Highlanders Should Win in Liability Case

"Sued for living on a hill," said attorney Patricia (Patti) J. Epstein this afternoon in oral argument before the Wisconsin Supreme Court.

Suppose you live in a house uphill from another house downhill.

Subsequently, the City installs curbs, gutters and a sub-division around the downhill house.

Then the downhill house (the plaintiff) sues the uphill house's current and previous owner (and the City, Dodgeville) (the defendants) claiming damages sustained from water flow (a damaging nuisance) though the uphill homeowner did nothing to alter their property.

Summary judgement for the defendants, right? Correct. That's the ruling in the circuit court in August 2006.

This case, Glen D. Hocking v. City of Dodgeville, et al was argued before Wisconsin Supreme Court today to clarify a question of liability in such situations.

By the way, if you have not visited the WisconsinEye site, you ought to, it's amazing. True democracy; the video of the oral arguments is already on the web.

Look for a victory for the defendants here.

One knows that skeptical-sounding questions asked of the plaintiff do not necessarily imply hostility but it sure sounded that way. Justices Roggensack, Bradley, Abrahamson and Gableman all seemed hostile to the plaintiff's arguments that the uphill homeowner is negligent. Justice Crooks was absent, having recused himself.

Plaintiff Hocking did nothing resembling a self-help action out of concern for water flowing downhill to his home, such as installing berms and so on, and the uphill homeowner (defendant) did nothing to alter their property to cause water flow. But that doesn't matter, the plaintiff says, defendants have a duty anyway to stop the water flow.

So if the uphill owner has a duty to know about and abate the nuisance that he did not create (by a standard of reasonable diligence), the standard ought to apply and hold for the downhill owner, right? [Some attorneys feel that case law could conceivably support an absurd result that an uphill owner is in fact liable for water flowing downhill, which is why the case is being heard by the Supreme Court.]

Likely, but anyway the defendant didn't do anything wrong, was not negligent, did nothing unreasonable, did nothing intentionally harmful and so is not liable. That's my lay opinion.

And this is a case all Supreme Court justices might just agree on and it will be a victory for the protection of innocent homeowners, and specifically the highlanders living on hills.