00-1357 Strzelec v. City of Franklin

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“At the most, the Strzelecs’ negligence claim against the City and Bennett is based on a retrospective, result-colored analysis of how they contend the governmental discretion should have been exercised. Section 893.80(4) bars that claim.”

Further, we reject plaintiffs’ claim that they were “denied the enjoyment” of their property and substantive “due process” rights by the city’s actions in failing to fix the ponding problem on their property.

“As we have seen, the basis for the Strzelecs’ claim that the municipal defendants are liable for the ponding on their land is that the municipal defendants failed to either force the owners of the neighboring property to remedy the situation or remedy the situation themselves. And, as we have also seen, the ponding itself was caused not by the municipal defendants (or even the Contis) but, rather, by the persons who owned the neighboring property before the Contis bought it. Nothing in either the language or history of the due process clause imposes upon a state or municipality ‘to protect the life, liberty, and property of its citizens against invasion by private actors.'”

However, the trial court erred in granting summary judgment to the neighbors on plaintiffs’ nuisance claim because plaintiffs produced evidence that the ponding was destroying vegetation on their land and had reduced their property value.

“This is not one of those rare cases where the facts are so clear that they are amenable to resolution on summary judgment, especially because the foci of the inquiry here are such amorphous concepts as ‘reasonableness,’ ‘substantially,’ and ‘significant.'”

Affirmed in part, reversed in part and remanded.

Publication in the official reports is not recommended.

CONCURRING IN PART: Schudson, J. “I agree with the majority’s affirmance of the summary judgment on the inverse condemnation and substantive due process claims. I also agree with the majority’s reversal of the summary judgment on the nuisance claim. I disagree, however, with the majority’s affirmance of the summary judgment on the Strzelecs’ negligence claim against the City and Bennet.”

Dist I, Milwaukee County, Kahn, J., Fine, J.

Attorneys:

For Appellant: Burt P. Natkins, Oregon

For Respondent: Philip C. Reid, Milwaukee; Stephanie L. Riches, Milwaukee