Court Error – Nuisance Claim

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WI Supreme Court

Case Name: Alan W. Pinter v. Village of Stetsonville

Case No.: 2019 WI 74

Focus: Court Error – Nuisance Claim

The petitioner, Alan Pinter, seeks review of an unpublished court of appeals decision affirming the circuit court’s grant of summary judgment dismissing his claims against the Village of Stetsonville for negligence and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

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.

Affirmed

Concur:

Dissent: DALLET, J. dissents, joined by R.G. BRADLEY, J. and KELLY, J. (opinion filed).

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.