In Armour v. Wisconsin Gas Co., 54 Wis.2d 302, 195 N.W.2d 620 (1972), the plaintiff was injured in a gas explosion which occurred in a sewer tunnel which the construction company he was working for was building for the city of Milwaukee. The plaintiff brought suit against the gas company for failure to properly and adequately inspect its gas system when it knew that sewer lines were being dug.Summary of this case from Coffey v. Milwaukee
Argued February 29, 1972. —
Decided March 28, 1972.
APPEAL from an order of the circuit court for Milwaukee county: MARVIN C. HOLZ, Circuit Judge. Affirmed.
For the appellant there were briefs by John J. Fleming, city attorney, and William J. Lukacevich and Rudolph T. Randa, assistant city attorneys, and oral argument by Mr. Randa.
For the respondent there was a brief by Harrold J. McComas, Timothy R. Casgar, and Foley Lardner, attorneys, and Clifford W. Muellner of counsel, all of Milwaukee, and oral argument by Mr. McComas.
The order appealed from overruled a demurrer by the third-party defendant, city of Milwaukee (hereinafter city).
In October of 1962, the city entered into a written contract with Grange Construction Company, Inc. (hereinafter Grange), for the laying of storm sewers under several Milwaukee streets. The streets' surfaces were not opened; underground tunnels were dug, at least in the area in question.
On January 13, 1964, the plaintiff Phillip Armour, an employee of Grange, and several other workmen were injured by an explosion and fire that occurred in the sewer tunnel then being constructed.
In 1967 this action was commenced against Wisconsin Gas Company (hereinafter gas company). The plaintiff alleged that the gas distribution lines of the gas company were ruptured and leaked gas because of the shifting and subsidence of the soil. He alleged the gas company was negligent in failing to properly and adequately inspect its distribution system when it knew the sewer system was being constructed in an area of its lines; and that the gas company was negligent because it was aware of a dangerous gas leak in the area in which plaintiff was working and failed to fix the leak or warn the plaintiff of the danger.
On September 17, 1969, the gas company served an answer to the complaint. It generally denied plaintiff's allegations. The answer alleged as an affirmative defense that the plaintiff had allowed oxygen and acetylene to accumulate in the tunnel which was the cause of the explosion. The defendant gas company also alleged that the plaintiff had caused the earth around the tunnel to shift by his use of inadequate tools, machinery and methods. Therefore, if the natural gas lines did in fact break they broke as a result of plaintiff's negligence. The gas company also charged that plaintiff had properly failed to adequately ventilate the tunnel, and that the plaintiff failed to use adequate gas detection equipment in the tunnel thereby allowing the explosive gases to accumulate to a flammable and explosive degree.
The defendant gas company also served a third-party complaint against the city of Milwaukee and John S. Krejci, president of Grange Construction Company, Inc., and Frederick Gille, its foreman. It alleged it was not negligent and that the third-party defendants were negligent. It demanded the complaint be dismissed or, in the alternative, it be awarded contribution.
Several of the other actions, either direct actions or third-party actions, authorized by workmen's compensation statutes, have been commenced against the gas company because of this same explosion. In each instance the gas company has answered and cross-complained. The parties have agreed the decision in this case shall control the same issues in the other actions.
The third-party complaint alleges the city contracted with Grange to build the tunnels in question and that the city undertook the duty to oversee and inspect the work done by Grange. It alleges that the city permitted Grange to do the work in an unsafe manner and to use inadequate and improper tools and procedures which resulted in shifting and subsidence of the soil above the tunnel and consequent breakage of the gas lines. It further alleges the city improperly permitted use, storage and accumulation of flammable gas, acetylene and oxygen, which caused the explosion, and that the city failed to require Grange to ventilate the tunnel and permitted the use of inadequate and improper gas detection devices. It further alleges all of these acts were negligent and direct and proximate causes of the explosion, and resulted in the injuries and damages.
The city demurred to the gas company's third-party complaint upon the ground that it failed to state a cause of action against the city. The trial court entered an order overruling the demurrer and the city appeals.
The appellant city raises three issues:
(1) Is the third-party complaint against the city for contribution barred by sec. 81.17, Stats.?
(2) Does the gas company have a cause of action against the city under the common law?
(3) Is the gas company required to file a claim pursuant to sec. 62.25(1)(a), Stats., before it can commence an action for contribution against the city?
Preliminary to discussing the issues raised, we restate the basic rule that upon a challenge by demurrer all facts well pleaded in the complaint are assumed to be true. Under this assumption it can be said that the city undertook the responsibility to supervise and inspect the construction of the storm sewer, and that it was causally negligent in that respect.
The city's first contention is that by virtue of sec. 81.17, Stats., it is only secondarily liable.
Sec. 81.17, Stats., provides:
"Highway defects; liability of wrongdoer; procedure.
Whenever damages happen to any person or property by reason of any defect in any highway or other public ground, or from any other cause for which any town, city, village or county would be liable, and such damages are caused by, or arise from, the wrong, default or negligence thereof and of any person, or private corporation, such person or private corporation shall be primarily liable therefor; but the town, city, village or county may be sued with the person or private corporation so primarily liable. If the town, city, village or county denies its primary liability and proves upon whom such liability rests the judgment shall be against all the defendants shown by the verdict or finding to be liable for the damages; but judgment against the town, city, village or county shall not be enforceable until execution has been issued against the party found to be primarily liable and returned unsatisfied in whole or in part; on such return being made the defendant town, city, village or county shall be bound by the judgment. The unpaid balance shall be collected in the same way as other judgments."
We have no difficulty in concluding that the injury for damages as claimed did not occur ". . . by reason of any defect in any highway or other public ground, . . ."
An underground tunnel for sewer purposes, without any opening, interruption, or obstruction of the highway surface, is not a highway defect. In this instance the injury and damages were the result of a gas explosion and fire in a tunnel under the highway which was being constructed for sewer purposes. There was no defect or want of repair of the highway that in any way caused this accident; nor were any other "public grounds" involved.
The city contends that even if the accident was not caused by a defect in the highway or other public grounds, the statutory phrase in sec. 81.17, Stats., "or from any other cause," is broad enough to include the injuries claimed by the plaintiff.
Prior to our decision in Holytz v. Milwaukee (1962), 17 Wis.2d 26, 115 N.W.2d 618, the doctrine of governmental immunity barred tort claims against municipalities arising out of the performance of a governmental function. Governmental immunity from tort claims was a court-made rule adopted by this court in Hayes v. Oshkosh (1873), 33 Wis. 314, 318, 14 Am. Rep. 760. The harshness of this rule was tempered by several exceptions either by court decision or statutory direction. One of the areas where the legislature determined there should be an exception to governmental immunity was for injuries suffered because of highway defects.
See: Holytz v. Milwaukee, supra.
Sec. 81.15, Stats., was enacted to permit limited recovery for injuries because of highway defects by reason of insufficiency or want of repair. We believe, as the trial court did, that sec. 81.17, relied upon by the city, which is designated a procedural statute dealing with highway defects, must be read in conjunction with sec. 81.15.
If the phrase "or from any other cause," taken from sec. 81.17, Stats., is applied in conjunction with sec. 81.15, then it is limited to damages arising from highway defects. This we believe is the proper construction. To literally construe the phrase as contended by the city would, for most purposes, nullify our ruling in Holytz, supra.
Consistent with the obvious purpose of Holytz to abrogate municipal immunity to liability to tort claims, we believe sec. 81.17, Stats., should be limited to highway defects, including defects in sidewalks or obstructions in the highway or sidewalk. Therefore it is our opinion that sec. 81.17 does not apply to a tunnel dug under the street for purposes unrelated to the street and not to this case where the plaintiff was injured not on the street nor by a defect in the street but by an explosion and fire in a tunnel under the street and unrelated to street or highway purposes.
The city also contends that there is no common-law liability because it owed no duty to the plaintiff to inspect or supervise the construction of its own tunnel by Grange.
In Holytz v. Milwaukee, supra, this court abrogated the immunity of municipalities for their negligent acts, whether done by omission or commission. The holding of the court was not retroactive and did not apply to torts occurring before July 15, 1962. The court further stated that the 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." However, it did state, "Perhaps clarity will be afforded by our expression that henceforward, so far as governmental responsibility for torts is concerned, the rule is liability — the exception is immunity."
In Hennington v. Valuch (1963), 19 Wis.2d 260, 120 N.W.2d 44, the plaintiff had entered into a contract whereby the defendant was to do certain plumbing and sewerage work on real estate owned by the plaintiff. The work done by the defendant was under the supervision and inspection of the city of Milwaukee. The plaintiff alleged that the defendant had not made the sewer connection in a workmanlike manner (the connection was made to an abandoned sewer) and as a result the plaintiff's real estate became flooded at times because of a backup in the sewer system.
The defendant moved to implead the city of Milwaukee, which motion was granted by the trial court. In its cross complaint the defendant asked that if judgment were entered against it then the defendant should have judgment against the city.
This court held that the cross complaint alleged a cause of action against the city because of improper and negligent supervision by the city. Hennington v. Valuch, supra, page 264. We then held the defense of governmental immunity was available to the city because the tort had occurred before July 15, 1962, and therefore that Holytz, supra, did not apply to the case.
Firkus v. Rombalski (1964), 25 Wis.2d 352, 130 N.W.2d 835, applied Holytz and held that even though there was legislative discretion vested in the municipality as to whether to erect a stop sign at a given intersection when it decided to erect the sign, it had the duty to use reasonable care to maintain it.
Here the cross complaint alleges that the city undertook to oversee, inspect and approve the construction work and negligently did so, which negligence resulted in an explosion and fire with resultant injury to Phillip Armour, the plaintiff in this action.
In this action Phillip Armour was working as an employee of Grange, the company constructing the sewer. In Hennington, the original plaintiff was a third-party landowner whose property was flooded because of the wrongly connected sewer. This difference in position should not differentiate the two cases so that in Hennington the plaintiff could have collected against the city except for Holytz, and in this case the plaintiff would have no recourse because he was an employee of the construction company working on the sewer. Both plaintiffs were allegedly innocent parties who suffered as a result of the city's negligence.
In Frew v. Dupons Construction Co. (1968), 37 Wis.2d 676, 155 N.W.2d 595, the defendant Dupons Construction had entered into a contract with the defendant-appellant city of Kenosha for the construction of a new sanitary sewer system. In the course of construction, Dupons dug a sewer lateral from the main to a building owned by the plaintiffs. A gas line lateral became exposed in the digging. Somewhat later a parking meter in the street, undermined by the digging, fell into the sewer lateral trench and struck the gas line lateral. A gas valve was damaged thereby resulting in a gas leak. Both Dupons and the city of Kenosha's inspector (Bailey) knew of the escaping gas. Bailey told a Dupons' foreman to tape the valve, underpin the gas line, and backfill the sewer lateral trench. Later an explosion occurred, injuring the building owned by the plaintiffs.
The plaintiffs brought an action against Dupons, the city of Kenosha, and the Wisconsin Natural Gas Company. The city of Kenosha moved for summary judgment to dismiss it from the action. The motion was denied by the trial court.
This court held that the trial court properly denied the motion for summary judgment, stating at page 689:
"The questions of Bailey's negligence, causation, and the scope of Bailey's employment are issues of fact to be determined at trial. The alleged negligence of Dupons and the gas company, if found, and the causal effect are factual issues that must likewise await a finding at trial. The decision on the liability on the part of the city, if any, to the plaintiffs and between the defendants must await a resolution of the facts."
Similarly, the facts in this case raise factual issues about the city's negligence which must be resolved at trial.
The city, the third-party defendant, also contends that because the gas company did not file a claim against the city under sec. 62.25(1)(a), Stats., the company is precluded from asserting the claim in this action.
In Hennington v. Valuch, supra, at page 262, this court rejected a contention by the impleaded third-party defendant city of Milwaukee that the defendant was barred from bringing an action for contribution against the city because the defendant had not filed a claim against the city under sec. 62.25(1)(a), Stats. Hennington is comparable to the present case, and the city's contention is accordingly rejected. See also: Madison v. Frank Lloyd Wright Foundation (1963), 20 Wis.2d 361, 381, 122 N.W.2d 409; Frew v. Dupons Construction Co., supra.
"No action shall be maintained against a city upon a claim of any kind until the claimant shall first present his claim to the council and it is disallowed in whole or in part. Failure of the council to pass upon the claim within 90 days after presentation is a disallowance."
Also, the fact that plaintiff asked for $30,000 does not invalidate the gas company's claim even though the maximum liability of the city under sec. 895.43, Stats., is $25,000. Schwartz v. Milwaukee (1969), 43 Wis.2d 119, 168 N.W.2d 107.
By the Court. — Order affirmed.