 N.W.2d 518
                                        (Ct. App. 2011 - Published)
                                           PDC No: 2011 WI App 76

OPINION FILED:             July 18, 2013
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:             September 6, 2012

SOURCE OF APPEAL:
   COURT:                  Circuit
   COUNTY:                 Milwaukee
   JUDGE:                  Jean A. DiMotto & Jeffrey A. Kremers

JUSTICES:
   CONCURRED:              GABLEMAN, J., concurs. (Opinion filed.)
   DISSENTED:              ABRAHAMSON, C.J., BRADLEY, J., dissent. (Opinion
                           filed.)
     NOT PARTICIPATING:    PROSSER, J., did not participate.

ATTORNEYS:
         For              the            plaintiffs-appellants-cross-respondents-
petitioners,            there     were    briefs     by   Mark   A.   Cameli,   Rebecca
Frihart Kennedy, Lisa Nester Kass, Amy MacArdy, and Reinhart,
Boerner Van Deuren, S.C., Milwaukee, and oral argument by Mark
A. Cameli and Rebecca Frihart Kennedy.


         For      the       defendant-respondent-cross-appellant-petitioner,
there were briefs by G. Michael Halfenger, William J. Katt, Jr.,
Eric G. Pearson, and Foley & Lardner, LLP, Milwaukee, and Susan
B.      Anthony,          James    H.     Petersen    and   Milwaukee    Metropolitan
Sewerage District, Milwaukee, and oral argument by G. Michael
Halfenger.


     An   amicus   curiae   brief   was   filed   by   Claire   Silverman,
Madison, on behalf of the League of Wisconsin Municipalities.




                                    2
                                                                          2013 WI 78
                                                                  NOTICE
                                                    This opinion is subject to further
                                                    editing and modification.   The final
                                                    version will appear in the bound
                                                    volume of the official reports.
No.       2007AP221 & 2007AP1440
(L.C. No.    2003CV5040)

STATE OF WISCONSIN                              :            IN SUPREME COURT

Bostco LLC and Parisian, Inc.,

              Plaintiffs-Appellants-Cross-
              Respondents-Petitioners,                                 FILED
      v.                                                          JUL 18, 2013
Milwaukee Metropolitan Sewerage District,                            Diane M. Fremgen
                                                                  Clerk of Supreme Court
              Defendant-Respondent-Cross-Appellant-
              Petitioner.




      REVIEW of a decision of the Court of Appeals.                     Affirmed in

part, reversed in part, and remanded.


      ¶1      PATIENCE DRAKE ROGGENSACK, J.             This is a review of a

published opinion of the court of appeals1 that affirmed in part
and   reversed    in   part    the   decision   of    the    circuit      court     for

Milwaukee County.2         The questions now before us arise from claims
by Bostco LLC and Parisian, Inc. (hereinafter Bostco), alleging

      1
       Bostco LLC v. Milwaukee Metro. Sewerage Dist. (Bostco),
2011 WI App 76, 334 Wis. 2d 620, 800 N.W.2d 518.
      2
       Judges Jeffrey A. Kremers and Jean A. DiMotto presided at
different phases in the circuit court.
                                                          No.    2007AP221 & 2007AP1440


that Milwaukee Metropolitan Sewerage District's (MMSD) negligent

operation and maintenance of a sewerage tunnel (the Deep Tunnel)

beneath     Bostco's   property     resulted        in    excessive       groundwater

seepage into the Deep Tunnel, thereby causing significant damage

to Bostco's buildings.        Bostco sought money damages, as well as

equitable relief.

      ¶2    The parties raise five issues, and we affirm the court

of appeals on all but one of the issues.                   First, MMSD claims in

its   cross-appeal     that    it   is    entitled        to     immunity    for      its

construction    and    maintenance       of   the    Deep       Tunnel,   under      Wis.

Stat. § 893.80(4).3      Second, if immunity is not accorded, Bostco

claims that the court of appeals erred when it reversed the

circuit court's award of equitable relief for Bostco, ordering

MMSD to abate the excessive seepage of groundwater into the Deep

Tunnel.       Third,    Bostco      claims         that    the     damage      cap    in

§ 893.80(3), which caps the damages recoverable in an action

against     governmental      entities        at    $50,000,        violates      equal

protection, both facially and as applied to Bostco's specific

claims.     Additionally, Bostco contends that the damage cap does

not apply to continuing nuisances.                 Fourth, Bostco claims that

MMSD's operation and maintenance of the Deep Tunnel constituted

an unconstitutional taking of the groundwater beneath Bostco's

property.     Fifth, MMSD argues that Bostco's claim is barred by

the notice of claim provision of § 893.80(1) (2005-06).

      3
       All references to the Wisconsin Statutes are to the 2011–
12 version unless otherwise noted.    Although the parties refer
to the 2005–06 version, the relevant language remains the same
in the current version unless otherwise indicated.

                                         2
                                                              No.    2007AP221 & 2007AP1440


     ¶3      First,      we   conclude      that    MMSD       is      not    entitled     to

immunity.        Once MMSD had notice that the private nuisance it

negligently maintained was            causing       significant            harm,   immunity

under Wis. Stat. § 893.80(4) was not available for MMSD.                                  The

proper immunity analysis in this case rests on our holding in

Milwaukee Metropolitan Sewerage District v. City of Milwaukee

(City of Milwaukee), 2005 WI 8, 277 Wis. 2d 635, ¶59, 691 N.W.2d

658, that "[w]hether immunity exists for nuisance founded on

negligence depends upon the character of the negligent acts."

Where the negligent act was undertaken pursuant to one of those

functions set forth in § 893.80(4)——that is, legislative, quasi-

legislative, judicial or quasi-judicial functions——immunity may

apply.    See id.; see also § 893.80(4).

     ¶4      Here, Bostco's nuisance claim is grounded in MMSD's

negligent    maintenance        of   its    Deep     Tunnel,          which    maintenance

constituted a continuing private nuisance.                          See Physicians Plus

Ins. Corp. v. Midwest Mut. Ins. Co., 2002 WI 80, ¶¶2-3, 254

Wis. 2d     77,    646    N.W.2d     777    (explaining             that   when    all    the
elements of nuisance are proved and the municipal entity has

notice    that     the   nuisance     was       causing    significant            harm,   the

entity has a duty to abate).               Because MMSD's maintenance of the

continuing        private     nuisance      is     not    a     legislative,         quasi-

legislative, judicial or quasi-judicial function, MMSD is not

entitled to immunity.          See Hillcrest Golf & Country Club v. City

of Altoona, 135 Wis. 2d 431, 439-40, 400 N.W.2d 493 (Ct. App.

1986) (explaining that the "creation and maintenance of private

nuisances are simply not recognized as legislative acts subject

                                            3
                                                                No.   2007AP221 & 2007AP1440


to protection under sec. 893.80(4)"); see also Welch v. City of

Appleton, 2003 WI App 133, ¶8, 265 Wis. 2d 688, 666 N.W.2d 511

(explaining that "no statutory or common law immunity doctrine

empowers a public body to maintain a private nuisance"); Menick

v. City of Menasha, 200 Wis. 2d 737, 745, 547 N.W.2d 778 (Ct.

App. 1996) (concluding "there is no discretion as to maintaining

the   [sewer]       system     so   as   not       to   cause    injury");      Wis.    Stat.

§§ 844.01(1)        and    844.20(2) (providing            statutory       procedure      for

seeking abatement of private nuisances).4                        The court of appeals'

determination that MMSD is not entitled to immunity is therefore

affirmed.

        ¶5     Because MMSD does not have immunity for its negligent

maintenance of the Deep Tunnel, we also conclude as follows:                              On

the second issue, we conclude that Wis. Stat. § 893.80(3)–(5) do

not abrogate MMSD's duty to abate the private nuisance that MMSD

caused by its negligent maintenance of the Deep Tunnel, after

MMSD had notice that the nuisance was a cause of significant

harm.        Therefore, we reverse the court of appeals' denial of the

equitable relief of abatement.

      ¶6       Third, we conclude that the monetary damage cap in

Wis. Stat. § 893.80(3) does not violate equal protection, either

facially       or   as    applied   to   Bostco.          Moreover,       the    nature    of

Bostco's        claim     as   a    continuing          nuisance       does     not    render

§ 893.80(3)'s monetary damage cap inapplicable.                          Accordingly, we

        4
       See also Winchell v. City of Waukesha, 110 Wis. 101, 109,
85 N.W. 668 (1901) (concluding that the "legislative authority
to install a sewer system carries no implication of authority to
create or maintain a nuisance").

                                               4
                                                       No.    2007AP221 & 2007AP1440


affirm the court of appeals' conclusion that the circuit court

properly reduced Bostco's monetary damages to $100,000.

     ¶7     Fourth, with regard to Bostco's inverse condemnation

claim, we conclude that Bostco forfeited the argument that it

makes before this court, and we therefore affirm the court of

appeals on this issue.

     ¶8     Fifth, we conclude that Bostco substantially complied

with the notice of claim provisions under Wis. Stat. § 893.80(1)

(2005–06), and that MMSD therefore had sufficient notice under

those provisions.      Accordingly, we affirm the court of appeals

on that issue as well.

     ¶9     Because   neither      Wis.       Stat.     § 893.80(4)      nor     (3)

abrogates MMSD's duty to abate this private nuisance, we reverse

the court of appeals' decision in part, affirm that decision in

part, and remand to the circuit court for further proceedings

consistent with this opinion.               In particular, we reverse the

court of    appeals' reversal      of       the    circuit    court's   order    for

abatement, in part.          That is, while we affirm the court of

appeals on all other issues, we reverse that court's decision

that Bostco was not entitled to equitable relief in the form of

an order for abatement.        Therefore, we affirm the circuit court

decision that abatement is required, and we remand this matter

to the circuit court.         Upon remand, a hearing may be held to

establish whether an alternate method will abate the continuing

private    nuisance   MMSD   maintains        or    whether    lining    the    Deep

Tunnel with concrete is required for abatement.

                              I.   BACKGROUND

                                        5
                                                                  No.    2007AP221 & 2007AP1440


        ¶10    This       case    arises     out    of     MMSD's       maintenance       of    the

Milwaukee Deep Tunnel, which was constructed in the early 1990s

to collect and store both storm water runoff and sewage until

the     Deep        Tunnel's        collections           could     be      transported          to

Milwaukee's sewage treatment plant.

        ¶11    Boston       Store     is    located       in   downtown      Milwaukee,         one

block    west       of    the    Deep      Tunnel's       North    Shore     segment.       First

erected       in    the    19th     century,       Boston      Store     consists     of       five

interconnected buildings that rest upon wood pile foundations

that    were       driven      into   the     ground      to     support     the    buildings'

columns.           At the time of construction, the pilings were below

the water table and were fully saturated, thereby preventing

their deterioration.

       ¶12     Over time, however, the water enclosing the pilings

was drawn down, and the Boston Store buildings began to suffer

substantial         structural        damage.        On    November 16,           2004,    Bostco

filed the amended complaint in this case, alleging that MMSD's

operation and maintenance of the Deep Tunnel caused the drawdown

of the water that led to the deterioration of the wood pilings

underlying Bostco's buildings.                     Bostco's claims for relief were

based on theories of common law negligence, continuing private

nuisance,          inverse      condemnation        and    violations        of    Wis.     Stat.

§ 101.111,          setting       forth      safety        standards        for     excavation

projects.          Bostco sought equitable relief to abate the nuisance,

as well as damages and expenses.

       ¶13     The amended complaint gave rise to numerous motions

that     resulted         in     dismissals        of     some     of     Bostco's        claims.

                                                6
                                                             No.    2007AP221 & 2007AP1440


Eventually     two     common      law        claims      were     tried   to   a        jury:

negligence and private nuisance.

     ¶14     The     jury    found       that      MMSD     was     negligent    in        its

maintenance of the Deep Tunnel near Bostco's building,5 and that

MMSD's negligence was a cause of Bostco's injury.6                              The jury

awarded Bostco $3,000,000 for past damages and $6,000,000 for

future damages.7        The jury also found that Bostco was at fault

for 30 percent of the damages, thereby reducing the $9,000,000

award to $6.3 million.8

     ¶15     In regard to Bostco's nuisance claim, the jury found

that the negligent manner                in    which   MMSD       maintained    the       Deep

Tunnel     interfered       with   Bostco's         use     and     enjoyment       of    its

property.9    The jury found that MMSD could abate the interference




     5
       QUESTION No. 1:  "[W]as the District negligent in the
manner in which it operated or maintained the tunnel near the
Boston Store?"

     ANSWER:       "Yes."
     6
       QUESTION No. 2:    "Was such negligence a cause of the
claimed damage to the Boston Store foundation?"

     ANSWER:       "Yes."
     7
         See Special Verdict Questions Nos. 7 & 8.
     8
         See Special Verdict Question No. 5.
     9
       QUESTION No. 9: "Has the manner in which the District has
operated or maintained the tunnel interfered with the Boston
Store's use and enjoyment of their building?"

     ANSWER:       "Yes."
                                               7
                                                                 No.    2007AP221 & 2007AP1440


by reasonable means and at a reasonable cost.10                                    However, the

jury    also       found    that      the    interference             did     not     result    in

"significant harm" to Bostco.11

       ¶16    On    post-verdict        motions,12        the     circuit       court       denied

Bostco's motion asking the court to find that over $2 million in

damages constituted "significant harm" for purposes of Bostco's

nuisance        claim.             Additionally,               MMSD      sought           judgment

notwithstanding        the       verdict,        on    the      ground        that    MMSD     was

protected by governmental immunity.                          The circuit court denied

MMSD's motion;         however, the          court       agreed        with    MMSD    that    the

$50,000      damages       cap   in   Wis.       Stat.    §     893.80(3)       applied,       and

reduced      the    jury's       negligence          verdict     from       $6.3     million    to

$100,000 ($50,000           each for        Bostco       and    Parisian).            After the

damage cap had been applied, Bostco reasserted its claim for

equitable relief, which the circuit court had held in abeyance

pending      the     determination          of       damages     in      the       jury    trial.

Specifically, Bostco claimed that a $100,000 damage award on

$6.3 million of damages constituted an inadequate remedy at law.

The circuit court granted Bostco's prayer for equitable relief



       10
       See Special Verdict Question No. 11.      Bostco's experts
testified that the siphoning of water from near Bostco's
building could be abated either by lining the Deep Tunnel with
concrete   or  by   installing  and maintaining    a   system  of
groundwater monitoring and recharge wells to replenish the
groundwater that is siphoned into the Deep Tunnel.
       11
            See Special Verdict Question No. 10.
       12
       The Honorable Jeffrey Kremers, Milwaukee County Circuit
Court, presided at the trial and initial post-verdict phase of
the proceedings.

                                                 8
                                                                  No.   2007AP221 & 2007AP1440


and    ordered       MMSD     to    abate        the    nuisance        caused         by    MMSD's

maintenance of the Deep Tunnel.13

       ¶17    Bostco        appealed    and          MMSD    cross-appealed.                 Bostco

argued that the circuit court erred when it refused to change

the jury's finding that Bostco did not suffer "significant harm"

as    to    its     nuisance       claim,    as       well   as     the    court's          summary

judgment      dismissing         Bostco's    inverse         condemnation             claim.       On

cross-appeal, MMSD argued that the circuit court erred (1) by

failing to hold that MMSD's operation and maintenance of the

Deep    Tunnel       were    shielded       by       governmental         immunity,         (2)    by

granting      Bostco's        request       for        abatement,         and     (3)       by    not

dismissing Bostco's complaint for failing to comply with the

notice of claim provisions of Wis. Stat. § 893.80(1) (2005–06).14

       ¶18    With regard to Bostco's nuisance claim, the court of

appeals concluded that the circuit court erred in declining to

reverse       the       jury's     finding        that       Bostco       did         not    suffer

"significant harm," and that, as a matter of law, suffering more

than $2 million in past damages constituted significant harm.

Therefore,        the    court     concluded,          Bostco     proved        its    claim      for

private nuisance.            Bostco LLC v. Milwaukee Metro. Sewerage Dist.

(Bostco), 2011 WI App 76, ¶¶92–104, 334 Wis. 2d 620, 800 N.W.2d

518.       Additionally, although the court of appeals concluded that

       13
       The Honorable Jean DiMotto, Milwaukee County Circuit
Court, presided over Bostco's claim for equitable relief.
       14
       When discussing the parties' notice of claim arguments,
we refer to the numbering of the provisions as they existed in
the 2005–06 version of the Wisconsin Statutes, because the
numbering of the relevant provisions of the statute has since
changed.

                                                 9
                                                               No.   2007AP221 & 2007AP1440


MMSD was not entitled to immunity under Wis. Stat. § 893.80(4),

the    court      reversed   the    circuit          court's    order      for   abatement,

because      it   concluded      that,    since          § 893.80(3)    capped      Bostco's

recoverable damages at $50,000 per claimant, § 893.80(3) and (5)

precluded such equitable relief.                     Id., ¶¶105–07, 123-37.              Also,

the court concluded that the damage cap under § 893.80(3) did

not violate equal protection, either on its face or as applied

to Bostco, id., ¶¶39–60, and that the cap applied to Bostco's

continuing nuisance claim, id., ¶107.

       ¶19     The court of appeals also affirmed the circuit court's

summary judgment dismissing Bostco's inverse condemnation claim,

holding that Bostco had failed to allege facts that could show

that MMSD either physically occupied Bostco's property or that

MMSD    deprived        Bostco     of    all        or    substantially       all   of     the

beneficial use of its property.15                    Id., ¶¶110–13.         Additionally,

the    court      of   appeals     rejected         MMSD's    claim    that      Bostco    had

failed to comply with the notice of claim provision under Wis.

Stat. § 893.80(1) (2005-06), and deemed that Bostco's notice was
sufficient.        Id., ¶¶85–91.

       ¶20     Bostco     petitioned       for           review,     and     MMSD    cross-

petitioned for review.             We granted both petitions.

                                   II.    DISCUSSION

                              A.    Standard of Review



       15
       The court of appeals also affirmed the circuit court's
decision to dismiss Bostco's excavation protection claim on
summary judgment. Bostco, 334 Wis. 2d 620, ¶122. That claim is
not before us.

                                               10
                                                          No.   2007AP221 & 2007AP1440


        ¶21   Whether MMSD is immune from a claim for abatement of

the   private      nuisance    it    negligently     maintained,        which   was    a

cause of significant harm and of which it had notice, when MMSD

could do so by reasonable means at a reasonable cost, is a

question      of   law   for   our     independent      review.         See   City    of

Milwaukee, 277 Wis. 2d 635, ¶56.

        ¶22   This case also requires us to interpret and apply Wis.

Stat.     § 893.80.        Statutory      interpretation          and    application

present questions of law that we review independently, while

benefitting from previous discussions of the court of appeals

and the circuit court.              Richards v. Badger Mut. Ins. Co., 2008

WI 52, ¶14, 309 Wis. 2d 541, 749 N.W.2d 581.                    With regard to the

circuit court's decision to grant equitable relief and order

abatement, we review that decision for an erroneous exercise of

discretion.        Forest Cnty. v. Goode, 215 Wis. 2d 218, 225, 572

N.W.2d 131 (Ct. App. 1997).

        ¶23   Additionally,     Bostco    asks     this    court    to    review     the

circuit court's summary judgment of dismissal of its inverse
condemnation/takings           claim.          Rather      than      applying        the

traditional summary judgment methodology, however, we decline to

review that claim because the alleged taking as presented to us

is materially different than the taking alleged in the circuit

court action.        See Vill. of Trempealeau v. Mikrut, 2004 WI 79,

¶15, 273 Wis. 2d 76, 681 N.W.2d 190.                 Accordingly, we conclude

that Bostco has forfeited its new claim, and we therefore affirm

the court of appeals on this issue.



                                          11
                                                                      No.         2007AP221 & 2007AP1440


         ¶24       Bostco          also    claims      that     the          application           of    the

statutory damages cap under Wis. Stat. § 893.80(3) violates the

equal protection clause of the Wisconsin Constitution.                                             Whether

a    statute's           limitation          violates     equal       protection            presents        a

question of law for our independent review.                                    See State v. West,

2011 WI 83, ¶22, 336 Wis. 2d 578, 800 N.W.2d 929.

                                    B.    Discussion's Structure

         ¶25       Two competing concepts underlie this controversy:                                      one

appurtenant              to        abating     private         nuisances            and      the        other

appurtenant              to    statutory      immunity.            One       concept       requires        an

understanding                 of   the    scope   of     the    duty         to     abate    a     private

nuisance that a municipal entity negligently maintained, which

is   a        cause      of    significant        harm,      and    of       which     the       municipal

entity had notice.16                     The other concept requires consideration of

whether a municipal entity, here MMSD, has statutory immunity

pursuant           to    Wis. Stat.          § 893.80,       from    a       claim     for       abatement

based         on     the       entity's      negligent         maintenance            of     a     private

nuisance.            These two concepts are intertwined in the matter now

before us.

         ¶26       In order to address these competing contentions, it is

necessary           to     fully      understand       the     claim         that     Bostco       proved,

i.e.,         that      MMSD       negligently      maintained           a    continuing           private

nuisance that was a cause of significant harm and of which MMSD


         16
       Our conclusion on the question of negligence is based on
the jury's findings. Our analysis is confined to whether, upon
a finding of negligence, an injured party may seek abatement of
a private nuisance that continues to be a cause of significant
harm when the municipal entity has notice of such nuisance.

                                                    12
                                                           No.    2007AP221 & 2007AP1440


had notice.      Given this posture, our task is to apply the law

that bears on the obligation to abate a nuisance, as it has

existed for more than 100 years.              We interpret the governmental

immunity    provisions    of     Wis.   Stat.       § 893.80       in   light   of   the

common     law   duty    to     abate    negligently             maintained     private

nuisances and statutory provisions such as Wis. Stat. § 844.01

and Wis. Stat. § 844.17 that specifically speak to abatement of

private nuisances.

     ¶27    After addressing those issues, we briefly address the

remaining issues.        These include (1) Bostco's claim that Wis.

Stat. § 893.80(3)'s damage cap violates equal protection; (2)

Bostco's inverse condemnation claim; and (3) MMSD's challenge to

Bostco's notice of claim under § 893.80(1) (2005-06).

                                  C.    Nuisance

                          1.     General principles

    ¶28     The tort of nuisance is grounded in a condition or

activity that unduly interferes with a public right or with the

use and enjoyment of private property.                      Physicians Plus, 254

Wis. 2d    77,   ¶21    n.14.      There      are    two     broad      categories   of

nuisance that derive their distinctions from the types of rights

or interests invaded.           City of Milwaukee, 277 Wis. 2d 635, ¶24.

These broad tort categories are known as public nuisance and

private nuisance.        Restatement (Second) of Torts, Introductory

Note to §§ 821-49 (1979); see also Wis. Stat. ch. 844.                           It is

the type of harm suffered or interest invaded that determines

whether the nuisance is a public or a private nuisance.                         City of

Milwaukee, 277 Wis. 2d 635, ¶26.

                                         13
                                                                     No.   2007AP221 & 2007AP1440


       ¶29    A public nuisance involves the impingement of public

rights, rights that are common to all members of the public.

Id.,   ¶28.        In    order          to    recover     for      a   public    nuisance,       an

individual must          have       suffered       harm       of   a   kind    different        from

other members of the public who exercised that common right.

Restatement (Second) of Torts, § 821C.

       ¶30    A    private        nuisance        is    a     condition        that     harms    or

interferes        with   a    private          interest.           Id.,    § 821A.       We    have

accepted the Restatement (Second) of Torts' characterization of

private      nuisance        as    "a        nontrespassory         invasion     of     another's

interest in the private use and enjoyment of land." City of

Milwaukee, 277 Wis. 2d 635,                      ¶25    n.4     (citing       Vogel    v.   Grant-

Lafayette     Elec.      Coop., 201 Wis. 2d                   416,     423,    548    N.W.2d    829

(1996) and Prah v. Maretti, 108 Wis. 2d 223, 231, 321 N.W.2d 182

(1982)); see Restatement (Second) of Torts, § 821D.                                   There is no

dispute that the nuisance at issue in this case is a private

nuisance.

       ¶31    Wisconsin           law    employs        the     following       directive       for
those seeking to establish liability for a private nuisance:

            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) [I]ntentional and unreasonable, or

            (b) [U]nintentional   and  otherwise   actionable
       under the rules controlling liability for negligent or
       reckless   conduct,   or   for  abnormally   dangerous
       conditions or activities.
Restatement (Second) of Torts, § 822; City of Milwaukee, 277

Wis. 2d 635, ¶32.                 Because a nuisance is a result, of which
                                                  14
                                                     No.   2007AP221 & 2007AP1440


negligence or intentional conduct may be the cause, liability

for   a    nuisance   "is   founded    on     the   wrongful     act   in   . . .

maintaining [the nuisance]."           Physicians Plus, 254 Wis. 2d 77,

¶27 (quoting Brown v. Milwaukee Terminal Ry. Co., 199 Wis. 575,

589, 227 N.W. 385 (1929) (internal quotation marks omitted).

Physical occupation of the property of another is not necessary

to a nuisance claim.        Vogel, 201 Wis. 2d at 426.            For example,

invasions of noxious odors can rise to the level of a nuisance.

Costas v. City of Fond du Lac, 24 Wis. 2d 409, 413, 129 N.W.2d

217 (1964).

      ¶32    Liability    for   a   private    nuisance    may    be   based   on

either intentional17 or negligent acts.              City of Milwaukee, 277

Wis. 2d 635, ¶33.        In the case of negligence, as here, liability

may be predicated on a party's failure to act when he has a duty

to do so.      See id., ¶34.        The duty to act to abate a nuisance

arises when one has notice that he is maintaining a nuisance

that is a cause of significant harm.           See id., ¶35.

      [Some] cases involve changes to otherwise benign
      objects that develop over time and become harmful,
      through no fault of the owner of the object. In these
      cases, liability is predicated upon the defendant's
      failure to remove the harmful condition after he has
      notice of its existence.
Id. (citation omitted).

      ¶33    Furthermore, the duty to abate a nuisance negligently

maintained, of which one has notice, is a general common law

      17
       An intentional interference with another's private use
and enjoyment of property requires that the tortfeasor "must
either act for the purpose of causing [the interference] or know
that it is resulting or is substantially certain to result from
his conduct." Restatement (Second) of Torts § 825.

                                       15
                                                                     No.   2007AP221 & 2007AP1440


obligation to which all persons may be subject.                                        See id. at

¶¶48, 51; see also Restatement (Second) of Torts §§ 821D, 824;

see also Wis JI——Civil 1922.                           Moreover, although a municipal

entity has a duty to abate a known, private nuisance by one of

any    number       of    methods       within         the    entity's       discretion,          such

"discretion"         in    selecting       the         particular      method         by    which    to

abate a nuisance does not eliminate the duty to abate, or make

that duty, itself, discretionary.                            Costas, 24 Wis. 2d at 418

(concluding that "[g]enerally the means whereby [a] nuisance is

to be abated is left to the direction of the defendant tort-

feasor").

       ¶34     In    Physicians         Plus,      we       fully    explored         the    duty    of

municipal       entities       to    abate         a    nuisance       caused         by    negligent

maintenance.             There, a tree had grown to the extent that it

obscured       a    stop    sign      at      a    highway          intersection,           and   that

untrimmed       growth      was      alleged           to    have    caused       a    significant

automobile accident.                Physicians Plus, 254 Wis. 2d 77, ¶1.                             We

explained that because the municipal entities responsible for
trimming the tree had at least constructive notice of the sign

blockage, they had a duty to abate the nuisance.                                       Id., ¶¶2-3.

This    duty       arises     from      the       longstanding         rule       that      generally

municipal          entities       are      not         shielded       from        liability         for

maintaining a private nuisance.                        See Welch, 265 Wis. 2d 688, ¶8.

       ¶35     Similarly,       in      Costas,         we   addressed        a    nuisance       that

arose out of the operation of a sewage system operated by a




                                                   16
                                         No.   2007AP221 & 2007AP1440


municipal entity, the City of Fond du Lac.18     The City argued

that no nuisance claim could lie because the sewage plant was

built and operated according to the plan approved by a state

agency.   Costas, 24 Wis. 2d at 415 (citing Hasslinger v. Vill.

of Hartland, 234 Wis. 201, 290 N.W. 647 (1940), as support for


     18
       Previously,   in  Winchell,   110  Wis.   at  103-05,  we
recognized a municipal entity's obligation to abate a private
nuisance that the entity caused. Winchell dealt with an action
against the City of Waukesha, to abate and enjoin a nuisance
resulting from the City's emptying its sewage into the Fox
River, which ran along the side of Winchell's property. Id. at
103. We concluded that the collection and disposal of sewage is
for the public safety, but that the "authority granted to
municipalities . . . to construct sewers, [is] subject to the
general legal restrictions resting upon such corporations
forbidding invasion of private rights by creation of nuisance or
otherwise."   Id. at 109.     In concluding that the City was
required to abate the nuisance it had created, we reasoned:

    The great weight of authority, American and English,
    supports the view that legislative authority to
    install a sewer system carries no implication of
    authority to create or maintain a nuisance, and that
    it matters not whether such nuisance results from
    negligence or from the plan adopted. If such nuisance
    be created, the same remedies may be invoked as if the
    perpetrator were an individual.

Id. We acknowledge that, following Holytz, Winchell's statement
that "it matters not whether such nuisance results from . . .
the plan adopted" has been abrogated by Wis. Stat. § 893.80(4),
which immunizes such legislative functions as adopting a plan.
This limited abrogation, however, has no bearing on Winchell's
still valid conclusion that a governmental entity's negligent
maintenance of a system or structure, which results in a
nuisance of which the entity has notice, may give rise to a
claim against the entity to abate that nuisance.    It has never
been the law that a governmental entity, by virtue of its
governmental status alone, may perpetuate an injurious condition
of which the entity has knowledge. Our decision reaffirms that
longstanding   limitation  on   the   power   of  government  to
continuously and knowingly invade the rights of its citizens.

                               17
                                                                   No.    2007AP221 & 2007AP1440


this argument).            We concluded that the language in Hasslinger,

upon which the City relied, was "misleading," and we overruled

Hasslinger to the extent that it implied "that operation of the

sewage-disposal           plant     in    accordance         with        specifications        and

orders       and    regulations      of    the       state    board       of     health     cannot

constitute a nuisance."                  Id.    We explained further that "[t]he

approval of the method of operation of the sewage-disposal plant

is pertinent not to the existence of the nuisance but to the

issue        of    whether     it   is     feasible          or     practicable        to    give

injunctional [sic] relief for the nuisance."                              Id. at 416.         This

principle has been applied in multiple cases before this court

and the court of appeals, discussed below.                                    In the case now

before us, Bostco has proved that the private nuisance can be

abated by reasonable means and at a reasonable cost.19

      ¶36         In Menick, the plaintiff claimed that the operation of

a   sewage        system resulted         in    the    flooding          of    the   plaintiff's

basement          with   raw    sewage     on    two       occasions,           constituting    a

private nuisance.              Menick, 200 Wis. 2d at 741.                      As we do here,
Menick focused on the duty that pertains to a municipal entity's

nuisance-causing           actions,        which      is     the     duty       to   abate    the

nuisance upon notice that the negligently caused condition is a

cause of significant harm.                 The court of appeals concluded that

although Menick had failed in her proof of her nuisance claim

because she did not offer an expert opinion as to the legal

cause of the flooding, the City would not have enjoyed immunity

from such an action based on private nuisance.                                Id. at 744-45.

        19
             See Special Verdict Question No. 11.

                                                18
                                                                No.   2007AP221 & 2007AP1440


       ¶37     Factually      similar    to    Menick         is    the    Welch     case,   in

which       Welch   claimed    that     flooding         that      occurred    after    heavy

rainfalls constituted a private nuisance, attributable to the

City    of     Appleton's      maintenance          of    its      storm     sewer    system.

Welch, 265 Wis. 2d 688, ¶1.                    The City asserted that it was

immune from suit pursuant to Wis. Stat. § 893.80(4).                                 Id., ¶5.

The court of appeals concluded that, as a matter of law, "no

statutory or common law immunity doctrine empowers a public body

to maintain a private nuisance."20                  Id., ¶8.

       ¶38     The most recent nuisance case is City of Milwaukee,

which we decided in 2005.              In City of Milwaukee, we reviewed the

legal issues surrounding a broken city water main that damaged a

section of MMSD's Deep Tunnel.                     City of Milwaukee, 277 Wis. 2d

635, ¶2.       There, MMSD alleged both negligence and nuisance, just

as Bostco has alleged here, asserting that the City did not

properly inspect or maintain its pipeline so as to discover the

leakage before the pipeline ruptured.                     Id., ¶3.

       ¶39     After   a    full      discussion         of     the    law    relating       to
nuisance, we concluded that there was a question of fact as to

whether the City had notice that its water main was leaking, and

that such notice was necessary to show that the City was under a

ministerial duty to abate the nuisance by repairing the water

pipe before it broke.           Id., ¶9.       We explained:



       20
       Ultimately, the court in Welch v. City of Appleton, 2003
WI App 133, 265 Wis. 2d 688, 666 N.W.2d 511, concluded that the
City's maintenance of its storm sewer was not a private
nuisance. Id., ¶8.

                                              19
                                           No.   2007AP221 & 2007AP1440

      [T]he City may be liable for its negligence in failing
      to repair the leaky water main. However, since there
      exists a material issue of fact as to whether the City
      had notice of the leaking water main, we cannot
      determine whether the City was under a ministerial
      duty to repair its water main prior to the break.
      Thus, we cannot determine whether the City is immune
      under § 893.80(4) from liability predicated upon a
      negligent failure to repair the water main before it
      burst.
Id.

      ¶40   A careful reading of City of Milwaukee is important to

deciding this case because our decision in City of Milwaukee is

grounded in a nuisance claim and also because it explains how

the duty to abate a nuisance intersects with the concept of a

ministerial duty of a municipal entity.   We explained,

      Since we cannot determine whether the City was on
      notice that its water main was leaking and could
      potentially interfere with the use and enjoyment of
      another's property, we cannot conclude whether its
      duty to repair the leaking main with reasonable care
      before   it   broke    was   "absolute,   certain   and
      imperative," or whether the City's decision not to
      repair the main before the break was discretionary.
Id., ¶62 (citation omitted).
      ¶41   It follows from our explanation in paragraph 62 of
City of Milwaukee, quoted above, that if the City had notice

that its water main was leaking before it broke, it had a duty




                                 20
                                                       No.    2007AP221 & 2007AP1440


to abate the nuisance by fixing the pipe.21                  The duty to fix the

pipe, if the City knew it was leaking, was "absolute, certain

and   imperative"——in          other   words,   ministerial——even          though   a

particular       method   of    repairing     the   leak     was    not   "absolute,

certain    and    imperative."22        This    conclusion         is   supported   by
      21
       In Anhalt v. Cities & Villages Mutual Insurance Co., 2001
WI App 271, 249 Wis. 2d 62, 72, 637 N.W.2d 422, the court of
appeals relied on our statement in Allstate Insurance Co. v.
Metropolitan Sewerage Commission of the County of Milwaukee, 80
Wis. 2d 10, 258 N.W.2d 148 (1977), that "the acts of designing,
planning and implementing a sewer system are discretionary acts
protected under Wis. Stat. § 893.80(4)."         This statement
comports with our decision today, in that we do not upset the
rule that acts of designing, planning, and implementing are
legislative or quasi-legislative acts subject to immunity under
§ 893.80(4).   Such acts, however, are distinguishable from the
act of negligently maintaining an existing system or structure
so as to cause a continuing nuisance, and longstanding law
demonstrates that the act of maintaining an existing system or
structure is not a legislative or quasi-legislative function.
See, e.g., Naker v. Town of Trenton, 62 Wis. 2d 654, 215 N.W.2d
38, aff'd on reh'g, 62 Wis. 2d 654, 660a, 217 N.W.2d 665 (1974)
("Once the decision is made and the [system or structure] is
erected, the legislative function is terminated and the doctrine
of Holytz that imposes liability for want of ordinary care takes
over.").   Neither Allstate nor Anhalt decided the question of
negligent maintenance that we reach today.           Rather, we
conclusively resolved that question in Milwaukee Metropolitan
Sewerage District v. City of Milwaukee (City of Milwaukee), 2005
WI 8, ¶59 277 Wis. 2d 635, 691 N.W.2d 658, in which we
recognized that a governmental entity is not entitled to
immunity for a negligent act when such act is not performed
pursuant to a legislative, quasi-legislative, judicial or quasi-
judicial function. Indeed, our decision in City of Milwaukee on
that point was intended to clarify any "confusion" created by
unclear statements in cases such as Anhalt.         See City of
Milwaukee, 277 Wis. 2d 635, ¶59 n.17.
      22
       For example, the City could have removed the precise area
of pipe that was leaking; it could have sealed the leaky pipe
and left it in place, etc. The choice of method for abating the
nuisance, like the decision to initially install a particular
system, was within the City's discretion.     Costas v. City of
Fond du Lac, 24 Wis. 2d 409, 418, 129 N.W.2d 217 (1964).
                                         21
                                                         No.    2007AP221 & 2007AP1440


Physicians Plus, where we explained that a negligently caused

nuisance resulting in significant harm, of which the municipal

entity    has    notice,    creates       a   ministerial      duty   to    abate   the

nuisance.       See Physicians Plus, 254 Wis. 2d 77, ¶59 (reaffirming

municipal       entity's     ministerial        duty     to     properly      maintain

structures installed pursuant to municipal entity's legislative

authority).

                              2.    MMSD's nuisance

     ¶42    In    this     case,    Bostco     proved    that    MMSD      negligently

caused a continuing private nuisance due to the manner in which

MMSD chose to maintain the Deep Tunnel.23                     MMSD had notice that

excessively siphoning groundwater from around Bostco's building

was interfering with Bostco's use and enjoyment of its property

by damaging the foundation of the building.

     ¶43    Here, in contrast to the City of Milwaukee case, no

further fact-finding is required before concluding that MMSD is

under a duty to abate.             MMSD knew that excessive siphoning of

water into the Deep Tunnel was a cause of significant harm to
Bostco's    building,      and     MMSD   could   have    abated      the    nuisance,

i.e., stopped the excessive siphoning, by reasonable means and

at a reasonable cost.24            Accordingly, the circuit court properly
     23
       See Sunnyside Feed Co. v. City of Portage, 222 Wis. 2d
461, 470, 588 N.W.2d 278 (Ct. App. 1998) (defining a continuing
nuisance as "an ongoing or repeated disturbance or harm" that
"can be discontinued or abated").
     24
       This is a fact question that was resolved by the jury.
Question No. 11 of the Special Verdict asked: "Can the District
abate the interference by reasonable means and at a reasonable
cost so that it no longer interferes with Boston Store's use and
enjoyment of their building?" The jury answered this question,
"Yes."
                               22
                                                             No.   2007AP221 & 2007AP1440


concluded that MMSD was required to abate the private nuisance

caused by MMSD's negligent maintenance of the Deep Tunnel.25

                             D.     Municipal Immunity

       ¶44    In the context of municipal entities, the obligation

to abate a known private nuisance is additionally subject to the

principles of immunity for governmental entities.                            We therefore

turn    to    interpreting     those        statutes    relevant        to   an   immunity

analysis:      Wis. Stat. § 893.80(4) and (3).

       ¶45    Statutory interpretation requires us to determine the

statute's      meaning,      which    is     assumed    to    be   expressed        in    the

language chosen by the legislature.                    Richards, 309 Wis. 2d 541,

¶20.        If the meaning of the statute is apparent in the plain

language,      we    apply   that     language.         State      ex   rel.      Kalal   v.

Circuit Court for Dane Cnty., 2004 WI 58, ¶45, 271 Wis. 2d 633,

681    N.W.2d       110.     We      give    statutory       terms      their     "common,


       25
       As discussed above, in accordance with our decision in
City of Milwaukee, once a governmental entity has notice that
its negligent maintenance of a system or structure is causing
damage, it is the manner in which MMSD complies with the
ministerial duty to fix the problem that is subject to
discretion; no such discretion exists as to whether MMSD must
fix the known problem. Cf. Rolland v. Cnty. of Milwaukee, 2001
WI App 53, ¶12, 241 Wis. 2d 215, 625 N.W.2d 590 (explaining that
the driver of a bus had a ministerial duty not to drive the bus
with a wheelchair passenger aboard unless the passenger was
secured, even though the method of securing the wheelchair was
discretionary).   This conclusion comports with our statement in
City of Milwaukee, 277 Wis. 2d 635, ¶8, that a governmental
entity "is immune from suit for nuisance if the nuisance is
predicated on negligent acts that are discretionary in nature."
Because negligent maintenance of an existing system or structure
is not a "legislative, quasi-legislative, judicial or quasi-
judicial function," i.e., is not discretionary, no immunity
attaches to the entity's negligent maintenance.

                                             23
                                                       No.      2007AP221 & 2007AP1440


ordinary,        and    accepted   meaning,      except      that      technical   or

specially-defined words or phrases are given their technical or

special definitional meaning."            Id.

     ¶46     A     plain     meaning     analysis     may        be     assisted   by

consideration of statutory context and structure.                      See id., ¶46.

"[T]he statutory context in which a term is used, including the

language     and       structure   of    surrounding       or     closely     related

statutes, is often highly instructive in determining a term's

meaning."        State v. Soto, 2012 WI 93, ¶20, 343 Wis. 2d 43, 817

N.W.2d 848 (citing State v. Jensen, 2010 WI 38, ¶15, 324 Wis. 2d

586, 782 N.W.2d 415).          The purpose of the legislation also may

be useful in ascertaining a statute's meaning.                        Sheboygan Cnty.

Dep't of Health & Human Servs. v. Tanya M.B., 2010 WI 55, ¶28,

325 Wis. 2d 524, 785 N.W.2d 369.                Furthermore, we are assisted

by   prior       decisions    that      have    examined        similar     statutory

questions.        See DeHart v. Wis. Mut. Ins. Co., 2007 WI 91, ¶15,

302 Wis. 2d 564, 734 N.W.2d 394.                Finally, if the statute was a

legislative attempt to follow the rule of law set forth in a
particular supreme court decision, a review of that decision

also informs our understanding of the statute.

     ¶47     In regard to the immunity question presented herein,

initially we are concerned with Wis. Stat. § 893.80(4), which

provides in relevant part:

          No suit may be brought against any . . .
     political corporation, governmental subdivision or any
     agency thereof for the intentional torts of its
     officers, officials, agents or employees nor may any
     suit be brought against such corporation, subdivision
     or agency . . . for acts done in the exercise of

                                         24
                                                       No.   2007AP221 & 2007AP1440

     legislative, quasi-legislative,              judicial      or     quasi-
     judicial functions.
We begin by noting that § 893.80(4) was intended to codify our

decision in Holytz v. City of Milwaukee, 17 Wis. 2d 26, 115

N.W.2d 618 (1962).          See Coffey v. City of Milwaukee, 74 Wis. 2d

526, 532, 247 N.W.2d 132 (1976) (recognizing that § 893.80(4)'s

indirect predecessor, Wis. Stat. § 331.43 (1963), was intended

to codify Holytz); see also Raisanen v. City of Milwaukee, 35

Wis. 2d 504, 515-16, 151 N.W.2d 129 (1967) (noting § 331.43's

intermediate enumeration as Wis. Stat. § 895.43).

     ¶48     As    the     Legislative    Council      Report    of        1976   also

explains:

          Prior to 1961 local units of government in
     Wisconsin were generally immune from tort liability
     because of the judicial doctrine of governmental
     immunity. . . .    In 1961 the case of Holytz v.
     Milwaukee (1961), 17 Wis. 2d 26, was decided which
     abrogated the principal of governmental immunity from
     tort liability. . . .    The opinion did not impose
     liability on a governmental body in the exercise of
     its legislative or judicial or quasi-legislative or
     quasi-judicial functions, and to that extent a part of
     the immunity doctrine remained intact. . . .       The
     general statute concerning the liability of local
     governmental units for torts [then § 343.80, now
     § 893.80] was enacted shortly after this decision and
     in many respects draws from the decision for its
     content.
Therefore,      our   interpretation      of    Wis.   Stat.     § 893.80(4)        is

informed by a review of Holytz.

     ¶49     In Holytz, we explicitly abrogated common law immunity

for municipal entities as it existed in 1962.                    See Holytz, 17

Wis. 2d    at     39–41.     The   abrogation    was   intended       to    apply   to

municipal entity liability for all torts, "whether they be by


                                         25
                                               No.    2007AP221 & 2007AP1440


commission or omission."26    Id. at 39.    The one limitation on our

broad abrogation was clearly stated:        our decision was "not to

be interpreted as imposing liability on a governmental body in

the exercise of its legislative or judicial or quasi-legislative

or quasi-judicial functions."       Id. at 40.       The second sentence

of Wis. Stat. § 893.80(4) mirrors this limitation of municipal

entity liability.27

     ¶50   The rule as to municipal entity liability has been

repeated   many   times   since   our   decision     in   Holytz   and   the

enactment of Wis. Stat. § 893.80:        as to non-state governmental

entities, "'the rule is liability——the exception is immunity.'"

Kimps v. Hill, 200 Wis. 2d 1, 10 n.6, 546 N.W.2d 151 (1996)




     26
       The court's abrogation of immunity in Holytz v. City of
Milwaukee, 17 Wis. 2d 26, 115 N.W.2d 618 (1962), was not limited
to municipalities, and applied to public bodies within the state
such as counties, cities, villages, towns, school districts,
sewer districts, drainage districts, and any other political
subdivisions of the state.     Id. at 40.    Therefore, although
Holytz and subsequent discussions have referred to "municipal
immunity," the phrase "governmental immunity" has been used
interchangeably   to   apply   to  state   officers,   non-state
governmental entities, and officers or employees of those
entities.
     27
       In Holytz, we also recognized that the State's sovereign
immunity has its foundation in the Wisconsin Constitution,
Article IV, Section 27, which provides that "The legislature
shall direct by law in what manner and in what courts suits may
be brought against the state."     Accordingly, the effect of
Holytz has been more relevant to suits against governmental
entities other than the State, as well as to governmental
officers and employees.

                                   26
                                                           No.    2007AP221 & 2007AP1440


(quoting Holytz, 17 Wis. 2d at 39).28                See, e.g., Jorgenson v. N.

States    Power    Co.,    60   Wis. 2d    29,      37,   208    N.W.2d    323    (1973)

(concluding that a city's failure to authorize the temporary

removal of a light pole so that it would not injure workers

digging next to the pole's base did not constitute an exercise

of a legislative or quasi-legislative function); Naker v. Town

of Trenton, 62 Wis. 2d 654, 215 N.W.2d 38, aff'd on reh'g, 62

Wis. 2d    654,    660a,   217 N.W.2d 665           (1974)       (concluding     that    a

traffic    sign,    once    erected,      must      be    properly     maintained       or

liability may follow).

     ¶51    Furthermore,        although       a    municipal        entity      escapes

liability    for    its    legislative         or   quasi-legislative          decision

regarding whether to install a particular system or structure,

once the municipal entity makes the decision to install, the




     28
       In contrast to governmental entities, for governmental
officers acting in their official capacity, we have stated that
the rule is immunity, and the exception is liability. See Cords
v. Anderson, 80 Wis. 2d 525, 539, 259 N.W.2d 672 (1977).   This
rule for governmental officers is based on public policy
considerations that support limiting public officers' personal
liability for damages, namely, "(1) The danger of influencing
public officers in the performance of their functions by the
threat of lawsuit; (2) the deterrent effect which the threat of
personal liability might have on those who are considering
entering public service; (3) the drain on valuable time caused
by such actions; (4) the unfairness of subjecting officials to
personal liability for the acts of their subordinates; and (5)
the feeling that the ballot and removal procedures are more
appropriate methods of dealing with misconduct in public
[office]." Lister v. Bd. of Regents of the Univ. of Wis. Sys.,
72 Wis. 2d 282, 299, 240 N.W.2d 610 (1976).

                                          27
                                                               No.   2007AP221 & 2007AP1440


entity is under a subsequent ministerial duty29 to maintain the

system     or    structure       in     a   safe    and   working       order.        As   we

explained in Naker:

      Once the decision is made and the sign is erected, the
      legislative function is terminated and the doctrine of
      Holytz that imposes liability for want of ordinary
      care takes over.   A sign once erected by legislative
      action must be properly maintained.
Naker, 62 Wis. 2d at 660a.
      ¶52       As discussed above, in City of Milwaukee, we explained

the   relationship           between    municipal       immunity      under    Wis.   Stat.

§ 893.80(4) and the duty to abate a private nuisance.                             We held

that if the City of Milwaukee had a duty to repair the water

pipe so that it did not rupture and damage MMSD's tunnel (which

duty in turn was dependent upon the City having notice that the

pipe was leaking), such duty was ministerial and there would be

no immunity under § 893.80(4) for the City's failure to abate

the nuisance its leaking pipe had created.                           City of Milwaukee,

277 Wis. 2d 635, ¶62.             Therefore, in City of Milwaukee, if the

City had notice of the leaking water pipe, the nuisance it was

maintaining          would    require       abatement     as    a    non-discretionary,

ministerial duty.

      ¶53       In    the     present       case,   the    court       of     appeals,     in

reversing       the    circuit    court's       order     for    abatement,      concluded

that while Wis. Stat. § 893.80(4) does not provide immunity,


      29
       The decision in Naker, 62                Wis. 2d at 660a, does not label
the duty to "properly maintain"                 the sign the town erected as a
"ministerial duty."     However,                the conclusion that it is a
ministerial duty flows from                     the liability to which the
municipality was subject.

                                              28
                                                          No.    2007AP221 & 2007AP1440


§ 893.80(3) does not allow parties to obtain equitable relief

against governmental entities because doing so would "render the

damage cap set forth in Wis. Stat. § 893.80(3) superfluous."

Bostco, 334 Wis. 2d 620, ¶129.                  The court of appeals concluded

that because § 893.80(3) is silent about equitable relief, when

read with § 893.80(5), § 893.80(3) precluded the circuit court's

order enjoining MMSD from continuing to injure Bostco.                                Id.,

¶¶130-31.    To test the court of appeals decision, we turn to the

language of § 893.80(3), and construe the statute according to

its plain meaning.

     ¶54    Statutory interpretation begins with the words chosen

by the legislature.          Wisconsin Stat. § 893.80(3) provides in

relevant part:

          Except as provided in this subsection, the amount
     recoverable by any person for any damages, injuries or
     death in any action founded on tort against any . . .
     governmental  subdivision   . . .  shall   not  exceed
     $50,000.
(Emphasis added).

     ¶55    Wisconsin      Stat.        § 893.80(3)      addresses        "the     amount

recoverable by any person for any damages, injuries or death."

The statute limits the "amount recoverable" "by any person" to

$50,000.    The words chosen by the legislature should be given

their plain meaning.        Kalal, 271 Wis. 2d 633, ¶45.                  An order for

abatement    does    not    entitle        "any    person"       to     "recover"      any

"amount."      It     is    a    foundational           principle        of    statutory

construction     that      "no   word       or    clause        shall     be     rendered

surplusage."        Donaldson      v.    State,    93    Wis. 2d        306,   315,    286

N.W.2d 817 (1980).          The court of appeals ignored the phrase,

                                           29
                                                                    No.    2007AP221 & 2007AP1440


"the amount recoverable by any person"; however, courts are not

free to ignore the words or phrases chosen by the legislature.

See Brunton v. Nuvell Credit Corp., 2010 WI 50, ¶16, 325 Wis. 2d

135, 785 N.W.2d 302.

      ¶56     Also,        non-technical        words         are     to       be    given      their

ordinary and accepted meanings.                      Town of LaFayette v. City of

Chippewa Falls, 70 Wis. 2d 610, 619, 235 N.W.2d 435 (1975).                                        The

phrase, "amount recoverable by any person," is stated in non-

technical        terminology.            In    order      to    give           an    ordinary      and

accepted meaning to those terms, we conclude that the statute

describes        a    relationship.           That   relationship               is    between      any

person     who       is   entitled    to      recover     a    damage          award    against      a

municipal        entity     and    the     amount    of       that        monetary     liability.

Accordingly, we conclude that the plain meaning of Wis. Stat.

§ 893.80(3) is to limit the dollar amount of recovery to be paid

for damages, injuries or death to $50,000 per claimant, but that

the   plain      meaning      of     that     provision        has        no    bearing       on   the

availability of equitable relief such as abatement.

      ¶57     This        interpretation        is   consistent             with      prior    cases

interpreting Wis. Stat. § 893.80, such as Harkness v. Palmyra-

Eagle School District, 157 Wis. 2d 567, 460 N.W.2d 769 (Ct. App.

1990),30 in which the court of appeals was asked to consider

whether § 893.80(4) should be interpreted to preclude equitable


      30
       Harkness v. Palmyra-Eagle School District, 157 Wis. 2d
567, 460 N.W.2d 769 (Ct. App. 1990), was overruled by DNR v.
City of Waukesha, 184 Wis. 2d 178, 191, 515 N.W.2d 888 (1994),
to the extent that Harkness implied that § 893.80(1)'s notice of
claim requirement applied only to tort claims.

                                                30
                                                                  No.   2007AP221 & 2007AP1440


relief.     The court held that in regard to Harkness's claim for

reinstatement,          there          was       "no     authority        indicating            that

[§ 893.80(4)]         applies       to     equitable       or    injunctive          relief"     for

such a claim; accordingly, § 893.80(4) did not bar Harkness's

claim for reinstatement.                 Id. at 579-80.

     ¶58    Our        interpretation             of     Wis.     Stat.     § 893.80(3)           is

consistent with that statement in Harkness, and consistent with

the statutory history that we laid out in Anderson v. City of

Milwaukee, 208 Wis. 2d 18, 559 N.W.2d 563 (1997).                                    In Anderson,

Justice Crooks thoroughly explained the genesis of § 893.80(3),

and quoted from our opinion in Holytz:                           "'[H]enceforward, so far

as governmental responsibility for torts is concerned, the rule

is liability——the exception is immunity.'"                              Id. at 26 (quoting

Holytz,    17    Wis. 2d       at      39).        Anderson      explained       the       changing

dollar amounts that could be recovered as damages, showing that

the bill from which § 893.80(3) evolved began with a $10,000

limitation,          changed      to       a     $25,000    limitation          in     a    Senate

Amendment, and increased to a $50,000 limitation by the Laws of
1981, ch. 63, § 2.                Id. at 27 n.9.             Throughout these changes,

nothing    in    the       legislative           history     addressed      limitations          on

equitable       relief       of     any        type.        Without       any        language    in

§ 893.80(3)      to     suggest        a       limitation    on    equitable          relief,    we

decline to read in any such limitation.

                                  E.       Equitable Relief

     ¶59    In       the    case       now      before     us,    the    court        of   appeals

attempted       to    fill     the         legislature's         silence        in     regard    to

equitable       relief      under        Wis.     Stat.     § 893.80(3)         by     construing

                                                  31
                                                          No.    2007AP221 & 2007AP1440


§ 893.80(5) to create limitations in § 893.80(3) that were not

placed there by the legislature.                Bostco, 334 Wis. 2d 620, ¶130.

The court of appeals said that the phrase "shall be exclusive"

in § 893.80(5), limits a plaintiff's recovery to those remedies

set forth in § 893.80 and because injunctions are not mentioned,

they are not available against a municipality.                          Id.     However,

there      is   nothing     in   either   the    language       or    the     history   of

§ 893.80 to support the court of appeals' broad limitation of

remedies and its conclusion that § 893.80(3) precludes actions

in equity.31       The court of appeals' decision, if affirmed, would

have far-reaching effects and would overrule extensive precedent

in   regard      to   the    authority    of     courts     to       enjoin    municipal

entities.32

     ¶60        To obtain injunctive relief, generally one must show

that the injunction is necessary to prevent the continuation of

significant harm.           Pure Milk Prods. Coop. v. Nat'l Farmers Org.,


      31
       The words injunction, enjoin, or similar terms that may
indicate equitable relief are not present in the statute.
Furthermore,   reference   to   injunctive   relief   would   be
inconsistent with the purposes of the statute, such as providing
a recovery for death.
      32
       In addition, the court of appeals' limitation of remedies
based on statutory silence contradicts our decision in Willow
Creek Ranch, L.L.C. v. Town of Shelby, 2000 WI 56, 235 Wis. 2d
409, 611 N.W.2d 693, reconsid. denied 239 Wis. 2d 314, wherein
we expressly affirmed the availability of declaratory relief, a
nonmonetary remedy that, like equitable relief, is not mentioned
in Wis. Stat. § 893.80(3). Id., ¶36 n.12. Moreover, the court
of appeals' conclusion in the case before us is also contrary to
Wis. Stat. § 813.02, which has been employed to issue temporary
injunctions against municipalities.    See Wis. Ass'n of Food
Dealers v. City of Madison, 97 Wis. 2d 426, 428-29, 293 N.W.2d
540 (1980).

                                          32
                                                            No.    2007AP221 & 2007AP1440


90 Wis. 2d 781, 803, 280 N.W.2d 691 (1979).                        "The purpose of an

injunction is to prevent [future] violations."                            Id.    In that

respect, injunctive relief is consistent with the obligation to

abate a continuing private nuisance, which obligation is imposed

to prevent future harms.             See, e.g., Menick, 200 Wis. 2d at 745

(concluding that "there is no discretion as to maintaining the

[sewer] system so as not to cause injury to residents").

       ¶61    While    the   legislature        may    have       authority     to     limit

equitable relief in some circumstances, there is nothing in the

language      of   Wis.      Stat.    § 893.80(3)          to     indicate      that    the

legislature sought to do so.             When a statute fails to address a

particular situation, the remedy for the omission does not lie

with   the     courts.       It   lies   with    the       legislature.         La Crosse

Lutheran Hosp. v. La Crosse Cnty., 133 Wis. 2d 335, 338, 395

N.W.2d 612 (Ct. App. 1986).

       ¶62    Both before and after Holytz, when the principles of

immunity have been applied to claims against municipal entities

for damages, those principles have not been held applicable to
claims       for   injunctive        relief     against         ongoing    governmental

activities.        Perhaps one of the clearest recognitions of this

distinction was our statement in Lister v. Board of Regents of

the University of Wisconsin System, 72 Wis. 2d 282, 240 N.W.2d

610 (1976).         In Lister, we explained that the public policy

considerations that have prompted courts to grant substantive

immunity for monetary damages do not apply with equal force to

actions for declaratory or injunctive relief.                         Id. at 304; see

also   Scarpaci       v.   Milwaukee     Cnty.,       96    Wis. 2d    663,     691,     292

                                          33
                                                                No.    2007AP221 & 2007AP1440


N.W.2d      816   (1980)        (reaffirming         that    policies       that      underlie

immunity from damages do not apply with equal force to a suit

for injunctive relief).

      ¶63      However, in Johnson v. City of Edgerton, 207 Wis. 2d

343, 558 N.W.2d 653 (Ct. App. 1996), the court of appeals seemed

to   slip      away    from     precedent      in     regard     to    injunctive      relief

against       municipal       entities,       without       recognizing        that    it   was

making a significant change in the law.                        Accordingly, Johnson is

a concern that must be addressed for a number of reasons.                                   See

Willow Creek Ranch, L.L.C. v. Town of Shelby, 2000 WI 56, ¶¶75–

99, 235 Wis. 2d 409, 611 N.W.2d 693 (Prosser, J., dissenting).

First, because the language in Johnson is so broad, it could be

interpreted as overruling, sub-silentio, prior decisions of the

court     of    appeals        that    addressed       immunity        under    Wis.    Stat.

§ 893.80(4),          which    were,    in    turn,     based     on    the    longstanding

availability          of   equitable        relief    to    abate     ongoing      nuisances.

See, e.g., Hillcrest, 135 Wis. 2d at 439-40 (explaining that the

"creation and maintenance of private nuisances are simply not
recognized as legislative acts subject to protection under sec.

893.80(4)"); see also, Harkness, 157 Wis. 2d 567, 579-80.                                   The

court    of    appeals        does    not    have    the    power      to   overrule    prior

decisions.        See Cook v. Cook, 208 Wis. 2d 166, 171, 560 N.W.2d

246 (1997) (concluding that the court of appeals does not have

the power to overrule, modify or withdraw language from another

court of appeals decision).

      ¶64      Second,        the    court    of     appeals'     decision      in    Johnson

(upon which we based part of our decision barring injunctive

                                               34
                                                              No.    2007AP221 & 2007AP1440


relief in Willow Creek), focused on the wrong language in the

municipal immunity statute, Wis. Stat. § 893.80(4), in that the

court of appeals emphasized that immunity applied to "any suit."

See Johnson, 207 Wis. 2d at 350–52.                    Instead, the relevant focus

when     considering         whether       § 893.80(4)       grants       immunity      is    on

whether the action sought to be enjoined was within a limited

class of municipal decisions that involve the performance of

"legislative,          quasi-legislative,            judicial        or     quasi-judicial

functions."          As our cases and those of the court of appeals make

clear,     a    municipal         entity's      failure      to     abate    a   continuing

nuisance       caused        by     negligent      maintenance        of     a   system       or

structure,       after        the     municipality          has     notice,       does       not

constitute a legislative, quasi-legislative, judicial or quasi-

judicial       act    that    may     be   entitled    to     immunity.          See,    e.g.,

Costas, 24 Wis. 2d at 413–19; Hillcrest Golf, 135 Wis. 2d at

439-40.

       ¶65     Third, Johnson relied on the principles of immunity

that apply to municipal officers.                    Johnson, 207 Wis. 2d at 352.
However,       for    municipal       officers,       the    rule     is    immunity,        not

liability.           See Cords v. Anderson, 80 Wis. 2d 525, 539, 259

N.W.2d 672 (1977).                The Johnson decision's reliance on those

principles       is    misplaced       because      Johnson       actually       involved      a

municipal       entity,       and    therefore,      the    rule     is     liability,       not

immunity.       Kimps, 200 Wis. 2d at 10 n.6.

       ¶66     Furthermore,          the     Johnson        decision's        errors      were

uncorrected by our decision in Willow Creek.                           We did note that

"[t]o the extent that the language in Johnson suggests other-

                                              35
                                                                  No.    2007AP221 & 2007AP1440


wise by expanding immunity too broadly, we limit that language."

Willow Creek, 235 Wis. 2d 409, ¶34.                         We did not describe how the

language in Johnson was limited.33                         However, we now clarify that

under Willow Creek and Johnson, equitable relief will be barred

when a municipal entity is entitled to immunity.                                  Accordingly,

our analysis in this case would be different if we concluded

that    MMSD           were    entitled        to    municipal       entity      immunity     for

legislative,             quasi-legislative,               judicial       or     quasi-judicial

functions.             Under circumstances when immunity applies, it bars

claims for both monetary damages and injunctive relief.                                       Id.,

¶36.        Therefore, when a plaintiff seeks equitable or injunctive

relief against a municipal entity, a court must first answer the

threshold question                 of whether        immunity     applies.         If    a court

concludes that the actions                      the plaintiff           is    seeking    to   stop

through       a    suit       in   equity      are   legislative,            quasi-legislative,

judicial          or    quasi-judicial,         then       the   suit    must     be    dismissed

because the governmental entity is protected by immunity.

       ¶67        In    addition,       City    of       Milwaukee   concluded         that   Wis.
Stat. § 893.80(4) provides no immunity for a municipal entity's

ministerial duty to abate.                     City of Milwaukee, 277 Wis. 2d 635,

¶¶9, 54.          This conclusion is also supported by our discussion in

Physicians Plus, where we addressed nuisance and the duty of

municipal          entities        to   abate        a    nuisance      that     the    entities


       33
       Moreover, Willow Creek is not a private nuisance case
such as we have here, where the obligation to abate arises with
the municipal entity receiving notice of the continuing private
nuisance, which has resulted in significant harm.   See City of
Milwaukee, 277 Wis. 2d 635, ¶¶51-62.

                                                    36
                                                                  No.    2007AP221 & 2007AP1440


negligently maintained and of which they had notice.                                 Physicians

Plus, 254 Wis. 2d 77, ¶¶2–3, 59.

      ¶68    Our conclusion that municipal entities may be subject

to orders for equitable relief also finds support in statutory

provisions       referring       to   the       availability        of    equitable        relief

from continuing nuisances, as well as long-standing precedent to

the same effect.            Currently, Wis. Stat. § 844.01(1) provides

that "Any person owning or claiming an interest in real property

may bring an action claiming physical injury to, or interference

with, the property or the person's interest therein; the action

may be to redress past injury, to restrain further injury, to

abate the source of injury, or for other appropriate relief."

Wisconsin Stat. § 844.17(1) then provides that "Any person whose

activities have injured or will injure the plaintiff's property

or   interests      may     be    made      a    defendant."             (Emphasis        added.)

"Person"    includes        "all      partnerships,            associations         and   bodies

politic     or    corporate."            Wis.          Stat.      § 990.01(26).            These

statutes, therefore, refer to circumstances wherein a political
body, such as a municipality, may be subject to an action to

redress     injury     to      private          property       caused      by   a     municipal

entity's negligent maintenance of a private nuisance that caused

significant harm.

      ¶69   Indeed,       we     expressed            such   an   understanding           of   the

common law duty to abate and of immunity in Costas.                                 Therein, we

concluded that a private individual could bring an action for

abatement    of    a   private        nuisance          against     a    municipal        entity,

thereby reaffirming the longstanding availability of injunctive

                                                 37
                                                                No.   2007AP221 & 2007AP1440


relief against municipally maintained nuisances.                             See Costas, 24

Wis. 2d at 413–19 (citing Winchell, 110 Wis. 101) (recognizing

that municipal entities may be subject to actions for equitable

relief        from     ongoing         nuisances)).             In     recognizing             the

availability of such relief, we relied on Wis. Stat. § 280.01,

which    provided       that     "any    person        may   maintain        an    action      to

recover damages for or to abate a private nuisance."                                     Id. at

414.

        ¶70    In 1973, the legislature amended Wis. Stat. § 280.01

and created Wis. Stat. § 814.01, which was identical to current

Wis. Stat. § 844.01.              See § 16, ch. 189, Laws of 1973.                            The

effect of this amendment was to incorporate § 280.01's relief

for     interferences           with     private       property        into       the        newly

consolidated chapters governing actions to enforce interests in

real property.          See Drafting File for ch. 189, Laws of 1973,

Analysis       by    the    Legislative             Reference     Bureau,         Legislative

Reference Bureau, Madison, Wis.                     Therefore, since the abrogation

of municipal immunity in Holytz and its subsequent codification
in Wis. Stat. § 893.80, not only have we, in Costas, reaffirmed

the     availability       of    equitable          relief    for     the     abatement         of

municipal       nuisances,         but     the        legislature,          after       Costas,

reaffirmed       the    availability           of    such    relief     when       it    simply

renumbered      and    reorganized        former       § 280.01       into    what       is    now

§ 844.01.

        ¶71    Therefore,       based     on    the     statutory      history          of    Wis.

Stat. § 844.01, as well as the common law governing nuisance and

the principles of equitable relief, we reach the ineluctable

                                               38
                                                            No.    2007AP221 & 2007AP1440


conclusion that a municipal entity may be subjected to claims

for equitable relief to abate a negligently maintained nuisance

that is a cause of significant harm and of which the municipal

entity has notice.             Accordingly, we conclude that the circuit

court did not erroneously exercise its discretion in granting

Bostco equitable relief.

     ¶72       When    the    circuit      court    ordered       MMSD   to    abate   the

private nuisance caused by MMSD's negligent maintenance of its

Deep Tunnel, it applied the appropriate legal standard and made

a decision that a reasonable court could make.                                The circuit

court's    order       required       MMSD   to     abate   a     continuing      private

nuisance, of which MMSD had notice and which MMSD could abate by

reasonable means and at a reasonable cost.                         The circuit court,

however, went one step too far when, without hearing testimony,

it concluded that lining the Deep Tunnel was the required means

of abatement.           Accordingly, we reverse the court of appeals'

conclusion that an order for abatement was improper.                            Abatement

is required.          We therefore affirm the circuit court's order for
abatement, and remand the matter to the circuit court.                                 Upon

remand,    a    hearing       may    be   held     to   establish     whether     another

method     will       abate     the       continuing      private        nuisance      MMSD

maintains, or whether lining the Deep Tunnel with concrete is

required for abatement.

                                F.    Remaining Issues

     ¶73       Having concluded that Bostco is entitled to relief in

the form of abatement of MMSD's continuing nuisance, we now turn

to Bostco's other asserted claims for relief, beginning with its

                                             39
                                              No.    2007AP221 & 2007AP1440


challenge to the limitation of damages set forth in Wis. Stat.

§ 893.80(3), then moving to Bostco's inverse condemnation claim,

and finishing with MMSD's claim that Bostco failed to comply

with the notice of claim provisions of § 893.80(1) (2005–06).

Because we agree with the court of appeals' thorough analyses of

these issues,34 see Bostco, 334 Wis. 2d 620, ¶¶38–65, 85–91, 108–

117, we address them briefly.

     1.    Limitation of damages under Wis. Stat. § 893.80(3)

     ¶74   Bostco claims that the damage cap under Wis. Stat.

§ 893.80(3)   is   unconstitutional,   in   that    it   violates     equal

protection of the law, in contravention of Article I, Section 1

of the Wisconsin Constitution.    Section 1 provides:

     All people are born equally free and independent, and
     have certain inherent rights; among these are life,
     liberty and the pursuit of happiness; to secure these
     rights, governments are instituted, deriving their
     just powers from the consent of the governed.
Wis. Const.   art. I, § 1.      Specifically,      Bostco   asserts   that

§ 893.80(3) violates equal protection (1) facially, by affording

complete relief to plaintiffs injured by governmental actions

causing less than $50,000 in damages, while arbitrarily limiting

the amount of recovery by those plaintiffs who suffer greater

damages; and (2) as applied in this case, because parties who

     34
       Similarly, because our decision does not "overrule" the
court of appeals decision, but rather "reverses in part" the
decision of the court below in the same case, the rule announced
in Blum v. 1st Auto & Casualty Insurance Co., 2010 WI 78, ¶56,
326 Wis. 2d 729, 786 N.W.2d 78, does not apply here. Cf. State
v. Ziegler, 2012 WI 73, ¶7 n.3, 342 Wis. 2d 256, 816 N.W.2d 238
(recognizing that supreme court decision "withdrawing language"
from previous court of appeals decision does not implicate the
Blum rule).

                                 40
                                                        No.    2007AP221 & 2007AP1440


settled with MMSD before June 30, 1994, were not limited to the

amounts      available      under     § 893.80(3),       while      those        seeking

recovery     after   that    arbitrarily       set   date     are   limited      to    the

statutory amounts of recovery.

       ¶75    Wisconsin     Stat.     § 893.80(3)'s     limitation         of    damages

provides in relevant part:

            Except as provided in this subsection, the amount
       recoverable by any person for any damages, injuries or
       death in any action founded on tort against any
       volunteer fire company organized under ch. 181 or 213,
       political corporation, governmental subdivision or
       agency thereof and against their officers, officials,
       agents or employees for acts done in their official
       capacity or in the course of their agency or
       employment, whether proceeded against jointly or
       severally, shall not exceed $50,000.
We   have    had   occasion      to   review    this    provision         on    multiple

occasions, including challenges asserting that the limitation on

damages      violates    equal      protection.        See    Sambs       v.    City   of

Brookfield, 97 Wis. 2d 356, 293 N.W.2d 504 (1980); Stanhope v.

Brown Cnty., 90 Wis. 2d 823, 280 N.W.2d 711 (1979).                       As noted by

the court of appeals in this case, we have upheld § 893.80(3)'s
limitation of damages previously, and Bostco has not persuaded

us to change our position.
       ¶76    With regard to Bostco's facial challenge, we reiterate

the high standard facing litigants asserting a constitutional
challenge:       legislative enactments are presumed constitutional,

and we will resolve any reasonable doubt in favor of upholding
the provision as constitutional.                See Stanhope, 90 Wis. 2d at

837.    In the context of an equal protection challenge, we will

sustain      a   legislative     enactment      that    creates       a    distinction

                                         41
                                                            No.    2007AP221 & 2007AP1440


between     treatment      of    different       groups,      if     there    exists   a

rational basis to support that distinction, provided that the

distinction does not implicate a suspect class or impinge upon a

fundamental right.          See State v. Quintana, 2008 WI 33, ¶79, 308

Wis. 2d 615, 748 N.W.2d 447.                 Because Bostco does not assert

that it is a member of a protected class, or that recovery in

tort from a governmental entity is a fundamental right, we must

uphold    the    damage    limitations      in    Wis.      Stat.     § 893.80(3),     if

there exists a rational basis for the legislature to limit the

amount of damages recoverable by plaintiffs against governmental

entities.       See Stanhope, 90 Wis. 2d at 837–842.                  "The basic test

is not whether some inequality results from the classification,

but whether there exists any reasonable basis to justify the

classification."           Sambs,     97   Wis. 2d     at    371    (emphasis      added)

(quoting Omernik v. State, 64 Wis. 2d 6, 19, 218 N.W.2d 734

(1974)).

     ¶77    In Holytz, 17 Wis. 2d at 40, we recognized that the

legislature      was   free      to    limit     the   amount       of   damages    that
plaintiffs may recover from governmental entities for the torts

of those entities or their officers.                   We have since reiterated

that principle in Sambs, 97 Wis. 2d at 371–78, and Stanhope, 90

Wis. 2d    at    837–42.        We    now reaffirm     the        legislature's valid

limitation of the amount of damages recoverable under Wis. Stat.

§ 893.80(3).       The principle we expressed in Stanhope, 90 Wis. 2d

at 842, is as applicable today as it was over 30 years ago:

     It is within the legitimate power of the legislature
     to take steps to preserve sufficient public funds to
     ensure that the government will be able to continue to
     provide those services which it believes benefits the
                               42
                                                            No.    2007AP221 & 2007AP1440

       citizenry.   We   conclude  that   the   legislature's
       specification of a dollar limitation on damages
       recoverable allows for fiscal planning and avoids the
       risk of devastatingly high judgments while permitting
       victims of public tortfeasors to recover their losses
       up to that limit.
Accordingly, we conclude that a rational basis exists for the

damage limitations in § 893.80(3), and therefore reject Bostco's

facial challenge to that provision.

       ¶78   In its as-applied challenge to the damage limits in

Wis.   Stat.   § 893.80(3),          Bostco      asserts    that     there    exists   no
rational basis for MMSD to treat its claim any differently than

those claims that MMSD paid before June 30, 1994, which were not

subject to the statutory damage limitations.                       During the time of

construction       of   the   Deep    Tunnel,      MMSD     paid    certain    property

owners for damages caused by soil settlement in the area in

which the Deep Tunnel was being constructed.                          With the belief

that   it    had   properly     addressed         that     issue    as   pertained     to

affected landowners, MMSD established the June 30, 1994, date as

a cutoff for claims, after which MMSD would no longer compensate

local landowners for property damage allegedly caused by soil
settlement.

       ¶79   Bostco asserts that the establishment of the June 1994

date was arbitrary, thereby violating the precept that "every

person within the state's jurisdiction will be protected against

intentional and arbitrary discrimination, whether arising out of

the terms of a statute or the manner in which the statute is

executed by officers of the state."                      State ex rel. Murphy v.

Voss, 34 Wis. 2d 501, 510, 149 N.W.2d 595 (1967).                        The necessary

corollary,     however,       is     that     some    inequality         is   generally

                                            43
                                                       No.    2007AP221 & 2007AP1440


insufficient        to     demonstrate          unconstitutional         disparate

treatment——again, where there exists a rational basis for the

unequal treatment, we will sustain the official action as within

the legislature's power.          See State v. McManus, 152 Wis. 2d 113,

131, 447 N.W.2d 654 (1989).

       ¶80   Here, MMSD made the decision to stop paying claims at

the    end   of   June   1994,    based    on   its   understanding      that   the

situation that had necessitated a dedicated claims procedure had

been    ameliorated.       MMSD    provided      notice      to   property   owners

before November 1993, affording the owners sufficient time to

prepare any claims before the cutoff date.                    Although any time

limit for claims against a governmental entity may be deemed

arbitrary by those whose claims are made after the deadline, the

same primary principle that justifies limits on damage amounts——

protection of the public fisc——supports the reasonableness of

imposing a deadline for claims, especially when the deadline is

avowedly tied to the governmental entity's asserted belief that

it has addressed the problem necessitating the claims procedure.

On these bases, Bostco's equal protection challenge fails.35


       35
       As a final challenge to the damage cap, Bostco asserts
that continuing nuisances are not subject to Wis. Stat.
§ 893.80(3)'s damage cap because that section limits the damages
recoverable in "any action founded on tort," and a continuing
nuisance constitutes multiple, constantly recurring actions.
See, e.g., Stockstad v. Town of Rutland, 8 Wis. 2d 528, 534, 99
N.W.2d 813 (1959) ("It is well settled that every continuance of
a nuisance is in law a new nuisance and gives rise to a new
cause of action.").    As the court of appeals noted, only one
nuisance action is before the court, and we therefore need not
conclude whether the damage cap would apply in a subsequent
action allegedly based on the same continuing nuisance.

                                          44
                                                                  No.    2007AP221 & 2007AP1440


    2.        Bostco's forfeiture of inverse condemnation arguments

        ¶81    In its complaint to the circuit court, Bostco alleged

that MMSD inversely condemned Boston Store's property when it

"physically took portions of the timber pilings which rendered

them unusable and damaged the Boston Store Building and Parking

Garage."       (Emphasis         added.)         Bostco      also    alleged       that    MMSD's

conduct amounted to a taking of private property for public use

without       providing          just    compensation.            Bostco      made       the    same

argument in opposing MMSD's motion for summary judgment and at

the summary judgment hearing.                      Bostco, however, did not allege

that the groundwater beneath Boston Store was taken.                                       At the

court         of      appeals,            Bostco         added          to     its        inverse

condemnation/takings              claim,      alleging       that    in      addition      to    the

timber    piles,          MMSD    also    took     the      groundwater       beneath      Boston

Store.

        ¶82     The court of appeals addressed both the timber piles

and the groundwater arguments, and held that Bostco could not

establish          that    either        claim    met       the   standard         for    inverse
condemnation,         namely,          that   neither       the   timber       piles      nor    the

groundwater         was     physically        occupied       by   MMSD       and   that    Boston

Store was not "practically or substantially" rendered "useless

for all reasonable purposes."                      Bostco, 334 Wis. 2d 620, ¶¶111-

17. (quoting          Howell Plaza, Inc.               v.    State      Highway      Comm'n,      92

Wis. 2d 74, 85, 284 N.W.2d 887 (1979)).                             The court of appeals

therefore       affirmed         the    circuit       court's     dismissal        of    Bostco's

inverse condemnation/takings claim on summary judgment.                                         Id.,

¶117.

                                                 45
                                                                  No.    2007AP221 & 2007AP1440


       ¶83       Before us, however, Bostco states in its brief that it

"is    no    longer       pursuing          its   inverse     condemnation          claim      as    a

taking of the wood piles."                        Instead, Bostco argues that MMSD

"physically        took        the    groundwater"       beneath        Boston      Store.          As

Bostco is attempting to make a fundamentally different argument

than that which it raised and tried before the circuit court, we

decline      to     address           its    inverse     condemnation/takings                claim,

notwithstanding the court of appeals' decision to reach this

issue.      See    Tatera        v.    FMC     Corp.,    2010    WI     90,     ¶19    n.16,       328

Wis. 2d 320, 786 N.W.2d 810 ("Arguments raised for the first

time on appeal are generally deemed forfeited.").

       ¶84       Bostco attempts to avoid the effects of forfeiture by

alleging         that     its     complaint        before      the      circuit       court       "was

replete          with     factual           allegations         about         the     taking        of

groundwater."            We disagree.             Upon review of Bostco's complaint,

we conclude that no facts relevant to a taking of groundwater

were     raised.              Rather,       the   portions      of      the    complaint          that

allegedly support a claim for the taking of groundwater consist
of general recitations of the following arguments:                                         (1) MMSD

failed to protect buildings during excavations; (2) MMSD failed

to properly respond to unexpected inflows of water; (3) MMSD

failed      to    properly           monitor      and   recharge        lowered       groundwater

levels; (4) the Deep Tunnel damaged Boston Store; and (5) MMSD

was aware of the risk of structural damage to Boston Store.

       ¶85       Most     tellingly,          Count     III     of    Bostco's         complaint,

entitled         "Inverse       Condemnation,"          does     not     refer        at    all     to

groundwater,            and    instead       focuses     entirely        on     timber       piles.

                                                   46
                                                          No.    2007AP221 & 2007AP1440


Because      Bostco      has      not    preserved        the      groundwater–based

contention      for     appeal,    we    decline     to    address       its   inverse

condemnation/takings claim, and therefore affirm the court of

appeals, albeit on modified grounds.

                         3.     Bostco's notice of claim

       ¶86    Finally, in its cross-appeal, MMSD asserts that Bostco

did not serve MMSD with a notice of injury and itemization of

relief as required by Wis. Stat. § 893.80(1) (2005–06),36 and

that    Bostco's       claims    therefore     should      have     been    dismissed.

Specifically,         MMSD    argues    that   the   notice        it    received    was

insufficient because the notices informing MMSD of the damages

to   the     Boston    Store     buildings     and   the        relief   sought     were

submitted by entities who are not parties to this action.                         Those

entities named in the notice of claim and itemization of relief

were Saks, Inc., a corporation that owns Parisian, Inc., and

WISPARK Holdings LLC, an LLC owned by the same holding company

that owns Bostco.            For its part, Bostco argues that the notice

of claim and itemization of relief from the related entities

amounted to substantial compliance with § 893.80(1), and that,

under our case law, such notice is sufficient.

       ¶87   In pertinent part, Wis. Stat. § 893.80(1) provides

       [N]o action may be brought or maintained against any
       volunteer fire company organized under ch. 213,
       political corporation, governmental subdivision or
       agency thereof nor against any officer, official,
       agent or employee of the corporation, subdivision or

       36
       For ease of reference to the parties' arguments, which
are based on the 2005–06 version of Wis. Stat. § 893.80(1), we
refer to that version of the statutes in this section of the
opinion.

                                          47
                                                    No.    2007AP221 & 2007AP1440

       agency for acts done in their official capacity or in
       the course of their agency or employment upon a claim
       or cause of action unless:

            (a) Within 120 days after the happening of the
       event giving rise to the claim, written notice of the
       circumstances of the claim signed by the party, agent
       or attorney is served on the volunteer fire company,
       political corporation, governmental subdivision or
       agency and on the officer, official, agent or employee
       under s. 801.11. Failure to give the requisite notice
       shall not bar action on the claim if the fire company,
       corporation, subdivision or agency had actual notice
       of   the  claim   and  the   claimant  shows   to  the
       satisfaction of the court that the delay or failure to
       give the requisite notice has not been prejudicial to
       the defendant fire company, corporation, subdivision
       or agency or to the defendant officer, official, agent
       or employee; and

            (b) A claim containing the address of the
       claimant and an itemized statement of the relief
       sought is presented to the appropriate clerk or person
       who performs the duties of a clerk or secretary for
       the defendant fire company, corporation, subdivision
       or agency and the claim is disallowed.
       ¶88       The notice of claim provisions serve two purposes:37

"(1)        to    give   governmental    entities    the      opportunity     to

investigate and evaluate potential claims, and (2) to afford

governmental entities the opportunity to compromise and budget

for potential settlement or litigation."             E-Z Roll Off, LLC v.

Cnty. of Oneida, 2011 WI 71, ¶34, 335 Wis. 2d 720, 800 N.W.2d

421.        In keeping with these purposes, we have recognized that


       37
       We refer to "the notice of claim provisions" collectively
here; these provisions include the "notice of injury provision"
under Wis. Stat. § 893.80(1)(a), and the "itemization of relief
provision" under § 893.80(1)(b), also referred to as the actual
"notice of claim provision." See Thorp v. Town of Lebanon, 2000
WI 60, ¶¶23, 28, 235 Wis. 2d 610, 612 N.W.2d 59.     Reference to
the "notice of claim provisions" is intended to refer to the
notices required under both subsections of § 893.80(1).

                                        48
                                                              No.    2007AP221 & 2007AP1440


the     notice     of     claim      provisions         may     be       satisfied         with

substantial, rather than strict compliance.                          See Figgs v. City

of    Milwaukee,      121   Wis. 2d       44,     55,    357        N.W.2d    548     (1984).

Accordingly, where a claimant fails to strictly comply with the

notice of injury provision under Wis. Stat. § 893.80(1)(a), the

claimant may nonetheless satisfy that provision by showing that

(1) the governmental entity had actual notice of the claim, and

(2) the governmental entity was not prejudiced by the claimant's

failure to strictly comply.               See § 893.80(1)(a); see also State

v. Town of Linn, 205 Wis. 2d 426, 435, 556 N.W.2d 394 (Ct. App.

1996).

        ¶89   Additionally,          with          regard           to       Wis.          Stat.

§ 893.80(1)(b),         referred     to   as     the    itemization          or   notice     of

claim provision, see Thorp v. Town of Lebanon, 2000 WI 60, ¶28,

235     Wis. 2d    610,     612    N.W.2d       59,     we    have       noted      that    two

principles guide our analysis of whether a claim is sufficient

under      that   section.         First,      the      claim       must     provide        the

governmental entity with enough information to decide whether to
settle the claim.           See Gutter v. Seamandel, 103 Wis. 2d 1, 10–

11, 308 N.W.2d 403 (1981).                Second, we will construe claims so

as    to   preserve     bona      fide    claims       for   judicial        adjudication,

rather than cutting them off without a trial.                        See id.

        ¶90   Here, Bostco's notice of injury informed MMSD that the

Boston Store buildings had been damaged by MMSD's operation of

the Deep Tunnel.          Although the notice and the itemized statement

of relief were submitted on behalf of Saks, Inc. and WISPARK

Holdings LLC, the naming of these parties cannot reasonably be

                                            49
                                                              No.    2007AP221 & 2007AP1440


said    to    have     compromised         MMSD's     ability       to   investigate         and

evaluate      the     nature of      the     claim,    which     was     the    substantial

damage to the Boston Store buildings.                         Moreover, MMSD has not

suffered any prejudice by not knowing precisely which entity

owned the property that MMSD was alleged to have damaged; merely

being required to litigate, without more, does not demonstrate

prejudice.         See Luckett v. Bodner, 2009 WI 68, ¶43, 318 Wis. 2d

423, 769 N.W.2d 504.

        ¶91    Furthermore, the itemization of relief informed MMSD

of   what     relief       was    being     sought,    thereby       apprising        MMSD    of

potential costs for which it might have wanted to budget, and

allowing       MMSD     to       contemplate       settlement        for   the        asserted

injuries.          Had MMSD sought to compromise or settle the claim

(which is not the case here), the naming of different corporate

entities did not interfere with the purposes of the notice of

claim provisions.                Most notable for purposes of compromise or

settlement, the same law firm represented Saks, WISPARK, Bostco,

and Parisian.          See DNR v. City of Waukesha, 184 Wis. 2d 178,

198, 515 N.W.2d 888, (1994) (recognizing that notice of claim

statute       is    satisfied       when     attorney's       address      is    provided),

abrogated on other grounds by State ex rel. Auchinleck v. Town

of     LaGrange,       200        Wis. 2d     585,     547      N.W.2d         587     (1996).

Furthermore, the close relationships of the entities involved

would     have       allowed        for     meaningful        exploration            into    the

possibilities         of     settlement,      since     the    same      executives         were

involved in the operation and control of the various entities.



                                              50
                                                            No.    2007AP221 & 2007AP1440


        ¶92    In    support   of     its      argument   that      Bostco      failed   to

comply with the notice of claim requirements, MMSD relies on the

court of appeals' statement in Markweise v. Peck Foods Corp.,

205 Wis. 2d 208, 220–21, 556 N.W.2d 326 (Ct. App. 1996), that

"unless the government entity has 'actual knowledge' of both the

claimant and his or her claim, the investigation and evaluation

envisioned      by     the   statute      is    impossible."          That     statement,

however,       arose    in     the    context       of    thousands       of    potential

claimants against the City of Milwaukee, many of whom remained

unknown after the notice of claim.                  See id. at 221, 232.

        ¶93    Such was not the case here.                 MMSD was aware of the

property damaged, it was aware of the relief sought, and it had

sufficient information to contact the claimants.                             Accordingly,

we conclude that Bostco substantially complied with the notice

of claim requirements of Wis. Stat. § 893.80(1), and therefore

affirm the court of appeals.

                                   III.     CONCLUSION

        ¶94    We conclude that MMSD is not entitled to immunity.
Once MMSD had notice that the private nuisance it negligently

maintained was a cause of significant harm, immunity under Wis.

Stat.    § 893.80(4)         was   not    available       for     MMSD.        The   proper

immunity analysis in this case rests on our holding in City of

Milwaukee, 277 Wis. 2d 635, ¶59, that "[w]hether immunity exists

for nuisance founded on negligence depends upon the character of

the negligent acts."               Where the negligent act was undertaken

pursuant to one of those functions set forth in § 893.80(4)——

that     is,   legislative,          quasi-legislative,           judicial     or    quasi-

                                               51
                                                         No.    2007AP221 & 2007AP1440


judicial    functions——immunity           may   apply.         See   id.;   see    also

§ 893.80(4).

     ¶95     Here, Bostco's nuisance claim is grounded in MMSD's

negligent    maintenance       of   its    Deep     Tunnel,     which    maintenance

constituted a continuing private nuisance.                 See Physicians Plus,

254 Wis. 2d 77, ¶2-3 (explaining that when all the elements of

nuisance are proved and the municipal entity has notice that the

nuisance is a cause of significant harm, the entity has a duty

to abate).        Because MMSD's maintenance of the continuing private

nuisance is not a legislative, quasi-legislative, judicial or

quasi-judicial function, MMSD is not entitled to immunity.                         See

Hillcrest    Golf,      135   Wis. 2d     at    439-40   (explaining        that   the

"creation and maintenance of private nuisances are simply not

recognized as legislative acts subject to protection under sec.

893.80(4)"); see also Welch, 265 Wis. 2d 688, ¶8 (explaining

that "no statutory or common law immunity doctrine empowers a

public     body    to   maintain    a     private    nuisance");        Menick,    200

Wis. 2d     at    745   (concluding       "there    is   no     discretion    as     to
maintaining the [sewer] system so as not to cause injury"); Wis.

Stat. §§ 844.01(1) and 844.20(2) (providing statutory procedure

for seeking abatement of private nuisances).38                        The court of

appeals' determination that MMSD is not entitled to immunity is

therefore affirmed.

     ¶96    Because MMSD does not have immunity for its negligent

maintenance of the Deep Tunnel, we also conclude as follows:                        On

     38
       See also Winchell, 110 Wis. at 109 (concluding that the
"legislative authority to install a sewer system carries no
implication of authority to create or maintain a nuisance").

                                          52
                                                    No.   2007AP221 & 2007AP1440


the second issue, we conclude that Wis. Stat. § 893.80(3)–(5) do

not abrogate MMSD's duty to abate the private nuisance that MMSD

caused by its negligent maintenance of the Deep Tunnel, after

MMSD had notice that the nuisance was a cause of significant

harm.   Therefore, we reverse the court of appeals' denial of the

equitable relief of abatement.

     ¶97   Third, we conclude that the monetary damage cap in

Wis. Stat. § 893.80(3) does not violate equal protection, either

facially   or   as   applied   to   Bostco.     Moreover,     the    nature    of

Bostco's   claim     as    a   continuing     nuisance     does     not   render

§ 893.80(3)'s monetary damage cap inapplicable.              Accordingly, we

affirm the court of appeals' conclusion that the circuit court

properly reduced Bostco's monetary damages to $100,000.

     ¶98   Fourth, with regard to Bostco's inverse condemnation

claim, we conclude that Bostco forfeited the argument that it

makes before this court, and we therefore affirm the court of

appeals on this issue.

     ¶99   Fifth, we conclude that Bostco substantially complied

with the notice of claim provisions under Wis. Stat. § 893.80(1)

(2005–06), and that MMSD therefore had sufficient notice under

those provisions.         Accordingly, we affirm the court of appeals

on that issue as well.

    ¶100 Because       neither      Wis.    Stat.   § 893.80(4)       nor     (3)

abrogates MMSD's duty to abate this private nuisance, we reverse

the court of appeals' decision in part, affirm that decision in

part, and remand to the circuit court for further proceedings

consistent with this opinion.              In particular, we reverse the

                                      53
                                                  No.    2007AP221 & 2007AP1440


court of    appeals' reversal     of   the    circuit    court's   order    for

abatement, in part.          That is, while we affirm the court of

appeals on all other issues, we reverse that court's decision

that Bostco was not entitled to equitable relief in the form of

an order for abatement.        Therefore, we affirm the circuit court

decision that abatement is required, and we remand this matter

to the circuit court.         Upon remand, a hearing may be held to

establish whether an alternate method will abate the continuing

private    nuisance   MMSD   maintains   or    whether    lining    the    Deep

Tunnel with concrete is required for abatement.

     ¶101 By the Court.—The decision of the court of appeals is

affirmed in part, reversed in part and the cause remanded to the

circuit court.

    ¶102 DAVID T. PROSSER, J., did not participate.




                                    54
                                                       No.    2007AP221 & 2007AP1440.mjg


      ¶103 MICHAEL J. GABLEMAN, J.                (concurring).             I join the

majority opinion in toto as I believe it reaches the correct

result under our existing immunity law.                           I write separately,

however, to express my dismay that this court continues to apply

a series of doctrines that have no connection to the text of the

municipal immunity statute (Wis. Stat. § 893.80) or our decision

to   abrogate      all    governmental      immunity         in   Holytz    v.    City   of

Milwaukee, 17 Wis. 2d 26, 115 N.W.2d 618 (1962).                            Rather than

utilizing the nuisance approach adopted by the majority, I would

instead     do     away   with    the    ministerial         duty   and    known    danger

exceptions       and   restore     our    immunity     jurisprudence         to    conform

with § 893.80(4) and Holytz.                That is, governmental entities,

officials, and employees should be entitled to immunity only for

"acts done in the exercise of legislative, quasi-legislative,

judicial, or quasi-judicial functions."1                      § 893.80(4); see also

Holytz, 17 Wis. 2d at 40.                As this court has never fashioned a

precise definition of that phrase, I recommend that we adopt the

"planning-operational             distinction"          to        determine        whether
governmental           action      is     "legislative,             quasi-legislative,

judicial, or quasi-judicial."               This test "grants immunity only

to        upper-level        legislative,        judicial,            executive          and

administrative policy and planning decisions rather than to any

decision that might be made."               18 Eugene McQuillin, The Law of

Municipal Corporations § 53:16 (3d ed., rev. vol. 2013).                             If a

decision      or    action       does    fall   into     that       category,      it     is

      1
       Per the immunity statute, municipalities would still be
shielded from liability for intentional torts committed by
employees. Wis. Stat. § 893.80(4).

                                            1
                                                          No.    2007AP221 & 2007AP1440.mjg


considered "planning level" and is immune from suit.                              Id.     On

the other hand, "[a] decision resulting from a determination

based on preexisting laws, regulations, policies, or standards

usually indicates that its maker is performing an operational

act."      Id.       Immunity would not apply to activities of this

nature.        Id.        Because     the   operation           and   maintenance    of    a

sewerage system is by definition "operational," it does not fall

into     the   category         of   actions       that    are     legislative,     quasi-

legislative, judicial, or quasi-judicial.                        Our immunity analysis

need not go any further to determine that MMSD is not shielded

by governmental immunity.

                     I.     THE HISTORY OF GOVERNMENTAL IMMUNITY

       ¶104 To better understand our current governmental immunity

quagmire, it will be helpful to briefly survey the historical

development      of       the   doctrine.          The     concept     of   governmental

immunity goes back to the 18th-century English common law notion

that "the king could do no wrong," Linda M. Annoye, Comment,

Revising Wisconsin's Government Immunity Doctrine, 88 Marq. L.

Rev. 971, 973-74 (2005).              Or, as Sir William Blackstone put it,

"The king . . . is not only incapable of doing wrong, but even

of thinking wrong."             1 Blackstone's Commentaries on the Laws of

England 187 (Wayne Morrison ed., Cavendish Publishing Limited

2001).     The first known case to apply this concept was Russell

v. The Men of Devon, (1788) 100 Eng. Rep. 359 (K.B.), in which

the Court of King's Bench in England held that an unincorporated

county was not liable for damages caused by a faulty bridge.                              In

setting forth the court's ruling, Justice Ashhurst reasoned that

                                               2
                                                             No.      2007AP221 & 2007AP1440.mjg


"it is better that an individual should sustain an injury than

that the public should suffer an inconvenience."                                      Id. at 362.

Governmental immunity eventually migrated to the United States,

first landing in Massachusetts with Mower v. Leicester, 9 Mass.

247   (1812).         Wisconsin         subsequently            adopted     the       doctrine       in

Hayes    v.   City     of      Oshkosh,      33      Wis.       314    (1873).             There,   we

utilized       reasoning           similar           to      Russell,            stating           that

"[i]ndividual        hardship        or    loss      must       sometimes        be     endured      in

order that still greater hardship or loss to the public at large

or the community may be averted."                     Hayes, 33 Wis. at 319.

        ¶105 In 1962 this court abrogated the longstanding common

law rule of governmental immunity in Holytz, 17 Wis. 2d at 33,

noting,       "[t]here         are        probably        few         tenets       of        American

jurisprudence        which       have     been    so      unanimously          berated        as    the

governmental        immunity       doctrine."             That     decision        reversed         the

relationship          between         injured          plaintiffs            and           government

tortfeasors,        as      we     held      that         "henceforward,              so     far     as

governmental responsibility for torts is concerned, the rule is
liability——the exception is immunity."                           Id. at 39.           However, we

qualified      this      sea      change     in      the        law    by    cautioning            that

liability     should        not   attach      to      a    governmental          body        when    it

exercises its "legislative or judicial or quasi-legislative or

quasi-judicial functions."                  Id. at 40 (citation omitted).                            We

also said      that      "[i]f the         legislature           deems      it   better        public

policy, it is, of course, free to reinstate immunity."                                       Id.     As

the     majority      opinion        observes,         the      year      after       Holytz        was

decided,      the     legislature          enacted         an      immunity        statute         that

                                                 3
                                            No.    2007AP221 & 2007AP1440.mjg


closely tracked some of our language from that decision, thereby

codifying    the   elimination   of   blanket     governmental    immunity.

Majority op., ¶47; see also Ch. 198, Laws of 1963.             The current

version of the immunity statute provides that no suit may be

brought     against   any    "political    corporation,       governmental

subdivision or any agency thereof" or its "officers, officials,

agents or employees" for intentional torts or "acts done in the

exercise of legislative, quasi-legislative, judicial or quasi-

judicial functions."2       Wis. Stat. § 893.80(4).         But while the
     2
       The text of the immunity statute does not mention the
state or its employees. Townsend v. Wis. Desert Horse Ass'n, 42
Wis. 2d 414, 422-23, 167 N.W.2d 425 (1969). However, Holytz v.
City of Milwaukee, 17 Wis. 2d 26, 40, 115 N.W.2d 618 (1962),
abrogated   the  common   law doctrine   of immunity     for  all
governmental entities, state or municipal.       Given our open
invitation for    the   legislature  to  reinstate   governmental
immunity if it thought our decision unwise, the legislative
silence with respect to state employees amounted to acceptance
of our decision that "so far as governmental responsibility for
torts is concerned, the rule is liability——the exception is
immunity."   Holytz, 17 Wis. 2d at 39; see Progressive N. Ins.
Co. v. Romanshek, 2005 WI 67, ¶52, 281 Wis. 2d 300, 697 N.W.2d
417 ("[G]enerally, legislative silence with regard to new court-
made decisions indicates legislative acquiescence in those
decisions.") (internal quotation marks and citation omitted).
Strangely, though, this court has said that "unlike governmental
immunity as applied to state employees where immunity is the
rule and liability is the exception, the opposite is true for
municipal actors, i.e., liability is the rule and immunity is
the exception."   Pries v. McMillon, 2010 WI 63, ¶20 n.11, 326
Wis. 2d 37, 784 N.W.2d 648 (emphasis added) (citation omitted).
This observation is incorrect because the underlined language is
plainly at odds with our decision in Holytz, and accordingly
there should be no distinction in the treatment of state and
municipal entities or their employees. Four years ago, Justice
Prosser (joined by Justice Crooks) noted this anomaly in his
scholarly concurrence in Umansky v. ABC Ins. Co., 2009 WI 82,
¶¶46-57, 319 Wis. 2d 622, 769 N.W.2d 1.        I now express my
agreement with Justice Prosser's conclusion that liability is
the rule and immunity the exception for both municipalities and
the state.
                                 4
                                                             No.    2007AP221 & 2007AP1440.mjg


legislature        codified        Holytz's           abrogation           of     governmental

immunity, for the past five decades this court has been chipping

away at the Holytz decision and the immunity statute.

        II.       THE MINISTERIAL DUTY AND KNOWN DANGER "EXCEPTIONS"

      ¶106 The first thread of Holytz's newly woven tapestry to

unravel was Lister v. Bd. of Regents, 72 Wis. 2d 282, 300-01,

240   N.W.2d       610    (1976),            where    this         court    laid        down     the

discretionary/ministerial test for whether governmental immunity

applied.      In holding that the University of Wisconsin-Madison

Registrar could not be sued for allegedly misclassifying a group

of law students as "non-residents" for tuition purposes, we held

that government employees are immune when exercising discretion,

but that no immunity attaches to the negligent performance of a

"ministerial duty."           Id. at 300-01.                We opined that within the

context of governmental immunity a "duty is ministerial only

when it is absolute, certain and imperative, involving                                     merely

the   performance        of   a    specific           task     when      the     law     imposes,

prescribes     and    defines          the    time,    mode        and     occasion      for     its
performance       with    such         certainty        that        nothing       remains       for

judgment or discretion."                Id. at 301 (footnote omitted).                     As the

decision     on    whether        to    classify        a     student       as    a     Wisconsin

resident     for     purposes          of     in-state        tuition        required          "some

discretion and judgment," the Registrar was entitled to immunity

and the hapless law students were not allowed to make their case

that they paid too much tuition.                     Id. at 301-02.

      ¶107 The      ministerial          duty    concept,          though,       came    directly

from our decision in Meyer v. Carman, 271 Wis. 329, 332, 73

                                                5
                                                           No.    2007AP221 & 2007AP1440.mjg


N.W.2d 514 (1955).               See Lister, 72 Wis. 2d at 301 n.18, 19

(citing Meyer).          The problem with relying on a test from Meyer,

however,     was     that        case    was        decided       before        we   abrogated

governmental immunity in Holytz.                      So while it made sense for

Meyer to speak of an exception to immunity when immunity was the

rule, it made no sense for Lister to adopt an exception to a

concept    that     had     already       been       retired      both     judicially        and

legislatively.

      ¶108 Justice        Prosser       has     also    commented          on    the   bizarre

development of the ministerial duty exception "from a context in

which it was valuable and necessary" to "a context in which it

is unfair and absurd."              Umansky v. ABC Ins. Co., 2009 WI 82,

¶64, 319 Wis. 2d 622, 769 N.W.2d 1 (Prosser, J., concurring).

By "shift[ing] the focus from liability to immunity," Lister

turned the Holytz decision upside down without even citing to

that momentous case.             Id., ¶75.          With a sleight-of-hand, Lister

cut the guts out of Holytz and essentially restored governmental

immunity.     As Justice Prosser accurately and poignantly put it:
"[s]o far as government responsibility for torts is concerned,

immunity has become the rule and liability has become the rare

exception.         Justice    has       been    confined         to   a   crawl      space   too

narrow for most tort victims to fit."                      Id., ¶78.

      ¶109 Following Lister, this court repeatedly relied on the

ministerial      duty     exception        to       stretch      governmental          immunity

beyond both the text of the statute and the Holytz decision.

For   example,      we    have    immunized         such    conduct       as    a    road    test

examiner's purported negligence in issuing a driver's license to

                                                6
                                                      No.   2007AP221 & 2007AP1440.mjg


an   applicant        who   was   allegedly     too    overweight     to   drive,3    a

university      instructor's       construction       of    a   volleyball    net,4   a

school district benefits specialist's incorrect advice,5 a police

officer's allegedly negligent management of a busy intersection

during     a   rain    storm,6    and   a   high      school    guidance     counselor

providing       inaccurate         information         regarding      a      student's

scholarship eligibility requirements.7                     All of these decisions

      3
       Lifer v. Raymond, 80 Wis. 2d 503, 512, 259 N.W.2d 537
(1977).   Justice Robert Hansen colorfully summed up the issue
presented in Lifer:

           How fat is too fat?       Who is too fat to be
      licensed to get behind the wheel and drive an
      automobile?     Plaintiff alleges that the 320-pound
      driver of the auto in which he was a passenger was so
      fat that     she should   not have been    granted  a
      probationary license to drive an automobile, even
      though she passed the road test portion of the
      examination.

           At what point on the scales does an overweight
      person suffer a physical disability that prevents him
      or her from exercising reasonable control over a motor
      vehicle?    The plaintiff answers that the duty to
      determine when corpulency becomes disabling is on the
      road test examiner at the time a road test is
      administered.     The plaintiff sues the defendant
      examiner for breaching a duty owed to the plaintiff
      passenger when he passed Jeannine M. Yingling in the
      road test portion of her examination.

Id. at 506-07.
      4
          Kimps v. Hill, 200 Wis. 2d 1, 5, 546 N.W.2d 151 (1996).
      5
       Kierstyn v. Racine Unified Sch. Dist., 228 Wis. 2d 81, 85,
95, 596 N.W.2d 417 (1999).
      6
       Lodl v. Progressive N. Ins. Co., 2002 WI 71, ¶¶11, 31, 253
Wis. 2d 323, 646 N.W.2d 314.
      7
       Scott v. Savers Prop. & Cas. Ins. Co., 2003 WI 60, ¶¶9,
18, 262 Wis. 2d 127, 663 N.W.2d 715.
                                            7
                                                      No.    2007AP221 & 2007AP1440.mjg


are at odds with Holytz and the immunity statute in that none of

these actions can fairly be described as "legislative, quasi-

legislative, judicial, or quasi-judicial functions."                         Wis. Stat.

§ 893.80(4); Holytz, 17 Wis. 2d at 40.                      Yet that is where this

court has taken immunity law courtesy of the misappropriated

ministerial duty exception.

       ¶110 In addition to having no connection whatsoever to the

governing statute, the other flaw with the ministerial duty test

is that it is excruciatingly narrow.                   As one court has put it,

"it    would   be    difficult    to    conceive      of    any    official       act,    no

matter   how    directly ministerial,           that       did    not    admit    of    some

discretion in the manner of its performance, even if it involved

only the driving of a nail."              Ham v. Los Angeles Cnty., 189 P.

462,    468    (Cal.    Ct.   App.     1920);   see     also      Swanson    v.    United

States, 229 F. Supp. 217, 219-20 (N.D. Cal. 1964) ("In a strict

sense, every action of a government employee, except perhaps a

conditioned reflex action, involves the use of some degree of

discretion.").          The   upshot     of    this    court's      adoption       of    the
ministerial duty exception is that we have in essence overturned

Holytz and rewritten Wis. Stat. § 893.80.

       ¶111 The ministerial duty exception is also the progenitor

responsible      for    the   illegitimate       birth       of    the    known    danger

exception.      In Cords v. Anderson, 80 Wis. 2d 525, 531-32, 536-

38, 259 N.W.2d 672 (1977), a group of college students were

injured while hiking at a state park when they fell from an

unguarded      and     unmarked      90-foot    cliff       into    a     gorge.         The

plaintiffs sued the manager of the park (a state employee) for

                                           8
                                                      No.    2007AP221 & 2007AP1440.mjg


failing to put up warning signs along the trail.                          Id. at 537-38.

The   manager,       naturally,     asserted     governmental            immunity.      Id.

However, instead of asking whether the manager's actions were

legislative, quasi-legislative, judicial, or quasi-judicial, as

Holytz    requires      for    state    employees,       this      court    (relying    on

Lister)    framed      the    question    as     whether     the        manager   had   "an

absolute, certain, or imperative duty to either place the signs

warning the public of the dangerous conditions existing on the

upper trail or to advise his superiors of the condition with a

view toward adequate protection of the public responding to the

invitation to use this facility."                    Cords, 80 Wis. 2d at 541.

Inexplicably, the court held that because the park manager knew

the   park    terrain        was   dangerous,     "the      duty    to     either    place

warning signs or advise superiors of the conditions is, on the

facts here, a duty so clear and absolute that it falls within

the definition of a ministerial duty."                       Id. at 542 (emphasis

added).      I say inexplicably because the choice to use one of two

options      quite    obviously        renders    the       decision       discretionary
rather    than   ministerial.8           In    any   event,        to    circumvent     the

      8
       This court has also inconsistently applied the known
danger exception, most significantly in Lodl.    In that case, a
heavy rain storm triggered a power outage that caused the
traffic lights to go out at a busy intersection.     253 Wis. 2d
323, ¶6.     A police sergeant investigated the blackout and
decided to open the folded stop signs that were affixed to the
poles of the traffic control signals. Id., ¶7. Another officer
arrived on the scene, called for backup, and requested that
portable stop signs be brought to the intersection.     Id., ¶8.
An accident occurred minutes later, before the police backup or
portable signs arrived. Id., ¶10. The injured plaintiff sued,
alleging that the second officer who arrived on the scene had a
ministerial   duty   to   manually   control   traffic  at   the
intersection.   Id., ¶¶11-12.   Extrapolating from our reasoning
                                9
                                                     No.   2007AP221 & 2007AP1440.mjg


judicially created ministerial duty test we invented what became

known    as    the   "known       danger    exception,"       thus     creating   an

exception      to    an   exception.            Unfortunately,         neither    the

ministerial duty test nor the known danger test is grounded in

Holytz    or   the   immunity      statute,     so   although     we   reached    the

correct ultimate conclusion in Cords (immunity does not apply),

we took an incorrect route.

        III. A NEW APPROACH FOR GOVERNMENTAL IMMUNITY JURISPRUDENCE

      ¶112 If we were to do away with the ministerial duty and

known danger exceptions, what test would we use to determine

whether an action is "legislative, quasi-legislative, judicial,

or   quasi-judicial?"         I    recommend     that      this   court   adopt   the

"planning-operational distinction."              This test, which is used in




in Cords v. Anderson, 80 Wis. 2d 525, 259 N.W.2d 672 (1977), we
explained that a dangerous situation constitutes a known danger
for immunity purposes only when "there exists a known present
danger of such force that the time, mode and occasion for
performance is evident with such certainty that nothing remains
for the exercise of judgment and discretion." Id., ¶38 (quoting
C.L. v. Olson, 143 Wis. 2d 701, 717, 422 N.W.2d 614 (1988)).
With that principle in mind, we concluded that there was no
known danger, as the second officer had discretion in deciding
how to respond when he arrived at the intersection.   Lodl, 253
Wis. 2d 323, ¶¶46-47.   Yet this conclusion was clearly at odds
with Cords, where we held that the park manager was required to
take one of two options.    80 Wis. 2d at 542.    For a further
elaboration of this point, see Justice Bradley's dissent in
Lodl. 253 Wis. 2d 323, ¶¶64, 68-69.

                                           10
                                              No.    2007AP221 & 2007AP1440.mjg


some form by a majority9 of states that no longer recognize

governmental     immunity,10     grants   immunity    to   "planning     level

conduct" but not to "operational level decisions."                McQuillin,

The   Law   of   Municipal     Corporations   § 53:16.       Planning    level

conduct touches on questions of public policy and includes those

governmental decisions that involve "the balancing of priorities


      9
       See Indus. Indem. Co. v. Alaska, 669 P.2d 561, 563 (Alaska
1983); Doe v. Arizona, 24 P.3d 1269, 1271 (Ariz. 2001) (en
banc); Steed v. Dep't of Consumer Affairs, 138 Cal. Rpt. 3d 519,
528 (Ct. App. 2012); Cooper v. Hollis, 600 P.2d 109, 111 (Colo.
Ct. App. 1979); Dep't of Transp. v. Neilson, 419 So.2d 1071,
1077-78 (Fla. 1982); Julius Rothschild & Co. v. Hawaii, 655 P.2d
877, 880-81 (Haw. 1982) (per curiam); Jones v. City of St.
Maries, 727 P.2d 1161, 1163-64 (Idaho 1986); Peavler v. Bd. of
Comm'rs of Monroe Cnty., 528 N.E.2d 40, 45 (Ind. 1988); Fowler
v. Roberts, 556 So.2d 1, 15 (La. 1989); Jorgensen v. Dep't of
Transp., 969 A.2d 912, 917 (Me. 2009); Whitney v. City of
Worcester, 366 N.E.2d 1210, 1216 (Mass. 1977); Ross v. Consumers
Power Co., 363 N.W.2d 641, 647 (Mich. 1984) (per curiam); Conlin
v. City of Saint Paul, 605 N.W.2d 396, 400 (Minn. 2000); Jasa v.
Douglas Cnty., 510 N.W.2d 281, 288 (Neb. 1994); Schoff v. City
of Somersworth, 630 A.2d 783, 787 (N.H. 1993); Costa v. Josey,
415 A.2d 337, 341-43 (N.J. 1980); Enghauser Mfg. Co. v. Eriksson
Eng'g Ltd., 451 N.E.2d 228, 232 (Ohio 1983), superseded by
Ohio's Political Subdivision Tort Liability Act, Ohio Rev. Code
Ann. Ch. 2744 (West 2013); Nguyen v. Oklahoma, 788 P.2d 962,
964-65 (Okla. 1990); Costopoulos v. Gibboney, 579 A.2d 985, 988
(Pa. Commw. Ct. 1990); Bowers v. City of Chattanooga, 826 S.W.2d
427, 430-31 (Tenn. 1992); Stephen F. Austin State Univ. v.
Flynn, 228 S.W.3d 653, 657-58 (Tex. 2007); Johnson v. Utah Dep't
of Transp., 133 P.3d 402, 409 (Utah 2006); Avellaneda v.
Washington, 273 P.3d 477, 482-83 (Wash. Ct. App. 2012); Darrar
v. Bourke, 910 P.2d 572, 577 (Wyo. 1996).
      10
         "The majority rule is that in the absence of a statute
granting immunity, a municipality is liable for its negligence
in the same manner as a private person or corporation.        The
common-law doctrine of sovereign or governmental immunity is a
viable defense in this country only in a minority of states [14]
and only in certain circumstances."     18 Eugene McQuillin, The
Law of Municipal Corporations § 53:3 (3d ed., rev. vol. 2013).

                                     11
                                                       No.   2007AP221 & 2007AP1440.mjg


and the weighing of budgetary considerations."                      Id.      Operational

decisions, on the other hand, "concern the day-to-day operation

of     government       and    include        decisions       based        solely     upon

engineering or scientific considerations."                    Id.     In other words,

a decision to adopt (or not adopt) a certain policy would be

shielded by immunity, but the implementation of the policy would

be subject to traditional tort standards.                    Cf. Bowers v. City of

Chattanooga, 826 S.W.2d 427, 431 (Tenn. 1992).

       ¶113 This approach is most consistent with the municipal

immunity statute and Holytz.                 To begin with, it would protect

"the    essential       acts     of     governmental         decision-making"         from

"judicial     second-guessing           or    harassment       by    the     actual    or

potential threat of litigation."                  Enghauser Mfg. Co. v. Eriksson

Eng'g    Ltd.,    451     N.E.2d      228,   232    (Ohio    1983),    superseded       by

Ohio's Political Subdivision Tort Liability Act, Ohio Rev. Code

Ann. Ch. 2744 (West 2013).                   Specifically, budgetary decisions

would be immunized such that a governmental entity could not be

sued for inadequately funding a project.                      Indus. Indem. Co. v.
Alaska,     669    P.2d     561,      566    (Alaska    1983).         The     planning-

operational distinction, however, would ensure that citizens are

protected from the negligent acts of governmental employees "at

the    operational      level,     where      there     is    no    room     for    policy

judgment."        Jasa v. Douglas Cnty., 510 N.W.2d 281, 288 (Neb.

1994) (citation omitted).               Finally, it would restore Holytz by

placing the burden on the government to show that it is entitled

to immunity, as opposed to the status quo in Wisconsin, where it

is now the plaintiff's responsibility to prove that immunity was

                                             12
                                                     No.   2007AP221 & 2007AP1440.mjg


pierced.        McQuillin, The Law of Municipal Corporations § 53:16

(under the planning-operational test, "[t]he governmental entity

seeking to establish immunity bears the burden of proving that

the challenged act or omission was a policy decision made by

consciously balancing risks and benefits.").

        ¶114 How would this test apply to the present case?                       MMSD's

decision to build the Deep Tunnel system is a planning level

decision entitled to immunity.               Conversely, had the Deep Tunnel

never been built, a plaintiff could not successfully allege that

his basement was flooded as a result of MMSD's inaction.                               The

decision not to build is shielded for the same reasons as the

decision to build:             it is a question of public policy that

involves the evaluation of financial, political, economic, and

social factors.          See Conlin v. City of Saint Paul, 605 N.W.2d

396, 400 (Minn. 2000).

        ¶115 The day-to-day operation and maintenance of the Deep

Tunnel    is,    quite   obviously,       "operational,"         and    thus     standard

negligence principles apply in the same fashion as if the tunnel
were built by a private organization.                    See Whitney v. City of

Worcester, 366 N.E.2d 1210, 1216 (Mass. 1977) ("[A] governmental

entity is not liable for negligence in the planning of sewers

but   may   be    liable    for   negligence        in   their     construction        and

maintenance.")       (citation        omitted).            Contrary        to     MMSD's

assertions, this case was tried to the jury as one of operation

and   maintenance,       not    design.        At   a    pre-trial       hearing,      the

circuit court stated, "[t]he issue is, okay, as the tunnel is

being    maintained,       operated    and     inspected      by       [MMSD],    is   it

                                          13
                                                             No.    2007AP221 & 2007AP1440.mjg


creating a nuisance[?]"                  The court made clear that the case

"doesn't have anything to do with the way [the Deep Tunnel] was

designed      or    constructed."           Instead,         "it     has    to       do   with    the

manner   in    which    it     is   being       operated,          which        is    causing     the

nuisance."

      ¶116 The circuit court asked each of the parties to submit

a date as to when MMSD took over the operation and maintenance

of the Deep Tunnel.             Both parties agreed that the date MMSD

began operating the Deep Tunnel was the date the jury would use

"in   determining       what,       if    any     acts       of    negligence . . .              MMSD

committed."         After briefing and argument, the court settled on

August 7, 1992, the date MMSD offered as to when the contractor

certified      that     the     Deep       Tunnel        project          was        substantially

completed.         The court then made the nature of the case clear to

the attorneys:

      [MMSD] is only responsible[,] and the jury will only
      be asked to assess assuming they find negligence,
      assess damages that occurred to the Boston Store from
      that day forward.

           So if the proof were, for example, that all of
      the damages that the foundation, the Boston Store
      suffered occurred before August 7, 1992, then the jury
      should enter zero dollars.

           On the other hand, if all the damages occurred
      after August 7, 1992, then whatever those amounts are,
      that's the number the jury should assess.
      ¶117 The       negligence          question       submitted          to    the      jury   was

consistent with the circuit court's remarks to the lawyers at

the   pre-trial       conference:           "On    or    after       August          7,   1992   was

[MMSD]     negligent      in    the        manner       in        which     it       operated     or

maintained the tunnel near Boston Store?"                              After a two-and-a-
                              14
                                                       No.   2007AP221 & 2007AP1440.mjg


half week trial, the jury found that MMSD was negligent and that

this negligence was the cause of the damage to Boston Store's

foundation.         Bostco produced a number of expert witnesses during

the trial to support its argument that the negligent operation

and maintenance of the Deep Tunnel caused damage to the Boston

Store, including an engineer who testified that "[t]he Boston

Store    has    experienced      large       structural      column    movement    as   a

result of the operation of the [Deep] Tunnel," and, "[i]f the

operation      of    the     [Deep]       Tunnel   continues       under   the   current

conditions, the Boston Store will experience large structural

column movements requiring future repair."                          (Emphasis added).

It is our job as an appellate court to search the record for

evidence       to    support,       not     contradict,      the    jury's   findings.

Morden v. Cont'l AG, 2000 WI 51, ¶39, 235 Wis. 2d 325, 611

N.W.2d 659.          Here, there is ample evidence in the record to

buttress the factual conclusion that MMSD's negligent operation

and   maintenance       of    the     Deep    Tunnel   unsettled       Boston    Store's

foundation, causing millions of dollars of damage.
        ¶118 As the operation and maintenance of a sewerage system

is an "operational" rather than "planning-level" decision, this

is as far as our immunity analysis needs to go.                        The conclusion

that MMSD is liable for damages under this test would also be in

harmony with more than a century of Wisconsin case law, which

has reaffirmed that while the decision to build a public works

project is entitled to immunity, a governmental entity is liable

if its negligent operation and maintenance of the project causes



                                              15
                                        No.   2007AP221 & 2007AP1440.mjg


damages or injury.11   However, I would also add that even if MMSD

were correct that any negligence on its part related solely to

the design of the Deep Tunnel, this is not the type of planning-

level decision that should be entitled to immunity.             As the

Minnesota Supreme Court has held in interpreting that state's

governmental immunity statute, "immunity does not bar an action


     11
       See Lange v. Town of Norway, 77 Wis. 2d 313, 320, 253
N.W.2d 240 (1977) ("[G]overnmental immunity would apply to
acquisition of the [dam and floodgate] by the town.     However,
such governmental immunity would not include a failure to
maintain as to a condition of disrepair or defect or a failure
to properly operate said floodgate."); Naker v. Town of Trenton,
62 Wis. 2d 654, 660, 217 N.W.2d 665 (1974) (per curiam) ("Once
the decision is made and the sign is erected, the legislative
function is terminated and the doctrine of Holytz that imposes
liability for want of ordinary care takes over."); Christian v.
City of New London, 234 Wis. 123, 129, 290 N.W. 621 (1940)("The
doctrine of the cases dealing with municipally owned waterworks
is that the municipality must use proper care in maintaining the
means of storage and distribution, or respond in damages to
anyone injured."); Mitchell Realty Co. v. City of West Allis,
184 Wis. 352, 363, 199 N.W. 390 (1924) ("In creating a nuisance
[in managing a sewage disposal plant] . . . , [the City] must
respond in damages . . . ."); Winchell v. City of Waukesha, 110
Wis. 101, 109, 85 N.W. 668 (1901) (the legislative authority to
"install a sewer system carries no implication of authority to
create or maintain a nuisance, and . . . it matters not whether
such nuisance results from negligence or from the plan adopted.
If such nuisance be created, the same remedies may be invoked as
if the perpetrator were an individual."); Welch v. City of
Appleton, 2003 WI App 133, ¶24, 265 Wis. 2d 688, 666 N.W.2d 511
("Maintenance of sewers so as not to cause injury is generally
considered ministerial compared to the discretionary decision
relating to design or implementation of a system.") (citation
omitted); Menick v. City of Menasha, 200 Wis. 2d 737, 745, 547
N.W.2d 778 (Ct. App. 1996) ("[W]hile the decision to install and
provide a sewer system in a community is a discretionary
decision, there is no discretion as to maintaining the system so
as not to cause injury to residents. The actions of the City in
operating and maintaining the sewer system do not fall within
the immunity provisions of [Wis. Stat.] § 893.80.").

                                16
                                                         No.    2007AP221 & 2007AP1440.mjg


when    the   conduct     was    merely           a    professional       or   scientific

judgment."     Fisher v. Cnty. of Rock, 596 N.W.2d 646, 652 (Minn.

1999)    (citation      omitted).           Immunity           only    attaches    "if    in

addition      to   professional         or        scientific          judgments,    policy

considerations played a part in making a decision . . . ."                               Id.

(citation omitted).           There is nothing in the record to indicate

that    the   design     of     the    Deep           Tunnel    was     anything   but     a

technocratic decision that was farmed out to an engineering firm

that MMSD contracted with.            While the decision to build the Deep

Tunnel was planning-level conduct, the implementation of that

decision was operational and thus not entitled to immunity.

                                      IV.    CONCLUSION

       ¶119 We stated in Holytz that the legislature was free to

reinstate governmental immunity.                  In the five decades since that

decision, it has not done so.                 That choice should be respected

by this court rather than undermined.




                                             17
                                                                           No.    2007AP221.ssa


       ¶120 SHIRLEY       S.     ABRAHAMSON,           C.J.         (dissenting).                  I

conclude that the Milwaukee Metropolitan Sewerage District (the

District or MMSD) is immune from suit for any monetary damages

or    injunctive    relief      in   the    present         case.      The       District         is

immune because the Deep Tunnel is being operated and maintained

in the manner in which it was designed.                       Neither Bostco nor the

majority opinion has shown otherwise.

       ¶121 Decisions        regarding           the    design        of     a      municipal

improvement     project      are,     according        to    case    law,        legislative,

discretionary decisions, the type of core decisions for which

government entities are immune from suit.1                          Government entities

are    immune   from     suit        even    if    the       planning,           design,      and

implementation      of    the    project         are   negligent          and     lead       to   a

harmful result, including the maintenance of a nuisance.2

       ¶122 If the District were not immune, I would conclude that

any monetary damages or injunctive relief in the present case is

limited    by      the   statutory          cap    set       forth     in        Wis.      Stat.

§ 893.80(3).3        Permitting        a    circuit         court    to     order       ad    hoc

abatement of a private nuisance, at unlimited cost, circumvents

the monetary damage cap and eviscerates the statutory text and

       1
       Milwaukee Metro. Sewerage Dist. v. City of Milwaukee (City
of Milwaukee), 2005 WI 8, ¶9, 277 Wis. 2d 635, 691 N.W.2d 658.
See also Allstate Ins. Co. v. Metro. Sewerage Comm'n, 80
Wis. 2d 10, 15-17, & n.3 (collecting cases), 258 N.W.2d 148
(1977).
       2
       City of Milwaukee, 277 Wis. 2d 635, ¶¶8, 44, 50, 58, 59,
60; Allstate, 80 Wis. 2d at 16.
       3
       I agree that Bostco forfeited its inverse condemnation
claim and that Bostco substantially complied with the Notice of
Claim requirements. See majority op., ¶¶7-8.

                                             1
                                                              No.    2007AP221.ssa


legislatively enacted protection of the taxpayer and the public

purse.

     ¶123 Before examining the numerous errata in the majority

opinion,    let   me    sound     an   A*L*A*R*M.      The   majority    opinion

drastically    and     fundamentally     increases     government     liability.

This case alone may result in a mandatory expenditure of over

$10 million by the District.

     ¶124 As a matter of courtesy and comity to the legislative

branch, the majority opinion should, in my opinion, apply its

new-found law only to tortious causes of action occurring after

July 15, 2015.       Such a delayed effective date would give public

bodies time "to enable [them] to make financial arrangements to

meet the new liability implicit in this holding"4 and would give

the state legislature time to consider the enactment of a new

state policy on government immunity and liability.                  Delaying the

effective     date     of   an    opinion     that   substantially     increases

government    liability      is    not   an   original   thought.       This   is

exactly what the court did in Holytz v. City of Milwaukee, 17

     4
       In Holytz v. City of Milwaukee, 17 Wis. 2d 26, 42, 115
N.W.2d 618 (1962), the court explained:

     To enable the various public bodies to make financial
     arrangements to meet the new liability implicit in
     this holding, the effective date of the abolition of
     the rule of governmental immunity for torts shall be
     July 15, 1962.      See sec. 66.18, Stats., regarding
     liability    insurance   for  both   the   state   and
     municipalities. The new rule shall not apply to torts
     occurring before July 15, 1962.      However, for the
     reasons set forth in the supplemental opinion in Kojis
     v. Doctors Hospital (1961), 12 Wis. 2d 367, 373, 374,
     107 N.W.2d 131, 292, this decision shall apply to the
     case at bar.

                                         2
                                                                             No.   2007AP221.ssa


Wis. 2d 26,          42,    115   N.W.2d 618         (1962),    the    seminal       Wisconsin

case abrogating government immunity, at least in part.

        ¶125 I now turn to a critique of the majority opinion.                              The

first step is to put the case in perspective.

        ¶126 Bostco asserts (and the majority opinion agrees) that

the District is liable in tort for negligently maintaining a

private nuisance——a sewer system called the Deep Tunnel——that

has interfered with Bostco's real property, regardless of the

nature of the District's action that created the nuisance.5

        ¶127 The District derives its power to design and construct

sewer        systems       from   the      legislature.          The    legislature         has

delegated that authority to cities and their sewerage districts.

Wis.        Stat.    § 62.18.         In    accordance         with    its     legislatively

delegated powers, the District designed the Deep Tunnel to be

built beneath the City of Milwaukee to collect and store excess

sewage and storm water to prevent basement backups and sewer

overflows.          Taking into account a plethora of policy, planning,

regulatory,          and    budget      considerations,         the    District       designed

Phase       One     of   the   Deep     Tunnel       to   be   built    beneath       downtown

Milwaukee.          One of the District's design decisions dictated that

nearly half of the Tunnel would be lined with concrete while the

other half would be porous, allowing groundwater to seep through

the soil and bedrock beneath downtown Milwaukee and into the




        5
            See majority op., ¶¶3, 4, 43, 67, 71, 72.

                                                 3
                                                                  No.       2007AP221.ssa


Tunnel.6      Decisions      regarding      the        design    of     a     municipal

improvement      project   are,   according       to    case    law,    legislative,

discretionary decisions, the type of core decisions for which

government entities are immune from suit.7

      ¶128 Since     going      into   service         in   1993,       the     Tunnel,

according to the record, has been operated and maintained by the

District in the manner in which it was designed to function.

Both Bostco and the majority opinion have failed to demonstrate

any way in which the Deep Tunnel is failing to function as it

was designed to function.              Moreover,       neither    Bostco       nor    the

majority opinion has pointed to any applicable standard, that

is,   to   any     applicable     statute,    guideline,          or        regulation,

requiring the District to operate or maintain the Deep Tunnel in



      6
       Some of the other decisions the District made include:
the route of the Tunnel beneath the City, the Tunnel's length
(19.4 miles) and diameter (varying between 17 and 32 feet), the
Tunnel's depth (300 feet below ground), and the Tunnel's
capacity (405 million gallons of water).

     A stipulation during litigation between the District and
the Department of Natural Resources in 1986 permitted the
District to line only portions of the Tunnel.    The District's
current permit from the DNR requires the Tunnel to have a
positive inward gradient, that is, to allow water to flow into
the Tunnel in order to prevent the possible exfiltration of
wastewater.
      7
       City of Milwaukee, 277 Wis. 2d 635, ¶9.          See                          also
Allstate, 80 Wis. 2d at 15-17 & n.3 (collecting cases).

      In City of Milwaukee, the court referred to these types of
design decisions as "legislative" functions.       See City of
Milwaukee, 277 Wis. 2d 635, ¶¶9, 55, 57, 58, 60, 91.     For the
sake of consistency, I will refer to them as "legislative" as
well.

                                        4
                                                               No.   2007AP221.ssa


a manner different than the way in which it was designed to

function.8

      ¶129 Even if the District designed the Tunnel in a poor and

negligent manner and has created a nuisance and injured Bostco,

the District is immune from suit for that design and for the

operation and maintenance of the Tunnel in accordance with that

design.9

      ¶130 I    dissent      because    the   majority   opinion     reaches   the

wrong result by revising history, erroneously interpreting cases

and statutes, isolating and citing language from cases out of

context,     relying    on    and     reinvigorating     recanted    cases,    and

silently and surreptitiously overturning precedent.

      ¶131 This criticism is, alas, easy to level and to prove

(and I shall).        At the same time it is important to acknowledge,

and I do, that the law of government tort immunity over the last

50   years    since    Holytz   has    become   encrusted    with    not-always-

consistent case law.          Indeed the law may be described as having

become once again "knee-deep in legal esoterica," and replete
with "highly artificial judicial distinctions."10


      8
       When the court of appeals commented on this court's City
of Milwaukee decision, it explained in DeFever v. City of
Waukesha that "[b]ecause MMSD could not point to laws directing
the City how to inspect, monitor, and repair or replace the
water main, the City's duty was discretionary rather than
ministerial."   DeFever v. City of Waukesha, 2007 WI App 266,
¶12, 306 Wis. 2d 766, 743 N.W.2d 848 (citing City of Milwaukee,
277 Wis. 2d 635, ¶¶56-60).
      9
       City of Milwaukee, 277 Wis. 2d 635, ¶¶8, 44, 50, 58, 59,
60; Allstate, 80 Wis. 2d at 16.
      10
           Holytz, 17 Wis. 2d at 30, 32.

                                          5
                                                                     No.    2007AP221.ssa


      ¶132 The      concurrence      bemoans       the    fact     that    courts    have

drifted away from the text of Wis. Stat. § 893.80, never having

"fashioned a precise definition of [the] phrase" "legislative,

quasi-legislative,          judicial,       or        quasi-judicial       functions."

Concurrence, ¶1.         Not completely true!

      ¶133 Case after case has explained that these terms "have

been collectively interpreted to include any act that involves

the   exercise      of   discretion     and      judgment."11       The    concurrence

might not characterize this definition as "precise," but it is

just as precise (or imprecise) as the concurrence's recommended

"planning-operational" distinction as a sound interpretation of

the statutory words.12

      ¶134 Indeed,         this   court     has       explicitly    "decline[d]       the

invitation to create a planning/operational distinction to be

utilized in the analysis of state employee immunity," because

the distinction is "ill-defined and difficult to apply."                            Kimps

v.    Hill,   200    Wis. 2d 1,       24,       546    N.W.2d 151     (1996).         The

planning/operational distinction has not become better defined
or easier to apply since Kimps.                 Cases from other jurisdictions

(both      before    and     after    Kimps)          demonstrate    that     using    a

"planning-operational" distinction between acts that are immune


      11
       City of Milwaukee, 277 Wis. 2d 635, ¶54.      For similar
statements, see Lodl v. Progressive N. Ins. Co., 2002 WI 71,
¶21, 253 Wis. 2d 323, 646 N.W.2d 314; Willow Creek Ranch, L.L.C.
v. Town of Shelby, 2000 WI 56, ¶¶25, 27, 235 Wis. 2d 409, 611
N.W.2d 693; Lifer v. Raymond, 80 Wis. 2d 503, 509, 511-12, 259
N.W.2d 537 (1977); Lister v. Bd. of Regents, 72 Wis. 2d 282,
301, 240 N.W.2d 610 (1976).
      12
           See concurrence, ¶¶1, 10-11.

                                            6
                                                                          No.    2007AP221.ssa


and those for which a government entity is liable provides no

silver       bullet      piercing      the       difficulties         associated            with

interpreting       and      applying      rules    of     government        immunity        and

liability.13

       ¶135 Government        immunity       and    liability        is     a    complicated

area    of    jurisprudence        with    50     years      of    Wisconsin         case   law

precedent       that   is    not    always       easy     to      explain       or   justify.

Periodically the court has attempted to synthesize and clarify

our    cases.      This     court's       decision      in     Milwaukee        Metropolitan

Sewerage District v. City of Milwaukee (City of Milwaukee), 2005

WI 8, 277 Wis. 2d 635, 691 N.W.2d 658, just eight years ago,

went a long way to clarify the issues presented in the instant

case——nuisance, negligence, liability, and immunity.                                 And here

we are moving away from that decision.14

       ¶136 Perhaps our whole body of case law interpreting Wis.

Stat. § 893.80 needs to be carefully revisited.                                 Indeed, ten

years ago I wrote that the court has struggled to define the

proper scope of government immunity, that revisiting the scope


       13
       The courts have not found this distinction easy to apply
and decisions have not been consistent within a state or from
state to state. For a discussion of this distinction and cases,
see 18 Eugene McQuillin, Municipal Corporations § 53:16 (3d ed.
rev. 2013).
       14
        When a court has "authoritatively construed a statute,
well-established principles of judicial decision-making require
that the chosen construction be maintained unless and until the
legislature either amends or repeals the statute."    Reiter v.
Dyken, 95 Wis. 2d 461, 470, 290 N.W.2d 510 (1980); Zimmerman v.
Wis. Elec. Power Co., 38 Wis. 2d 626, 633-34, 157 N.W.2d 648
(1968).   The majority opinion does not adhere to this rule of
statutory interpretation.

                                             7
                                                             No.   2007AP221.ssa


and limits of government immunity has far-reaching impact, and

that if this court should undertake such a task it should do so

only with the benefit of full information, including briefs from

tort victims, the State of Wisconsin, the League of Wisconsin

Municipalities,     the     Wisconsin   Counties      Association,     and   the

Wisconsin Insurance Alliance.15

     ¶137 The majority opinion does not carefully revisit the

law and does not have full information.            Instead, unfortunately,

the majority opinion further muddies the waters.

     ¶138 I am writing this dissent to focus attention on the

mistaken premises upon which the majority opinion is based.                   I

shall proceed by listing each erratum with a brief description,

followed by a more extensive discussion.16

                           ERRATUM I. (¶¶44-65, infra)

     ¶139 THE     INITIAL    BAIT-AND-SWITCH.         The   majority    opinion

rests heavily on the old bait-and-switch trick.

     ¶140 Here's the basic bait:            The majority opinion (at ¶3)

declares   that   it   "rests    on   our   holding    in   Milwaukee    Metro.
Sewerage District v. City of Milwaukee."              I joined this City of

Milwaukee opinion.        I agreed with it then.       I agree with it now.




     15
        Scott v. Savers Prop. & Cas. Ins. Co., 2003 WI 60, ¶¶58-
59,   262   Wis. 2d 127,   663  N.W.2d 715   (Abrahamson,  C.J.,
concurring).
     16
       I have tried to point out what I view as the major errors
in the majority opinion.      There are others.     Inconsistent
statement of legal principles, inconsistent application of legal
principles, and inconsistent use of language cause additional
problems.

                                        8
                                                                No.     2007AP221.ssa


       ¶141 Here's      the   switch:      The   majority    opinion        fails    to

adhere to City of Milwaukee and to Physicians Plus Insurance

Corp.       v.    Midwest   Mutual    Insurance    Co.,     2002      WI    80,     254

Wis. 2d 77, 646 N.W.2d 777, upon which City of Milwaukee relies.

       ¶142 Here's the bait again:             The majority opinion (at ¶3)

correctly states the rule of law set forth in City of Milwaukee:

"Whether         immunity   exists   for   nuisance   founded      on      negligence

depends upon the character of the negligent acts."17

       ¶143 City of Milwaukee then declares the following rule of

law regarding the character of the negligent act:

       A municipality is immune from suit for nuisance if the
       nuisance is predicated on negligent acts that are
       discretionary in nature.     A municipality does not
       enjoy immunity from suit for nuisance when the
       underlying tortious conduct is negligence and the
       negligence is comprised of acts performed pursuant to
       a ministerial duty.18
       ¶144 The City of Milwaukee court did not decide whether the
City was immune from suit for failing to repair a leaking main


       17
            City of Milwaukee, 277 Wis. 2d 635, ¶59.               See also id.,
¶90.
       18
       City of Milwaukee, 277 Wis. 2d 635, ¶8.                     See also id.,
¶¶59-60, 90-91.

        See also id., ¶9:

       Decisions   concerning   the  adoption,  design,  and
       implementation   of    a  public   works  system  are
       discretionary, legislative decisions for which a
       municipality enjoys immunity.      Thus, the City is
       immune from suit relating to its decisions regarding
       the adoption of a waterworks system, the selection of
       the specific type of pipe, the placement of the pipe
       in the ground, and the continued existence of such
       pipe.

                                           9
                                                                       No.    2007AP221.ssa


before it ruptured.          The court declared that the record was not

sufficiently developed to determine whether the City was under a

ministerial    duty     (a    non-legislative           duty)   or    a     discretionary

duty (a legislative duty) to repair the leaking main prior to

its rupture.      The City of Milwaukee court directed that "the

circuit court must consider this issue on remand."19

     ¶145 Here's      the     switch:           The    majority    opinion      (at   ¶41)

recasts City of Milwaukee to state:                    "The duty to fix the pipe,

if the City knew it was leaking, was 'absolute, certain and

imperative,'——in        other          words,     ministerial——even            though    a

particular    method     of       repairing      the    leak    was    not    'absolute,

certain and imperative.'"

     ¶146 According          to    the    majority       opinion      (at    ¶43    n.25):

"[I]t is the manner in which MMSD complies with the ministerial

duty to fix the problem that is subject to discretion; no such

discretion     exists    as       to     whether       MMSD    must   fix     the     known

problem."     The majority opinion further states (at ¶51):

     19
          City of Milwaukee, 277 Wis. 2d 635, ¶62:

     Having reviewed the record, we determine that the
     facts of the present case are not sufficiently
     developed for us to determine whether the City was
     under a ministerial duty to repair the leaking main
     prior to its break on December 9, 1999. . . . [W]e
     cannot conclude whether [the City's] duty to repair
     the leaking main with reasonable care before it broke
     was "absolute, certain and imperative," or whether the
     City's decision not to repair the main before the
     break was discretionary. As such, we cannot determine
     whether the City is entitled to governmental immunity
     under § 893.80(4) based on the record before us
     (internal citations omitted).

See also id., ¶¶90-91.

                                            10
                                                        No.   2007AP221.ssa

     [A]lthough a municipal entity escapes liability for
     its    legislative   or    quasi-legislative  decision
     regarding whether to install a particular system or
     structure,   once  the municipal    entity makes   the
     decision to install, the entity is under a subsequent
     ministerial duty to maintain the system or structure
     in a safe and working order.20
     ¶147 In   other   words,   according   to   the   majority   opinion

(¶¶51, 64), once a municipal entity installs a particular system

or structure, the entity is under a subsequent ministerial duty

to maintain the system or structure in a safe manner and is

liable for any damages negligently caused, no matter the act

that caused the nuisance or the damage.21




     20
       This sentence is an example of the majority opinion's
inconsistent   and  confusing   use of   the  word  "maintain."
"Maintain" is sometimes used to mean "to keep a structure in a
state of repair." At other times, the majority opinion uses the
word "maintain" to mean that a municipality "maintains a
nuisance," after its actions "created" or "caused" or "resulted
in" the existence of the nuisance.

     Before a sewer system can be "maintained" in a proper state
of repair, the system must first be "created."    At times, the
majority opinion alludes to the fact that the District has
"created and maintained a nuisance," while at other times, the
majority opinion simply concludes that the District has
"maintained a nuisance." See also ¶77, infra.

     This case is unlike Physicians Plus, where an act of nature
created, caused, or resulted in a nuisance——a tree hanging over
and obstructing a stop sign. In the present case, the Tunnel is
a man-made object created by the District, the existence of
which has resulted in a nuisance.         The majority opinion
repeatedly asserts that the District "maintains" the nuisance or
"keeps [the Tunnel] in that state."
     21
       According to the majority opinion, "[A] municipal
entity's failure to abate a continuing nuisance caused by
negligent maintenance of a system" after the entity has notice
does not constitute a discretionary act. Majority op., ¶64.

                                  11
                                                                            No.   2007AP221.ssa


        ¶148 The majority opinion flouts the City of Milwaukee rule

of law that distinguishes between operation and maintenance of

the Tunnel that may in particular circumstances be legislative

actions, and operation and maintenance of the Tunnel that may in

other        circumstances       be     ministerial        actions.           The     majority

opinion then imposes liability in a limited amount for damages

for    negligent       operation        and    maintenance        of    a     nuisance     and

unlimited        injunctive      relief        for    a    nuisance,         regardless     of

whether        the    negligently        created       nuisance        is     a   result    of

discretionary action or a failure to fulfill a ministerial duty.

                        ERRATUM II. (¶¶66 to 86, infra)

        ¶149 A       CONTINUED        BAIT-AND-SWITCH.          After         promising     to

adhere to City of Milwaukee, the majority opinion contravenes

City of Milwaukee in a second way:                         It repeatedly relies on

cases explicitly called into doubt by City of Milwaukee22 and

asserts (sometimes in slightly different language) that "there

is no discretion as to maintaining the [sewer system] so as not

to cause injury."
        ¶150 Some      cases     upon    which       the   majority         opinion   depends

were     decided      before     Holytz       and    the   enactment         of   Wis.   Stat.



      There are, however, contradictory statements scattered in
the majority opinion.     See, for example, majority op., ¶66,
requiring a court to determine first whether immunity applies to
the actions that caused the nuisance the plaintiff is asking to
stop.    If immunity applies to the actions, then no relief is
available, no matter the result. This is the rule clearly laid
down in City of Milwaukee.
        22
       City of Milwaukee, 277 Wis. 2d 635, ¶¶55 n.14, 58 n.15,
59 n.17.

                                               12
                                                           No.    2007AP221.ssa


§ 893.80    (Winchell).23     Others    were   decided   after    Holytz   and

§ 893.80    (Costas,24 Hillcrest,25 Menick,26 and        Welch27).       These

cases have all been called into question by subsequent case law,

especially by City of Milwaukee.28          Thus once again the majority

opinion has baited us with a promise to adhere to the City of

Milwaukee    case    but    has   switched     to   repudiating     City    of

Milwaukee.

                    ERRATUM III. (¶¶87 to 99, infra)

     ¶151 EQUITABLE CLAIM: WIS. STAT. § 893.80(3).               The majority

opinion bends the text of Wis. Stat. § 893.80(3) to conclude


     23
          Winchell v. City of Waukesha, 110 Wis. 101, 85 N.W. 668
(1901).     See majority op., ¶¶4 n.4, 35 n.18, 69, 98 n.3p.
     24
        Costas v. City of Fond du Lac, 24 Wis. 2d 409, 129
N.W.2d 217 (1964). See majority op., ¶¶31, 33, 35, 41 n.22, 64,
69, 70.
     25
       Hillcrest Golf & Country Club v. City of Altoona, 135
Wis. 2d 431, 400 N.W.2d 493 (Ct. App. 1986). See majority op.,
¶¶4, 63, 64, 98.
     26
       Menick   v.  City  of  Menasha,  200  Wis. 2d 737,  547
N.W.2d 778 (Ct. App. 1995). See majority op., ¶¶4, 36, 37, 60,
98.
     27
       Welch v. City of Appleton, 2003 WI App 133, 265
Wis. 2d 688, 666 N.W.2d 511. See majority op., ¶¶4, 34, 37 &
n.20, 98.
     28
       Anhalt v. Cities & Vills. Mut. Ins. Co., 2001 WI App 271,
249 Wis. 2d 62, 637 N.W.2d 422, repeats the mantra oft repeated
in the majority opinion:   In a suit against a municipal entity
for negligent operation and failure to maintain an adequate
sewerage system, the complainant has to show only that the
sewerage system failed due to negligence, rather than showing
the negligence stemmed from the municipal entity's failure to
perform a ministerial duty.   The Anhalt holding, however, does
not support this refrain.    See discussion at ¶¶80-91, 83-85,
infra.

                                       13
                                                                       No.   2007AP221.ssa


that the $50,000 statutory cap does not apply to a court order

directing a municipal entity to abate a nuisance founded on tort

for which it is liable.29

      ¶152 Espousing an ordinary and reasonable interpretation of

the   phrase    "the     amount     recoverable          by    any    person     for     any

damages . . . in any action founded on tort" in § 893.80(3), the

majority opinion concludes that this phrase means only money

damages    awarded     to    the    complainant.              The    majority      opinion

disregards     the   fact    that   in        many    instances      there   may    be    no

substantial     difference         for     both       the     complainant       and      the

government      entity      between       a        monetary    sum     awarded      to     a

complaining party to remedy its injury and injunctive relief

directed   to    a   government          entity      forcing    it     to    remedy      the

complaining party's injury.30                 In either event, the complainant

recovers and gets the relief sought, and the government entity

must expend funds.          This statutory phrase, given its ordinary

      29
       Wisconsin Stat. § 893.80(3) provides in relevant part as
follows:

      Except as provided in this subsection, the amount
      recoverable by any person for any damages, injuries or
      death   in  any   action   founded   on  tort   against
      any . . . political      corporation,      governmental
      subdivision or agency thereof and against their
      officers, officials, agents or employees for acts done
      in their official capacity or in the course of their
      agency   or  employment,   whether  proceeded   against
      jointly or severally, shall not exceed $50,000. . . .
      30
       Bostco LLC v. Milwaukee Metro. Sewerage Dist., 2011 WI
App 76, ¶133, 334 Wis. 2d 620, 800 N.W.2d 518 ("From the
standpoint of the public treasury, there is little difference in
practice between a monetary damage award given to a plaintiff to
remedy its harm and in injunction order requiring the defendant
to abate the harm.").

                                              14
                                                                    No.      2007AP221.ssa


and    reasonable         meaning,    governs     both    monetary          damages    and

injunctive relief in any action founded on tort.

       ¶153 The majority opinion is oblivious to the extreme irony

in    limiting      monetary     damages    to     $50,000    for      public     policy

reasons while requiring government entities to pay as much as it

takes to abate a nuisance.

      ¶154 The majority opinion's                interpretation        of    Wis. Stat.

§ 893.80(3)        is      unreasonable     and     absurd,       as        it   renders

meaningless        the    $50,000     legislatively      mandated      limit     on    the

amount    a    government      entity    must    expend    when     liable       for   its

tortious conduct.

                         ERRATUM IV. (¶¶100 to 132, infra)

       ¶155 EQUITABLE         CLAIM    CONTINUED:     WIS.    STAT.         § 893.80(3),

(4), and (5).            The majority opinion offers up a potpourri of

arguments to support its thesis that Wis. Stat. § 893.80(3),

(4), and (5) do not apply to injunctive relief in a tort action

such as the present case.              In all of its analysis, the majority

opinion overlooks the plain text of Wis. Stat. § 893.80(3), (4),
and (5).       The texts are broadly worded, regulating "any action

founded       on    tort,"     "any     suit,"     and    "all      claims       against

a . . . governmental subdivision," and declaring that § 893.80

shall be "exclusive."

       ¶156 Clearly Bostco's request for injunctive relief in this

tort action is encompassed in "any suit."                  It is labeled a claim

and is a "claim" that fits within the statutory phrase "all

claims."



                                           15
                                                                          No.    2007AP221.ssa


     ¶157 Section 893.80 uses all-encompassing words, like"any

action    founded     on    tort,"       "any     suit,"      "exclusive,"         and       "all

claims" to include injunctive                   and   "all"       types    of    relief       for

negligent tortious conduct within the confines of § 893.80.

     ¶158 The majority opinion offers no statute (or precedent)

excluding     injunctive           relief    from          Wis.    Stat.        § 893.80       or

excluding the facts of the present case from § 893.80.

     ¶159 The       majority        opinion       enables         a   court        to        order

abatement    of   a    private       nuisance         at    unlimited      cost,        thereby

eviscerating the text and legislatively enacted protection of

the taxpayer and the public purse.

                      ERRATUM V. (¶¶133 to 152, infra)

     ¶160 EQUITABLE          CLAIM:          MANY      UNANSWERED         QUESTIONS.          The

majority    opinion        fails    to    discuss          injunctive      relief       in    any

meaningful    manner.          The       injunctive          remedy      adopted        by    the

majority     opinion       leaves     more      questions         than     answers.            In

ordering injunctive relief, the majority opinion does not pay

particular attention to the public consequences and hardships of
granting injunctive relief, as required by law.                                 It does not

recognize that the legislature has declared that the statutorily

allowed damages are sufficient.                   It does not determine whether

Bostco's contributory negligence reduces the available equitable

relief.     It disregards the practicability of a court's framing

and enforcing an injunctive order when the Deep Tunnel is a

municipal structure highly regulated by state and federal laws

and overseen by the Department of Natural Resources.

                           ERRATUM VI. (¶¶153 to 158)

                                             16
                                                                            No.    2007AP221.ssa


      ¶161 UNFUNDED         MANDATE:      CONTRARY          TO    PUBLIC     POLICY.           The

majority     opinion      expands      government           liability        and     increases

costs for government entities and taxpayers.                             This results in an

unfunded mandate on government entities.                            Increased government

liability is contrary to recent legislative expressions of state

policy     that    reduce    government      liability             and    reduce     potential

recovery for tort victims.               The majority opinion is marching in

the opposite direction from the legislature.

      ¶162 On consideration of these serious errata, I dissent.

                                             I

      ¶163 I      agree     with   the    majority          opinion       that     the   proper

negligence, nuisance, liability, and immunity analyses rest upon

City of Milwaukee.           Majority op., ¶3.               The decision in City of

Milwaukee builds on the Physicians Plus decision and carefully

analyzes half a century of precedent.31                            The rub, as I have

stated, is that the majority opinion does not adhere to the City

of Milwaukee decision.

      ¶164 The      negligent        creation         and        known    existence       of     a
nuisance     are    alone     insufficient            to     impose        liability      on    a

municipal     entity.         As   City    of     Milwaukee          instructs,          once   a

property owner proves the existence of a nuisance and notice to

the   entity,      the    owner    must    also       prove        that     the     underlying

tortious     conduct        giving    rise       to    the         nuisance       constitutes

actionable negligence.32



      31
           City of Milwaukee, 277 Wis. 2d 635, ¶¶24-49.
      32
           Id., ¶¶6, 7.

                                           17
                                                            No.   2007AP221.ssa


     ¶165 Once       actionable   negligence    is   established,   the   next

step under City of Milwaukee is to determine the nature of the

municipal entity's negligent acts in order to determine whether

the entity is liable or immune.            As City of Milwaukee explained:

"[A] municipality may be immune from nuisance suits depending on

the nature of the tortious acts giving rise to the nuisance.                 A

municipality is immune from suit for nuisance if the nuisance is

predicated on negligent acts that are discretionary in nature."33

     ¶166 City of Milwaukee further explained that "[d]ecisions

concerning the adoption, design, and implementation of a public

works system are discretionary, legislative decisions for which

a municipality enjoys immunity."34           Thus, if the nuisance in the

present case is predicated on negligent "[d]ecisions concerning

the adoption, design and implementation of" the Deep Tunnel,

then such actions are "discretionary, legislative decisions" for

which the District enjoys immunity.35


     33
       City of Milwaukee, 277 Wis. 2d 635, ¶8 (emphasis added);
see also id., ¶¶58-59, 62, 90.
     34
          Id., ¶9.
     35
          Id.

     City   of  Milwaukee  makes   clear   that some of these
discretionary, immune decisions include "decisions regarding the
adoption of a waterworks system, the selection of the specific
type of pipe, the placement of the pipe in the ground, and the
continued existence of such pipe."       City of Milwaukee, 277
Wis. 2d 635, ¶9.   Applying these principles to this case, some
of the District's discretionary decisions, which are immune from
suit, include decisions regarding the adoption of a Deep Tunnel
system, the selection of the specific type of Tunnel system, the
placement of the Tunnel in the ground, and the continued
existence of the Tunnel.

                                      18
                                                                No.   2007AP221.ssa


     ¶167 In      contrast,    if   the    nuisance      is   predicated       on    a

negligent act in performing a ministerial duty to operate or

maintain    the   Deep Tunnel that        caused   the    nuisance,     then    the

District is liable.36

     ¶168 In      City   of   Milwaukee,    the    City's     water     main    was

obviously neither designed nor constructed to leak.                   All agreed

that the water main leaked and then ruptured, causing damage to

MMSD's sewer.       MMSD in that case did not allege that the City

was negligent in failing to repair the main after it ruptured.

MMSD alleged that the City was negligent and created a nuisance

by failing to monitor and inspect the system to detect leaks,

and by failing to repair the main before it ruptured.                               The

question before the Supreme Court was whether the City had a

ministerial duty to act while the water main was leaking before

the main ruptured.37

     ¶169 At no time in City of Milwaukee did this court decide

that the City had a ministerial duty to abate a nuisance merely

because it had notice of the nuisance.                The court decided only
that the City may be liable if it had sufficient notice that

created an "absolute, certain, and imperative" duty to act.38


     36
          City of Milwaukee, 277 Wis. 2d 635, ¶9.
     37
          Id., ¶¶8, 9, 61.
     38
       The majority opinion, ¶¶38-41, 43, recasts City of
Milwaukee by zeroing in on some sentences of the opinion but not
reading them in context of the entire opinion.          City of
Milwaukee did not create a rule whereby a government entity's
notice of a nuisance automatically creates a general ministerial
duty to abate the nuisance, as the majority opinion in the
present case claims.

                                      19
                                                                 No.   2007AP221.ssa


     ¶170 The majority opinion (at ¶¶41, 51) recasts City of

Milwaukee to state that once the District had notice that it had

negligently created a private nuisance that caused damage, it

had a ministerial duty to abate the nuisance.                According to the

majority     opinion,    "[O]nce        the   municipal    entity      makes    the

decision     to     install,     the     entity    is    under    a     subsequent

ministerial duty to maintain the system or structure in a safe

and working order."       Majority op., ¶51 (footnote omitted).

    ¶171 This        recasting     of     City    of    Milwaukee      contradicts

precedent.        Case law instructs that the court must look at the

act, and not simply the result.               In Allstate Insurance Co. v.

Metropolitan Sewerage Commission, 80 Wis. 2d 10, 258 N.W.2d 148


     A reading of the entire opinion reveals that notice was a
threshold issue but was not dispositive.       City of Milwaukee
clearly states that the next question to be addressed by the
circuit court was whether the act was discretionary. City of
Milwaukee never stated that if the city had notice, a general
ministerial duty to stop the leaking would necessarily follow.

     A concurring opinion by Justice Prosser in City of
Milwaukee demonstrates that this court did not remand to the
circuit court just for the purpose of determining whether the
City was on notice that the water main was leaking.     Justice
Prosser stated that "this formulation [in the City of Milwaukee
of discretionary and ministerial actions] is so narrow that it
appears to decide the case."          City of Milwaukee, 277
Wis. 2d 635, ¶95 (Prosser, J., concurring) (internal citations
omitted).

     Butler v. Advance Drainage Systems, Inc., 2005 WI App 108,
¶40, 282 Wis. 2d 776, 698 N.W.2d 117, quotes City of Milwaukee
and states that the first step in a negligent nuisance action is
to determine whether a nuisance is present; the second step is
to determine the underlying tortious conduct; and the third step
is to decide whether the defendant's conduct "is 'otherwise
actionable under the rules governing liability for negligent
conduct.'"

                                         20
                                                                                  No.    2007AP221.ssa


(1977), the court explained that "[w]here, when and how to build

sewer        systems    are    legislative          determinations               imposed        upon    a

governmental body."39               So long as the parts of the sewer system,

in that case a manhole, were placed at a location in compliance

with the plans, their placement is an act in compliance with a

legislative       function         that     is    subject          to    immunity.40           Initial

planning       and     implementation            decisions         are    immune        even     though

"the     placement       and       subsequent          use    of    the     manhole        may       have

created a danger."41

       ¶172 Allstate           teaches       that        the        District        may        have     a

ministerial          duty     to    operate        and       maintain       the         Deep    Tunnel

functioning in its original, intended state.                                     The ministerial

duty     to    operate      and     maintain       the       Tunnel       does     not,        however,

require        making       improvements           to        the    Tunnel,         even        if     an

improvement is necessary to avoid harm.42

       ¶173 The        problem       in     the    present          case     is     that       no     one

examines       the     District's         acts.         No    one——not       Bostco,           not    the

witnesses, not the jury, not the circuit court, not the court of
appeals, and not the majority opinion——identifies the District's

allegedly        negligent           acts        that        caused        the      nuisance           or

characterizes           the    negligent           acts       as        either      discretionary


        39
             Allstate, 80 Wis. 2d at 16.
        40
       City of Milwaukee, 277 Wis. 2d 635, ¶58 (citing Allstate,
80 Wis. 2d at 16).
        41
             Allstate, 80 Wis. 2d at 16.
        42
       Id. at 15-16; cf. Hocking v. City of Dodgeville, 2010 WI
59, ¶¶45, 48, 326 Wis. 2d 155, 785 N.W.2d 398.

                                                  21
                                                                       No.    2007AP221.ssa


(legislative)            or         ministerial           (non-discretionary,            non-

legislative).

       ¶174 Bostco's complaint broadly alleges that two District

actions       led   to        the     continuing      private       nuisance:       1)   the

District's negligent design and construction of the Tunnel; and

2)   the    District's         failure      to    exercise    ordinary     care     in    the

inspection, repair, maintenance, and operation of the Tunnel.

       ¶175 The record does not identify any District actions that

are not related to design and construction.

       ¶176 The jury in the present case was never instructed to

identify which negligent conduct caused the nuisance.                             The jury

was not asked to determine whether the negligent conduct was

related to the District's design and construction of the Tunnel

or to the District's maintenance and operation of the Tunnel

unrelated to the design and its implementation.                            The jury was

thus    not    instructed           about   or    asked    about    disaggregating       the

District's      negligent            legislative      acts    and    the     harm    caused

thereby and the District's negligent non-legislative acts and

the harm caused thereby.43



       43
       The pertinent portion of the jury instructions reads as
follows:

       The District is specifically required                          by law to
       project, plan, design, construct, maintain                     and operate
       the   sewerage   system   including   the                      collection,
       transmission   and   disposal  of   storm                      water   and
       groundwater.

       As I [the circuit court judge] told you earlier, the
       planning, design and construction of the tunnel are
       not issues in this case.

                                                 22
                                                              No.   2007AP221.ssa


     ¶177 The     circuit   court     did    not   differentiate         between

legislative and non-legislative acts in analyzing the District's

conduct in operating and maintaining the Tunnel.

     ¶178 The    majority   opinion    does     not    attempt      to   do   so,

although, as I have explained, this distinction is crucial under

City of Milwaukee.

     ¶179 City of Milwaukee clearly instructs that "the proper

inquiry is to examine the character of the underlying tortious

acts,"44    because   "liability    depends     upon    the     existence      of

underlying tortious acts that cause the harm."45              The Restatement

(Second) of Torts illustrates this point as follows:

     [F]or a nuisance to exist              there must be harm to
     another or the invasion of an          interest, but there need
     not be liability for it.               If the conduct of the
     defendant is not a kind                that subjects him to
     liability . . . the nuisance           exists, but he is not
     liable for it.46

     The claims in this case involve claims for negligence
     based on the operation, maintenance and inspection of
     the tunnel on or after August 7, 1992.    Evidence of
     events prior to August 7, 1992, was admitted and may
     be considered by you insofar as it bears on the
     knowledge of the parties and actions of the parties
     after August 7, 1992.
     44
          City of Milwaukee, 277 Wis. 2d 635, ¶59.

     An accompanying footnote at ¶59 n.18 in City of Milwaukee
reads:    "Thus, the court of appeals in the instant case
misstated the law when it concluded that § 893.80(4) immunizes a
municipality from a cause of action alleging negligence but not
a nuisance claim that is based in negligence. Milwaukee Metro.
Sewerage Dist. [v. City of Milwaukee], 2003 WI App 209, ¶22, 267
Wis. 2d 688, 671 N.W.2d 346."
     45
          City of Milwaukee, 277 Wis. 2d 635, ¶25.
     46
       Id. (quoting Restatement (Second) of Torts § 821A cmt. c
(emphasis in City of Milwaukee)).
                                23
                                                                         No.   2007AP221.ssa


        ¶180 As City of Milwaukee made clear:

        [I]t is incorrect to speak of nuisance "as itself a
        type of liability-forming conduct . . . ."47

                . . . .

      Focusing the immunity analysis on the character of the
      tortious acts underlying the nuisance is important for
      two reasons.   First, . . . liability for nuisance is
      itself dependent upon whether the underlying tortious
      conduct is actionable.   Second, and more importantly,
      Wis.    Stat.    § 893.80(4)    does   not    immunize
      municipalities for certain results; rather, immunity
      is provided for certain acts.48
        ¶181 Indeed,          in   contrast     to     its   other      statements,      the

majority opinion itself recognizes that "when a plaintiff seeks

equitable or injunctive relief against a municipal entity, a

court        must    first    answer    the     threshold        question      of   whether

immunity applies.              If a court concludes that the actions the

plaintiff       is    seeking      to   stop    through      a   suit    in    equity    are

legislative, quasi-legislative, judicial or quasi-judicial, then

the suit must be dismissed because the governmental entity is

protected by immunity."             Majority op., ¶66; see also id., ¶64.

        ¶182 In sum, the majority opinion cannot use the District's
alleged        negligent       design     or   construction        of   the     Tunnel   in

determining          the     District's    liability,        because      those     actions
would be protected by immunity.                     The majority has not pointed to

any      of     the        District's     alleged       negligent        operation       and
maintenance of the Tunnel that is not in compliance with the

        47
       City   of   Milwaukee,  277   Wis. 2d 635,  ¶26   (quoting
Restatement (Second) of Torts § 822 cmt. c (emphasis added)).
        48
       City of Milwaukee, 277 Wis. 2d 635, ¶59 n.17 (emphasis in
original).

                                               24
                                                               No.   2007AP221.ssa


manner in which the Tunnel was designed.                   The Tunnel is not

broken; it is functioning in compliance with the "plan adopted,"

as it was designed to function.               Therefore, to create liability,

the majority opinion must assert that the District negligently

maintained a private nuisance, that is, that its conduct (its

failing to repair the Tunnel, which was operating as designed)

failed to fulfill a ministerial duty to abate.

     ¶183 The majority opinion ignores the clear directive in

City of Milwaukee that "[a] municipality is immune from suit for

nuisance if the nuisance is predicated on negligent acts that

are discretionary in nature."49           The majority opinion bends that

clear rule to hold that the maintenance of a nuisance itself is

the act which is not discretionary in nature.                 According to the

majority opinion, no longer is the act (that creates the result)

the basis for liability, but rather the result (the nuisance)

creates liability no matter what act caused that result.50

     ¶184 To repeat, neither Bostco nor the majority opinion has

alleged that the Tunnel is malfunctioning.                 If the Deep Tunnel
is   functioning       as    designed,   in     compliance    with    the   "plan

adopted"    and   it    is   not   broken,      then,   according    to   City   of

Milwaukee and Allstate (and Welch & Anhalt), the District does

not have a ministerial duty to repair it.

     49
          Id., ¶8 (emphasis added).
     50
       Case law and black letter law instruct that a nuisance
itself is not a type of liability-forming conduct and that
immunity is granted for certain acts, notwithstanding their
results.   City of Milwaukee, 277 Wis. 2d 635, ¶59 n.17 ("Wis.
Stat. § 893.80(4) does not immunize municipalities for certain
results; rather, immunity is provided for certain acts.").

                                         25
                                                                 No.   2007AP221.ssa


                                      II

     ¶185 The second erratum is a continuation of the majority

opinion's    bait-and-switch       approach   to    City    of    Milwaukee     and

precedent.     After promising to adhere to City of Milwaukee, the

majority opinion contravenes City of Milwaukee by reviving and

reinvigorating cases that City of Milwaukee significantly pulled

back.

     ¶186 The majority opinion repeatedly asserts (sometimes in

slightly different language) the proposition that "there is no

discretion as to maintaining the [sewer system] so as not to

cause injury."51      In doing so, the majority opinion depends in

large part for this refrain on cases that have been called into

doubt by subsequent case law, especially City of Milwaukee.                      In

City of Milwaukee, this court explicitly cast doubt on case law

preceding    Holytz    and   the    enactment      of    Wis.    Stat.    § 893.80

(Winchell)52    and   on   some    post-Holytz     and    post-§ 893.80       cases

     51
          Majority op., ¶¶4, 60, 95 (quoting Menick, 200 Wis. 2d at
745).     See also majority op., ¶¶33, 43 n.25, 51.
     52
       Winchell v. City of Waukesha, 110 Wis. 101, 85 N.W. 668
(1901), is cited by the majority opinion at ¶¶4 n.4, 35 n.18,
69, 95 n.38, for the proposition that the "legislative authority
to install a sewer system carries no implication of authority to
create or maintain a nuisance"; the "authority granted to
municipalities . . . to construct sewers, [is] subject to the
general legal restrictions resting upon such corporations
forbidding invasion of private rights by creation of nuisance or
otherwise,"; the "legislative authority to install a sewer
system carries no implication of authority to create or maintain
a nuisance, and that it matters not whether such nuisance
results from negligence or from the plan adopted. If such
nuisance be created, the same remedies may be invoked as if the
perpetrator were an individual"; and thus, the municipal entity
has an obligation to abate a private nuisance the entity caused,
which may include equitable relief.

                                      26
                                                        No.   2007AP221.ssa


(Costas,53 Hillcrest,54 Menick,55 and Welch56).        Thus once again

the majority opinion has baited us with a promise to adhere to

City    of   Milwaukee   but   has   audaciously   repudiated    City   of

Milwaukee.

       53
       Costas v. City of Fond du Lac, 24 Wis. 2d 409, 129
N.W.2d 217 (1964), is cited by the majority opinion at ¶¶31, 33,
35, 41 n.22, 64, 69, 70, for the proposition that a nuisance can
exist even though a sewage plant was built and operated in
compliance   with  state   plans  and   regulations;  a   private
individual can bring an action for the injunctive relief of
abatement of a private nuisance against a municipal entity; the
municipal entity's failure to abate that nuisance caused by the
negligent maintenance of the system or structure after it has
notice is not a discretionary act that may be entitled to
immunity; but "generally the means whereby [a] nuisance is to be
abated is left to the direction of the defendant tortfeasor."
       54
       Hillcrest Golf & Country Club v. City of Altoona, 135
Wis. 2d 431, 400 N.W.2d 493 (Ct. App. 1986), is cited by the
majority opinion at ¶¶4, 63, 64, 95, for the proposition that
the "creation and maintenance of private nuisances are simply
not recognized as legislative acts subject to protection under
sec. 893.80(4)," and the municipal entity's failure to abate
that nuisance caused by the negligent maintenance of the system
or structure after it has notice is not a discretionary act that
may be entitled to immunity.
       55
       Menick   v.  City  of   Menasha,  200   Wis. 2d 737,  547
N.W.2d 778 (Ct. App. 1995), is cited by the majority opinion at
¶¶4, 36, 37, 60, 95, for the proposition that a municipal entity
does not enjoy immunity from an action for negligent creation of
a private nuisance; and "there is no discretion as to
maintaining [a sewer] system so as not to cause injury to
residents."
       56
       Welch v. City of Appleton, 2003 WI App 133, 265
Wis. 2d 688, 666 N.W.2d 511, is cited by the majority opinion at
¶¶4, 34, 37 & n.20, 95, for the proposition that there is a
longstanding rule that generally municipal entities are not
shielded from liability for maintaining a private nuisance; and
"no statutory or common law immunity doctrine empowers a public
body to maintain a private nuisance."    Ultimately though, the
court of appeals concluded that the City's maintenance of its
storm sewer was not a private nuisance.

                                     27
                                                                 No.    2007AP221.ssa


        ¶187 The majority opinion repeatedly refers to Winchell v.

City of Waukesha, 110 Wis. 101, 85 N.W. 668 (1901).                          Majority

op., ¶¶4 n.4, 35 n.18, 69, 95 n.38.                  This court decided Winchell

in 1901, more than 60 years before Holytz and the enactment of

Wis. Stat. § 893.80 and before the extensive subsequent case law

interpreting the statute.              Not surprisingly then, Winchell has

been     called      into   question    repeatedly      since   1963    as    to   its

persuasiveness and precedential value in a post-Holytz, post-

Wis. Stat. § 893.80 world.57

        ¶188 Even Holytz itself called into question all of the

case law that came before it and gave credence to the idea that

any court decision published before June 5, 1962, relating to

government immunity is suspect.58                 Holytz aimed to change the law

that was        in   the    court's   view    "knee-deep   in   legal    esoterica:

e.g.,         governmental       function          v.   proprietary       function;

relationship of governor to governed," and had "resulted in some

highly artificial judicial distinctions."59

       ¶189 Although the majority opinion relies on Winchell, it
spends even more time and space on Costas v. City of Fond du

Lac, 24 Wis. 2d 409, 129 N.W.2d 217 (1964).                  Majority op., ¶¶31,


        57
       See, e.g., City of Milwaukee, 277 Wis. 2d 635, ¶¶51-53
n.12, 14.   The court of appeals in City of Milwaukee relied on
Winchell.   The supreme court then characterized Winchell as a
case based on obsolete logic.
        58
       Also see pre-Holytz cases cited in the concurrence at ¶16
n.11 (citing Christian v. City of New London, 234 Wis. 123, 129,
290 N.W. 621 (1940); Mitchell Realty Co. v. City of West Allis,
184 Wis. 352, 363, 199 N.W. 390 (1924)).
        59
             Holytz, 17 Wis. 2d at 30.

                                             28
                                                                         No.      2007AP221.ssa


33, 35, 41 n.21, 64, 70.                  Even though Costas was decided in

1964——post-Holytz and post-§ 893.80——the Costas court based its

holding on Winchell and did not mention either Holytz or Wis.

Stat.       § 893.80.60       Indeed,     Costas     does      not    even     mention        the

phrase or notion of government immunity.

       ¶190 Costas relied heavily on Winchell and overturned an

observation made in Hasslinger v. Village of Hartland, 234 Wis.

201, 207, 290 N.W. 647 (1940), that if the sewage treatment

plant was built according to government specification and was

operating       according      to     specification,           the   plant        was    not    a

nuisance       in    its   creation     or    operation.61            The    Costas       court

disavowed this observation.

       ¶191 With regard to Costas, City of Milwaukee noted that

"the    holdings      in     Allstate     Ins.     Co.    v.     Metropolitan           Sewerage

Commission, 80 Wis. 2d 10, 15, 258 N.W.2d 148 (1977), and Lange

v.    Town    of Norway, 77 Wis. 2d 313,                  318,    321,      253    N.W.2d 240

(1977), effectively overruled, sub silencio," the language in

Costas that a city has no immunity for the "plan adopted" for a
public       works    system.62         Costas      has    limited       shelf-life            and

relevancy for the present case.

       ¶192 The majority opinion then discusses Hillcrest, Menick,

and    Welch.        These    cases     are   not    good      law    standing          for    the

proposition for which the majority opinion cites them, namely

       60
            City of Milwaukee, 277 Wis. 2d 635, ¶55 n.14.
       61
       See   Hillcrest,             135       Wis. 2d       at       440-41        (similarly
interpreting Costas).
       62
            City of Milwaukee, 277 Wis. 2d 635, ¶¶55 n.14, 58 n.15.

                                              29
                                                                          No.    2007AP221.ssa


that    the    "creation     and     maintenance       of   private        nuisances       are

simply not recognized as legislative acts subject to protection

under sec. 893.80(4)."63

       ¶193 The majority opinion cites Hillcrest, the first in the

series of storm sewer decisions by the court of appeals, to

support its view that municipal entities are not shielded from

liability for maintaining a private nuisance.                             The allegation

was    that     the     system       discharged        water       that         damaged    the

complainant's land.          Citing and quoting Winchell and Costas, the

court of appeals concluded that "[t]he creation and maintenance

of private nuisances are simply not recognized as legislative

acts subject to protection under sec. 893.80(4)."64

       ¶194    In     another      sewer    case,      Menick,      the     sewer     system

flooded the complainant's basement.                    Relying on Hillcrest, the

Menick      court    concluded      that     "[t]he     actions      of     the     City    in

operating and maintaining the sewer system do not fall within

the immunity provision of § 893.80."65

       ¶195 The       majority       opinion      then      cites     Welch,         another
overflowing sewer case.               The majority opinion cites Welch as

supporting the following:                 "This duty to abate arises from the

longstanding         rule   that    generally       municipal       entities        are    not

shielded      from    liability      for    maintaining        a   private        nuisance."

Majority op., ¶34.           In contrast, the court of appeals stated in

       63
       Majority op.,               ¶¶4,    63,    95     (quoting     Hillcrest,           135
Wis. 2d at 439-40).
       64
            Hillcrest, 135 Wis. 2d at 439-40.
       65
            Menick, 200 Wis. 2d at 745.

                                             30
                                                            No.     2007AP221.ssa


Welch that there was no private nuisance in that case (as the

majority opinion admits in footnote 20); that the city was not

liable because the evidence was that the sewer system was in

working order, functioning as planned; and that the municipal

government was immune for the discretionary act of poor design.66

     ¶196 The court of appeals further explained in Welch that

the verb     "maintain" means   "to keep    in    a    state   of    repair."67

There, as here, "it is undisputed" that the sewer system was

working as designed.      Thus, according to Welch, "there was no

required pipe 'maintenance.'"68

     ¶197 Hillcrest, Menick, and Welch comprise a set of court

of appeals decisions based on Winchell, Costas, and each other.

The majority opinion ignores the fact that City of Milwaukee and

other cases rendered these cases ineffectual.69

     ¶198 Although language isolated from the full opinions in

Winchell, Hillcrest, Menick, and Welch can be made to support

the majority opinion, these cases do not buttress the majority

opinion's stance.     The language and the cases are suspect.
     ¶199 In City of Milwaukee, Justice Wilcox, writing for the

six-person    majority,   called   into   doubt    the    validity      of   the

explanations    for   government    immunity      or     liability      in   the


     66
       Welch, 265 Wis. 2d 688, ¶¶12, 13, 25-27 (citing Anhalt,
249 Wis. 2d 62, ¶12 (quoting Allstate, 80 Wis. 2d at 15-16)).
     67
       This court adopted a similar definition of "maintenance"
in Hocking, 326 Wis. 2d 155, ¶48.
     68
          Welch, 265 Wis. 2d 688, ¶25.
     69
          See, e.g., Butler, 282 Wis. 2d 776, ¶41.

                                   31
                                                          No.   2007AP221.ssa


majority    opinion's   favorite   court   of   appeals   decisions     as

follows:

     Several court of appeals decisions . . . have applied
     the immunity statute to a variety of nuisance claims
     involving sanitary and storm sewers and have utilized
     conflicting rationales to reach results that are not
     entirely consistent. See, e.g., Welch v. City of
     Appleton, 2003 WI App 133, 265 Wis. 2d 688, 666
     N.W.2d 511; Anhalt v. Cities and Vills. Mut. Ins. Co.,
     2001 WI App 271, 249 Wis. 2d 62, 637 N.W.2d 422;
     Menick v. City of Menasha, 200 Wis. 2d 737, 547
     N.W.2d 778 (Ct. App. 1996); Hillcrest Golf & Country
     Club v. City of Altoona, 135 Wis. 2d 431, 400
     N.W.2d 493 (Ct. App. 1986)[hereinafter Hillcrest].

     To the extent these decisions have created confusion
     in the area of municipal immunity for nuisances, such
     confusion is a result of three factors.    First, some
     decisions   have   continued  to   rely  on   immunity
     jurisprudence that predated Holytz and § 893.80(4).
     See, e.g., Hillcrest, 135 Wis. 2d at 438-41, 400
     N.W.2d 493.    Second, some decisions employ separate
     analyses for negligence and nuisances grounded in
     negligence.   See, e.g., Welch, 265 Wis. 2d 688, ¶¶8-
     13, 666 N.W.2d 511.     Third, some decisions fail to
     stress that a municipality is liable for its negligent
     acts only if those acts are performed pursuant to a
     ministerial duty.   See, e.g., Anhalt, 249 Wis. 2d 62,
     ¶26, 637 N.W.2d 422.

     Focusing the immunity analysis on the character of the
     tortious acts underlying the nuisance is important for
     two reasons. First, as discussed supra, liability for
     nuisance   is  itself   dependent   upon  whether   the
     underlying tortious conduct is actionable.      Second,
     and more importantly, Wis. Stat. § 893.80(4) does not
     immunize municipalities for certain results; rather,
     immunity is provided for certain acts.
City of Milwaukee, 277 Wis. 2d 635, ¶59 n.17.70
     70
          See also City of Milwaukee, 277 Wis. 2d 635, ¶¶50-62.

     In Butler v. Advanced Drainage Systems, Inc., 2005 WI App
108, ¶41, 282 Wis. 2d 776, 698 N.W.2d 117, which the majority
opinion ignores, the court of appeals recognized this court's
abrogation of Welch and similar cases, explaining:
                                32
                                                       No.    2007AP221.ssa


     ¶200 Although City of Milwaukee casts a significant shadow

on these cases as "utiliz[ing] conflicting rationales to reach

results that are not entirely consistent,"71 the majority opinion

reinstates,    reinvigorates,   and   perpetuates   these    incompatible

opinions.

     ¶201 The majority opinion points to no authority aside from

the out-of-context language in this small subset of court of

appeals decisions that appears to state that a municipal entity

has a general ministerial duty to operate and maintain a sewer

system in a safe condition for neighboring property owners.

    ¶202 Indeed, the majority opinion at ¶41 n.21 dismisses a

more recent 2001 court of appeals storm sewer case, Anhalt v.

Cities & Villages Mutual Insurance Co.,72 that is on point here

     Welch v. City of Appleton, 2003 WI App 133, 265
     Wis. 2d 688, 666 N.W.2d 511, and Anhalt v. Cities and
     Vills. Mut. Ins. Co., 2001 WI App 271, 249 Wis. 2d 62,
     637 N.W.2d 422 were among those [cases] expressly
     noted by the [supreme] court in Milwaukee Metro.
     Sewerage as applying the immunity statute (because all
     involved    municipalities)    "utilizing   conflicting
     rationales to reach results that are not entirely
     consistent."    277   Wis. 2d 635,    ¶59   n.17,   691
     N.W.2d 658.    Welch, the court observed, erred in
     employing a separate analysis for negligence and
     nuisances grounded in negligence, and Anhalt "fail[ed]
     to stress that a municipality is liable for its
     negligent acts only if those acts are performed
     pursuant to a ministerial duty."     Id.  To the extent
     that either Welch or Anhalt support the proposition
     that a nuisance claim need not be grounded either in
     intentional   conduct   or   in   otherwise  actionable
     negligence, they are no longer good law on that point
     after Milwaukee Metro. Sewerage.
     71
          City of Milwaukee, 277 Wis. 2d 635, ¶59 n.17.
     72
       Anhalt v. Cities & Vills. Mut. Ins. Co., 2001 WI App 271,
249 Wis. 2d 62, 637 N.W.2d 422.
                                  33
                                                                     No.   2007AP221.ssa


and undercuts Winchell, Costas, Hillcrest, Menick, and Welch,

the cases the majority opinion highlights.                     In Anhalt, yet one

more sewer system case, residents claimed destruction to their

real    property    from      flooding.        The   thrust    of    the    residents'

complaint was that the city negligently designed, planned, and

implemented an inadequate sewer system that caused a private

nuisance.       The court of appeals reviewed Winchell, Hillcrest,

and Menick, the "prominent cases that apply the law of nuisance

to hold municipalities liable for damages resulting from the

operation of sewage systems."73

       ¶203 The    court      of    appeals     declared      in    Anhalt    that    no

authority exists imposing a positive duty on a municipal entity

to keep its sewer system current with developing needs or to

remedy an untenable situation.74               Anhalt adheres to Allstate, and

holds that "the acts of designing, planning and implementing a

sewer system are discretionary acts protected under Wis. Stat.

§ 893.80(4)."75         The system in Anhalt was operating in the manner

in which it was designed to operate.                 Even though 46 residential
properties were substantially damaged by the City's operation

and    maintenance       of   the     system    according     to    the     design    it

selected, the court of appeals held that the remedy for the

residents      "lies     in   their    power    to   vote   rather     than    in    the

judicial system."76
       73
            Anhalt, 249 Wis. 2d 62, ¶18.
       74
            Id., ¶16.
       75
            Id., ¶12 (citing Allstate, 80 Wis. 2d at 15-16).
       76
            Anhalt, 249 Wis. 2d 63, ¶16.

                                          34
                                                                     No.       2007AP221.ssa


        ¶204 Anhalt, a 2001 court of appeals decision, was followed

by    Welch   in     2003,      and    although     the     two   cases          "utilized

conflicting rationales," they reached the same conclusion:                                A

municipal entity is immune from suit for injuries arising from

the design, planning, and implementation of a sewer system.                             The

older    court     of    appeals      decisions     that    reached        a     different

conclusion, Hillcrest (1986) and Menick (1996), are the basis

for the majority opinion, which refuses to make the slightest

admission that the most recent decisions directly contradict its

holding.

        ¶205 Eight      years   ago    in    City   of     Milwaukee       and     shortly

before that in Physicians Plus, this court labored to synthesize

the case law on negligence, nuisance, and government immunity

and     liability.        Today,      the    majority      opinion     ignores         that

guidance and reinvigorates and propels repudiated precedent to

reach a result that neither Wis. Stat. § 893.80 nor our case law

presently supports.

                                            III
      ¶206 I come to the third erratum——the majority opinion's

interpretation of the statutory cap on damages in Wis. Stat.

§ 893.80(3).       Even if I agreed with the majority opinion that

the District is liable in tort for damages and injunctive relief

for the creation and maintenance of the private nuisance in the


     I agree with City of Milwaukee and Butler, which criticize
Anhalt, 249 Wis. 2d 62, ¶26, as failing "to stress that a
municipality is liable for its negligent acts only if those acts
are performed pursuant to a ministerial duty."          City of
Milwaukee, 277 Wis. 2d 635, ¶59 n.17; Butler, 282 Wis. 2d 776,
¶41.

                                            35
                                                                            No.    2007AP221.ssa


present    case,    and    I   do    not,           the    majority       opinion      errs    in

concluding that the statutory cap in Wis. Stat. § 893.80(3) does

not limit      the expenditures           a     government         entity      must    make to

comply with an order for injunctive relief in a tort action.

       ¶207 Wisconsin Stat. § 893.80(3) provides in relevant part:

       Except as provided in this subsection, the amount
       recoverable by any person for any damages, injuries or
       death   in   any   action   founded   on  tort   against
       any . . . political       corporation,      governmental
       subdivision or agency thereof and against their
       officers, officials, agents or employees for acts done
       in their official capacity or in the course of their
       agency   or   employment,   whether  proceeded   against
       jointly     or     severally,    shall    not     exceed
       $50,000. . . . (emphasis added).
       ¶208 The     majority       opinion           (at       ¶¶54-58)    concludes         that

although      the   statutory       cap        on    damages,       injuries,         or    death

applies to monetary damages in a tort action, the statutory cap

does    not    similarly       extend          to    a     court    order         directing     a

municipality to abate a nuisance founded on tort for which it is

liable.

       ¶209 The     majority     opinion            reaches       its     unreasonable        and

absurd result by not adhering to the basic rules of statutory

interpretation.

       ¶210 The majority opinion's reasoning turns on the words

"the    amount      recoverable           by        any     person"       in      Wis.      Stat.

§ 893.80(3).        It    claims     to    give          the    phrase    an   ordinary       and

reasonable      meaning.        It    does           not.         The     majority         opinion

concludes that injunctive relief is not an "amount recoverable

by any person," without examining the ordinary meaning of these



                                               36
                                                                   No.   2007AP221.ssa


words or the meaning of these words in the context of Wis. Stat.

§ 893.80(3) and in the context of § 893.80 as a whole.

      ¶211 The majority opinion fails to acknowledge that insofar

as a complainant and a government entity are concerned, in many

instances there is no substantial difference between monetary

damages awarded to the complaining party so that it can remedy

its injury and injunctive relief directing a government entity

to remedy the complaining party's injury.77                  In either event, the

complainant benefits and gets            the     relief      it   sought,   and   the

government entity must expend funds.

      ¶212 I conclude that the phrase "the amount recoverable by

any   person    for   any   damages"     in    its     ordinary    and    reasonable

meaning    includes    monetary    damages        and    equitable,       injunctive

relief against a municipal entity in any action founded on tort.

      ¶213 My    reading     of   this        phrase    is    bolstered      by   the

legislative policy underlying Wis. Stat. § 893.80(3), namely to

limit the amount of funds expended by a government entity when

liable "in any action founded on tort."




      77
       The word "damages" is used in its ordinary and reasonable
meaning in Wis. Stat. § 893.80(3). In cases involving insurance
policies in which the insurance company agreed to pay "all sums
which the insured shall become legally obligated to pay as
damages,"   the  court   has  rejected  an   overly  restrictive
definition of the word "damages," as understood by a reasonable
insured. The court rejected the notion that the word "damages"
does not encompass the insured's costs of complying with an
injunctive decree, recognizing that mandatory injunctive relief
may also be compensatory in nature. See Johnson Controls, Inc.
v. Employers Ins. of Wausau, 2003 WI 108, ¶¶31-44, 264
Wis. 2d 60, 665 N.W.2d 257.

                                       37
                                                            No.    2007AP221.ssa


     ¶214 The justification for limitations on the amount the

government expends in any action founded on tort is to protect

the public purse while providing some relief for damage caused

by   government     entities   acting    in     a     non-immune      manner.78

Wisconsin adopted the concept of government immunity in Hayes v.

City of Oshkosh, 33 Wis. 314, 318 (1873), holding:                "Individual

hardship or loss must sometimes be endured in order that still

greater hardship or loss to the public at large or the community

may be averted."      Although the majority opinion reaffirms the

constitutionality     and   rational    basis       for   such    caps,79   the

majority opinion is oblivious to the extreme irony in limiting

monetary damages in any action founded on tort to $50,000 for

public policy reasons, while requiring government entities to

pay as much as it takes to abate a nuisance.80               The injunctive



     78
          Willow Creek, 235 Wis. 2d 409, ¶33:

     The concerns over the expenditure of both time and
     resources apply with equal force to actions seeking
     injunctive relief as they do to actions for money
     damages.   We recognize, however, that the suits must
     be based in tort to garner the protection of immunity
     consistent with the statute.
     79
        See majority op., ¶¶78-80, 83; Sambs v. City of
Brookfield, 97 Wis. 2d 356, 377, 383, 293 N.W.2d 504 (1980);
Stanhope v. Brown County, 90 Wis. 2d 823, 842, 280 N.W.2d 711
(1979).
     80
       Other courts have recognized this extreme irony.     See,
e.g., Andrews v. Chevy Chase Bank, 545 F.3d 570, 575 (7th Cir.
2008) ("'[T]he notion that Congress would limit liability to
$500,000 with respect to one remedy while allowing the sky to be
the limit with respect to another for the same violation strains
credulity.'" (quoting McKenna v. First Horizon Home Loan Corp.,
475 F.3d 418, 424 (1st Cir. 2007))).

                                   38
                                                                No.    2007AP221.ssa


relief granted in the present case might cost the District 200

times the statutory damage cap of $50,000.

      ¶215 As    this    court   explained       in     Sambs     v.     City    of

Brookfield,      97   Wis. 2d 356,      293     N.W.2d 504       (1980),        "The

legislature's goal after Holytz was to delineate the liability

to which governmental units would be exposed as a result of

Holytz,    to   reduce   the   financial      strain,   and     to     enable   the

governmental units to plan for the risk of such liability."81

      ¶216 The court of appeals got it right:

      The "'notion that [the legislature] would limit
      liability . . . with respect to one remedy while
      allowing the sky to be the limit with respect to
      another for the same violation strains credulity'"
      (citation omitted).

      From the standpoint of the public treasury, there is
      little difference in practice between a monetary
      damage award given to a plaintiff to remedy its harm
      and an injunction order requiring the defendant to
      abate the harm.82
      ¶217 We are required to read statutes so that no part is

rendered meaningless or superfluous and so that the statute is

not   rendered    unreasonable    or   absurd.        The   majority       opinion

renders the statutory damage cap in the statute meaningless and




      81
        Sambs,   97 Wis. 2d at 373.  For purposes of planning and
budgeting for    liability and litigation, damages up to $50,000
and unlimited    injunctive relief are not interchangeable.   See
Figgs v. City    of Milwaukee, 121 Wis. 2d 44, 52, 357 N.W.2d 548
(1984).
      82
       Bostco, 334 Wis. 2d 620, ¶¶131, 133 (citing Andrews v.
Chevy Chase Bank, 545 F.3d 570, 575 (7th Cir. 2008)).

                                       39
                                                                     No.    2007AP221.ssa


superfluous, unreasonable, and absurd to a significant extent by

granting unlimited injunctive relief.83

        ¶218 For the reasons set forth, I conclude that the Wis.

Stat.        § 893.80(3)       cap     applies     to   injunctive   relief     in    the

present case.

                                              IV

     ¶219 I        now        turn   to    the     majority   opinion's       erroneous

interpretation           of     Wis.      Stat.    § 893.80(3),      (4),    and     (5).

        83
       The majority opinion cites to Lister v. Board of Regents
of the University of Wisconsin System, 72 Wis. 2d 282, 304, 240
N.W.2d 610 (1976) and Scarpaci v. Milwaukee County., 96
Wis. 2d 663, 691, 292 N.W.2d 816 (1980), for the proposition
that "the public policy considerations that have prompted courts
to grant substantive immunity for monetary damages do not apply
with equal force to actions for declaratory or injunctive
relief."   Majority op., ¶62.  These cases are not pertinent to
the present case.       Both Lister & Scarpaci addressed the
liability of individual government officers and enjoined them
from acting in the future, unlike the present case in which
injunctive relief will require the District to act and to incur
expenses in the future. Lister, 72 Wis. 2d at 303.

     For comments indicating that provisions and limits in Wis.
Stat. § 893.80 apply to injunctive relief, see Willow Creek, 235
Wis. 2d 409, ¶36 (government immunity provisions in Wis. Stat.
§ 893.80(4) govern suit founded on tort against a town for money
damages and injunctive relief; "Although immunity serves as a
bar to both money damages and injunctive relief based in tort,
municipalities do not benefit from the shield of immunity in
actions seeking declaratory relief" (emphasis added)).       The
majority opinion (¶59 n.32) rewrites Willow Creek to mean that
because Wis. Stat. § 893.80(3) allows a declaratory judgment
action (an equitable non-monetary remedy), then injunctive
relief in a tort suit (also an equitable monetary remedy) is
similarly permitted.   See also E-Z Roll Off, LLC v. County of
Oneida, 2011 WI 71, ¶¶21-24, 28, 335 Wis. 2d 720, 800 N.W.2d 421
(explaining the factors to consider to determine whether certain
actions are exempt from notice of claim requirements found in
Wis. Stat. § 893.80; court held that a claim for violation of a
state antitrust statute, ch. 133, which provides for injunctive
relief, is subject to § 893.80(1)).

                                              40
                                                                          No.    2007AP221.ssa


According to the majority opinion, these provisions do not apply

to suits for or claims for injunctive relief in actions founded

on tort.           Majority op., ¶¶59-80.         The majority opinion delivers

a potpourri of arguments to support its thesis but ignores the

text of Wis. Stat. § 893.80(3), which we discussed above; the

texts of § 893.80(4) and § 893.80(5); and case law precedent

interpreting these provisions.

     ¶220 Subsection (4) is broadly worded: "[N]or may any suit

be brought against such corporation, subdivision or agency or

volunteer          fire   company    or     against     its    officers,          officials,

agents        or     employees      for    acts   done        in    the         exercise    of

legislative,           quasi-legislative,         judicial         or      quasi-judicial

functions" (emphasis added).84                 Subsection (4) bars "any suit"

against       any     governmental        subdivision    for       acts     done     in    the

exercise of legislative, quasi-legislative, judicial, or quasi-

judicial functions.          Subsection (4) applies to Bostco's lawsuit.

    ¶221 The Court explained in Willow Creek Ranch, L.L.C. v.

Town of Shelby, 2000 WI 56, 235 Wis. 2d 409, 611 N.W.2d 693,
that the term "any suit" includes injunctive relief based on

tort:

        84
             Wisconsin Stat. § 893.80(4) provides as follows:

    No suit may be brought against any volunteer fire
    company    organized   under    ch.   213,   political
    corporation, governmental subdivision or any agency
    thereof for the intentional torts of its officers,
    officials, agents or employees nor may any suit be
    brought against such corporation, subdivision or
    agency or volunteer fire company or against its
    officers, officials, agents or employees for acts done
    in the exercise of legislative, quasi-legislative,
    judicial or quasi-judicial functions.

                                             41
                                                                  No.   2007AP221.ssa

     The "any suit" language contained in the immunity
     statute, however, does not limit suits to money
     damages in tort but also encompasses injunctive relief
     based in tort.      This interpretation furthers the
     policy   rationales  underlying  tort   immunity  that
     officials not be "unduly hampered or intimidated in
     the discharge of their functions by threat of lawsuit
     or personal liability."85
     ¶222 Permitting Bostco to get relief for a negligence claim

through the back door by bringing a suit for injunctive relief

for a nuisance (based on negligence) "contravenes the government

immunity    policy    of     this     State   set     forth     in      Wis.   Stat.

§ 893.80(4)    and    consequently       would      not   serve      the   ends   of

justice."86

     ¶223 Subsection       (5)   is    also   very    broadly     worded:      "[T]he

provisions and limitations of this section [893.80] shall be

exclusive     and    shall    apply     to    all     claims      against . . . a

governmental subdivision"           (emphasis added).

     ¶224 Wisconsin Stat. § 893.80(5) reads as follows:

     Except as provided in this subsection, the provisions
     and limitations of this section shall be exclusive and
     shall apply to all claims against a volunteer fire
     company    organized   under    ch.   213,    political
     corporation, governmental subdivision or agency or
     against any officer, official, agent or employee
     thereof for acts done in an official capacity or the
     course of his or her agency or employment.         When
     rights or remedies are provided by any other statute
     against   any   political   corporation,   governmental
     subdivision or agency or any officer, official, agent
     85
       Willow Creek, 235 Wis. 2d 409, ¶33 (quoting Scarpaci, 96
Wis. 2d at 682 (citing Lister, 72 Wis. 2d at 299)).
     86
       Scott, 262 Wis. 2d 127, ¶4; see also id., ¶55 (declaring
that permitting damages through the back door of a promissory
estoppel   claim, an    equitable claim,    based  on the same
allegations as a negligence claim contravenes Wis. Stat.
§ 893.80(4) and does not serve the ends of justice).

                                        42
                                                                       No.   2007AP221.ssa

      or employee thereof for injury, damage or death, such
      statute shall apply and the limitations in sub. (3)
      shall be inapplicable.
      ¶225 Two     sentences         comprise       subsection        (5).      I     shall

examine each in turn.

      ¶226 The plain language of the first sentence of Wis. Stat.

§ 893.80(5) includes the words "exclusive" and "all claims" to

explain     that   the       provisions       and    limitations       (including       the

monetary    limitations        in    subsection       (3))    are     "exclusive"       and

apply to "all claims" brought in tort.                       This very broad, all-
inclusive language sets the stage and tone for interpreting this

subsection.

      ¶227 The     majority      opinion        curiously    skips     over    the     word

"exclusive" and the phrase "shall apply to all claims."                             Instead

the majority opinion reasons that Wis. Stat. § 893.80(3) (indeed

all of § 893.80) is silent about equitable relief and therefore,

that subsections (3), (4), and (5) do not govern actions in

equity founded on tort.             Majority op., ¶¶55-59, 61.

      ¶228 Clearly       a    request     for    injunctive      relief      founded     on

tort is a claim that fits within the statutory phrase in Wis.

Stat. § 893.80(5): "all claims."                    Indeed, Count II of Bostco's

complaint    is    labeled      "Claim"       and    requests    equitable          relief.

Count II of the complaint alleges the claim of a continuing

nuisance (based on negligence) and asserts that abatement by

concrete lining or recharge wells is the proper relief.

      ¶229 Section 893.80 is not silent about injunctive relief

in tort claims, as the majority opinion proclaims.                            Subsection

(4)   addresses     "any      suit"     and     subsection      (5)    addresses      "all

claims" against a            government       entity.     The    words       "any   suit,"
                                              43
                                                                      No.    2007AP221.ssa


"exclusive," and "all claims" are all-encompassing.                            The only

reasonable interpretation is that a claim for injunctive relief

founded on tort is within the all-inclusive scope of the words

"any suit" and "all claims" and that § 893.80 is an "exclusive"

provision.

       ¶230 In pursuing its myth of silence in regard to equitable

relief under Wis. Stat. § 893.80, the majority opinion (¶¶57-58,

63)   leans   on     Harkness    v.    Palmyra-Eagle         School    District,       157

Wis. 2d 567,       460   N.W.2d 769      (Ct.      App.    1990),     to    support     its

argument that § 893.80 does not apply to equitable claims.                              The

majority opinion sidesteps the fact, however, that the Harkness

decision was clearly and emphatically overruled in DNR v. City

of Waukesha, 184 Wis. 2d 178, 191, 515 N.W.2d 888 (1994).

       ¶231 Harkness held that subsection (4) of § 893.80 (barring

suit for legislative acts of a government entity) does not apply

to    equitable    relief    and      based    this    conclusion      on     two    prior

cases stating      that    the   notice       of   claim     requirements       in     Wis.

Stat. § 893.80(1) do not apply to equitable claims.                             Harkness
concluded that if subsection (1) does not apply to claims for

injunctive     relief,      then      subsection       (4)    does     not     apply    to

injunctive relief.           Accordingly, the Harkness court concluded

that § 893.80(4) does not bar a teacher's equitable claim for

reinstatement to her previous position.

       ¶232 Reviewing the Harkness precedent in DNR v. City of

Waukesha, the Supreme Court stated, "[W]e now hold that sec.

893.80 applies to all causes of action, not just those in tort

and    not    just       those   for     money        damages.         We      therefore

                                          44
                                                                        No.   2007AP221.ssa


overrule . . . Harkness . . . to the extent [it] hold[s] that

sec. 893.80(1) applies only to tort claims and claims for money

damages."87

      ¶233 Because        Harkness         based         its      interpretation        of

subsection (4) on case law relating to subsection (1), which DNR

explicitly       overruled,       Harkness          no         longer     retains      any

precedential value regarding subsection (4).

      ¶234 Johnson       v.   City    of    Edgerton,          207   Wis. 2d 343,      558

N.W.2d 653 (Ct. App. 1996), got it right, as explained by Willow

Creek.     The narrow issue presented in Johnson was whether the

complainants were permitted to seek injunctive relief based on

their claim of negligence against the city.                       After reviewing the

Harkness   and    DNR    cases,      the   court     of    appeals       concluded,     as

limited by Willow Creek, "that the official immunity provisions

of   § 893.80(4),       Stats., . . . are          not    limited       to . . . money-

damage actions [founded on tort], but are equally applicable to

[tort] actions which . . . seek injunctive relief . . . ."88


      87
       DNR v. City of Waukesha, 184 Wis. 2d 178, 191, 515
N.W.2d 888 (1994), overruled the following language in prior
cases: Kaiser v. City of Mauston, 99 Wis. 2d 345, 356, 299
N.W.2d 259 (Ct. App. 1980) ("[t]his statute applies to claims
for money damages.   It does not apply to a claim for equitable
relief");   Harkness   v.   Palmyra–Eagle  School  Dist.,   157
Wis. 2d 567, 579, 460 N.W.2d 769 (Ct. App. 1990) ("[w]e have
found no authority indicating that it applies to equitable or
injunctive relief"); Nicolet v. Village of Fox Point, 177
Wis. 2d 80, 86, 501 N.W.2d 842 (Ct. App. 1993) ("[t]he full
legislative history clarifies that sec. 893.80 never was
intended to apply to equitable actions").
      88
       Johnson v. City of Edgerton, 207 Wis. 2d 343, 352, 558
N.W.2d 653 (Ct. App. 1996). See Willow Creek, 235 Wis. 2d 409,
¶¶33-34 (limiting the Johnson language to tort actions).

                                           45
                                                                         No.    2007AP221.ssa


       ¶235 The Harkness case has been relegated to the waste bin

of   history.         The majority        opinion's         reliance     on    Harkness    is

misplaced.

       ¶236 I       now   turn    to    the    second       sentence      of    Wis.    Stat.

§ 893.80(5).         It tells us how to harmonize the "exclusive" and

"all    claims"      language      of    § 893.80(5)         with    other     statutes    in

which the legislature may provide rights or remedies against a

government      entity     for    damage,       injury,      or     death.      The    second

sentence of (5) directs that when a claim is based on another

statute,      the    damage      limitations         of    subsection     (3)     no   longer

apply.89

       ¶237 The majority opinion seems to assert that Wis. Stat.

§ 844.01       trumps      Wis.        Stat.        § 893.80,       making      § 893.80(3)

inapplicable in the present case.                    Majority op., ¶¶768-71.

       ¶238 Wisconsin         Stat.     § 844.01          governs    a   person    claiming

interference with property who brings an action to redress past

or further injury to property.                 The statute reads as follows:

       Any person owning or claiming an interest in real
       property may bring an action claiming physical injury
       to, or interference with, the property or the person's
       interest therein; the action may be to redress past
       injury, to restrain further injury, to abate the
       source of injury, or for other appropriate relief.
       ¶239 Section 844.17(1) explains that a defendant in a Wis.

Stat. § 844.01 suit may be "[a]ny person whose activities have

injured or will injure the plaintiff's property or interests"

(emphasis added).             To define the word "person," the majority

opinion turns to Wis. Stat. § 990.01(26).                           Section 990.01 sets

       89
            DNR v. City of Waukesha, 184 Wis. 2d at 192.

                                               46
                                                                                  No.   2007AP221.ssa


forth    definitions        of     words    to        be       used    in     interpreting           all

statutes      "unless       such     construction               would       produce       a    result

inconsistent        with    the     manifest          intent          of    the     legislature."

Section    990.01(26)        defines        "person."                 "Person       includes         all

partnerships,        associations          and    bodies            politic        or    corporate"

(emphasis added).

        ¶240 The majority opinion reasons as follows:                                   Chapter 844

contemplates that a body politic, such as the District, may be a

defendant     in    an     action    brought          by       an     owner    of       property     to

redress injury caused by the District's negligent maintenance of

a private nuisance and to abate the source of injury.                                            Thus,

according to the majority opinion, Wis. Stat. § 893.80 does not

apply to injunctions that fall within Chapter 844.

      ¶241 This reasoning is faulty.

      ¶242 First,          Chapter    844        is        a    remedial       and       procedural

statute; it does not create liability.                           Chapter 844 applies only

when an owner of real estate has a cause of action under common

law or otherwise.            Chapter 844 is a codification of remedies

involving real estate, not "the creation of new or the revision

of old rights or duties" (emphasis added).                                  Shanak v. City of

Waupaca, 185 Wis. 2d 568, 597, 518 N.W.2d 310 (Ct. App. 1994).

In   Menick    v.    City    of     Menasha,          200       Wis. 2d 737,            746-47,      547

N.W.2d 778 (Ct. App. 1995), the court of appeals, relying on

Shanak,     concluded        that     a     complainant               could       not     base       her

substantive        claim    for     private       nuisance            against       the       City    of




                                             47
                                                                       No.   2007AP221.ssa


Menasha on § 844.01(1).               The substantive basis of the claim must

be found elsewhere, wrote the court of appeals in Menick.90

      ¶243 The substantive basis of Bostco's claim is not Wis.

Stat. § 844.01, but common law tort and § 893.80 governing a

government entity's immunity and liability for tortious conduct.

      ¶244 Second, the majority opinion is inconsistent when it

applies Chapter 844 to authorize injunctive relief free of Wis.

Stat. § 893.80, but does not hold that Chapter 844 authorizes

monetary damages free of § 893.80.

      ¶245 Chapter         844        governs       both    injunctive       relief       and

monetary damages for physical injury to or interference with

real property.          If the majority opinion is correct that Chapter

844   trumps      the    cap     in    Wis.     Stat.      § 893.80(3)      (as    well   as

subsections (4) and (5)), then the majority opinion should hold,

but   does    not,      that   Chapter        844    trumps    the    cap    on    monetary

damages awarded to Bostco for the past and future injury to its

real property caused by the District.

      ¶246 Third, in its reliance on Chapter 844, the majority

opinion    pays    no    attention        to    an    oft-used     rule     of    statutory

interpretation:          A specific statute trumps a general statute.

Sometimes     it is      difficult       to     determine     which    is    the   general

statute and which is the specific statute.                         Not here.       Chapter

844 is a remedial, procedural statute and is also a general

statute      governing     owners       of     real     property     bringing      a   real

property action against any person.                     Wisconsin Stat. § 893.80 is

      90
       See also Schultz v. Trascher, 2002 WI App 4, ¶¶24-29, 249
Wis. 2d 722, 640 N.W.2d 130 (Wis. Stat. § 844.01 is a remedial
and procedural statute).

                                               48
                                                                No.    2007AP221.ssa


a   specific,      substantive,     "exclusive"       statute    governing         the

liability    and    immunity   of    a    government       entity     named   as    a

defendant.

     ¶247 When      the   legislature         wants   to   create     a   specific

statute that trumps Wis. Stat. § 893.80, it knows how to do so.

An example of a specific statute that creates government entity

tort liability was discussed in Morris v. Juneau County, 219

Wis. 2d 543, 579 N.W.2d 690 (1998).

     ¶248 In Morris,91 a statute, then-Wis. Stat. § 81.15 (1991-

92), entitled "Damages caused by highway defects; liability of

town and county," was specific to highway damages and specific

to the liability of the town and county.               The statute created a

right to recover from a government entity for want of repairs of

a highway.92       Section 81.15 explicitly imposed liability on a

     91
       Just as the legislature knows how to create liability, it
also knows how to nullify liability.        The legislature has
essentially nullified Morris. The statute imposing liability on
government entities for highway defects discussed in Morris,
then-Wis. Stat. § 81.15 (1991-92), was renumbered by 2003 Wis.
Act 214, and joined with the statute relating to damages and
injuries caused by snow and ice accumulation. See Comment, Wis.
Stat. Ann. § 893.83 (West 2006).

     In 2011, the legislature enacted 2011 Wis. Act 132, which
removed language holding government entities liable for highway
defects.   Now Wis. Stat. § 893.83 (2011-12) addresses only an
action to recover damages for injuries sustained by reason of an
accumulation of snow or ice that has existed for three weeks or
more upon any bridge or highway.     See Jessica Vanegeren, Man
suffers after odd accident; Fall River resident has little legal
recourse after concrete fell from bridge and hit him, Portage
Daily     Register,    Jan.     27,     2013,    available     at
http://www.wiscnews.com/news/local/article_5790d188-690c-11e2-
ac15-001a4bcf887a.html (last visited July 5, 2013).
     92
          Morris, 219 Wis. 2d at 558.

                                         49
                                                                     No.   2007AP221.ssa


government entity for certain conduct and limited the amount

recoverable;      it     explicitly        applied        the     procedures        under

§ 893.80.93

      ¶249 This court concluded that Wis. Stat. § 81.15 provided

"an exception to the general grant of immunity under Wis. Stat.

§ 893.80(4)"94 for        legislative       acts,    noting       "that    the   general

immunity     given   counties      under    Wis.     Stat.      § 893.80(4)       is    not

applicable when the conditions of Wis. Stat. § 81.15 are met."95

Section 81.15, stated the Morris court, is "a specific statute

tak[ing] precedence over a general statute."96

      ¶250 Unlike        the     specific       statute      in     Morris       creating

government liability for particular acts, Wis. Stat. § 844.01

does not explicitly apply to government entities and does not

impose liability on government entities.                        Chapter 844 simply

does not override the substantive rules in Wis. Stat. § 893.80

as the specific provisions of § 81.15 once did.

      ¶251 In    sum,     Wis.    Stat.     § 893.80(3),          (4),    and    (5),    as

applicable to actions founded on tort, govern "any suit," "all
claims," and are "exclusive."               The majority opinion's potpourri

of   arguments    does    not    demonstrate        that   injunctive        relief     is

excluded in the present case.               The broadly worded texts of Wis.

Stat. § 893.80(3), (4), and (5) govern a government entity's


      93
           Id. at 551-57.
      94
           Id. at 552.
      95
           Id. at 546.
      96
           Id. at 552, 557.

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tortious acts that cause harm and govern claims for injunctive

relief for private nuisances founded on tort.                       "A nuisance is

nothing more than a particular type of harm suffered; liability

depends     upon    the    existence     of    underlying    tortious      acts    that

cause harm."97

                                           V

      ¶252 The fifth erratum relates to the majority's discussion

of——or rather its failure to discuss in any meaningful way——

injunctive relief.              The majority opinion says that injunctive

relief may be ordered in excess of the statutory caps, no dollar

limits.      The End!       The majority opinion offers no analysis or

directions     to   the     circuit     court   about   injunctive        relief   and

leaves     unanswered      numerous     questions.      Let    me    offer    several

comments.

      ¶253 First:          When    a   court    exercises     its    discretion     in

granting an equitable remedy, it "should pay particular regard

for   the    public       consequences     in    employing    the     extraordinary

remedy of injunction."98               "Where an important public interest
would be prejudiced, the reasons for denying the injunction may

be compelling."99          An injunction against maintaining a nuisance

should not be granted where "the inconveniences and hardships

caused      outweigh      the    benefits."       McKinnon     v.     Benedict,     38

      97
           City of Milwaukee, 277 Wis. 2d 635, ¶25.
      98
       Weinberger v. Romero-Barcelo, 456 U.S. 305, 312 (1982)
(citing Railroad Comm'n v. Pullman Co., 312 U.S. 496, 500
(1941)) (emphasis added).
      99
       City of Harrisonville v. W.S. Dickey Clay Mfg. Co., 289
U.S. 334, 338 (1933).

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                                                               No.   2007AP221.ssa


Wis. 2d 607, 616-17, 157 N.W.2d 665 (1968) (citing Maitland v.

Twin    City    Aviation    Corp.,     254    Wis.   541,   549,   37    N.W.2d 74

(1949)).100

       ¶254 The circuit court did not exercise its discretion in

the present case by           paying    particular    regard   for      the   public

consequences or weighing the inconveniences and hardships to the

parties.       Without holding a hearing, the circuit court based its

ruling on injunctive relief on the grounds that the monetary

damages      were    inadequate        and    that   Bostco    was       suffering

irreparable harm.101

       ¶255 Nor does the majority opinion pay any regard to the

public consequences of injunctive relief in the present case or

the weighing of hardships and inconveniences.

       ¶256 Second:        Ordinarily, if injunctive relief would cause

substantial harm to a defendant, the injunction should be denied




       100
        In granting an injunction, a court considers the
relative hardship likely to result to the defendant if the
injunction is granted and to the plaintiff if it is denied.
"The appropriateness of injunction against tort finally depends
upon a comparative appraisal of all of the factors in the case,
balanced against each other, and considered together." 4
Restatement of Torts § 936 cmt b. at 695 (1939).
       101
        The circuit court erred in the present case by granting
injunctive relief without holding a hearing, taking evidence, or
making findings about the merits of the relief proposed.     See
Hoffmann v. Wis. Elec. Power Co., 2003 WI 64, ¶27, 262
Wis. 2d 264, 664 N.W.2d 55 (An ordering of injunctive relief
"must be based on the merits of the [proposed relief] with a
record to support that order.").

                                         52
                                                            No.   2007AP221.ssa


when monetary damages are available to the complainant.102                  In

the present case, the circuit court and the majority opinion

conclude     that    the   monetary   damages   available   to    Bostco   are

insufficient in amount.         But the legislature has declared that

the statutorily allowed amount of damages is sufficient.

     ¶257 Both the circuit court and the majority opinion defy

the legislative determination that the government has rendered

itself immune from liability in excess of the statutory amount.

As the court held in Sambs, "whatever the monetary limitation on

recovery, the amount will seem arbitrary because it is based on

imponderables, [but] the legislature, not the court, must select

the figure."103       Stanhope echoes the same point: The "monetary

limitation is one which the legislature determines balancing the

ideal of equal justice and need for fiscal security."104

     ¶258 The balancing of damages, liability, and immunity with

regard to a government entity is for the legislature, not the

courts.      Unless a constitutional violation exists, the court

should     respect   the   legislature's   decisions   about      what   amount
constitutes adequate monetary relief against a government entity

and about the important public policy of protecting the fisc.105
     102
        Harrisonville v. W.S. Dickey Clay Mfg. Co., 289 U.S.
334, 337-38 (1933); Pure Milk Prods. Co-Op v. Nat'l Farmers
Org., 90 Wis. 2d 781, 800, 280 N.W.2d 691 (1979) ("To invoke the
remedy of injunction the plaintiff must moreover establish that
the injury is irreparable, i.e. not adequately compensable in
damages."); Kohlbeck v. Reliance Const. Co., Inc., 2002 WI App
142, ¶13, 256 Wis. 2d 235, 647 N.W.2d 277.
     103
           Sambs, 97 Wis. 2d at 367.
     104
           Stanhope, 90 Wis. 2d at 843.
     105
           Stanhope, 90 Wis. 2d at 844:
                                   53
                                                                 No.   2007AP221.ssa

       The mere fact that a judgment for damages is not as
       adequate relief from the point of view of the
       plaintiff as an injunction would be is not wholly
       determinative of the question as to whether an
       injunction will be given.     A judgment for damages
       merely shifts to the defendant a harm equal to that
       which the plaintiff has suffered. This is not true in
       the case of the issuance of an injunction.   The harm
       to the defendant which may follow the granting of an
       injunction    against    him     may   be    entirely
       disproportionate to the benefit resulting to the
       plaintiff.
5 Restatement of Property § 528 cmt. f at 3188 (1944), cited in

part by McKinnon v. Benedict, 38 Wis. 2d 607, 618-19, 157 N.W.2d

665 (1968).

        ¶259 Third:     Although the jury verdict plays a very minor

role    in    the   present   case    in   the    appellate    courts,       the   jury

verdict is instructive on the issue of injunctive relief.                           In

its answer to a special verdict question, the jury concluded

that the nuisance could be abated by reasonable means and at a

reasonable cost.         The jury was not asked what the reasonable

means    or    costs   were   and    was   not    instructed   on     this    special

verdict       question.106     The    majority      opinion    does    not     reveal

whether this jury finding of reasonableness is binding on the

circuit court in exercising its discretion in an equity matter.

       Courts   are   not   equipped   or   empowered to   make
       investigations into the financial resources of various
       public bodies in Wisconsin; the coverage, policy
       limits and cost of available liability insurance; or
       the number of victims of governmental tortfeasors and
       a   profile   of   the   losses    they  have  suffered.
       Information derived from such investigation must
       necessarily precede any reasoned evaluation of either
       a limitation on recovery or a requirement of purchase
       of insurance.
       106
        Majority op., ¶35 n.19.                  See jury instruction at note
44, supra.
                              54
                                                                              No.    2007AP221.ssa


        ¶260 At trial, Bostco's                 experts      testified           that    abatement

could be accomplished by lining the Tunnel or by installing a

system of groundwater monitoring and recharge wells.                                     Majority

op.,      ¶16    n.10.         The   only       evidence          regarding       the     cost     of

abatement was a $10 million estimate proposed by one of Bostco's

experts.107       In contrast, the jury found that Bostco was entitled

to   $3       million    for    past      damages      and        $6    million      for    future

damages.         Taking into account Bostco's comparative negligence,

this $9 million figure was reduced to $6.3 million; the jury

found     Bostco    30%       liable      for   the    damage          to   the   Boston        Store

building.

       ¶261 The injunctive relief, which might cost $10 million,

appears out of sync with the monetary damages.

       ¶262 Furthermore,             although         the     majority           opinion        (¶31)

adopts the concept that the law of negligence applies to the

nuisance in the present case, it is silent about whether the

contributory negligence the jury attributed to Bostco reduces

any equitable relief founded on tort and negligence.

       ¶263 Case        law    instructs        that        all    the      usual       rules    and

defenses to negligence apply to nuisance claims predicated on

negligence.108             One       of     those       defenses            is      contributory



        107
        No estimate was offered at trial about the District's
costs of installing and maintaining a system of groundwater
monitoring and recharge wells to replenish groundwater siphoned
into the Deep Tunnel. Majority op., ¶15 n.10.
        108
        City of Milwaukee, 277 Wis. 2d 635, ¶¶7, 45. See also
Physicians Plus Ins. Corp., 2002 WI 80, ¶¶25, 31, 254
Wis. 2d 77, 646 N.W.2d 777.

                                                55
                                                                         No.    2007AP221.ssa


negligence.109             Does Bostco have to pay 30% of the cost of

abatement?

        ¶264 Fourth:             What is a reasonable sum that the District

should        be        required    to     expend       on   abatement         under    these

circumstances?                 An analysis of the injunctive relief ordered

shines light once more on the glaring short-sightedness of the

majority opinion.                Its statutory interpretation undermines the

purpose       of        Wis.    Stat.    § 893.80:      to   "compensate        victims       of

government tortfeasors while at the same time protecting the

public treasury."110               Interpreting Wis. Stat. § 893.80 to allow

unlimited injunctive relief in the present case circumvents the

monetary cap set by Wis. Stat. § 893.80(3) and nullifies the

statute's purpose.111

        ¶265 Fifth:             There is a legitimate question about whether

and how the majority opinion's order that the District "abate

the nuisance" is to be framed and enforced.

        ¶266 The majority opinion explains at one point that "the

means     whereby         [a]    nuisance   is     to   be   abated   is       left    to    the

direction          of    the    defendant   tortfeasor."         Majority        op.,       ¶33.



        109
         Physicians Plus Ins. Corp., 254 Wis. 2d 77, ¶31 (citing
Schiro v. Oriental Realty Co., 272 Wis. 537, 547, 76 N.W.2d 355
(1956) ("[C]ontributory negligence is a defense in an action for
damages occasioned by a nuisance grounded upon negligence.");
McFarlane v. City of Niagara Falls, 160 N.E. 391, 392 (N.Y.
1928) (Chief Judge Cardozo writing that when negligence is the
basis of the nuisance, contributory negligence principles
apply)).
        110
              See Stanhope, 90 Wis. 2d at 842.
        111
              See Bostco, 334 Wis. 2d 620, ¶130.

                                              56
                                                                            No.   2007AP221.ssa


Nevertheless, the majority opinion sends the issue back to the

circuit court to establish the method of abatement.

        ¶267 Courts, however, "traditionally have been reluctant to

enjoin         as   a     public      nuisance       activities         which     have     been

considered          and    specifically        authorized        by   the    government."112

The     same        principle        should    apply       to    a      private     nuisance.

Moreover, the United States Supreme Court recently commented on

the     relative          competence     of     courts       and      agencies     to      solve

technical problems as follows:                        An   "expert       agency    is    surely

better equipped to do the job than individual [trial] judges

issuing ad hoc, case-by-case injunctions."                            Am. Elec. Power Co.

v. Connecticut, 131 S. Ct. 2527, 2539 (2011).113

        ¶268 The        Deep   Tunnel     is    a    municipal        improvement       project

that is regulated by an agency with expertise——the DNR——pursuant

to state and federal law.                The DNR is not a party in the present

case,         but   the    District      submitted         two     affidavits       from    DNR

employees to the circuit court.                       According to the affidavits,

any changes to the Tunnel must be undertaken in compliance with
DNR     regulations,           the    Federal        Clean      Water    Act,     and      other

applicable law.             The affidavits indicate that the DNR had no



        112
        North Carolina ex rel. Cooper v. TVA, 615 F.3d 291, 309
(4th Cir. 2010) (citing New England Legal Found. v. Costle, 666
F.2d 30, 33 (2d Cir. 1981)).
        113
        The United States Court of Appeals for the Seventh
Circuit recently made a similar comment: "Environmental problems
require the balancing of many complicated interests, and
agencies are better suited [than judges] to weigh competing
proposals and select among solutions."     Michigan v. U.S. Army
Corps of Eng'rs, 667 F.3d 765, 797 (7th Cir. 2011).

                                                57
                                                                          No.      2007AP221.ssa


intention of approving the concrete lining that Bostco and the

circuit court sought.

        ¶269 Abatement       may        also     require        a        study        of     the

environmental      impact,    costs,       and       benefits       of     both       concrete

lining and alternatives to lining, and other matters regulated

by state and federal law.

        ¶270 The   ultimate        unanswered        question       is        whether       this

court, or the circuit court, or the DNR, an independent agency

that is not a party to this action, governs abatement.

        ¶271 The injunction remedy adopted by the majority opinion

leaves more questions than answers.                  Litigation may abound.

                                           VI

        ¶272 The   final    erratum:       The    majority      opinion            imposes    an

unfunded    mandate    on    government          entities    and         is     contrary      to

legislative    policy.        The       legitimate      legislative             concerns      of

protecting the fisc, ensuring funds are available to pay for

essential    services,      and    keeping       property    taxes            at    reasonable

rates are undermined by the majority opinion.

        ¶273 By means of this majority opinion, the court imposes

an unfunded mandate.         Government entities will now be subject to

unlimited liability in the form of injunctive relief in cases

founded on tort, and may not have the concurrent ability to

raise    additional   taxes        or   request      additional          funds       from    the

legislature to pay for the liability the court imposes.

     ¶274 Government entities are struggling to fund essential

services    without   overburdening            the    tax   base.             State    aid    to

government subdivisions has been reduced.                       The legislature has

                                           58
                                                                            No.    2007AP221.ssa


constrained the ability of government entities to raise funds by

imposing levy limits.

       ¶275 Without           question,            the     majority        opinion        expands

government          liability       and       increases      expenses       for     government

entities and taxpayers.                 This expansion of government liability,

this increase in the expenditures of government entities, and

this    increase       in    costs      to     taxpayers      are     contrary       to   recent

legislative expressions of state policy:                           One, reduce government

liability, and two, reduce recovery for tort victims.

       ¶276 The       legislature            has    always        been   less      zealous     in

abrogating government immunity than the courts.114                                The majority

opinion      repeats        the    oft-quoted,           poorly     understood      line     from

Holytz       that    says     "the      rule       is    liability——the         exception     is

immunity."          Majority op., ¶50.                  The legislature never codified

the mantra that "the rule is liability."                            The 1963 statute the

legislature enacted in response to Holytz does not direct that

"the rule is liability——the exception is immunity."                                Rather, the

legislature         rendered        government           entities    immune       for     broadly
enumerated      acts.         And       the    legislature          severely      limited     the

dollar amounts for which a government entity would be liable.

       ¶277 Of       late,        the   legislature         has     been    decreasing        and

eliminating          tort     liability            for      government        entities        and




       114
        "[J]udicial abrogation of common law immunity did not
bind the legislature." Sambs, 97 Wis. 2d at 372.

                                                   59
                                                             No.   2007AP221.ssa


decreasing the recovery of tort victims.115             The majority opinion

is marching in the opposite direction from the legislature.

                                * * * *

     ¶278 This     court   attempted      to   synthesize      the     law   on

negligence,    nuisance,   liability,      and     immunity    in     City   of

Milwaukee.    The majority opinion retreats from City of Milwaukee

and confuses the law instead of developing the law in a clear

manner.

     ¶279 Because of the numerous errata in the majority opinion

(many of which I do not enumerate), I dissent.

     ¶280 I   am   authorized   to     state     that    Justice    ANN   WALSH

BRADLEY joins this opinion.




     115
        See, e.g., 2011 Act 132 (removing statutory language
holding government entities liable for highway defects); 2011
Act 2 (e.g., restricting recovery for products liability and
placing caps on punitive damages and noneconomic health care
damages).

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    No.   2007AP221.ssa




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