May 11, 2023 – A nuisance lawsuit filed against the operators of a wind farm in Brown County is barred by the statute of limitations, the Wisconsin Court of Appeals has ruled.
In Enz v. Duke Energy Renewable Services, Inc., No. 2021AP989 (April 4, 2023), the Court of Appeals District III held that the lawsuit also failed to state a legally sufficient claim.
David and Rosemary Enz and Darren and Susan Ashley (the Families ) own land in Brown County.
In the fall of 2010, Duke Energy Renewable Services, Inc., and Shirley Wind LLC (the Operators) installed eight wind turbines on land located one-half mile from the Enz property and one mile from the Ashley property.
Shortly after the turbines were installed, the Families began to suffer from ear pain, headaches, nausea and blurry vision, and sleep disturbances.
When the Families would spend time away from their properties, the symptoms disappeared. Because of the symptoms, the Families moved away in 2011.
Consultants Identify Serious Issues
In 2012, four consulting firms conducted a joint study of the turbines. In a report, the firms concluded that there was sufficient evidence to classify low-frequency noise (LFN) and infrasound as serious issues related to the turbines.
The Brown County Board of Health then held hearings. In October 2014, the county passed a motion declaring that the turbines constituted a health hazard.
In April 2020, the Families sued the Operators in Brown County Circuit Court.
The lawsuit alleged common law nuisance claims for personal injuries and property damage, and sought $50,000 in damages, as well as an order enjoining the Operators from operating the turbines and requiring the company to dismantle the turbines.
The complaint alleged that the LFN and infrasound experienced by the Families was a direct result of the Operators’ intentional, negligent, and reckless operation of the turbines.
The complaint also alleged that the Operators had failed to abate the continuing nuisance created by the operation of the turbines.
The Operators moved to dismiss the Families’ complaint on the grounds that 1) their claims were barred by the applicable statute of limitations; and 2) the complaint failed to state claims for nuisance.
The circuit court granted the company’s motion, but its final order did not specify whether the dismissal was with or without prejudice. The Families appealed.
Dismissal Was Without Prejudice
On appeal, the Families argued that the circuit court’s failure to specify whether the dismissal was with or without prejudice meant that it was with prejudice, and that dismissal with prejudice was an erroneous exercise of discretion.
Judge Gregory Gill began his opinion for a three-judge panel by explaining that under Wisconsin Supreme Court precedent, if dismissal doesn’t specify whether it’s with or without prejudice and a subsequent complaint can cure the complaint, the dismissal should be interpreted to prohibit filing a subsequent complaint.
Gill reasoned that it was possible that the errors in the original complaint filed by the Families could be remedied in a subsequent complaint and concluded that the circuit court’s dismissal was without prejudice.
“The fact that the order was ‘final’ simply means that it disposed of all matters in the current litigation between the parties,” Judge Gill wrote.
Personal Injury Claims Time-barred
Gill explained that under supreme court precedent, a claim for a permanent nuisance must be filed within the statute of limitations, while a claim for a continuing nuisance may be brought beyond the statute of limitations.
Judge Gill concluded that the Families ’ nuisance claims for personal injury were barred by the three-year statute of limitations in Wis. Stat. section 893.54(1m)(a) because the turbines were not a continuous nuisance.
Gill pointed out that the turbines were no longer harming the Families because the Families had moved away from the turbines in May 2011, more than three years before they filed the lawsuit.
“It is clear … that the Families, through reasonable diligence, should have discovered that the turbines may have been causing their alleged symptoms no later than October 14, 2014, the date of the [county’s] Declaration,” Gill wrote.
Property Claims Time-barred
Judge Gill also wrote that the Families’ nuisances claims regarding decreased property values constituted a permanent nuisance, because those claims were based on the alleged harm to the Families’ views and vistas caused by the turbines – “views that were permanently disrupted in 2011 by the presence of the turbines.”
As a result, Gill concluded, the property nuisance claims were subject to the six-year statute of limitations in section 893.52(1), and were time barred because the Families filed their lawsuit more than six years after moving away from the turbines.
Failure to State a Claim
Judge Gill also concluded that the Families failed to state a nuisance claim based upon the allegation that the turbines created LFN vibrations and infrasound that harmed them.
Gill explained that under supreme court precedent, to state a claim for nuisance, a plaintiff must allege either: 1) intentional but unreasonable conduct; or 2) unintentional but negligent conduct.
Judge Gill concluded that the Families’ complaint did not include sufficient facts showing that the Operators had knowledge of the consultant’s report, the county’s declaration, or the existence of the constellation of symptoms allegedly caused by wind turbines.
“The words ‘knowledge,’ ‘knew,’ and ‘know’ are not found in the complaint,” Gill wrote. “Taking the allegations in the in the complaint as true, it cannot be reasonably inferred from the complaint that the Operators had knowledge of the Report, the Declaration, or wind turbine syndrome.”
Additionally, Judge Gill pointed out, the consultant’s report didn’t conclude that the amount of LFN present at the Families’ properties was enough to harm them.
“Knowledge of ‘potential’ harm is not enough to successfully plead a claim for common law nuisance based on intentional conduct,” Gill wrote.