Bostco LLC v. Milwaukee Metropolitan Sewerage District
800 N.W.2d 518
Wis. Ct. App.2011Background
- Bostco LLC and Parisian, Inc. sued the Milwaukee Metropolitan Sewerage District for damages to the Boston Store from groundwater dewatering after the District took over Deep Tunnel maintenance in 1992.
- Suit asserted negligence, continuing nuisance, inverse condemnation, and excavation protection under Wis. Stat. § 101.111; District moved to dismiss for § 893.80(1) notice, then moved for summary judgment on inverse condemnation and § 101.111 claims.
- Jury found District negligent near the Boston Store and awarded $9 million (past and future) but Bostco was 30% contributorily negligent; nuisance claim failed for lack of significant harm.
- Post‑verdict, court applied Wis. Stat. § 893.80(3) municipal cap, reducing recovery to $100,000 ($50k each for Bostco and Parisian).
- Bostco sought injunctive relief to line the tunnel; trial court ordered concrete lining near the Boston Store.
- On appeal, this court affirmed in part and reversed in part, concluding the District was not immune, the cap applies, and injunctive relief cannot circumvent the cap; nuisance harm was significant and capped; inverse condemnation and § 101.111 claims were properly resolved.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Immunity under Wis. Stat. § 893.80(4) | District’s maintenance/operation acts are ministerial; immunity inapplicable. | Design decisions are discretionary, entitlement to immunity; limited evidence of ministerial duty. | District not entitled to immunity; failure to repair dewatering was ministerial. |
| Application of the municipal cap § 893.80(3) | Cap unconstitutional as applied and waivable; damages exceed cap. | Cap rationally balances public treasury and victim compensation; not unconstitutional. | Cap applies; constitutional on its face and as applied; no waiver. |
| Statute of limitations determination | Discovery of cause should have extended limitations; jury’s answer should stand. | Evidence shows discovery occurred later; court permissibly changed verdict. | Trial court’s change of the jury’s limitation verdict was not clearly wrong. |
| Injunctive relief vs. statutory cap | Injunction necessary to prevent irreparable harm since cap bars adequate remedy at law. | § 893.80(5) makes caps exclusive; injunction would circumvent cap. | Injunction to line Deep Tunnel cannot override the cap; injunction reversed. |
Key Cases Cited
- Stanhope v. Brown County, 90 Wis.2d 823 (Wis. 1979) (capital damages caps rationally related to public funds; equal protection upheld)
- Sambs v. City of Brookfield, 97 Wis.2d 356 (Wis. 1980) (upheld municipal caps balancing public treasury and victim compensation)
- MMSD v. City of Milwaukee, 277 Wis.2d 635 (Wis. 2005) (holding discretionary vs. ministerial acts; maintenance duties under § 893.80(4))
- Ferdon ex rel. Petrucelli v. Wisconsin Patients Comp. Fund, 284 Wis.2d 573 (Wis. 2005) (noneconomic damages cap struck in medical malpractice context; rational basis analysis guidance)
- Jost v. Dairyland Power Cooperative, 45 Wis.2d 164 (Wis. 1969) (significant harm standard in nuisance; damages may be substantial as a matter of law)