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Torts – negligence — nuisance — notice of claims

By: WISCONSIN LAW JOURNAL STAFF//March 21, 2012//

Torts – negligence — nuisance — notice of claims

By: WISCONSIN LAW JOURNAL STAFF//March 21, 2012//

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United States Court of Appeals, 7th Circuit

Civil

Torts – negligence — nuisance — notice of claims

Where plaintiffs alleged that a negligently designed and maintained railway trestle caused huge amounts of runoff water after a severe rainstorm to flood their homes, Wis. Stat. § 88.87 provides the exclusive remedy based on the types of facts alleged, plaintiffs failed to file a timely notice pursuant to it, and the district court’s dismissal was appropriate.

“The Wisconsin appellate court’s decision in Pruim v. Town of Ashford, 483 N.W.2d 242, 244-45 (Wis. Ct. App. 1992), indicates that this is exactly the sort of claim to which section 88.87 applies, and the plain language of the statute limits the relief available to an injured landowner solely to equitable relief and a claim for inverse condemnation. Pruim ordered the dismissal of a nuisance claim seeking compensation for flood damage that occurred to the plaintiff’s property when a nearby culvert and roadway shoulder, which allegedly had been negligently designed and maintained by the local municipality, washed out during a heavy rain. ‘We conclude that the legislature decided to regulate and control strictly the types of claims that may be made by property owners against governmental entities regarding highway construction and repair. Common law nuisance actions are not allowed. The statute clearly and unambiguously forbids it.’ Id. at 245; see also Kohlbeck v. Reliance Constr. Co., 647 N.W.2d 277, 280 (Wis Ct. App. 2002) (‘Section 88.87 limits the type of relief available to those that are stated in the statute.’). The district court reached the same conclusion with respect to the plaintiffs’ claims against the railroad company in this case. 2010 WL 4293578, at *4.”

Affirmed.

11-1211 Irish, et al. v. BNSF Railway Company, et al.

Western District of Wisconsin, Crabb, J., Rovner, J.

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