Sewage claims fail to flow through small claims court

Plaintiffs forced to consider different approach against Muskego

Aug. 13, 2012

Muskego - Two small claims actions alleging that the city is responsible for several feet of diluted sewage pouring into basements in an area of Muskego in 2010 has failed in Waukesha County small claims court.

Court commissioner Linda Saafir on Friday dismissed the case of Muskego Alderman Neil Borgman and a separate case by a Muskego couple, saying they had not proven that lack of maintenance of the sanitary system caused the backups.

Saafir also said the plaintiffs needed the testimony of an engineer as an expert witness.

But the alderman and residents didn't get to fully present their case, said Suzi Link-Manson, who along with her husband Keith Manson brought one of the claims.

A question of fairness

"People who think small claims court is user-friendly will find it's not," Link-Manson said. "We really thought it was less formal, where the officer helped the process along."

Asked if she thought they had been treated fairly, she said, "No, not at all."

They had planned to call the city's Department of Public Works supervisor and to play a recording taken at a meeting that Link-Manson said would have strengthened their case. But they discovered a hitch with the timing of presentations affecting the DPW supervisor's information and evidence verification requirements with which they were unfamiliar, she said.

Borgman could not be reached for comment.

Each lawsuit asked for $5,000, far less than the actual damages they say they suffered to their finished basements. The total was more like $60,000 for the Mansons and $7,000 for Borgman, Link-Manson said.

But the money was not at the heart of the issue, she said.

"We didn't do this to be made whole. We did it to force the city to seriously address the situation," Link-Manson said.

The complainants want the city to do a better job of inspecting the sanitary and storm sewer systems, she said.

Alleged cause and effects

Borgman and the Mansons are convinced that the sewer backups resulted from stormwater control ponds clogging up with debris and overflowing onto roads and getting into the sanitary sewers.

But they did not establish enough of a link between the ponds overflowing and the sanitary sewers backing up so the cases were dismissed, said Joseph Wirth, who represented Muskego for Wisconsin Association of Municipalities Mutual Insurance.

Aside from the pond overflow situation, the plaintiffs needed to prove negligence by showing that the city's sewer inspection method of measuring flows between manholes is substandard, he said.

As a result of the court's decision, they may have to take another tack in their crusade to get the city to take care of the Lannon Drive/Janesville Road stormwater control ponds, which Link-Manson said form a regional stormwater control facility.

Who cares for ponds?

Debris from two tornadoes in 2010 clogged up the mouth of ponds' outfall into Little Muskego Lake. The four ponds themselves became littered with debris such as a commercial air conditioner, a tree, many branches and a picnic table. The ponds drain areas around Janesville Road west of Bay Lane, Link-Manson said.

They claim that the city used the two private ponds that were there already as a nucleus for the regional stormwater facility. The city cleaned those two ponds and built two more, Link-Manson claimed, and replaced a connecting pipe under Lannon Road with a larger one to drain the rainwater into Little Muskego Lake.

If the city is going to funnel more water into the neighborhood, it should see that it doesn't go onto streets and into basements, Link-Manson said.

But Common Council has claimed that the ponds are private. Among other things, it doesn't want to set a precedent of cleaning private storm water ponds because there are so many in the city.

Borgman and the Mansons have until Monday to decide whether to take their case to circuit court.


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