In Neuandorf v. City of West Bend, the City discovered that the Neuandorf’s sanitary plumbing was connected to the City’s storm sewer, not the sanitary sewer. Apparently the plumber who installed the system in 1999 had connected it to the wrong sewer. The City ordered the Neuandorfs to fix the problem at their expense, and the Neuandorfs sued the City for negligent inspection for failing to discover the flaw during the normal inspections. When the house was under construction, the City inspector had tested the system for leaks, but the connection itself was already buried beneath gravel and the inspector could not view the connection. The inspector did not order the removal of the gravel. The circuit court found that there was no ministerial duty to inspect each and every aspect of a plumbing installation, and that the inspector had discretion as to how to perform the inspections and what aspects of the system required inspection.
Subject to various exceptions, under common law and Wisconsin Statutes, local governments and officials generally have immunity for acts performed in good faith in the normal course of governmental operations. But one of the exceptions to immunity is when the governmental official has a “ministerial” duty to carry out a function. The Neuandorfs had argued that the City Inspector had a ministerial duty to inspect the sanitary sewer connection – in other words, they argued that an inspector must inspect such a connection – there is no room for judgment or discretion. However, the Court was not persuaded. No such absolute duty was found in the statute or regulations, and the Court said that plumbing inspectors had discretion with respect to how to carry out the inspection and which parts of the system to inspect.