Sovereign Immunity- WIS. STAT. § 84.295

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WI Court of Appeals – District III

Case Name: United America, LLC v. Wisconsin Department of Transportation

Case No.: 2023AP000061

Officials: Neubauer, Grogan and Lazar, JJ.

Focus: Sovereign Immunity- WIS. STAT. § 84.295

United America, LLC appeals from an order dismissing its complaint against the Wisconsin Department of Transportation (DOT) for failure to state a claim upon which relief may be granted. United America argues the circuit court erred in concluding that its claim against DOT under WIS. STAT. § 84.295 (2021-22) failed as a matter of law because the statute does not create a private cause of action. The appeals court agrees with the court’s conclusion and thus affirms the order dismissing United America’s complaint.

According to the complaint, United America owns commercial property at the intersection of U.S. Highway 51 and Northstar Road in Merrill, Wisconsin, on which it operates a gas station and convenience store. The intersection was formerly “at grade,” meaning that motorists travelling on U.S. Highway 51 could access the property by turning off the highway onto Northstar Road. United America commenced this action pursuant to WIS. STAT. § 84.295(5) and (6) against DOT seeking damages for diminished value of its property that it alleged resulted from DOT’s elimination of the at-grade intersection and construction of a bridge elevating Northstar Road over U.S. Highway 51. DOT decided not to build on- or off-ramps off of U.S. Highway 51 in connection with the bridge project, which forced highway motorists to take a longer and indirect route to United America’s gas station and convenience store.

Since WIS. STAT. § 84.295(5) and (6) do not provide for a separate right of action, and United America cites to no other law that permits it to seek damages based on the allegations in its complaint, the complaint fails to state a claim upon which relief may be granted, and the circuit court correctly dismissed the complaint with prejudice on that basis. Neither contains the “clear and definite language of consent to suit” necessary to waive sovereign immunity

Affirmed.

Decided 12/13/23

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