COURT OF APPEALS DECISION DATED AND FILED January 20, 2010 David
R. Schanker Clerk of Court of Appeals |
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NOTICE |
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This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports. A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See Wis. Stat. § 808.10 and Rule 809.62. |
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Appeal No. |
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STATE OF WISCONSIN |
IN COURT OF APPEALS |
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DISTRICT III |
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William Glaum and Martha Glaum,
Plaintiffs-Appellants, v. City of
Defendant-Respondent. |
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APPEAL
from a judgment of the circuit court for
Before
¶1 PER CURIAM. William and Martha Glaum
appeal a summary judgment dismissing tort claims against the City of
¶2 In August 2004, the City widened
¶3 The Glaums commenced an action in negligence and nuisance against the City. The City moved for summary judgment, arguing entitlement to immunity pursuant to Wis. Stat. § 893.80(4).[2] The Glaums responded Wis. Admin. Code § Comm 82.36(9) (Feb. 2009) created a ministerial duty to design all exterior storm water inlets for the anticipated flow. The Glaums also asserted discretionary immunity did not bar claims against the City for nuisances. The circuit court granted the motion for summary judgment and this appeal follows.
¶4 Public officers or employees, as well as their employing
entities, enjoy immunity from liability from the performance of any
discretionary act within the scope of their governmental employment. Kierstyn v.
¶5 At the circuit court, the Glaums argued immunity did not bar their causes of action because installation of the storm sewer and gutter violated a ministerial duty set forth in Wis. Admin. Code § Comm 82.36(9) (Feb. 2009).[3] In their brief opposing summary judgment, the Glaums stated:
Wisconsin Administrative Code § Comm[] 82.36(9)
[Feb. 2009] states that “[a]ll exterior stormwater inlets shall be designed for
the anticipated flow.” It is a
ministerial duty for [the City] to comply with the Wisconsin Administrative
Code, and in this instance [the City] did not.
See DeFever v. City of
¶6 Our supreme court clarified the law concerning governmental
immunity in Milwaukee Metropolitan Sewerage District v. City of
Even if the system is poorly designed, a municipal government is immune for this discretionary act. Therefore, the City is immune from suit relating to its decisions concerning the adoption of the waterworks system, the selection of the specific type of pipe, the placement of the pipe in the ground, and the continued existence of such pipe. These are discretionary legislative decisions.
¶7 Here, the Glaums have failed to demonstrate the design of
exterior storm water inlets was outside the ambit of the discretion discussed
in Milwaukee
Metropolitan Sewerage District. Significantly,
Wis. Admin. Code § Comm 82.36(9)
does not specify how anticipated flow is to be determined or what specific
engineering is to be undertaken to accommodate anticipated flow. This is distinguishable from DeFever,
where the administrative code specifically required pipe to be buried at least
five to seven feet underground. DeFever,
306
¶8 Conversely, the Glaums have not shown an absolute, certain
and imperative duty, prescribing the performance of a task with such certainty
that nothing remains for judgment or discretion. See
Lister,
72
By the Court.—Judgment affirmed.
This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.
[1] According to various experts, this problem could be corrected by the Glaums raising the height of their driveway.
[2] References to Wisconsin Statutes are to the 2007-08 version unless otherwise noted.
[3] The
City argues in its response brief that the Glaums cite for the first time on
appeal Wis. Admin. Code § Comm
82.10(1)(d) (Feb. 2009), as another basis for the imposition of a ministerial
duty. Generally, we do not address
issues raised for the first time on appeal.
See Wirth v. Ehly, 93
[4] Cases relied upon by the Glaums were among those expressly noted by the court in Milwaukee Metropolitan Sewerage District v. City of Milwaukee, 2005 WI 8, ¶59, n.17, 277 Wis. 2d 635, 691 N.W.2d 65, as “utilizing conflicting rationales to reach results that are not entirely consistent.” The court indicated the confusion was the result of three factors:
First, some decisions
have continued to rely on immunity jurisprudence that predated Holytz
[v. City of
[5] We need not separately analyze the
immunity question for both negligence and nuisance because liability for the
nuisance cannot be established without proof of negligence.