Alan W. Pinter, Plaintiff-Appellant-Petitioner,
Village of Stetsonville, Defendant-Respondent.
SUBMITTED ON BRIEFS: ORAL ARGUMENT: February 11, 2019
OF DECISION OF THE COURT OF APPEALS Reported at 382 Wis.2d
272, 915 N.W.2d 730
Circuit Court Taylor County, L.C. No. 2015CV44 Ann Knox-Bauer
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.
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.
amicus curiae brief was filed on behalf of League of
Wisconsin Municipalities by Claire Silverman, Maria Davis,
and League of Wisconsin Municipalities.
WALSH BRADLEY, J.
The petitioner, Alan Pinter, seeks review of an unpublished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. Pinter sued the Village after wastewater
backed up into his basement.
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). 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.
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
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');">240 N.W.2d 610 (1976). Because such a
task is discretionary, the Village is immune from suit for
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.
Accordingly, we affirm the decision of the court of appeals.
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
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.
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.
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
The Wisconsin Department of Natural Resources (DNR) generally
prohibits pumping untreated wastewater into a public
waterway. 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
Testimony in this case indicated that, in addition to
allowing employees access to the bottom of the pit, the
ladderlike 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.
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.
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."
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,  nor was it ever
formally enacted by the Village Board. Instead, it was
communicated orally among Village employees. Danen passed the
"rule of thumb" on to Duellman, and Duellman passed
it on to Smith.
Alan Pinter lives near the main lift station. During the past
two decades, Pinter's home has experienced wastewater
backups on multiple occasions.
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
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. Pinter offered to
help set up the bypass pump, but when Duellman declined the
offer, Pinter left for work.
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.
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.
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
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). 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.
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.
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.
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 Stetsonville, No.
2017AP1593, unpublished slip op., ¶25 (Wis. Ct. App.
Apr. 10, 2018). It further determined that the known and
compelling danger exception to governmental immunity does not
apply because the Village took one or more precautionary
measures to respond to the alleged danger. Id.,
¶29. As to the private nuisance claim, the court of
appeals reasoned that because Pinter did not present expert
testimony, he failed to raise a genuine issue of material
fact that the negligent failure to maintain the wastewater
disposal system was the legal cause of his damages.
We are called upon to review the court of appeals'
determination that the circuit court properly granted summary
judgment to the Village. We review a grant of summary
judgment independently, applying the same methodology as the
circuit court. Shugarts v. Mohr, 2018 WI 27,
¶17, 380 Wis.2d 512, 909 N.W.2d 402. Summary judgment is
appropriate where there exists no genuine issue as to any
material fact and the moving party is entitled to judgment as
a matter of law. Id.
In our review, we examine whether the ministerial duty
exception to governmental immunity applies. Whether an
exception to immunity applies to undisputed facts presents a
question of law. Pries v. McMillon, 2010 WI 63,
¶19, 326 Wis.2d 37, 784 N.W.2d 648');">784 N.W.2d 648 (citation omitted).
Our review also requires us to interpret Wis.Stat. §
893.80(4). Statutory interpretation is likewise a question of
law. This court reviews questions of law independently of the
determinations rendered by the circuit court and court of
appeals. Horizon Bank, Nat'1 Ass'n v. Marshalls
Point Retreat LLC, 2018 WI 19, ¶28, 380 Wis.2d 60,
908 N.W.2d 797 (citation omitted).
We begin by setting forth the statutory text and legal
principles of governmental immunity that drive our analysis.
Subsequently, we apply those principles to the negligence
cause of action asserted in this case. Finally, we address
the necessity of expert testimony to establish that
infiltration of water from outside sources caused the backup
in Pinter's basement.
Wisconsin Stat. § 893.80(4), the governmental ...