Pinter v. Vill. of Stetsonville

• Decision Date: 20 June 2019
• Docket Number: No. 2017AP1593,2017AP1593
• Citation: 2019 WI 74,387 Wis.2d 475,929 N.W.2d 547
• Parties: Alan W. PINTER, Plaintiff-Appellant-Petitioner, v. VILLAGE OF STETSONVILLE, Defendant-Respondent.
• Court: Wisconsin Supreme Court

387 Wis.2d 475

929 N.W.2d 547

2019 WI 74

Alan W. PINTER, Plaintiff-Appellant-Petitioner,

v.VILLAGE OF STETSONVILLE, Defendant-Respondent.

No. 2017AP1593

Supreme Court of Wisconsin.

Oral Argument: February 11, 2019

Opinion Filed: June 20, 2019

For the plaintiff-appellant-petitioner, there were briefs filed by William A. Grunewald, Adam V. Marshall, and Jensen, Scott, Grunewald & Shiffler, S.C., Medford. There was an oral argument by William A. Grunewald and Adam V. Marshall.

For he defendant-respondent, there was a brief filed by Fred L. Morris, Ryan J. Steffes, and Weld Riley, S.C., Eau Claire. There was an oral argument by Ryan Steffes.

An amicus curiae brief was filed on behalf of League of Wisconsin Municipalities by Claire Silverman, Maria Davis, and League of Wisconsin Municipalities.

ANN WALSH BRADLEY, J.

¶1 The petitioner, Alan Pinter, seeks review of an unpublished court of appeals decision affirming the circuit court's grant of summary judgment dismissing his claims against the Village of Stetsonville for negligence and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 sued 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 judgment 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.

¶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 to 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 served 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.

¶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. However, Duellman told Pinter that he wanted to wait for Black River Transport to arrive at the main lift station so that he could avoid pumping the untreated wastewater directly into the ditch.⁸ Pinter offered to help set up the bypass pump, but when Duellman declined the offer, Pinter left for work.

¶19 Within minutes of arriving at work, Pinter's wife called and told him that wastewater was backing up into their basement. Pinter returned to the main lift station and told Duellman about the flooding.

Duellman called Smith and asked him to have Black River Transport come to the main lift station and begin pumping. Duellman told Smith that the wastewater had reached the second rung from the top, the highest Duellman had ever seen it.

¶20 The truck from Black River Transport left the north lift station and went to the water treatment facility. After emptying its load there, the truck arrived at the main lift station and began pumping. Once the truck became full, it went to the water treatment facility to again empty its load. Before the truck made it to the treatment facility, however, the main lift station had taken on a significant amount of water. Pinter yelled from his house that wastewater was still overflowing into his basement.

¶21 At this point, Smith decided to use the portable bypass pump, but wastewater continued to flow into Pinter's basement. The wastewater eventually receded, leaving a black and grey residue.

¶22 Pinter brought suit against the Village, alleging causes of action for negligence and private nuisance. Moving for summary judgment, the Village asserted that it was entitled to governmental immunity pursuant to Wis. Stat. § 893.80(4).⁹ It further asserted that Pinter failed to demonstrate that any failure to repair the piping in the system was a legal cause of the sewage backup, and that expert testimony would be necessary to establish causation.

¶23 The circuit court granted summary judgment to the Village. It determined first that no exception to governmental immunity applied. Specifically, it stated that "[t]here is no case law to support the plaintiff's assertion that the Village's ‘rule of thumb’ created a ministerial duty such that there was no room for exercise of discretion by the employees." As a result, the circuit court dismissed Pinter's negligence cause of action.

¶24 Further, the circuit court determined that "[t]he allegations that the Village failed to maintain the sewer system and thus caused the sewage back up into plaintiff's home are not supported by any evidence." The reason for this determination was that "[t]he statements made by Village employees are their personal assumptions as to the cause or suspected cause of the problem, but this is not sufficient proof or explanation as to link the Village's alleged lack of maintenance to the back up of sewage in plaintiff's home." Accordingly, the circuit court also dismissed Pinter's cause of action for private nuisance.

¶25 The court of appeals affirmed the circuit court, concluding that the Village was entitled to governmental immunity under Wis. Stat. § 893.80(4) because the Village's fourth rung "rule of thumb" did not create a ministerial duty. Pinter v. Vill. of...