Partner Michael Sever obtained a summary judgment order on behalf of his design professional client in a recent Wisconsin case concerning flooding of a residential property following utility construction.
In the case, the plaintiffs contended utility work underneath the road directly south of their property had damaged a drain tile servicing their property. Following construction, the plaintiffs observed large amounts of standing water on their property. With no flooding having occurred pre-construction, the plaintiffs claimed a severed drain tile was the cause of damage to their home’s foundation and surrounding land – diminishing the property’s value.
Michael’s client had prepared the design of the new utilities and was named as a defendant along with the project contractor and several local government entities. The plaintiffs sued all defendants for inverse condemnation (under the Takings Clause of the Fifth Amendment to the U.S. Constitution), and negligence.
Michael filed a motion to dismiss the inverse condemnation count because a “taking” of private property under the Fifth Amendment can only be performed by government entities, not private companies. Therefore, the plaintiffs could not logically assert inverse condemnation against the design professional. The plaintiffs’ counsel agreed to dismiss the inverse condemnation claim with prejudice within hours of the motion’s filing.
Following fact discovery, Michael moved for summary judgment on three fronts:
- The plaintiffs failed to establish how the design professional owed any duty to them because the engineer had neither a duty to perform project construction nor direct the means and methods of any contractor who did.
- This failure automatically meant the breach element could also not be established. More than two and a half years after the plaintiffs first observed standing water, they still could not identify an expert witness who could offer qualified peer criticism of the project design – effectively conceding that Michael’s client complied with the professional design standard of care.
- The lack of proximate cause, which is usually a fact issue, could be determined as a matter of law because while reasonable minds could disagree as to the proximate cause of the flooding, no one could say it was the design professional’s fault.
Michael also questioned the alleged drain tile’s very existence. The project plans showed that the utilities were laid deeper underground than the alleged drain tile’s estimated depth, meaning that, if it existed, the contractor would have seen and cut through the system, causing a flood of water to enter the trench. Even if the contractor did not see the drain tile, no sinkhole or subsidence was observed following backfill. Finally, hydrological studies showed that the natural drainage direction on the plaintiffs’ property was to the north.
When presented with the dispositive motion, the plaintiffs’ counsel could not offer a rebuttal. Instead, the plaintiffs filed a one-page letter to the court that merely noted their “disagreement” with the contention the drain tile did not exist, but noted the issue was “not dispositive to the motion,” effectively conceding the remaining arguments. The Racine County Circuit Court swiftly entered summary judgment in favor of Michael’s client.
Michael concentrates his practice in commercial litigation, construction litigation, casualty litigation, subrogation, products liability and professional liability defense. He has drafted, argued and won numerous dispositive motions in jurisdictions across the Midwest.