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COURT OF APPEALS
DECISION                                                NOTICE
DATED AND FILED
This  opinion  is  subject  to  further  editing.  If
published, the official version will appear in the
bound volume of the Official Reports.
December 12, 2000
                                                                                  A  party  may  file  with  the  Supreme  Court  a
                                                                                  petition  to  review  an  adverse  decision  by  the
                                                        Cornelia G. Clark
                                                                                  Court of Appeals.   See WIS. STAT. § 808.10 and
                                                        Clerk, Court of Appeals
                                                                                  RULE 809.62.
                                                        of Wisconsin
No.                                                     99-3126
STATE OF WISCONSIN                                      IN COURT OF APPEALS
DISTRICT I
JOSEPH AND JUNE ALBERT, DIANE RICHTER
AND WILLIAM AND GRACE SCALE,
PLAINTIFFS,
DELBERT BLOOR, MARY ANN BLOOR AND
JEFF BLOOR, PHILIP CARUSO, JR., AND JUDY
CARUSO, MICHAEL AND DEBORAH
CHAMBERS, LORRAINE DAVIES, PHILLIP AND
COLLEEN DEVLIN, THOMAS AND SHERON
EBERT, DAVID AND LAURALEE EGLI,
CHRISTINE FERRIS, PAUL AND LISA FIX,
LEON AND PATRICIA FRISKE, RITA
FRONCZAK, DAVID AND JULIA GARD, BRETT
AND MARY BETH GARRETT, CHRIS AND LYNN
GIELDON, PETER AND JACQUELINE HEMMER,
DIMITRI KAMOLOV, ARDEN AND RENEE
KNOLL, HUBERT AND MAE KRAWCZYK,
JAMES AND MARILYN LAVESSER, WALTER
AND EMILY LUCZAK, RICHARD MALLINGER,
ANTHONY AND RANAE MANE, DARELD
MATTER, OTTO MARTENS, KENNETH
MULTHAUF AND GREGORY MULRY, RICHARD
AND NGOC PARADOWSKI, THADDEUS AND
JEAN PELZEK, JOHN AND VIRGINIA




No. 99-3126
PENNEBECKER, THOMAS AND ESTELA PRUST,
ERVIN AND BERNICE PRUST, WILLIAM AND
GRACE QUIRK, JAMES RICHTER, JOANNE
RICHTER AND PATRICK RICHTER, EMILY
RYBECK, JEFFREY AND CYNTHIA SALISBURY,
STEVE SCHRAMKA FUNERAL HOMES, INC.,
GREGORY AND JUNE SIECH, JAMES AND
MICHELLE SKROBIS, DAVID AND CHRISTINE
URBANIAK, CECELIA WISNIEWSKI, FAITH
YUMANG AND KATHERINE ZIELSKI,
PLAINTIFFS-RESPONDENTS,
V.
MILWAUKEE METROPOLITAN SEWERAGE
DISTRICT,
DEFENDANT-APPELLANT.
JAMES J. AND MYRTLE R. CUDA, GAYLORD
GUGIN AND ROBERT AND ANITA
PIETRYKOWSKI,
PLAINTIFFS,
JESSE C. AND LYNN M. BENISH, CAL A.
FLOOD, FRANCIS J. KNIPPEL, JOHN AND
KATHLEEN MUNZINGER, HENRY PACUT,
MARY E. PARKER, TYLER AND MARY
PIORIER, THOMAS MORE HIGH SCHOOL,
JAMES AND NOREEN WILEY, EVELYN
WILKER AND FRANCES ZAHN,
PLAINTIFFS-RESPONDENTS,
V.
MILWAUKEE METROPOLITAN SEWERAGE
DISTRICT,
DEFENDANT-APPELLANT.
2




No. 99-3126
APPEAL from judgments of the circuit court for Milwaukee County:
DAVID A. HANSHER, Judge.   Affirmed.
Before Fine, Schudson and Curley, JJ.
¶1                                                                                        PER  CURIAM.    The  Milwaukee  Metropolitan  Sewerage  District
(MMSD) appeals from the circuit court judgments in favor of Delbert and Mary
Ann Bloor and numerous other plaintiffs-respondents.   MMSD presents several
arguments, all of which we reject.   Accordingly, we affirm.
BACKGROUND
¶2                                                                                        On August 28, 1995, backups of raw sewage occurred in numerous
buildings in the cities of Cudahy, Milwaukee, and St. Francis.   On May 24, 1996,
seventy-four individuals and one business filed a lawsuit against MMSD regarding
the sewage backups.  The complaint was amended, adding two more individuals as
plaintiffs.   On January 23, 1998, eleven other individuals and one school filed a
different lawsuit against MMSD regarding the sewage backups of August  28,
1995.   That complaint was amended twice, adding a total of eight more individuals
as plaintiffs.
¶3                                                                                        The complaints for both lawsuits alleged that the sewage backups
resulted from MMSD’s “negligence in failing to properly inspect, maintain and/or
operate its sewerage system,” and that the backups constituted negligent trespass.
They asserted that as a result of MMSD’s conduct, each plaintiff suffered at least
one  injury,  including  but  not  limited  to  destruction  and/or  loss  of  personal
property, temporary loss of use of the affected premises, loss of income, physical
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No. 99-3126
illness “including, but not limited to, nausea and infection,” and “annoyance and
inconvenience.”   In its answers to the complaints, MMSD denied that “raw sewage
back-up was the result of [its] negligence in failing to properly inspect, maintain
and/or operate its sewage system.”   The only affirmative defense pled by MMSD
was that “the amount recoverable by any individual person, proceeding jointly or
severally, shall not exceed $50,000, pursuant to sec. 893.80(3), Wis. Stats.”
¶4                                                                                              The cases were consolidated for trial.    In an unsigned motion in
limine  attached  to  its  pretrial  report,  MMSD  asked  the  court  for  an  order
“restricting the plaintiffs from introducing any testimony of negligence relating to
the lack of a back-up power source at the MMSD diversion structure located at the
intersection of S. Kinnickinnic and E. Lunham Avenues in the City of St. Francis
on August  28,  1995.”    At the status conference of October  15,  1998, MMSD
stated, for the first time, its position that its decision not to provide backup power
at  the  diversion  structure  was  a  design  decision  and                                    “the  statutes,  namely
893.80(4), provide for immunity to the MMSD for design decisions which are
discretionary decisions which are quasi-legislative.”   At a hearing just prior to the
beginning of the trial, the court denied MMSD’s motion in limine.   The trial, on
the issue of liability only, began on October 26, 1998, and the jury returned its
special verdict on November 6.1
¶5                                                                                              Seven special verdict questions dealt with the diversion structure.
On Question 1, the jury found that the decision not to equip the diversion structure
1  The plaintiffs chose not to pursue the cause of action for negligent trespass.    On
November 4, 1998, the circuit court granted MMSD’s motion for dismissal of plaintiffs Joseph
and June Albert, William and Grace Scale, Robert and Anita Pietrykowski, and Gaylord Gugin.
The circuit court did not grant MMSD’s motion for dismissal of plaintiff Diane Richter.   The
record on appeal does not establish the ultimate status of plaintiffs James and Myrtle Cuda.
4




No. 99-3126
with secondary power prior to August 28, 1995, was an operational decision.   On
Question  2, the jury found that MMSD was negligent in failing to provide the
diversion structure with a secondary power source before August 28, 1995.   On
Question 3, the jury found that this negligence was a cause of the sewage backup
into  the  properties  of  all  except  one  of  the  plaintiffs  listed                    (Diane  Richter).
Because the jury found, on Question 4, that MMSD was not negligent in failing to
override the diversion structure’s computer program to allow a diversion from
Jones Island to South Shore prior to the loss of power at 9:37 a.m. on August 28,
1995, it did not have to answer Question 5.   On Question 8, the jury found that
MMSD was negligent in failing to divert the sewage flow from Jones Island to
South Shore at the diversion structure in a timely manner on August 28, 1995.   On
Question 9, the jury found that MMSD should have diverted the sewage flow from
Jones Island to South Shore at the diversion structure at 12:00 p.m.2
¶6                                                                                          Four special verdict questions dealt with a bypass gate.   On Question
6, the jury found that MMSD was negligent in failing to test the gate on a regular
basis before August 28, 1995.   On Question 7, the jury found that this negligence
was  a  cause  of  the  sewage  backup  into  the  premises  of  all  plaintiffs  listed.
Because the jury found, on Question 10, that MMSD was not negligent in failing
to open the bypass gate in a timely manner on August 28, 1995, it did not have to
answer Question 11.
¶7                                                                                          Motions after verdict were filed by both the plaintiffs and MMSD.
The court granted one of the plaintiffs’ motions, ruling, as a matter of law, that
because the jury found that MMSD’s decision not to equip the diversion structure
2  Question 9 erroneously refers to August 25, 1995, rather than to August 28, 1995.
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No. 99-3126
with secondary power prior to August  28,  1995, was an operational decision,
governmental  immunity  could  not  apply  to  MMSD.    The  court  denied  the
plaintiffs’ other motions and all of MMSD’s motions.   The parties subsequently
agreed on the amount of damages to be awarded to each plaintiff; judgments were
entered accordingly.
DISCUSSION
¶8                                                                                          MMSD  first  argues  that  the  circuit  court  erred  by  “refusing  to
conduct its own pre-trial evidentiary hearing to determine whether the failure to
provide a back-up source of power at the Lunham structure was a discretionary
design decision entitling [MMSD] to governmental immunity.”   It claims that the
court  “refused to analyze the nature of  [the] function being challenged and, in
effect, allowed a jury to decide when or whether municipal tort immunity should
apply,  based  on  its  perception  of  operation  or  design  as  aided  by  plaintiffs’
expert.”
¶9                                                                                          The respondents contend that we need not decide this issue.   They
explain:
This Court could take away the jury verdict finding that
MMSD was negligent in failing to provide the diversion
structure at KK and East Lunham with a secondary power
source before August 28, 1995, and it will have no effect
on the Judgments entered in this case.
On the Special Verdict returned on November  6,
1998,  there  was  an  additional  and  totally  separate  jury
finding of MMSD negligence relating to the same diversion
structure at KK and East Lunham.   This was a finding that
MMSD was negligent on August  28,  1995, in failing to
divert the flow of sewage from Jones Island to South Shore
at  the  diversion  structure  at  KK  and  East  Lunham  in  a
timely manner.   This finding stands on its own because it
has nothing to do with power to the structure, whether it be
primary or secondary.   The diversion to South Shore could
have  been  accomplished  by  manually  moving  the  gates
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No. 99-3126
within the diversion structure.   In fact, the diversion was
accomplished manually later in the afternoon of August 28,
1995.   The finding of negligence for failing to accomplish
this in a timely manner on August 28, 1995, has nothing to
do with the lack of secondary power.   This finding was not
appealed by MMSD.
(Record references omitted.)   The respondents also assert:
MMSD has not appealed the jury’s verdict concerning the
operational  versus  design  question,  and  also  has  not
appealed the jury’s finding of negligence for MMSD failing
to  provide  a  secondary  power  source  at  the  diversion
structure.   The only thing that has been appealed was the
Court’s decision to submit the operational versus design
question to the jury.   Under Menick [v. City of Menasha,
200 Wis. 2d 737, 547 N.W.2d 778 (Ct. App. 1996) (holding
that “operating and maintaining” sewer system does not fall
within  immunity  provisions  of  WIS.  STAT.                                             § 893.80
because although  “decision to install and provide” sewer
system  is  discretionary,                                                                “there  is  no  discretion  as  to
maintaining  the  system  so  as  not  to  cause  injury  to
residents”)], this decision was correct.
Additionally, the respondents argue that “[e]ven if the Court should rule that, as a
matter of law, the lack of secondary power was a design decision, [MMSD] should
not be entitled to immunity because it waived the defense of immunity by not
pleading it as an affirmative defense,” and by not moving to amend its pleadings.
The respondents are correct.
¶10    WISCONSIN  STAT.  § 893.80(4) provides immunity to MMSD  “for
acts done in the exercise of legislative, quasi-legislative, judicial or quasi-judicial
functions.”   See WIS. STAT. § 893.80(4) (1995-96).                                       “Quasi-legislative” or “quasi-
judicial” acts are synonymous with “discretionary” acts.   Scarpaci v. Milwaukee
County, 96 Wis. 2d 663, 683, 292 N.W.2d 816 (1980).   Discretionary immunity,
however, “is an affirmative defense that is deemed waived if it is not raised in a
responsive pleading or by motion.”   Anderson v. City of Milwaukee, 208 Wis. 2d
18,                                                                                       34,                                  559  N.W.2d   563   (1997)   (emphasis  added);  see  also  WIS.  STAT.
§ 802.06(2) (1995-96).
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No. 99-3126
¶11    MMSD offers two replies.   First, it claims that “the question of the
availability of the discretionary governmental immunity defense is solely a judicial
determination” and, therefore, “the jury verdicts on these two issues [the operation
versus design  question and the finding of  negligence  for failure to provide a
secondary power source at the diversion structure] are nullities and must be set
aside.”    Second,  it  claims  that  it                                               “should  not  have  to  plead  the  defense  of
discretionary governmental immunity from alleged design negligence if design
negligence has not been pleaded by the Plaintiffs.”   MMSD, however, fails to cite
any legal authority in support of either of these contentions, see State v. Shaffer,
96 Wis. 2d 531, 545-46, 292 N.W.2d 370 (Ct. App. 1980) (appellate court need
not consider arguments unsupported by legal authority), and fails to offer anything
that would counter the respondents’ invocation of the supreme court’s declaration
that “discretionary immunity is an affirmative defense that is deemed waived if it
is not raised in a responsive pleading or by motion,” Anderson, 208 Wis. 2d at 34;
see also Charolais Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97,
109,  279 N.W.2d  493  (Ct. App.  1979)  (unrefuted argument deemed admitted).
Accordingly, we deny MMSD’s request for remand for an evidentiary hearing on
whether it was entitled to governmental immunity.
¶12    MMSD also contends that the circuit court erred in not admitting
testimony from its expert regarding the rate of flow of sewage backup into the
plaintiffs’  premises.                                                                 Using  the  terms                                 “sewerage  backup”  and   “flooding”
interchangeably in its brief, MMSD argues that the excluded testimony is relevant
to causation because it would have afforded the jury “the opportunity to evaluate
the impact of the alleged MMSD negligence against the impact of the basement
flooding that occurred as a result of the storm and the unlikely failure of the two
structures [the diversion structure and the bypass gate] within a few minutes of
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No. 99-3126
each other.”   MMSD also contends that the excluded testimony “was to prove that
by approximately 2 o’clock p.m. on the day in question, the plaintiffs, based on
their location, already had so much basement flooding that any flooding as a result
of  MMSD  negligence  could  not  be  a  substantial  factor  in  causing  plaintiffs’
damages.” (Emphasis added.)   Thus, MMSD maintains, it is “entitled to a new
trial on the issue of causation, to fully present its evidence that it should not be
held to be the legal cause of plaintiffs’ damages.”                                      (Emphases added.)   MMSD is
incorrect.
¶13    We  will  uphold  a  trial  court’s  discretionary  decision  to  exclude
evidence if it has a reasonable basis, was made by applying a proper standard of
law, and is supported by the record.   State v. Jenkins, 168 Wis. 2d 175, 186, 483
N.W.2d 262 (Ct. App. 1992).   The party seeking admission of evidence bears the
burden of showing why it is admissible.   Id. at 188.
¶14    Relevant evidence generally is admissible.    WIS. STAT.  § 904.02
(1997-98).                                                                               “‘Relevant evidence’ means evidence having any tendency to make
the existence of any fact that is of consequence to the determination of the action
more probable or less probable than it would be without the evidence.”    WIS.
STAT. § 904.01 (1997-98).   MMSD did not meet its burden of showing that, in the
liability phase of this bifurcated trial, the rate of flow of sewage backup was
relevant to the jury’s determination that MMSD was negligent in failing to provide
the diversion structure with secondary power and this negligence was a cause of
the sewage backup.
¶15    During the trial, the circuit court stated:
I think the issue has to be narrowed to the question whether
the negligence caused the sewage backup.    The Court’s
going to hold [that] the amount of sewage backup … and
the times are not relevant; and, if they are relevant, it would
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No. 99-3126
…  cause  confusion  to  the  jury  when  you  go  back  and
determine   the   cause   questions   and   the   negligence
questions[;] and this is the problem with a bifurcated trial.
(Emphasis  added.)     During  the  hearing  on  postverdict  motions,  the  court
reaffirmed its ruling:
[M]y finding was that the rate of sewerage was not material
as  to  the  issues  of  negligence  whether  any  sewerage
whatsoever was in the basement,  … I believe my ruling
was that it is possible and most likely that this issue, the
rate of sewerage, would be material as to damage.…                                     [T]he
rate of sewerage was not material at this point or at this part
of the trial.
The circuit court was correct.
¶16    MMSD ignores the fact that the liability phase of the bifurcated trial
encompassed  negligence  only,  not  damages.    To  establish  negligence,  as  our
supreme court has explained,
a plaintiff must prove: (1) the existence of a duty of care on
the part of the defendant, (2) a breach of that duty of care,
(3) a causal connection between the defendant's breach of
the duty of care and the plaintiff's injury, and (4) actual loss
or damage resulting from the injury.
Gritzner v. Michael R.,  2000 WI  68,  ¶19,  235 Wis. 2d  781,  611 N.W.2d  906.
MMSD seems to misconceive what the plaintiffs had to establish in order to prove
that it was negligent.   For example, in its reply brief, MMSD maintains:
The effect of the exclusion of this testimony was to
deprive the MMSD of the opportunity to demonstrate to the jury
that the enormous amount of sewerage back-up cause[d] by the
joint failure of the diversion and by-pass structures without any
MMSD negligence prevented the limited amount of sewerage
back-up that could arguably be attributed to alleged MMSD
negligence from being the cause of Plaintiffs’ damages.
(Emphases added.)   But whether MMSD was “the cause” was not the issue and,
indeed, that was not the question submitted to the jury.    The jury found, on
Question 2, that MMSD was negligent in failing to provide the diversion structure
with secondary power, and found, on Question 3, that this negligence was a cause
of the sewage backup. The jury also found, on Question  8, that MMSD was
10




No. 99-3126
negligent in failing to divert the sewage flow at the diversion structure in a timely
manner.
¶17    Thus, as the respondents correctly argue:
There was only one cause issue before the jury in
the case below.   The question to be determined by this jury
was whether or not the negligence of MMSD caused the
sewage  backups  in  plaintiffs’  basements.…     MMSD
wanted to introduce testimony about the rate of sewage
backup to argue that no matter what MMSD did on August
28, 1995, plaintiffs would have had damage.   The issue of
plaintiffs’ damages was to be addressed in the second phase
of this trial.
Expert testimony regarding the rate of flow of sewage backup was not relevant.
Therefore, the court did not erroneously exercise discretion in excluding such
evidence from the liability phase of the trial.
¶18    Finally, MMSD argues that  “[o]ne last reason for a new trial on
causation  is  the  fact  that                                                                        …  there  is  no  causation  question  connecting  the
negligence  [found  on  Question  8]  to  the  sewerage  back-ups.”    It  points  out:
“[Question 3] clearly limits its focus to a sewerage back-up caused by the failure
to have a secondary power source.   It does not serve as a causation nexus for all
acts of negligence.   Its impact is clearly limited to the negligence discussed in
Question Two, not Question Eight.”   Although MMSD’s conclusion regarding the
impact of the jury’s finding on Question 3 is correct, it is a moot point because it
has no practical effect on the controversy.   See City of Racine v. J-T Enters. of
Am., Inc., 64 Wis. 2d 691, 700, 221 N.W.2d 869 (1974).3
3  As we mentioned, the respondents correctly pointed out that the jury found MMSD
causally negligent on Question 3 and that MMSD did not challenge any of the jury’s findings on
appeal; MMSD only appealed the circuit court’s decision to submit to the jury Question 1—the
operational/design question.  Thus, as the respondents argue, even if the negligence established in
Question 8 was not causally connected to the sewage backups, the negligence established in
Question 3 was.   MMSD offers nothing to counter the respondents’ argument.   See Charolais
(continued)
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No. 99-3126
By the Court.—Judgments affirmed.
                                                                                                This  opinion  will  not  be  published.     See  WIS.  STAT.  RULE
809.23(1)                                                                                       (b)5 (1997-98).
Breeding Ranches, Ltd. v. FPC Sec. Corp., 90 Wis. 2d 97, 109, 279 N.W.2d 493 (Ct. App. 1979)
(unrefuted arguments deemed admitted).   The jury found causal negligence; MMSD stipulated to
the damages.  MMSD has failed to offer any basis for a new trial.
12

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