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00-3551 Anhalt et al. v. Cities and Villages Mutual Insurance Co., et al.

By: dmc-admin//October 29, 2001//

00-3551 Anhalt et al. v. Cities and Villages Mutual Insurance Co., et al.

By: dmc-admin//October 29, 2001//

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And, even though easements drafted by the city in 1988, which provided the city with rights of access across plaintiffs’ land to construct a storm sewer, stated that “it is understood … that the city shall be responsible for any wrongful or negligent act or omission of the city…,” we reject the plaintiffs’ contention that this provision constituted a waiver of immunity.

“It is clear to us that the language in the easements contains no express waiver of immunity. Read in context, the plain language simply expresses the City’s willingness to be liable for negligent acts occurring during the work allowed by the easements. It waives immunity, for example, with respect to the negligent trenching and laying of pipes, but not for the overall planning and design decisions of the sewer system.

Certainly, the easements do not waive the discretion of the City to adopt recommendations of hired consultants. Because the residents do not allege any negligent acts with respect to the installation of the storm sewer pipes but only with respect to the original design and refusal to follow the consultants’ advice, we conclude that this decision is protected by the City’s immunity and is not waived by the easements.”

Plaintiffs’ other claims for nuisance, waste, and inverse condemnation are similarly without merit.

Order granting summary judgment to the city is affirmed.

Recommended for publication in the official reports.

Dist II, Sheboygan County, Dolgert, J., Brown, J.

Attorneys:

For Appellant: Randall L. Nash, Milwaukee

For Respondent: James O. Conway, Sheboygan

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