2007AP221 & 2007AP1440 Bostco, LLC, v. MMSD

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Torts
Nuisance

A jury’s finding that the plaintiff suffered $2.1 million in damages is inconsistent with a finding that it did not suffer significant harm.

“As a matter of law, the jury could not conclude that the harm was insignificant having also concluded that the District’s negligence interfered with Bostco’s use and enjoyment of its property to such an extent that Bostco was awarded $2.1 million in past damages. If ‘ordinary persons in the community’ would conclude that rusty screen doors, an inability to grow flowers, and $290 in damages is significant harm, certainly those same ‘ordinary persons in the community’ would conclude that $2.1 million in damages to the timber pilings upon which a building is founded is significant harm. See Wis JI-Civil 1922; Jost, 45 Wis. 2d at 171-72. Certainly, $2.1 million in damages is ‘more than a nominal value upon the injury done.’ See Jost, 45 Wis. 2d at 172.”

“We need not determine whether Bostco’s claim here is a continuing nuisance or whether a continuing nuisance amounts to multiple causes of action, that is, multiple claims. Only one nuisance action is before us. The only question before this court is whether this singular action founded in tort is capped at $50,000 per person. See Wis. Stat. § 893.80(3); see also Patrick Fur Farm, Inc. v. United Vaccines, Inc., 2005 WI App 190, ¶8 n.1, 286 Wis. 2d 774, 703 N.W.2d 707 (appellate courts should decide cases on the narrowest possible grounds). We conclude that for the same reasons we set forth previously, the cap on municipal tort liability applies here, and because there is only one nuisance action before us, under Wis. Stat. § 893.80(3), Bostco’s recovery is capped at $50,000.”

Affirmed in part, and Reversed in part.

Recommended for publication in the official reports.

2007AP221 & 2007AP1440 Bostco, LLC, v. MMSD

Dist. I, Milwaukee County, Kremers, DiMotto, JJ., Brennan, J.

Attorneys: For Appellant: Lyons, Kevin J., Milwaukee; McCabe, Michael J., Milwaukee; Petersen, James H., Milwaukee; Halfenger, G. Michael, Milwaukee; McClean, Matthew R., Milwaukee; Katt, William James, Jr., Chicago, IL; For Respondent: Cameli, Mark A., Milwaukee; Voiland, Joseph W., Milwaukee; Kass, Lisa Nester, Milwaukee; Kennedy, Rebecca Frihart, Milwaukee; Frank, David E., Milwaukee

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