Enz v. Duke Energy Renewable Servs.

Decision Date04 April 2023
Docket Number2021AP989
PartiesDavid Enz, Rosemary Enz, Darren Ashley and Susan Ashley, Plaintiffs-Appellants, v. Duke Energy Renewable Services, Inc., a Delaware Limited Liability Company and Shirley Wind LLC, Defendants-Respondents.
CourtWisconsin Court of Appeals

APPEAL from an order of the circuit court for Brown County No 2020CV448: MARC A. HAMMER, Judge.

Before Stark, P.J., Hruz and Gill, JJ.

GILL J.

¶1 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.[1]

¶2 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.

¶3 Conversely, the Operators argue that the circuit court correctly concluded that the Families' complaint failed to allege sufficient facts to state private nuisance claims. Regardless, even if the complaint does state actionable claims, the Operators assert that all of the Families' claims are barred by the applicable statutes of limitations because the complaint alleged permanent nuisances.

¶4 Ultimately, we conclude that the circuit court dismissed the Families' complaint without prejudice, and we therefore need not address whether the court properly exercised its discretion in that regard. Second, we conclude 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).[2] Lastly, we agree with the 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. We reach this conclusion because the complaint is devoid of allegations that the Operators had knowledge of the alleged harms, or had knowledge that the alleged harms were substantially certain to result from the operation of the turbines, or that the Operators' conduct in causing the nuisance was unreasonable. We affirm.

BACKGROUND

¶5 The following facts are taken from the Families' complaint. David and Rosemary Enz own a forty-two-acre property in Denmark, Wisconsin. Darren and Susan Ashley own a two-acre property in De Pere, Wisconsin. Both the Enzes and the Ashleys lived at their respective properties until 2011.

¶6 In the fall of 2010, eight "2.5 MW industrial wind turbines," which were owned and operated by the Operators, were installed in Brown County. The closest turbines are located a little over one-half mile from the Enzes' property and one mile away from the Ashleys' property.

¶7 "Soon after" the turbines were installed, the Families began experiencing health issues. Specifically "one or both" of the Enzes experienced "dizziness, ear pain, head pressure, panic, nausea, loss of balance, difficulty sleeping, chest tightness and negative cognitive impacts and more." Similarly, "one or both" of the Ashleys experienced "headaches, ear pressure and pain, difficulty sleeping, blurred vision, anxiety, irritability, depression, heart palpitations and negative cognitive impacts." The Ashleys' children also experienced similar symptoms. Both Families' symptoms would dissipate after spending "extended time" away from their properties. The Families allege that they left their respective properties in 2011 due to the symptoms. Nonetheless, both Families continue to pay for upkeep and taxes on their properties and the Ashleys also continue to pay a mortgage on their property.

¶8 The same year the Families left their properties, an acoustical consultant took measurements at the Families' properties and "found [LFN] caused by [the] turbines." In 2012, four "acoustical consulting firms" conducted a joint "study and review" of the turbines. The firms produced a report, titled "A Cooperative Measurement Survey and Analysis of Low Frequency and Infrasound at the Shirley Wind Farm in Brown County, Wisconsin" ("Report"), which concluded that "enough evidence and hypotheses have been given herein to classify LFN and infrasound as a serious issue, possibly affecting the future of the industry."

¶9 Subsequently, the Brown County Board of Health held "hearings and review[ed] … evidence" surrounding the turbines. Thereafter, in October 2014, the County passed a motion ("Declaration") that declared the "turbines … a human health hazard for all people (residents, workers, visitors and sensitive passersby) who are exposed to infrasound/[LFN] and other emissions potentially harmful to human health."

¶10 In April 2020, the Families filed suit against the Operators in Brown County Circuit Court.[3] The Families' complaint alleged common law nuisance claims involving personal injury and damage to property, and it sought permanent relief enjoining the Operators from operating the turbines and requiring them to dismantle them. Additionally, the Families sought $50,000 in damages. The Families alleged that "[t]he harmful vibration, [LFN] and infrasound experienced on [the Families'] land have occurred as a direct result of Defendants' intentional, negligent, and reckless operation of the wind turbines and without [the Families'] permission or consent." They further alleged that wind farms, like those involving the turbines in this case, "have been alleged to have caused health effects … dubbed 'wind turbine syndrome.'" According to the Families, the Operators "have failed to abate the continuing nuisance created by the operation" of the turbines.

¶11 Shirley Wind filed a motion to dismiss the Families' complaint. In support of its motion to dismiss, Shirley Wind argued that the Families' claims were barred by the applicable statutes of limitations.[4] See Wis. Stat. § 893.54 (action for damages to person shall be commenced within three years); Wis.Stat. § 893.52(1) (action for damages to real or personal property shall be commenced within six years after the cause of action accrues).[5] Shirley Wind argued that tort claims accrue on the date the injury is discovered or with reasonable diligence should be discovered, whichever occurs first. Because the Families alleged that they experienced health problems in 2011 and attributed their symptoms to the turbines "as early as 2011," Shirley Wind contended that the statutes of limitations precluded the Families' claims and argued that the action should therefore be dismissed with prejudice.

¶12 Shirley Wind also argued that the Families failed to state claims for nuisance. In support of this argument, Shirley Wind contended that "securing new sources of renewable energy has been an important policy objective in [Wisconsin]" and that "[i]t would simply be unjust to impose common law liability upon wind energy operators … for engaging in commercial activity that [Wisconsin] has not only sanctioned, but … encouraged and solicited." Further, Shirley Wind argued that "utility and social value" are factors to consider in assessing whether a defendant's actions are "unreasonable." According to Shirley Wind, the Families' complaint never alleged that Shirley Wind's operation of the turbines violated Wisconsin law; instead, the Families' complaint "merely identifies the injuries they allegedly sustained but provide[s] nothing other than conclusory allegations." Shirley Wind therefore asked the court to dismiss the Families' claims with prejudice.

¶13 In response to Shirley Wind's motion to dismiss, the Families first argued that the statutes of limitations did not bar their nuisance claims because the Families alleged a "continuing" nuisance, as opposed to a "permanent" nuisance, and "an action for a continuing injury may be maintained beyond the ordinary statute[s] of limitations." Second, the Families responded that they sufficiently alleged nuisance claims-specifically, that Shirley Wind's "mere act of operation of the [turbines] … create[d] the nuisance."

¶14 In a written decision and order, the circuit court granted Shirley Wind's motion to dismiss the Families' complaint for three reasons. First, the court determined that the personal injury nuisance claims were barred by the statute of limitations in Wis.Stat. § 893.54 because the Families left their properties in 2011. Even if the Families did not discover that their personal injuries were caused by the turbines until October 2014, the date of the Declaration, the time within which the Families could sue for injuries to the person would still have elapsed.

¶15 Second, the circuit court concluded that the Families' nuisance claims for injuries to property were claims for a permanent nuisance, as opposed to continuing nuisance because "the harm cannot be abated by reasonable means at a reasonable cost." Thus, the claims for injuries to property were required to be commenced within the applicable...

To continue reading

Request your trial

VLEX uses login cookies to provide you with a better browsing experience. If you click on 'Accept' or continue browsing this site we consider that you accept our cookie policy. ACCEPT