Claims barred by Governmental Immunity in Road Design Case

In a recent unpublished Court of Appeals case, Glaum v the City of Hayward, the Court upheld a circuit court decision granting governmental immunity under Wis. Stat. 893.80(4) for the alleged faulty construction of a road which caused flooding onto an adjacent property.  The Glaums claimed that the City had a duty to design and construct the road such that it could sufficiently handle storm water.  The Court, relying in part on Milwaukee Metropolitan Sewerage District v. City of Milwaukee, held that “approval of the design and construction of a public work are generally discretionary acts.”  (…even if the system is poorly designed…).  This case hinged on the distinction between a discretionary and a ministerial act.  Discretionary acts are generally immune, while ministerial acts are generally not.  Some actions seem clearly discretionary while others appear clearly ministerial.  But as evidenced by the fact that there have been a number of lawsuits hinging on this very distinction, there is quite a grey area between the two.  As a general rule, discretionary acts are those acts requiring an exercise of judgment, while ministerial acts are those acts which are certain, imperative, and involve the performance of a specific task which the law imposes – nothing is left for judgment.

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