Court Error – Damages

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WI Court of Appeals – District IV

Case Name: James & Judith Nonn Trust, et al. v. Wisconsin Department of Transportation

Case No.: 2018AP888

Officials: Lundsten, P.J., Blanchard and Fitzpatrick, JJ.

Focus: Court Error – Damages

The appellants (collectively, the Nonns) own and operate a business that was affected by a highway construction project. They seek compensation under WIS. STAT. § 32.09(6) for what they allege is a reduction in the value of their property caused by the installation of a traffic-blocking highway median that reduced access to their property from an adjacent highway. The Nonns argue that, because a single highway project included both a “partial taking” of their property for a sidewalk within the meaning of § 32.09(6) and the traffic-blocking median, the alleged reduction in value caused by the median is compensable even though the partial taking of property for the sidewalk did not cause the loss of access. This means, according to the Nonns, that the circuit court erred by granting DOT’s pretrial motion to exclude evidence of damages caused by the traffic-blocking median.

We agree with the circuit court that 118th Street Kenosha, LLC v. DOT, 2014 WI 125, 359 Wis. 2d 30, 856 N.W.2d 486, requires that we reject the Nonns’ argument. Like the 118th Street court, we do not hold that access damages of the sort the Nonns seek are not compensable under any theory, but only that the access damages are not compensable under WIS. STAT. § 32.09(6), the authority the Nonns rely on. See 118th Street, 359 Wis. 2d 30, ¶¶33, 58. Accordingly, we affirm the circuit court.

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Derek A Hawkins is trademark corporate counsel for Harley-Davidson. Hawkins oversees the prosecution and maintenance of the Harley-Davidson’s international trademark portfolio in emerging markets.