In Pinter v. Village of Stetsonville (2019 WI 74), a 4-3 Wisconsin Supreme Court held that a village’s oral policy related to wastewater processes did not create a ministerial duty exempting it from governmental immunity protections. Furthermore, expert testimony was required for the plaintiff to proceed with a public nuisance claim against the village.
The underlying claim in the case arose when the Village of Stetsonville failed to abide by its oral policy to bypass typical wastewater treatment processes during heavy rains. As a result, waste and sewage leaked into Alan Pinter’s basement. Pinter filed the instant lawsuit, claiming negligence and private nuisance. The village argued it was protected under governmental immunity (Wis. Stat. § 891.80(4)). Pinter argued that by not following the village’s oral policy, the village failed to perform a ministerial duty, exempting it from governmental immunity.
The Supreme Court ruled that the oral policy to bypass wastewater treatment processes when excess water reached a certain point did not constitute a ministerial duty. Instead, it was a discretionary “rule of thumb.” Department of Natural Resources rules related to bypassing wastewater treatment underscore the discretionary nature of the decision whether or not to bypass, as they require village employees to determine whether damage would be “unavoidable” and whether there are “feasible alternatives” to bypassing typical processes. Because the decision whether or not to bypass was discretionary, the ministerial duty exception did not apply and governmental immunity blocked Pinter’s negligence claim.
On Pinter’s private nuisance claim, the court determined that expert testimony was required for Pinter to prove that the village’s failure to maintain its wastewater disposal system caused the damages to his basement. In private nuisance cases, the burden is on the plaintiff to prove causation, and without expert testimony on this complex subject, Pinter failed to raise a genuine issue of material fact as to causation. Therefore, the court upheld summary judgment in favor of the village.
In a dissent, Justice Dallet (joined by Justices R. Bradley and Kelly) advocated that the court should return to the plain text of the governmental immunity statute and afford governmental immunity only to employees acting “in the exercise of legislative, quasi-legislative, judicial, or quasi-judicial functions” (Wis. Stat. § 891.80(4)). In this case, the village employees reacting to the wastewater emergency were not engaging in these functions, especially since the village had not legislatively formalized the “rule of thumb” bypass policy. Therefore, the dissent would not have afforded governmental immunity to the village. These justices authored a similar dissent in Engelhardt v. City of New Berlin earlier this year.
On the private nuisance claim, the dissent takes issue with the court’s decision requiring expert testimony in all cases related to negligent maintenance of wastewater systems. The dissent argues the need for expert testimony should be decided according to the facts on a case-by-case basis. In this case, inferences from the record were sufficient to establish a genuine issue of material fact without expert testimony.