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Justices side with Bostco in Deep Tunnel case

Pedestrians walk past the Boston Store in downtown Milwaukee recently. A Wisconsin Supreme Court opinion released Thursday says the Milwaukee Metropolitan Sewerage District must rectify a problem with its Deep Tunnel that’s causing damage to the store’s foundation. (File photo by Kevin Harnack)

The Milwaukee Metropolitan Sewerage District must abate a groundwater problem that is damaging a Boston Store, according to a Wisconsin Supreme Court opinion.

Bostco sued MMSD in 2003 after discovering the store’s wood-piling foundation was deteriorating. Bostco claimed the Deep Tunnel, which collects wastewater, was drawing groundwater from beneath the downtown Milwaukee Boston Store and causing structural damage, according to court documents.

A jury found MMSD negligent and awarded Bostco $6.3 million in damages. But the circuit court capped the damages at $100,000, agreeing that MMSD could claim governmental immunity. The circuit court also decided MMSD had to rectify the problem.

Bostco appealed that decision, according to court documents, and MMSD cross-appealed.

The Supreme Court, an opinion released Thursday, affirmed appellate decisions that MMSD is not immune to, and had sufficient notice of, Bostco’s claims. But it also affirmed that Bostco forfeited a claim that MMSD’s negligence prevented the use of the property.

Justices also ruled the circuit court was correct in capping damages.

The Supreme Court remanded the case to Milwaukee County Circuit Court to determine how MMSD will fix the problem.

MMSD has not determined how to fix the groundwater seepage problem, according to an emailed statement attributed to Susan Anthony, MMSD’s director of legal services.

Supreme Court Chief Justice Shirley Abrahamson and Justice Ann Walsh Bradley dissented. According to Abrahamson’s dissenting opinion, MMSD is immune to Bostco’s claims, the tunnel “is not broken,” and capping damages while requiring MMSD fix the tunnel sends mixed messages.

Abatement could include lining parts of the tunnel with concrete for an estimated $10 million, according to court documents, or building a well system.

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