674 F.3d 710
7th Cir.2012Background
- Bagley, Wisconsin flooded after a 500-year rainfall overwhelmed local drainage near the BN trestle beneath a Burlington Northern bridge.
- Debris clogging the BN trestle impeded runoff, causing widespread flooding of Bagley’s homes.
- Four Bagley residents sued Burlington Northern and two BN employees in Wisconsin and asserted negligence and nuisance claims.
- The district court held Wis. Stat. § 88.87 provides the exclusive remedy for such claims, foreclosing relief for damages due to failure to file timely notices.
- The court dismissed the claims against Burlington Northern for failure to comply with § 88.87's notice requirements and remanded or dismissed remaining defendants as appropriate.
- On appeal, plaintiffs argued § 88.87 does not bar damages and forfeited arguments below were raised too late and should not preclude relief.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Scope of Wis. Stat. § 88.87 applicability | Irish argues § 88.87 extends only to faulty construction, not maintenance. | Burlington Northern contends § 88.87 bars damages and preempts common law claims. | § 88.87 precludes damages; only equitable relief or inverse condemnation permitted. |
| Whether plaintiffs forfeited their § 88.87 argument | Plaintiffs preserved broad constructional argument but failed to develop it. | Plaintiffs did not develop the argument below; forfeiture applies. | Plaintiffs forfeited argument; no reversible error on scope of § 88.87. |
| Impact of forfeiture on preemption argument | Remediation could proceed despite state-law limitations; federal preemption not addressed. | Preemption under federal law remains independent of § 88.87. | Preemption argument not reached due to forfeiture. |
| Remand/abatement regarding 88.87 relief | Inverse condemnation and equitable relief could be available. | No damages under § 88.87; relief limited to inverse condemnation or equitable relief. | Affirmed dismissal; damages barred by § 88.87. |
| Whether the plaintiffs can pursue federal common law relief | Plaintiffs should be free to pursue federal common law theories. | Statutory scheme controls; § 88.87 governs remedies. | Remand not warranted; federal-law relief not available here. |
Key Cases Cited
- Pruim v. Town of Ashford, 168 Wis.2d 114 (App. 1992) (statute limits relief to inverse condemnation or equitable relief; no nuisance damages)
- Kohlbeck v. Reliance Constr. Co., 256 Wis.2d 235 (App. 2002) (§ 88.87 limits relief to statutorily defined forms)
- Shlahtichman v. 1-800 Contacts, Inc., 615 F.3d 794 (7th Cir. 2010) (forfeiture rule; appellate review constrained by preserved arguments)
- In re Burlington N. Santa Fe Ry. Co., 606 F.3d 379 (7th Cir. 2010) (CAFA removal/remand considerations; issues of statutory interpretation)