Opinion
No. 2013AP741.
2013-12-27
Brian E. DAVIS, Plaintiff–Appellant, v. CITY OF MILWAUKEE, Defendant–Respondent, Milwaukee Metropolitan Sewerage District, Defendant.
Steinberg v. Arcilla, 194 Wis.2d 759, 764, 535 N.W.2d 444 (Ct.App.1995) (quotation marks and citation omitted; emphasis added). The supreme court considered and rejected the application of the res ipsa loquitur doctrine in a sewer backup claim similar to Davis's in Freitag v. City of Montello, 36 Wis.2d 409, 153 N.W.2d 505 (1967). In that case, Freitag discovered a sewage backup in her basement. Id. at 411, 153 N.W.2d 505. The backup had been caused by a temporary obstruction in the sewer main “into which the four-inch lateral servicing [Freitag's] home discharged.” Id. Both the superintendent of the City's water and sewer utility and an engineer hired by the City inspected the sewer main and found it to be flowing smoothly, indicating that the obstruction had cleared. Id. An engineer hired by Freitag stated that tree roots obstructed about one-third of the diameter of the main and that objects could have accumulated over the roots, causing the backup in Freitag's basement. Id. An engineer hired by the City testified that plastic bags or children's toys discharged into the main could have caused the obstruction leading to the backup. Id. A plumber testified that the lateral had become clogged with fish heads. Id. at 411–12, 153 N.W.2d 505. After the city denied Freitag's claims for damages, she filed suit against the City of Montello alleging that the doctrine of res ipsa loquitur allowed for an inference that the City was negligent in its inspection and maintenance of the sewer main in the area of her home. Id. at 412–13, 153 N.W.2d 505. Id., ¶¶ 21–22. (internal citations, quoted sources, multiple sets of quotation marks and brackets omitted).