New Wisconsin Supreme Court Decision Significantly Affects Tort Liability of Property Owners for Surface Water Runoff

July 17, 2009

On July 9, 2009, the Wisconsin Supreme Court issued its ruling in Hocking v. City of Dodgeville 2009 WI 70, ___ Wis. 2d ___, ____ N.W.2d ____. This decision significantly affects the rights of property owners in Wisconsin. It holds that a property owner has no duty to divert the flow of surface water over his or her property to prevent water damage to a neighboring property if the property owner did not unreasonably alter the flow of surface water in the first instance.

The plaintiffs in Hocking purchased a home in a rural area in 1978 and had no neighbors nearby. In 1991, the surrounding land was developed into a subdivision, and, as a result of the grading patterns, the Hockings’ home was left at the bottom of a bowl. The new subdivision did not include any storm sewers. Thereafter, the Hockings’ yard and house flooded anytime it rained. The house developed a mold problem and the Hockings were forced to move out. They sued the City of Dodgeville, the city engineer, and the developer of the property, as well as the neighboring property owner and the previous owners of the adjacent property.

The Hockings alleged that the adjoining property owners negligently maintained a nuisance by allowing surface water runoff to flow onto and damage the Hockings’ property. The Hockings claimed that the neighboring property owners possessed a duty to act affirmatively to “abate” the nuisance condition – that is, the surface water runoff.

In a 6-0 opinion, the Wisconsin Supreme Court held that the adjoining property owners could not be held liable for the surface water runoff that flowed over their property onto the Hockings’ land. The majority opinion, written by Justice Ziegler, held that under the “reasonable use doctrine,” “a duty to act will arise if the landowner’s use of his land that resulted in altering the flow of surface water is unreasonable.” The court stated: “[T]he defendants here have a positive duty to abate this nuisance only if the use of their property altered the flow of surface water and was an unreasonable use of their property.” Id. Because the defendants did not do anything to alter the flow of surface water on their property and instead “just lived there,” they had “no duty to abate [the nuisance] in this first instance.”

In so ruling, the court explained the type of conduct that might give rise to liability for surface water flow:

The defendants… did not create a trench that increased the flow of water to the Hockings’ property. The defendants did not point oversized downspouts at the Hockings’ property. The defendants did not landscape in such a way so to unreasonably increase water flow to the Hockings’ property. Instead, the defendants purchased a home in a development and lived there. The defendants could not reasonably be required to take positive action that would affect rainwater runoff onto the Hockings’ property.

However, because the defendants merely purchased and lived in a home, and did not use their property in an unreasonable manner, they were not required to prevent rainwater from flowing onto the Hockings’ property.

Chief Justice Abrahamson, joined by Justice Bradley, filed a concurring opinion. The concurring opinion would have found that the homeowners had a duty to abate the surface water runoff, but that they did not breach their duty because the nuisance condition in this case was not reasonably abatable. In other words, the concurrence would have found a general duty to manage surface water, but ruled that it would not be reasonable to expect the Hockings’ neighbors to alter neighborhood drainage patterns. The main difference in the two opinions is that the majority opinion cuts off liability for homeowners at the outset, whereas the concurring opinion likely would result in such cases having to be tried to determine whether any given storm water problem is “abatable.”

This decision is significant because, had the Court ruled the other way, entire neighborhoods, along with real estate agents, homebuilders, and insurers, would face contentious lawsuits anytime one downhill property owner in a subdivision experienced a problem with surface water runoff. The decision is also significant in that it is another decision in a series of recent cases that hold certain classes of defendants possess “no duty” to a particular plaintiff. The majority opinion in Hocking reaffirms that Wisconsin courts can and do dismiss negligence cases before a full evidentiary hearing based on the absence of a legal duty owed to the plaintiff. In another case released the same day as Hocking – Behrendt v. Gulf Underwriters Ins. Co., 2009 WI 71, __ Wis. 2d __, __ N.W.2d __ – Justice Roggensack filed a concurring opinion that suggests that in order to hold someone liable for a failure to act, the court must identify a specific legal duty to act – other than the general duty of ordinary care.

The bottom line is that under Hocking, unless a property owner takes some affirmative action that unreasonably alters the flow of surface water over his or her property, there is no duty to act to prevent surface water from flowing onto a neighbor’s property.