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Private Nuisance Claims

By: WISCONSIN LAW JOURNAL STAFF//April 10, 2023//

Private Nuisance Claims

By: WISCONSIN LAW JOURNAL STAFF//April 10, 2023//

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WI Court of Appeals – District III

Case Name: David Enz v. Duke Energy Renewable Services, Inc. [Recommended for Publication]

Case No.: 2021AP000989

Officials: Gill, J.

Focus: Private Nuisance Claims

This appeal concerns the proper pleading standards for private nuisance claims. David and Rosemary Enz and Darren and Susan Ashley (collectively, “Families”) allege that they sustained damages caused by a wind turbine farm operated near their properties by Shirley Wind, LLC and Duke Energy Renewable Services, Inc. (collectively, “Operators”). The Families appeal a circuit court order granting the Operators’ motion to dismiss the Families’ complaint both for failure to state an actionable claim and as barred by the applicable statutes of limitations.

The Families argue that this court should reverse the circuit court’s order for three reasons. First, the Families contend that the court erroneously exercised its discretion by dismissing their complaint with prejudice. Second, the Families assert that their complaint alleged sufficient facts to state private nuisance claims. Lastly, the Families argue that the complaint alleged a continuing nuisance, as opposed to a permanent nuisance, and therefore their claims are not barred by the applicable statutes of limitations.

The circuit court dismissed the Families’ complaint without prejudice, and the appeals court therefore need not address whether the court properly exercised its discretion in that regard. Second, appeals court concludes that the Families’ personal injury claims and property damage claims stemming from affected “views and vistas,” as pled, constitute permanent nuisances and are therefore barred by the applicable statutes of limitations under WIS. STAT. §§ 893.54(1m)(a) and 893.52(1) (2021-22).  Lastly, the appeals court agrees with the circuit court that the Families failed to allege sufficient facts to state a private nuisance claim based on the operation of the wind turbines that caused blinking red lights, low frequency noise (“LFN”), vibrations, or infrasound.

Affirmed.

Decided 04/04/23

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