Pinter v. Vill. of Stetsonville

2019 WI 74, 929 N.W.2d 547, 387 Wis. 2d 475
CourtWisconsin Supreme Court
DecidedJune 20, 2019
DocketNo. 2017AP1593
StatusPublished
Cited by18 cases

This text of 2019 WI 74 (Pinter v. Vill. of Stetsonville) is published on Counsel Stack Legal Research, covering Wisconsin Supreme Court primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Pinter v. Vill. of Stetsonville, 2019 WI 74, 929 N.W.2d 547, 387 Wis. 2d 475 (Wis. 2019).

Opinions

ANN WALSH BRADLEY, J.

*480¶1 The petitioner, Alan Pinter, seeks review of an unpublished court of appeals decision affirming the circuit court's grant of summary judgment dismissing his claims against the Village of Stetsonville for negligence and private nuisance.1 Pinter *550sued the Village after wastewater backed up into his basement.

¶2 He asserts that the court of appeals erred in determining that the Village is immune from suit for negligence pursuant to Wis. Stat. § 893.80(4) (2015-16).2 Further, he contends that the court of appeals erred in affirming the grant of summary *481judgment on his private nuisance claim on the grounds that he did not present expert testimony with regard to causation.

¶3 Specifically, Pinter argues that the Village's oral policy to pump water out of a lift station when it reached a certain level created a ministerial duty to act. He further contends that expert testimony is not required to establish the requisite causation to maintain his private nuisance claim.

¶4 We conclude that the oral policy in question here does not rise to the level of a ministerial duty. The proffered "rule of thumb" is not "absolute, certain and imperative, involving merely the performance of a specific task when the law imposes, prescribes and defines the time, mode, and occasion for its performance with such certainty that nothing remains for judgment or discretion." See Lister v. Bd. of Regents of Univ. of Wis. Sys., 72 Wis. 2d 282, 301, 240 N.W.2d 610 (1976). Because such a task is discretionary, the Village is immune from suit for negligence.

¶5 Further, we conclude that the circuit court properly granted summary judgment to the Village on Pinter's private nuisance claim. Pursuant to the facts of this case, expert testimony was required to raise a genuine issue of material fact as to causation.

¶6 Accordingly, we affirm the decision of the court of appeals.

I

¶7 The Village of Stetsonville owns and operates a wastewater disposal system that serves approximately 500 people. The system is primarily gravity fed, but wastewater is pumped at two lift stations-the north lift station and the main lift station.

*482¶8 There is a separate storm sewer system in the Village for the collection of storm water. Although the wastewater system is designed to be closed and separate from the storm water system, Village employees testified that there may be storm water infiltration into the wastewater disposal system because of cracks in the pipes and because drain tile and sump pumps from older homes in the Village may improperly drain into the wastewater disposal system.

¶9 The main wastewater lift station contains a concrete pit approximately 20 feet deep. On one side wall of the pit are 12 ladder-like rungs that extend down the length of the pit, which an employee can use to climb inside the lift station for cleaning and maintenance.

¶10 When the wastewater reaches a certain level in the pit, a pump lifts the wastewater through a pipe up to a point where it can then flow downhill to the water treatment facility. If the wastewater reaches another higher level, an alarm is triggered.

¶11 The Wisconsin Department of Natural Resources (DNR) generally prohibits pumping untreated wastewater into a public waterway.3 However, a municipality can legally justify bypassing the water treatment facility if it can demonstrate that: (1) the bypass was unavoidable to prevent loss of life, personal injury, or severe property damage; (2) there were no feasible alternatives *551to the bypass; and (3) the bypass was reported to the DNR by the municipality.4

¶12 Testimony in this case indicated that, in addition to allowing employees access to the bottom of the pit, the ladder-like rungs on the side of the pit *483served an additional purpose, although there was some discrepancy regarding the specifics of that purpose. Namely, Village employees used the height of the rungs as a guide for determining when to bypass the wastewater disposal system and pump wastewater directly into a nearby ditch so as to avoid the backup of wastewater into the basements of nearby homes.

¶13 There are some discrepancies in the record regarding how the rungs were used to determine the appropriateness of bypassing the water treatment facility. For example, according to the deposition testimony of David Duellman, the Director of Public Works for the Village, the "rule of thumb" was that when the wastewater reached the fourth rung from the top of the pit in the main lift station, the bypass pump would be set in place. If the water level continued to rise, or if it continued to rain, an employee would start the pump, bypassing the treatment facility and instead pumping the untreated wastewater directly into a ditch.

¶14 Another Village employee, Chad Smith, testified differently. Specifically, Smith testified in his deposition that "at the sixth rung we should be setting in place the portable pump. If it gets to the fourth rung, we bypass."

¶15 The "rule of thumb" focusing on the fourth rung was created by Mike Danen, a former director of public works for the Village. It was not written down,5 nor was it ever formally enacted by the Village Board.6 Instead, it was communicated orally among Village employees. Danen passed the "rule of thumb" on to Duellman, and Duellman passed it on to Smith.

*484¶16 Alan Pinter lives near the main lift station. During the past two decades, Pinter's home has experienced wastewater backups on multiple occasions.7

¶17 On September 10, 2014, during a heavy rainstorm, Smith received a high level alarm for both lift stations. Because Smith received the alarm for the north lift station first, he called Black River Transport, a septic hauling company, to transport wastewater from the north lift station to the water treatment facility.

¶18 Meanwhile, Pinter told Duellman, who was stationed at the main lift station, that the floor drain in his basement was "gargling." Accordingly, he urged Duellman to use the portable bypass pump.

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Bluebook (online)
2019 WI 74, 929 N.W.2d 547, 387 Wis. 2d 475, Counsel Stack Legal Research, https://law.counselstack.com/opinion/pinter-v-vill-of-stetsonville-wis-2019.