¶ 93. {concurring}. I agree with the court's decision to remand this case to *696the circuit court, as directed by the court of appeals. Milwaukee Metropolitan Sewerage Dist. v. City of Milwaukee, 2003 WI App 209, ¶ 33, 267 Wis. 2d 688, 671 N.W.2d 346. I also agree with the court's comprehensive discussion of nuisance law. My problems with the majority opinion are twofold.
¶ 94. First, the court's discussion of governmental immunity reiterates several principles of law that, in my judgment, depart from the language and legislative intent of Wis. Stat. § 893.80(4). My views on this subject are stated in Scott v. Savers Property and Casualty Insurance Co., 2003 WI 60, ¶¶ 75-82, 262 Wis. 2d 127, 663 N.W.2d 715 (Prosser, J., dissenting), and Willow Creek Ranch L.L.C. v. Town of Shelby, 2000 WI 56, ¶¶ 59-172, 235 Wis. 2d 409, 611 N.W.2d 693 (Prosser, J., dissenting). The court's present opinion not only firms up mistaken principles but also criticizes Costas v. City of Fond du Lac, 24 Wis. 2d 409, 129 N.W.2d 217 (1964), a case both filed and decided after Holytz v. City of Milwaukee, 17 Wis. 2d 26, 115 N.W.2d 618 (1962), and after enactment of the predecessor to Wis. Stat. § 893.80(4). See ch. 198, Laws of 1963 (effective July 27, 1963). When the Holytz court abrogated the principle of governmental immunity in 1962, and saw its decision promptly codified by the Wisconsin legislature, it could not have imagined that a successor court would assert that it was actually expanding immunity to cover government activities previously determined not to be immune.
¶ 95. Second, I have trouble reconciling the discussion in the section on summary judgment with the discussion in the section on governmental immunity. The court acknowledges that "a municipality may be liable for a nuisance founded upon negligent acts." Majority op., ¶ 59. But then it states: "The only act for *697which the City may be potentially hable is its failure to repair the leaking water main." Id., ¶ 61. "The question [is] whether the City was under a ministerial duty to repair the leaking main before it broke," a duty "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." Id. (quoting Lister v. Bd. of Regents, 72 Wis. 2d 282, 301, 240 N.W.2d 610 (1976)). As a practical matter, this formulation is so narrow that it appears to decide the case.
¶ 96. Because of these concerns, I respectfully concur.