David Enz v. Duke Energy Renewable Services, Inc.

2023 WI APP 24

COURT OF APPEALS OF WISCONSIN
PUBLISHED OPINION

Case No.: 2021AP989

Complete Title of Case:

DAVID 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.

Opinion Filed: April 4, 2023
Submitted on Briefs: January 11, 2022
Oral Argument:

JUDGES: Stark, P.J., Hruz and Gill, JJ.
Concurred:
Dissented:

Appellant
ATTORNEYS: On behalf of the plaintiffs-appellants, the cause was submitted on the
briefs of Thomas R. Schrimpf of Hinshaw and Culbertson LLP.

Respondent
ATTORNEYS: On behalf of the defendants-respondents, the cause was submitted on
the brief of Edward B. Ruff III, James A. LaBarge (pro hac vice) and
Scott L. Howie (pro hac vice) of Pretzel & Stouffer Chartered,
Chicago, Illinois, and Emery K. Harlan of MWH Law Group, LLP,
Milwaukee.
2023 WI APP 24

COURT OF APPEALS
DECISION NOTICE
DATED AND FILED This opinion is subject to further editing. If
published, the official version will appear in
the bound volume of the Official Reports.
April 4, 2023
A party may file with the Supreme Court a
Sheila T. Reiff petition to review an adverse decision by the
Clerk of Court of Appeals Court of Appeals. See WIS. STAT. § 808.10 and
RULE 809.62.

Appeal No. 2021AP989 Cir. Ct. No. 2020CV448

STATE OF WISCONSIN IN COURT OF APPEALS

DAVID 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.

APPEAL from an order of the circuit court for Brown County:
MARC A. HAMMER, Judge. Affirmed.

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

¶1 GILL, J. 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
No. 2021AP989

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

1
Duke Energy did not join Shirley Wind’s motion to dismiss the Families’ complaint. In
fact, as the Families point out on appeal, Duke Energy did not file any motions, or join any motions,
to dismiss the Families’ complaint. Yet, on appeal, the Operators jointly filed a brief in support of
the circuit court’s decision to dismiss the Families’ complaint.

That said, the circuit court’s order granting Shirley Wind’s motion dismissed the Families’
complaint in its entirety. Therefore, the scope of this appeal applies to both Shirley Wind and Duke
Energy. Furthermore, because the Families’ complaint alleges facts pertaining to “the defendants”
collectively, we will analyze the complaint as it applies to both of the Operators collectively, rather
than individually.

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No. 2021AP989

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.

2
All references to the Wisconsin Statutes are to the 2021-22 version unless otherwise
noted.

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No. 2021AP989

¶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.”

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No. 2021AP989

¶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

3
Shortly thereafter, Shirley Wind removed the case to the United States District Court for
the Eastern District of Wisconsin. By October 2020, the case was remanded to the circuit court for
reasons not relevant to this appeal.

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No. 2021AP989

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’

4
Shirley Wind also argued that the Families’ claims were preempted by Wisconsin’s
“Comprehensive Wind Energy System Regulatory Framework,” that the claims should be
dismissed on public policy grounds, and that the Families failed to plead facts demonstrating that
they exhausted their administrative remedies. The circuit court concluded that the Families’ claims
were not preempted, nor were the Families required to exhaust any administrative remedies.
Further, the court decided against applying public policy considerations because it had already
concluded that the Families provided insufficient facts to allege nuisance claims. Shirley Wind
does not challenge any of these rulings; therefore, we deem them abandoned on appeal and do not
address them further. See A.O. Smith Corp. v. Allstate Ins. Cos., 222 Wis. 2d 475, 491, 588
N.W.2d 285 (Ct. App. 1998) (“[A]n issue raised in the [circuit] court, but not raised on appeal, is
deemed abandoned.”).
5
WISCONSIN STAT. §§ 893.54 and 893.52 were amended by 2015 Wis. Act 133 to include
provisions relating to motor vehicle accidents. These amendments do not affect this case.

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No. 2021AP989

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 six-year statute of limitations. According to the
court, the Families’ complaint was “not clear as to when the [Families] noticed the

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No. 2021AP989

decrease in the value of their propert[ies].” The court “infer[red] that the [Families’]
property value[s] began to decrease in 2011 at the earliest and that the cause of
action accrued at this time.” Thus, the nuisance claims for damages to the Families’
respective properties were barred by WIS. STAT. § 893.52(1).

¶16 Third, the circuit court agreed with Shirley Wind that the Families
failed to allege sufficient facts to state a claim for nuisance. Specifically, the court
determined that although the Families sufficiently alleged that a nuisance existed,
they failed to allege sufficient facts to demonstrate that liability existed.

¶17 In reaching its decision, the circuit court addressed each type of
potential liability-forming conduct. To the extent the Families alleged that Shirley
Wind acted negligently, the court found that their complaint did not allege facts
demonstrating that Shirley Wind had a duty to abate the operation of the turbines or
had notice of the nuisance. To the extent the Families alleged that Shirley Wind
acted intentionally, the court determined that the Families’ complaint did not allege
facts demonstrating that Shirley Wind acted for the purpose of subjecting the
Families to the nuisance. Nor did the Families allege sufficient facts to demonstrate
that Shirley Wind knew about the harms alleged or knew that the harms were
substantially certain to result from Shirley Wind’s conduct. Lastly, the court
determined that the Families’ allegation that Shirley Wind’s operation of the
turbines was an “abnormally dangerous condition or activity”—which would
subject Shirley Wind to strict liability—was conclusory and that the Families’
complaint did not allege how operation of the turbines was abnormally dangerous.

¶18 Notably, the circuit court’s order did not state whether dismissal of
the Families’ complaint was with or without prejudice. Nevertheless, Shirley Wind
filed a notice of entry of a final order.

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No. 2021AP989

¶19 The Families then filed a motion to reopen and for leave to file a first
amended complaint together with a proposed amended complaint. Two weeks later,
the Families filed a similar, but slightly altered, motion that contained an identical
proposed amended complaint. Before the circuit court could address the Families’
pending motions, the Families appealed the court’s dismissal of their original
complaint to this court. Roughly one week later, the Families filed a third motion
to reopen and for leave to file a first amended complaint. The third motion was
slightly different from the previous two motions and contained a different proposed
amended complaint. The court subsequently sent a letter to the parties stating that
it “will now hold [the Families’] Motion to Reopen and For Leave to File First
Amended Complaint until such time as the Court of Appeals issues a decision and/or
provides the [circuit] court further instruction.”

¶20 The Families later asked this court to stay their appeal pending the
circuit court’s disposition of their motion to reopen and for leave to file a first
amended complaint. They argued that the circuit court retained jurisdiction to
address their motion for leave to file an amended complaint because the court’s
decision granting Shirley Wind’s motion to dismiss was not final for purposes of
appeal.

¶21 We denied the Families’ motion, concluding that the circuit court’s
decision and order dismissing the Families’ original complaint unambiguously
dismissed the entire matter and, therefore, was appealable. We added that while the
circuit court retained jurisdiction under WIS. STAT. § 808.075(1) to act on the
Families’ motion to reopen, given the court’s stated intention to hold that motion in
abeyance, we would deny the Families’ request to stay this appeal. As anticipated,
the circuit court has not acted on the Families’ motion, and we therefore proceed
with this decision.

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No. 2021AP989

DISCUSSION

¶22 The Families raise three issues on appeal. First, they argue that the
circuit court erroneously exercised its discretion by dismissing their complaint with
prejudice. Second, the Families argue that the court erred in concluding that their
claims were for permanent, as opposed to continuing, nuisances and therefore barred
by the applicable statutes of limitations. Lastly, the Families contend that the court
erred by dismissing their complaint for failing to state a claim. According to the
Families, their complaint adequately alleged that the Operators knew that their
operation of the wind turbines resulted in, or was substantially certain to result in,
the harms alleged. Furthermore, the Families assert that their complaint adequately
alleged that the Operators’ conduct was unreasonable.

I. The Families’ complaint was dismissed without prejudice.

¶23 The circuit court’s order dismissing the Families’ complaint did not
state whether the dismissal was with or without prejudice. The Families interpret
the order’s silence to mean that their complaint was dismissed with prejudice.6 The
Families argue that the court’s decision to dismiss the action with prejudice was an
erroneous exercise of discretion.7

6
In their reply brief, the Families argue that the Operators, by failing to respond to the
Families’ argument on this issue, conceded that the circuit court dismissed the Families’ complaint
with prejudice. While the Families are correct that the Operators did not address the prejudice issue
in their brief, we still decide to address the merits of the Families’ argument that the circuit court
erroneously exercised its discretion by dismissing their complaint with prejudice. See United
Co-op. v. Frontier FS Co-op., 2007 WI App 197, ¶39, 304 Wis. 2d 750, 738 N.W.2d 578 (we may
take a lack of response as a concession).
7
In their briefing, the Families refer to the circuit court abusing its discretion. Wisconsin
courts no longer use that term because it “carries an unjustified negative connotation.” Hefty v.
Hefty, 172 Wis. 2d 124, 128 n.1, 493 N.W.2d 33 (1992). Instead, we use the term “erroneous
exercise of discretion.” Id.

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No. 2021AP989

¶24 As previously noted, we need not reach the question of whether the
circuit court erroneously exercised its discretion in this case by dismissing the
Families’ complaint with prejudice because we conclude that the court dismissed
the complaint without prejudice. Our supreme court has stated:

Generally, when a dismissal for failure to state a claim does
not specify whether it is with or without prejudice and the
defects in the dismissed complaint can be cured by a
subsequent complaint, the dismissal should not be treated as
a bar to the filing of the subsequent complaint.

State ex rel. Schatz v. McCaughtry, 2003 WI 80, ¶36, 263 Wis. 2d 83, 664 N.W.2d
596 (citing Taylor v. Matteson, 86 Wis. 113, 121-23, 56 N.W. 829 (1893)).

¶25 We conclude that the Families’ complaint was dismissed without
prejudice because: (1) the circuit court did not specify otherwise, and (2) it may be
possible that errors in the original complaint can be remedied and a potential,
appropriate cause of action can be alleged in a new complaint. See id.; see also
State ex rel. Santana v. Endicott, 2006 WI App 13, ¶6, 288 Wis. 2d 707, 709
N.W.2d 515 (2005). The fact that the order was “final” simply means that it
disposed of all matters in the current litigation between the parties. See WIS. STAT.
§ 808.03(1).

II. The Families failed to state a nuisance claim upon which relief can be
granted.

¶26 The Families next contend that the circuit court erred in granting
Shirley Wind’s motion to dismiss the Families’ complaint as untimely and for
failure to state an actionable nuisance claim. A motion to dismiss presents a
question of law that we review independently. Doe 56 v. Mayo Clinic Health
Sys.—Eau Claire Clinic, Inc., 2016 WI 48, ¶14, 369 Wis. 2d 351, 880 N.W.2d 681.
“The motion to dismiss here is based on whether the complaint was timely filed

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No. 2021AP989

under the applicable statute[s] of limitations.” Id. (citation omitted). Our analysis
therefore “involves the interpretation and application of a statute to an undisputed
set of facts, which also presents a question of law we review de novo.” Id. We may
affirm a motion to dismiss for failure to state a claim for reasons different than those
relied on by the circuit court. Wall v. Pahl, 2016 WI App 71, ¶27 n.11, 371 Wis. 2d
716, 886 N.W.2d 373.

¶27 “When we review a motion to dismiss, factual allegations in the
complaint are accepted as true for purposes of our review.” Data Key Partners v.
Permira Advisers LLC, 2014 WI 86, ¶18, 356 Wis. 2d 665, 849 N.W.2d 693.
“However, a court cannot add facts in the process of construing a complaint.” Id.,
¶19. Ultimately, “[a] claim should not be dismissed ... unless it appears to a certainty
that no relief can be granted under any set of facts that plaintiff can prove in support
of his [or her] allegations.” Doe 67C v. Archdiocese of Milwaukee, 2005 WI 123,
¶20, 284 Wis. 2d 307, 700 N.W.2d 180 (second alteration in original; citation
omitted).

A. Nuisance law generally.

¶28 Our supreme court has stated that “[t]here is perhaps no more
impenetrable jungle in the entire law than that which surrounds the word
‘nuisance.’” Milwaukee Metro. Sewerage Dist. v. City of Milwaukee, 2005 WI 8,
¶24, 277 Wis. 2d 635, 691 N.W.2d 658 (alteration in original; citation omitted).
Broadly speaking, a nuisance is defined as “a condition or activity which unduly
interferes with the use of land or of a public place.” Id. (citation omitted).
Nuisances are separated into one of two categories, depending on the nature of the
interference: (1) private nuisances; and (2) public nuisances. Id., ¶27; see also
WIS JI—CIVIL 1920 (2019). “[A] private nuisance is an interference with the use

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No. 2021AP989

and enjoyment of land.” Milwaukee Metro., 277 Wis. 2d 635, ¶27 (citation
omitted). Conversely, “[a] public nuisance is a condition or activity which
substantially or unduly interferes with the use of a public place or with the activities
of an entire community.” Id., ¶28 (alteration in original; citation omitted); see also
WIS JI—CIVIL 1920 (2019). Despite the differences between private and public
nuisances, “the elements required to establish liability for either are virtually
identical.” Milwaukee Metro., 277 Wis. 2d 635, ¶46.

¶29 “Much of the confusion in nuisance law results from a ‘[f]ailure to
recognize that ... nuisance has reference to the interest invaded and not to the type
of conduct that subjects the actor to liability.’” Id., ¶26 (alterations in original)
(quoting RESTATEMENT (SECOND) OF TORTS § 822 cmt. b. (AM. L. INST. 1979)).8
As such, it is necessary to distinguish a nuisance from liability for a nuisance. Id.,
¶25. “A nuisance is nothing more than a particular type of harm suffered; liability
depends upon the existence of underlying tortious acts that cause the harm.” Id. In
other words, “for a nuisance to exist there must be harm to another or the invasion
of an interest.” RESTATEMENT (SECOND) OF TORTS § 821A cmt. c. (AM. L. INST.
1979). For example, “the annoyance caused by loud noises or by objectionable
odors is a nuisance to the person affected by them.” Id., cmt. b. (emphasis added).
It is incorrect to say that a nuisance is “itself a type of liability-forming conduct.”
Milwaukee Metro., 277 Wis. 2d 635, ¶26 (citation omitted). “If the conduct of the
defendant is not of a kind that subjects him [or her] to liability … the nuisance [may]

8
Our supreme court has relied on RESTATEMENT (SECOND) OF TORTS § 822 (AM. L. INST.
1979), and it “has also previously relied on other sections of the Restatement governing nuisances.”
Milwaukee Metro. Sewerage Dist. v. City of Milwaukee, 2005 WI 8, ¶25 n.4, 277 Wis. 2d 635,
691 N.W.2d 658; see also, Stunkel v. Price Elec. Co-op., 229 Wis. 2d 664, 670-71, 599 N.W.2d
919 (Ct. App. 1999).

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exist[] but he [or she] is not liable for it.” Id., ¶25 (some alterations in original;
citation omitted).

¶30 The alleged nuisances in this case are the Families’ purported personal
injuries, decreased property values, and diminished “use and enjoyment” of their
properties caused by blinking red lights, LFN, vibrations, infrasound, and negatively
impacted “views and vistas.” For purposes of this opinion, we will analyze the first
nuisance as a “personal injury” nuisance and the remaining two nuisances as those
involving “property damage.”

B. The Families allege permanent nuisances, and their claims for personal
injury and property damage—related to the presence of the turbines—
are barred by the applicable statutes of limitations under WIS. STAT.
§ 893.54(1m)(a) and WIS. STAT. § 893.52(1).

¶31 Under WIS. STAT. § 893.52(1), an action “to recover damages for an
injury to real or personal property shall be commenced within 6 years after the cause
of action accrues or be barred.” An action for personal injury claims must
commence within three years of the date the cause of action accrues or be barred.
WIS. STAT. § 893.54(1m)(a).

¶32 “[A] period of limitation within which an action may be commenced
is computed from the time that the cause of action accrues until the action is
commenced.” WIS. STAT. § 893.04. Under the discovery rule, “all tort
actions … accrue on the date the injury is discovered or with reasonable diligence
should [have been] discovered, whichever occurs first.” John Doe 1 v. Archdiocese
of Milwaukee, 2007 WI 95, ¶20, 303 Wis. 2d 34, 734 N.W.2d 827 (last alteration
in original; citation omitted). “Accrual requires that plaintiffs discover, or with
reasonable diligence should have discovered, ‘not only the fact of injury but also
that the injury was probably caused by the defendant’s conduct.’” Gumz v.

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No. 2021AP989

Northern States Power Co., 2007 WI 135, ¶26, 305 Wis. 2d 263, 742 N.W.2d 271
(citation omitted; formatting altered).

¶33 Whether a nuisance claim is barred by the applicable statutes of
limitations depends on whether the alleged nuisance is considered permanent or
continuing. See Sunnyside Feed Co., Inc. v. City of Portage, 222 Wis. 2d 461, 466,
588 N.W.2d 278 (Ct. App. 1998); see also Andersen v. Village of Little Chute, 201
Wis. 2d 467, 487, 549 N.W.2d 737 (Ct. App. 1996). An action for a permanent
nuisance must be filed within the applicable statutes of limitations, but an action for
a continuing nuisance “may be maintained beyond the ordinary statute[s] of
limitations.” Sunnyside Feed, 222 Wis. 2d at 466 (citation omitted).

¶34 “[T]he appropriate factors to consider in deciding whether a nuisance
is continuing are: (1) whether it constitutes an ongoing or repeated disturbance or
harm, and (2) whether it can be discontinued or abated.” Id. at 470; see also
Munger v. Seehafer, 2016 WI App 89, ¶38, 372 Wis. 2d 749, 890 N.W.2d 22.
Abatement must be possible “by reasonable means and at a reasonable cost.” See
Bostco LLC v. Milwaukee Metro. Sewerage Dist., 2013 WI 78, ¶43, 350 Wis. 2d
554, 835 N.W.2d 160. If both factors are present, a nuisance is deemed to be
continuing.

¶35 The Families first argue that labeling the nuisance permanent or
continuing is improper at this stage of the proceedings. They instead contend that
the proper manner by which to determine whether the nuisance is permanent or
continuing is at trial because that determination is a question of fact.

¶36 We conclude that whether the Families’ nuisance claims are
continuing or permanent is a question of law, not fact. As explained earlier in this
opinion:

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No. 2021AP989

where, as here, the underlying facts surrounding the creation
of the asserted nuisance are undisputed, and application of a
statute of limitations is the issue, whether the nuisance is
permanent or continuing becomes a question of law to be
decided by the trial court and reviewed de novo by this court.

Sunnyside Feed, 222 Wis. 2d at 467.

¶37 The Families further argue that they were not required to
“anticipatorily plead facts negating an affirmative defense” such as the Operators’
statutes of limitations defense. See Storm v. Legion Ins. Co., 2003 WI 120, ¶55
n.34, 265 Wis. 2d 169, 665 N.W.2d 353 (“As this court has previously stated, the
expiration of a statute of limitations is an affirmative defense that must be raised by
a defendant, and a plaintiff is not required to anticipate this defense by pleading
against it in a complaint.”). The Operators respond by arguing that the Families
cited a “general rule” that does not apply in this case because the Families created
or conceded an affirmative defense.

¶38 We agree with the Operators that the Families’ complaint created or
conceded the statutes of limitations defense. “While a complaint need not
specifically deny the existence of any and all affirmative defense, it can, by
inadvertence or otherwise, create or concede an affirmative defense fatal to its
validity.” Robinson v. Mount Sinai Med. Ctr., 137 Wis. 2d 1, 16, 402 N.W.2d 711
(1987) (citation omitted). Here, the Families alleged facts that provide a basis for
such a defense. Furthermore, WIS. STAT. § 802.02(3) expressly permits circuit
courts to consider affirmative defenses raised by defendants at the pleading stage.
The Operators were therefore permitted to raise the statutes of limitations defense
in their motion to dismiss, and the circuit court properly considered the defense in
its order granting the Operators’ motion. See WIS. STAT. § 802.06(2)(a)9. (statute
of limitations is a defense that can be raised in responsive pleading or be made by

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motion); see also John Doe 1, 303 Wis. 2d 34, ¶¶2, 9-11 (affirming in part a circuit
court’s grant of defendants’ motion to dismiss plaintiff’s complaint as barred by the
applicable statutes of limitations).

¶39 In terms of the merits of the statutes of limitations defense, the circuit
court concluded that the nuisance claims for property damage are barred by WIS.
STAT. § 893.52(1) because the nuisances are permanent and cannot be abated by
reasonable means and at a reasonable cost. The court found that there are no
“engineering solutions” to the nuisances and therefore the nuisances cannot be
abated without dismantling the turbines. Indeed, the court found that the Families’
only proposed solution to the nuisances was to stop the turbines from operating any
further. According to the court, this solution is not reasonable because the court
inferred that the turbines “likely provide energy to several areas that are dependent
on that energy” and that dismantling the turbines “is likely to be extremely
expensive.”9 In terms of the Families’ personal injury claims, the court concluded
that the Families were not experiencing any more harm because they abandoned
their respective properties in 2011. Assuming that the Families did not discover the
source of their harms until 2014, the date of the Declaration cited in the complaint,
WIS. STAT. § 893.54(1m)(a) still barred their claims.

¶40 The Families argue on appeal that they adequately alleged a
continuing, and not a permanent, nuisance with respect to both their property
damage and personal injury claims, and, as a result, their claims are not time barred.

9
On appeal, the Families contend that the circuit court concluded that they alleged an
ongoing or repeated disturbance or harm, and that the court then erroneously found that the nuisance
was not abateable and incorrectly applied the negligence “continuing-violation doctrine”
articulated in Kolpin v. Pioneer Power & Light Co., 162 Wis. 2d 1, 469 N.W.2d 595 (1991).
Because we decide this issue de novo and ultimately conclude that the alleged nuisances in this
section are permanent, we need not reach the issue of whether the court erred by relying on Kolpin.

17
No. 2021AP989

In support of their position, the Families contend that we “can reasonably infer that
the nuisance can be discontinued or abated by the simple expedient of ceasing
operation of the turbines” and by dismantling the turbines. Additionally, the
Families add that the circuit court failed to “identify a single allegation to support”
its inference that the turbines provide energy “to several areas that are dependent on
that energy” or that the costs of abating or dismantling the turbines would be
expensive. According to the Families, “[t]he complaint contains no allegations
regarding the amount of energy produced” by the turbines or the cost of dismantling
them. As to the continuity of the disturbance or harm, the Families contend that
they “alleged that the operation of Shirley Wind’s turbines causes ‘harmful
vibration, [LFN] and infrasound’ and subjects plaintiffs’ properties to continuously
blinking red lights.” Furthermore, the Families argue that their claims for personal
injury are continuing because they “remain unable to return to their homes due to
physical symptoms caused by” the turbines.

i. The Families’ nuisance claims for personal injury are barred by
WIS. STAT. § 893.54(1m)(a).

¶41 The Families’ claims for personal injury are barred by WIS. STAT.
§ 893.54(1m)(a) because the turbines alleged to have caused their injuries are no
longer causing the Families an ongoing or repeated disturbance or harm, and are
therefore not continuous.10 See Sunnyside Feed, 222 Wis. 2d at 466. According to
the complaint, the turbines were erected in the fall of 2010. “Soon after” the turbines
were operating, the Families began experiencing symptoms including difficulty

10
The Families correctly contend that a nuisance is an invasion of a landowner’s use and
enjoyment of land. The Families extend that definition, however, to argue that a nuisance is
continuous, as opposed to permanent, if a landowner leaves his or her property where the nuisance
is taking place and he or she no longer experiences personal injury. We disagree. The Families
are no longer experiencing the alleged injuries if the Families no longer visit the properties and face
the physical symptoms they allegedly faced when at the properties.

18
No. 2021AP989

sleeping, ear pain, and “negative cognitive impacts,” and both the Enzes and the
Ashleys moved out of their homes by May 2011. Thereafter, their physical
symptoms ceased, and according to the complaint, the Families last suffered
personal injuries caused by the turbines in May 2011.

¶42 Because the alleged nuisance as it relates to the Families’ personal
injury claims is not a continuous nuisance, the Families had three years from the
date when they knew or should have known their personal injuries were caused by
the turbine operation within which to initiate an action. See WIS. STAT.
§ 893.54(1m)(a). While it may be reasonable to conclude that the families should
have discovered that the turbines were the source of their injuries given the timing
of their symptoms in relation to the erection of the turbines and the dissipation of
the symptoms upon moving away in 2011, we can assume without deciding that the
Families did not know who or what “probably caused” the symptoms they
experienced at the time they moved away. It is clear, however, 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
Declaration. See Gumz, 305 Wis. 2d 263, ¶26. Therefore, to avoid the statute of
limitations bar, the Families were required to commence their personal injury claims
by no later than October 2017, not April 2020 when the present action was actually
filed.

ii. The Families’ nuisance claims for property damage relating to the
presence of the turbines that disrupted “views and vistas” are
barred by WIS. STAT. § 893.52(1).

¶43 The Families’ claims for property damage relating to disrupted “views
and vistas” are barred by WIS. STAT. § 893.52(1) because the alleged injuries
suffered by the Families are not ongoing or repeating.

19
No. 2021AP989

¶44 Our decision in Sunnyside is instructive. In Sunnyside, the plaintiffs
owned a building located along a canal. Sunnyside, 222 Wis. 2d at 465. The
defendant “altered the configuration of the canal bank behind the [plaintiff’s
building] by removing subsoil and large boulders.” Id. Unfortunately, “[t]hese
boulders provided support for the back of the [building], and their removal allegedly
caused a gradual collapse of that portion of the [building], as well as ongoing
damage to the building’s foundation.” Id. The defendant attempted to replace the
boulders with “cribs filled with washed gravel,” however, “the cribs contained
voids, permitting sand and soil to migrate from underneath the [building].” Id.

¶45 The plaintiffs filed suit against the defendant alleging common law
nuisance. See id. The defendants filed a motion for summary judgment, asserting
the nuisance claim was barred by the applicable statute of limitations. Id. The
circuit court denied the motion. Id. Following a jury verdict finding the defendants
created a nuisance, the defendants moved for a judgment notwithstanding the
verdict, again asserting that the nuisance claim was barred by the applicable statute
of limitations. Id. The circuit court denied the motion, concluding that the nuisance
the jury found was continuing rather than permanent and, therefore, not barred by
the applicable statute of limitations. Id. at 466, 468. On appeal, we affirmed the
circuit court. Id. at 471. In doing so, we cited evidence that the nuisance was still
ongoing. Specifically, “the fine soils underneath the [building] continue to move,
and the foundation wall continues to settle.” Id.

¶46 In reaching our decision in Sunnyside, we relied heavily on California
case law. See id. at 469-71. For example, we relied on Baker v. Burkbank-
Glendale-Pasadena Airport Authority, 705 P.2d 866, 870 (Cal. 1985), where the
Supreme Court of California stated that “permanent nuisances are of a type where
‘by one act a permanent injury is done, [and] damages are assessed once for all.’”

20
No. 2021AP989

Id. at 868 (alteration in original; citation omitted). “Damages are not dependent
upon any subsequent use of the property but are complete when the nuisance comes
into existence.” Id. at 869. Permanent nuisances have included “solid structures,
such as a building encroaching upon the plaintiff’s land, a steam railroad operating
over plaintiff’s land, or regrade of a street for a rail system.” Id. (citations and
footnotes omitted). Conversely, the Baker court explained that an example of a
continuing nuisance is one “caused by noise, vibration or foul odor.” Id. Baker
dealt with airport noise, specifically, and held that “[a]irport operations are the
quintessential continuing nuisance.” Id. at 873.

¶47 Using the Baker court language, in this case, “by one act[,] a
permanent injury [was] done.” Id. at 868 (citation omitted). In other words, the
Families alleged decreased property values and diminished “use and enjoyment” of
their properties based partially on the disturbance or harm to their views and
vistas—views that were permanently disrupted in 2011 by the presence of the
turbines. Unlike in Sunnyside where the harm caused by the nuisance was
occurring at the time the complaint was filed (that is, the soils were continuously
moving and continuously shifting the building’s foundation), the damage here
occurred when the turbines were erected, much like the example given in Baker of
a solid building encroaching upon someone’s land. See Baker, 705 P.2d at 869.
The alleged damages here are not dependent upon the Operators’ future use of the
turbines. See id. Even if the turbines stopped operating, they would still pose an
obstruction to the Families’ views and vistas.

¶48 Therefore, we conclude that the Families’ property damage claims as
they relate to disrupted “views and vistas” are for permanent nuisances, not
continuing nuisances, and are subject to WIS. STAT. § 893.52(1). The Families’
property damage claims as they relate to interrupted “views and vistas” would have

21
No. 2021AP989

accrued when the turbines were erected in 2011. See Gumz, 305 Wis. 2d 263, ¶26.
The Families therefore had six years from that date to file a complaint but they failed
to do so. Those claims are barred by § 893.52(1).

¶49 The Families also assert claims for property damage due to decreased
property values and their loss of the use and enjoyment of their properties caused
by the turbines’ blinking red lights, LFN, vibrations, and infrasound. We need not
determine whether the Families timely filed their complaint as to these claims under
WIS. STAT. § 893.52(1) because, as explained below, we conclude that the Families’
complaint failed to state actionable nuisance claims for this property damage.

C. The Families’ complaint failed to state actionable nuisance claims for
property damage based upon the use of the turbines that caused LFN,
vibrations and infrasound, and the resulting loss of the use and enjoyment
of their properties and decreased property values.

¶50 Assuming without deciding that the Families’ claims for property
damage based upon the use of the turbines that caused blinking red lights, LFN,
vibrations, infrasound, loss of the use and enjoyment of the properties, and
decreased property values are not barred by the applicable statute of limitations, the
Families nonetheless failed to state an actionable claim for this nuisance on the
merits. “A motion to dismiss for failure to state a claim tests the legal sufficiency
of the complaint.” Data Key Partners, 356 Wis. 2d 665, ¶19 (citation omitted).
Under WIS. STAT. § 802.02(1)(a), a complaint must state “[a] short and plain
statement of the claim, identifying the transaction or occurrence or series of
transactions or occurrences out of which the claim arises and showing that the
pleader is entitled to relief.” We are to construe all pleadings liberally “as to do
substantial justice.” Sec. 802.02(6); Doe 67C, 284 Wis. 2d 307, ¶35. Bare legal
conclusions, however, will “not fulfill[] a plaintiff’s duty of stating the elements of
a claim in general terms.” Doe 67C, 284 Wis. 2d 307, ¶36 (alteration in original;

22
No. 2021AP989

citation omitted). “It is not enough for the plaintiff to contend that the requisite facts
will be ‘supplied by the discovery process.’” Id. (citation omitted). “In short, we
will dismiss a complaint if, ‘[u]nder the guise of notice pleading, the complaint
before us requires the court to indulge in too much speculation leaving too much to
the imagination of the court.’” Id. (alteration in original; citation omitted).

i. We assume without deciding that the Families’ complaint
adequately alleged a private nuisance that resulted in substantial
harm to their respective properties.

¶51 As outlined above, we begin our analysis with a determination of
whether a nuisance exists. “[F]or a nuisance to exist there must be harm to another
or the invasion of an interest.” Milwaukee Metro., 277 Wis. 2d 635, ¶25 (alteration
in original; citation omitted). “As long as the interference is unreasonable and
substantial, rather than petty or trifling, ‘virtually any disturbance of the enjoyment
of the property may amount to a nuisance.’” Krueger v. Mitchell, 112 Wis. 2d 88,
106, 332 N.W.2d 733 (1983) (citation omitted). “Physical occupation of the
property of another is not necessary to” demonstrate a nuisance. Bostco, 350
Wis. 2d 554, ¶31. “For example, invasions of noxious odors can rise to the level of
a nuisance,” id., as can smoke, Sohns v. Jensen, 11 Wis. 2d 449, 460-61, 105
N.W.2d 818 (1960), and noise, McCann v. Strang, 97 Wis. 551, 553, 72 N.W. 1117
(1897).

¶52 In addition to the presence of an invasion to another’s interest or
property, the harm to another must also be substantial in order to fully constitute a
nuisance. Krueger, 112 Wis. 2d at 106-07; see also WIS JI—CIVIL 1922 (2010).
“Significant harm” means “more than slight inconvenience or petty
annoyance…. [T]here must be a real and appreciable invasion of the plaintiff’s

23
No. 2021AP989

interests before he [or she] can have an action for” a nuisance. Krueger, 112 Wis. 2d
at 107 (citation omitted).

¶53 Regarding the presence of a nuisance, the Families’ alleged nuisance
is the interference with their properties, and the significant harm alleged is the
reduction in their property values and the loss of the use and enjoyment of their
properties. The Families agree with the circuit court’s conclusion that their
complaint adequately alleged both the existence of a private nuisance and that the
nuisance caused significant harm to their respective properties. The Operators do
not contest these conclusions, and we will therefore assume without deciding that
the Families adequately alleged a private nuisance that caused significant harm.

ii. The Families failed to plead sufficient facts to allege
liability-forming conduct.

¶54 The second step—after determining that a nuisance is present and that
the harm is substantial—is determining whether liability-forming conduct is also
present. “[L]iability is ‘founded on the wrongful act in ... creating or maintaining
[the nuisance].’” Milwaukee Metro., 277 Wis. 2d 635, ¶32 (alterations in original;
citation omitted). We note, similar to the court in Milwaukee Metropolitan, that
“[m]uch of the confusion in this case results from the parties’ dispute over whether”
the Families allege that the Operators “‘created a nuisance’ or ‘maintained a
nuisance’ and the differing standards of liability for each classification.” See id.,
¶33. Creating a nuisance is also referred to as liability “for an ‘act,’” while
maintaining a nuisance is also referred to as liability for a “failure to act.” Id., ¶35
(citation omitted).

¶55 When a nuisance is “created by [a] defendant, no question of
negligence or want of ordinary care is involved”—i.e., the allegations are based on

24
No. 2021AP989

intentional conduct. Id., ¶33 (quoting Brown v. Milwaukee Terminal Ry. Co., 199
Wis. 575, 589, 227 N.W. 385 (1929)). In these created-nuisance cases, “liability
‘does not rest on the degree of care used, for that presents a question of negligence,
but on the degree of danger existing even with the best of care.’” Id. (citation
omitted). In other words, when a defendant creates a nuisance, the issue of liability
becomes one “of intentional but unreasonable conduct.” Id. (citation omitted).
Examples of created nuisances include “a tannery or a slaughter-house in the midst
of a residential area, where the mere act of using the plant creates the nuisance.”11
Id. (citation omitted).

¶56 In these cases “where the defendant is ‘engaged in intentional conduct
that severely affect[s] the neighbor’s peaceful use and enjoyment of their
property[,]’ ‘[a] finding of intentional but unreasonable conduct, even though
lawful, is sufficient.’” Id. (alterations in original; citation omitted). Intentional
conduct results if the defendant (a) acts for the purpose of causing the nuisance; or
(b) if the defendant knows that the nuisance is resulting or is substantially certain to
result from the defendant’s conduct. See id., ¶37; WIS JI—CIVIL 1920 (2019). The
conduct is unreasonable if “(a) the gravity of the harm outweighs the utility of the
[defendant’s] conduct, or (b) the harm caused by the conduct is serious and the
financial burden of compensating for this and similar harm to others would not make
the continuation of the conduct not feasible.” Crest Chevrolet-Oldsmobile-
Cadillac, Inc. v. Willemsen, 129 Wis. 2d 129, 139, 384 N.W.2d 692 (1986) (quoting

11
Liability for a nuisance can also be based on “the rules governing reckless conduct or
abnormally dangerous conditions.” Milwaukee Metro., 277 Wis. 2d 635, ¶32 n.5. The latter is
considered a “strict liability” tort. See WIS JI—CIVIL 1920 (2019). Neither of these types of
liability-forming conduct is at issue in this case.

25
No. 2021AP989

RESTATEMENT (SECOND) OF TORTS § 826 (AM. L. INST. 1979)); see also WIS JI—
CIVIL 1926 (2010).

¶57 Conversely, there are cases where a defendant “maintained a
nuisance”—i.e., based on unintentional conduct. Milwaukee Metro., 277 Wis. 2d
635, ¶¶32-34. In these maintained-nuisance cases, “liability is predicated upon the
defendant’s failure to remove [a] harmful condition after he [or she] has notice of
its existence.” See id., ¶34. “Such cases involve changes to otherwise benign
objects that develop over time and become harmful, through no fault of the owner
of the object.” Id. For example, water mains can become a maintained nuisance if,
“over time, through the natural process of corrosion and [a defendant’s] negligence
in repairing and maintaining its mains,” “pipes leak, break, or otherwise create a
condition that interferes” with a plaintiff. See id., ¶40. “[T]here must be proof that
the actor was ‘under a duty to take positive action to prevent or abate the interference
with the public interest or the invasion of the private interest.’” Id., ¶35 (citation
omitted). In other words, unintentional conduct exists where a “defendant
unintentionally maintained or failed to abate a nuisance, [in which case] the
traditional rules for liability based on negligent conduct apply.”12 WIS JI—CIVIL
1920 (2019); see also Milwaukee Metro., 277 Wis. 2d 635, ¶35. Additionally, the
plaintiff must show that the defendant had notice of the nuisance. Milwaukee
Metro., 277 Wis. 2d 635, ¶34; WIS JI—CIVIL 1922 (2010).

¶58 The parties disagree on whether the Families alleged enough facts in
the complaint that, if true, would demonstrate liability—i.e., that the Operators’

12
“We emphasize that negligence and nuisance are distinct torts, and that negligence is
just one way (as opposed to intentional) that a nuisance can be maintained.” Physicians Plus Ins.
Corp. v. Midwest Mut. Ins. Co., 2002 WI 80, ¶27 n.22, 254 Wis. 2d 77, 646 N.W.2d 777. “The
point is that nuisance is a result and negligence is a cause and they cannot be distinguished
otherwise.” Id. (citation omitted).

26
No. 2021AP989

conduct was intentional but unreasonable or that it was unintentional and negligent.
In its order granting Shirley Wind’s motion to dismiss, the circuit court determined
that the Families’ complaint did not allege facts demonstrating that Shirley Wind
had a duty to abate the operation of the turbines or had notice of the nuisance. On
appeal, the Operators argue that the circuit court conducted the correct analysis in
this regard. Before this court, the Families do not contend that they alleged
sufficient facts to state claims for liability based on the Operators maintaining a
nuisance—i.e., unintentional and negligent conduct—and they fault the circuit court
for conducting such an analysis. We will therefore assume without deciding that
the Families failed to state private nuisance claims based on unintentional and
negligent liability.13

¶59 There is little prior Wisconsin case law analyzing a motion to dismiss
for failure to state a common law nuisance claim based on intentional but
unreasonable conduct.14 That said, we conclude that the Families’ complaint fails
to sufficiently plead liability-forming conduct based on intentional but unreasonable
conduct.

a. The Families failed to allege sufficient facts to demonstrate that
the Operators created a nuisance.

13
The Families’ original complaint conflated intentional and unintentional liability
standards. The Families alleged that the Operators “failed to abate the continuing nuisance created
by the operation of [the turbines].” Therefore, it was reasonable for the circuit court to analyze
each type of liability-forming conduct because a “created” nuisance deals with intentional conduct,
while a failure to “abate” or maintain a nuisance deals with unintentional conduct.
14
We are aware of only one Wisconsin case to address a circuit court’s decision on a
motion to dismiss for failure to state a common law nuisance claim. That decision, Quade v. City
of Oshkosh, No. 1981AP895, unpublished slip op. (WI App Mar. 25, 1982), was unpublished and
decided per curiam and is therefore not citable for purposes of our analysis. See WIS. STAT. RULE
809.23(3)(b).

27
No. 2021AP989

¶60 To reiterate, for the Families to overcome the motion to dismiss for
failure to state a nuisance claim based on intentional but unreasonable conduct, they
were required to adequately allege two elements in their complaint. First, to show
the conduct was intentional, the Families must allege that the Operators acted for
the purpose of causing the nuisance, or that the Operators knew that the nuisance
was resulting or was substantially certain to result from their conduct. “It is
important to clarify that when a nuisance is alleged to fall under the second category
of intentional conduct, the ‘knowledge’ requirement refers to knowledge that the
condition or activity is causing harm to another’s interest in the use and enjoyment
of land.” Milwaukee Metro., 277 Wis. 2d 635, ¶38. Second, the Families must
allege that the Operators’ conduct was unreasonable. Crest, 129 Wis. 2d at 139.

¶61 Here, the Families do not contend that their complaint alleged that the
Operators acted for the purpose of causing the nuisance, and we will therefore
assume without deciding that the Families’ complaint did not allege sufficient facts
in that regard. We will focus our analysis on whether the Families alleged sufficient
facts to demonstrate that the Operators knew that the turbines were causing the harm
or knew that the turbines were substantially certain to cause the harm, and that the
nuisance was unreasonable.

¶62 To claim that the Operators created a nuisance, the Families were first
required to allege that the Operators knew of the harm to the Families’ interests.
The Families cite the complaint’s reference to the Report, as well as to the
subsequent Declaration, to argue that they adequately alleged the Operators’
knowledge. According to the Families, “[i]t can reasonably be inferred that Shirley
Wind knew of [the Report] conducted on its wind turbine generators and the
conclusions of that study.” Similarly, the Families contend that “it can reasonably
be inferred that Shirley Wind knew that the [County] had declared [the turbines] ‘a

28
No. 2021AP989

human health hazard’—particularly where the [D]eclaration was made ‘after
extended hearings and review of evidence.’” As such, the Families argue that, “[i]n
these cases[,] the first invasion resulting from the [defendants’] conduct may be
either intentional or unintentional; but when the conduct is continued after the
[defendant] knows that the invasion is resulting from it, further invasions are
intentional.” See Vogel v. Grant-Lafayette Elec. Co-op., 201 Wis. 2d 416, 432, 548
N.W.2d 829 (1996) (citation omitted).

¶63 The Operators argue that the Families fail to “point to any allegation
[in the complaint] that the [Operators] had any such knowledge” of the Report or
the Declaration.15 According to the Operators, neither the Report nor the
Declaration “is alleged to have identified any actual harm to any individual or
property, let alone to the [Families] themselves.” Similarly, the Operators
characterize the Report and the Declaration as concluding that the turbines are
“potentially harmful.”

¶64 In full, the portion of the Families’ complaint describing the Report,
the Declaration, and “wind turbine syndrome” states:

12. In 2012, four acoustical consulting firms, some of
which derived income from the wind turbine
industry, conducted a joint study and review of the
Defendants’ [turbines] in Brown County, Wisconsin
which is commonly referred to as the Shirley Wind
Farm which included the Ashley and Enz homes. On
July 28, 29 and 30, 2011 acoustical consultant Rick
James also took measurements at the Ashley and Enz
homes and found [LFN] caused by wind turbines.
On December 24, 2012 the report entitled “A
Cooperative Measurement Survey and Analysis of

15
The Families argue in their reply brief that the Operators “do not appear to dispute that
the complaint raises an inference that [they] knew of the [Report] and the [Declaration].” We
disagree. The Operators plainly state that the complaint offers “only the bland assertion[s]” and
“conclusory inference[s]” that the Operators had knowledge of the Report or the Declaration.

29
No. 2021AP989

Low Frequency and Infrasound at the Shirley Wind
Farm in Brown County, Wisconsin” concluded that
“the four investigating firms are of the opinion 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.”

13. On October 14, 2014 after extended hearings and
review of evidence the Brown County Board of
Health voted upon and passed a motion that declared
“the industrial wind turbines at Shirley Wind project
in the Town of Glenmore, Brown County, Wisconsin
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.”

….

16. Wind farms such as the one owned by Defendants,
have been alleged to have caused health effects not
limited to vestibular disorders, nausea, motion
sickness, headache, tinnitus, sleep deprivation,
vertigo, dizziness, and anxiety. This constellation of
symptoms has been dubbed “wind turbine
syndrome” and has been experienced by persons
similarly situated to Plaintiffs.

None of these three allegations, or reasonable inferences that may be drawn from
them, meet the minimum level of facts required to allege an intentional common
law nuisance claim.16

¶65 First, the Families’ complaint fails to state sufficient facts to
demonstrate that the Operators had knowledge of the Report, the Declaration, or the
existence of wind turbine syndrome. In Doe 67C, our supreme court analyzed,
among other things, whether Doe’s complaint alleged sufficient facts to plead that
the Archdiocese of Milwaukee had “knowledge” of a priest’s alleged sexual abuse

16
Although unclear, we will assume that the 2011 measurements make up part of the
Report. See Doe 56 v. Mayo Clinic Health Sys.—Eau Claire Clinic, Inc., 2016 WI 48, ¶14, 369
Wis. 2d 351, 880 N.W.2d 681 (we accept as true “any reasonable inferences arising” from the pled
facts).

30
No. 2021AP989

toward Doe for purposes of a common law negligence claim. Doe’s complaint
alleged that the priest had sexually abused him between 1960 and 1962. Doe 67C,
284 Wis. 2d 307, ¶2. The complaint pled facts such as:

9. On information and belief, [the Diocese] knew or should
have known of [the priest’s] problems with alcohol abuse
as well as his tendency and history of sexually abusing
children. Despite this [the Diocese] continued to allow
[the priest] to have unsupervised contact with children.

10. On information and belief, in approximately 1980 an
agent of [the] Diocese witnessed [the priest] sexually
abusing a boy in [a church].

….

23. [The] Diocese … knew or should reasonabl[y] have
known of [the priest’s] dangerous and exploitative
propensities as a child sexual exploiter and/or as an unfit
agent and despite such knowledge, [the]
Diocese … negligently retained and failed to provide
reasonable supervision of [the priest].

….

30. On information and belief, [the] Diocese … had actual
or constructive knowledge of [the priest’s] inappropriate
behavior, as discussed above.

Id., ¶¶37-38 (some alterations in original).

¶66 The court held that “[n]one of these paragraphs allege[ed] that the
[Diocese] knew” of the priest’s sexual abusive behavior. Id., ¶39. According to the
court, the pleadings either alleged knowledge of incidents that occurred after the
alleged sexual assault in the present case or “contain[ed] no allegation relating the
date of the [Diocese’s] knowledge.” Id. The court concluded that it “cannot permit
Doe to rely on hypothetical, speculative ‘facts’ that might or might not be supplied
by the discovery process.” Id., ¶46.

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No. 2021AP989

¶67 Like our supreme court’s conclusion in Doe 67C that the plaintiff’s
complaint failed to state sufficient facts to demonstrate knowledge, we too conclude
that the Families’ complaint failed to allege the Operators’ knowledge of the
nuisance. Unlike the complaint’s minimal allegations about knowledge in Doe 67C,
the complaint in this case does not even make the bare allegation that the Operators
knew or should have known of the Report, the Declaration, or wind turbine
syndrome. The words “knowledge,” “knew,” and “know” are not found in the
complaint. Taking the allegations in the complaint as true, it cannot reasonably be
inferred from the complaint that the Operators had knowledge of the Report, the
Declaration, or wind turbine syndrome.

¶68 Nevertheless, even if the complaint alleged sufficient facts to support
an inference that the Operators had knowledge of the Report, the Declaration, and
the allegation regarding wind turbine syndrome in general, the complaint fails to
identify any nuisance associated with the Families. With regard to the Report, the
consulting firms “found [LFN]” at the Families’ respective properties, and that the
LFN was “caused by [the turbines].” The Report also stated that the firms were of
the “opinion 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.”

¶69 Importantly, however, the Report did not conclude that the LFN levels
at the Families’ properties were high enough to cause harm. See Milwaukee Metro.,
277 Wis. 2d 635, ¶38. As our supreme court recognized when discussing Vogel, a
stray voltage private nuisance case, “it [is] not sufficient that the defendant knew
that some stray voltage invaded the farmer’s land; rather, proof was required that
the defendant knew that unreasonable levels of the stray voltage were causing harm
to the plaintiff’s cows.” Milwaukee Metro., 277 Wis. 2d 635, ¶38 (emphasis added;
citing Vogel, 201 Wis. 2d at 432-33). Nothing in the complaint regarding the Report

32
No. 2021AP989

alleges facts sufficient to support a reasonable inference that the Operators knew
that “unreasonable levels of [LFN] were causing harm to [the Families].” See id.

¶70 Similarly, the allegations in the complaint regarding the Declaration
do not contain sufficient facts demonstrating that the Operators knew of
unreasonable levels of LFN on the Families’ properties. Specifically, the County
declared the turbines “in the Town of Glenmore, Brown County, Wisconsin 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.”

¶71 The Declaration simply states that the “infrasound/[LFN] and other
emissions” are “potentially harmful.” Knowledge of “potential” harm is not enough
to successfully plead a claim for common law nuisance based on intentional
conduct. Instead, the allegations in the complaint must give rise to a reasonable
inference that “the [Operators] knew that unreasonable levels of [LFN] were causing
harm” to the Families’ properties (i.e., that the LFN was decreasing the Families’
property values and interfering with the Families’ use and enjoyment of their
properties), or that they were substantially certain it would do so. See id.
Additionally, the complaint does not state how far the “potentially” damaging noises
travel—i.e., does the potentially dangerous LFN reach the Families’ properties?—
nor does the complaint allege that the Declaration was based on the LFN
measurements at the Families’ properties. The absence of such allegations in the
complaint is particularly troublesome in this case because, according to the
complaint, the Families’ properties are in De Pere, Wisconsin, and Denmark,
Wisconsin, respectively—not in the Town of Glenmore to which the health hazard
presumably applies and where the turbines are located.

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No. 2021AP989

¶72 For similar reasons, even if the Operators knew about wind turbine
syndrome, nothing in the complaint ties the syndrome to the Families. Instead, the
allegation simply states that symptoms associated with wind turbine syndrome have
“been experienced by persons similarly situated to [the Families].” Again, these
allegations are insufficient to create a reasonable inference that the Operators had
knowledge of the Families experiencing wind turbine syndrome.

¶73 Therefore, even if the Operators were aware of the Report, the
Declaration, or wind turbine syndrome, the complaint does not contain any
allegations supporting an inference that the Operators were aware of any harm to
any property, including, specifically, the Families’ properties. As our supreme court
has stated:

“[I]t is not enough to make an invasion intentional that the
actor realizes or should realize that his [or her] conduct
involves a serious risk or likelihood of causing the invasion.”
Rather, in order for an invasion to be intentional, the actor
“must either act for the purpose of causing it or know that it
is resulting or is substantially certain to result from his [or
her] conduct.”

Milwaukee Metro., 277 Wis. 2d 635, ¶39 (citations omitted). In other words, the
Families needed, but failed, to allege 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.

¶74 Further, even if we were to conclude that the Families adequately pled
facts demonstrating that the Operators had knowledge of the alleged harms—in
other words, that the Operators acted intentionally—we further conclude that the
Families failed to plead facts demonstrating that the Operators’ conduct was
unreasonable. As outlined above, to successfully plead a claim for common law

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No. 2021AP989

nuisance based on intentional conduct, that conduct must also be unreasonable. The
conduct is unreasonable if “(a) the gravity of the harm outweighs the utility of the
[defendant’s] conduct; or (b) the harm caused by the conduct is serious and the
financial burden of compensating for this and similar harm to others would not make
the continuation of the conduct not feasible.”17 Crest, 129 Wis. 2d at 139 (quoting
RESTATEMENT (SECOND) OF TORTS § 826 (AM. L. INST. 1979)); see also WIS JI—
CIVIL 1926 (2010).

¶75 “In determining the gravity of the harm,” it is important to consider:

(a) The extent of the harm involved;

(b) the character of the harm involved;

(c) the social value that the law attaches to the type of use
or enjoyment invaded;

(d) the suitability of the particular use or enjoyment invaded
to the character of the locality; and

(e) the burden on the person harmed of avoiding the harm.

Crest, 129 Wis. 2d at 141 (quoting RESTATEMENT (SECOND) OF TORTS § 827 (AM.
L. INST. 1979)). Similarly, in determining the utility of the conduct, it is important
to consider:

(a) the social value that the law attaches to the primary
purpose of the conduct;

17
The Families argue that whether operating the turbines “produces a public benefit
outweighing the harm to [the Families] is a question of fact ill-suited [for] resolution on a motion
to dismiss.” It is well-settled law that a complaint must allege “a statement of circumstances,
occurrences[,] and events in support of the claim presented.” See Doe 67C v. Archdiocese of
Milwaukee, 2005 WI 123, ¶36, 284 Wis. 2d 307, 700 N.W.2d 180 (citation omitted). As such, we
conclude that the Families were required to put forth sufficient allegations to make a showing of
unreasonableness. See id. (bare legal conclusions will “not fulfill[] a plaintiff’s duty of stating the
elements of a claim in general terms” (alteration in original; citation omitted)).

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No. 2021AP989

(b) the suitability of the conduct to the character of the
locality; and

(c) the impracticability of preventing or avoiding the
invasion.

RESTATEMENT (SECOND) OF TORTS § 828 (AM. L. INST. 1979); see also Crest, 129
Wis. 2d at 145.

¶76 The Operators cite Hocking v. City of Dodgeville, 2009 WI 70, 318
Wis. 2d 681, 768 N.W.2d 552, to support their conclusion that the turbine operations
were reasonable. In Hocking, our supreme court analyzed a common law nuisance
claim based on unintentional, negligent conduct. Id., ¶¶9-10. The court relied “on
common law doctrines governing surface water to ascertain the defendants’ duty of
ordinary care under the circumstances.” Id., ¶13. In doing so, the court applied the
surface-water-based “reasonable use rule” (or doctrine), which states that “a
landowner must use his [or her] land reasonably, and a duty to act will arise if the
landowner’s use of his [or her] land that resulted in altering the flow of surface
waters is unreasonable.” See id., ¶21; see also State v. Deetz, 66 Wis. 2d 1, 19, 224
N.W.2d 407 (1974) (adopting the “reasonable use” doctrine in respect to surface
waters and abandoning the “common enemy” doctrine). Thus, under the reasonable
use rule, property owners “have a positive duty to abate [a] nuisance only if the use
of their property … altered the flow of surface water and was an unreasonable use
of their property.” Hocking, 318 Wis. 2d 681, ¶21. Ultimately, the court concluded
that “the defendants’ conduct did not involve a use of their property that altered the
flow of surface water. Therefore, their use [was] not unreasonable, and they ha[d]
no duty to abate in the first instance.” Id., ¶22.

¶77 According to the Operators, Hocking dictates the outcome in this case
because “[t]he [Families’] claims are based on the [Operators’] operation of a wind

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No. 2021AP989

farm, a lawful activity with an undisputed and laudable public purpose.” But
Hocking is unhelpful to this case because the Families are not alleging a common
law nuisance claim based on: (1) unintentional, negligent conduct; or (2) a nuisance
related to surface water.18 Hocking employed the reasonable use rule to determine
whether the defendants had a duty of care to the plaintiffs. Here, because the
Families are alleging an intentional but unreasonable nuisance claim, duty is not at
issue. Furthermore, the issue in this case relates to wind turbines, not surface water.
Nor we do read Hocking to mean that a lawful activity cannot be unreasonable, as
the Operators suggest. The Hocking analysis is therefore simply unhelpful in this
case.

¶78 To demonstrate that their complaint states sufficient facts to
demonstrate that the Operators’ conduct was unreasonable, the Families cite Public
Service Co. v. Van Wyk, 27 P.3d 377 (Colo. 2001), a case from outside our
jurisdiction. In Van Wyk, the plaintiffs alleged a nuisance after a public utility
commission (PUC) approved electrical line upgrades for a public service company.
Id. at 381. Prior to the plaintiffs’ lawsuit, the county where the lines were upgraded
had filed suit against the company. Id. After several appeals in the county’s case,
the Colorado Supreme Court effectively affirmed the PUC’s decision. Id. at 382.

¶79 The plaintiffs in Van Wyk later filed suit, alleging, among other
things, that the upgrades, which were adjacent to their home, caused “increased
noise, electromagnetic fields, and radiation waves that encroached upon their
property, causing mental suffering and distress, as well as the loss of use and

18
The reasonable use rule, as articulated in Crest and Deetz, is simply an adoption of the
RESTATEMENT (SECOND) OF TORTS §§ 822, 826-28, in the surface water context. See State v.
Deetz, 66 Wis. 2d 1, 17-18, 224 N.W.2d 407 (1974); Crest Chevrolet-Oldsmobile-Cadillac, Inc.
v. Willemsen, 129 Wis. 2d 129, 138-145, 384 N.W.2d 692 (1986); see also Hocking v. City of
Dodgeville, 2009 WI 70, ¶17, 318 Wis. 2d 681, 768 N.W.2d 552.

37
No. 2021AP989

enjoyment of that property.” Id. at 381. Despite the company’s knowledge of the
invasion, it continued to use the lines. Id. at 392. The trial court dismissed the
claims for, inter alia, failure to state a claim upon which relief could be granted
because the “suit indirectly sought a reversal of PUC’s ruling,” which the Colorado
Supreme Court had already previously affirmed. Id. at 382.

¶80 On appeal, the Colorado Supreme Court first outlined its nuisance
jurisprudence. Similar to Wisconsin, “the elements of a claim of nuisance [in
Colorado] are an intentional, negligent, or unreasonably dangerous activity resulting
in the unreasonable and substantial interference with a plaintiff’s use and enjoyment
of her [or his] property.” See id. at 391. Like the case at hand, the plaintiffs in Van
Wyk alleged an intentional nuisance. See id. at 391-92.

¶81 Regarding the unreasonableness element,19 the court explained that

19
The Van Wyk court also determined that the plaintiffs had alleged sufficient facts in
their complaint to show that the public service company had knowledge of the nuisance. Public
Serv. Co. v. Van Wyk, 27 P.3d 377, 392, 395 (Colo. 2001). Specifically, the court held that:

While it is not entirely clear from the [plaintiffs’] complaint
whether [the public service company] was ever actually made
aware of the alleged invasion interfering with the use and
enjoyment of the [plaintiffs’] property, we must view the
complaint in the light most favorable to the plaintiff. The
allegation in the complaint that “[the] [p]ublic [s]ervice
[c]ompany has refused to discuss compensation or make any
offers of payment to the property owners” suggests that the
property owners made [the public service company] aware of the
alleged invasion interfering with the use and enjoyment of the
property, and that despite that notice, [the public service company]
continued to transmit electricity through the line [at the same
voltage].

Id. at 392 (citation omitted). This conclusion reinforces our earlier holding that the Families failed
to allege sufficient facts to demonstrate that the Operators knew that the nuisance was resulting
from or was substantially certain to result from their conduct. There are no allegations in the
Families’ complaint that they “made [the Operators] aware of the alleged invasion.” See id.

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No. 2021AP989

without unreasonableness, there can be no intent to commit
an invasion that unreasonably interferes with a plaintiff’s use
and enjoyment of his [or her] land. In this case, [the public
service company] could not have had the intent to commit a
nuisance … if the invasion interfering with the [plaintiffs’]
use and enjoyment of their property fell within [PUC’s]
determination of reasonableness. Thus, the [plaintiffs]
would fail to establish the intentional element of nuisance
unless they allege that the invasion interfering with the use
and enjoyment of their land is unreasonable outside of
[PUC’s] determination.

Thus, because an allegation of unreasonableness is central to
a nuisance claim, [PUC’s] determination of reasonableness
sets the standard for the balance between the social utility of
the transmission of electricity and possible harm to property
against which the [plaintiffs] must argue. If, for example,
PUC had quantified the noise level it deemed to be
reasonable, then that noise level would become the standard
for the level at which noise would not constitute an invasion
interfering with the [plaintiffs’] use and enjoyment of their
property.

Id. at 393. The court noted that PUC did not set a quantified level for what was
reasonable but instead “determined that the electromagnetic fields anticipated were
likely to be reasonable.” Id.

¶82 As the Van Wyk court outlined, the plaintiffs’ complaint stated that
the upgraded electrical lines “emit[] continual, unreasonably loud noises that
increase during times of high humidity, rain, or snow.” Id. at 391. Thus, the court
concluded, “While the complaint in this case does not quantify how the
electromagnetic fields and noise interfere with their use and enjoyment of the
property, we infer that the [plaintiffs] are alleging that the fields and noise exceed
what [PUC] considered to be reasonable.” Id. at 393. The court ultimately
determined that the plaintiffs’ complaint sufficiently stated a viable nuisance claim.
Id. at 395.

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No. 2021AP989

¶83 The Families contend that Van Wyk is on point because the Wisconsin
Public Service Commission (PSC), like PUC in Van Wyk, “has not adopted
standards suggesting that it considered any particular level of vibration, [LFN], or
infrasound or any particular frequency and intensity of flashing lights presumptively
reasonable.” In response, the Operators argue that, “[u]nlike in Van Wyk, there [is]
no basis to infer a general allegation that the [Operators’] operation of the [turbines]
exceeds any official limit or violates any official mandate.”

¶84 The Operators argue, and we agree, that Van Wyk is factually
dissimilar to this case and materially so. While the Families’ complaint did allege
that the nuisance is “unreasonable,” nothing in the complaint explains why that is
so. The complaint did not compare the alleged unreasonableness against any official
standard regarding LFN like the standard set by PUC in Van Wyk. In fact, the PSC
is not mentioned in the complaint, and the complaint does not allege any violation
of state, federal, or administrative provisions governing the turbines. Aside from
the lack of any allegations regarding official guidelines for LFN like Van Wyk, the
complaint here also fails to allege any of the elements required for unreasonableness
as outlined in Crest. The Families’ allegation that the nuisance is “unreasonable” is
a bare legal conclusion. “[A] bare conclusion [does] not fulfill[] a plaintiff’s duty
of stating the elements of a claim in general terms.” Doe 67C, 284 Wis. 2d 307, ¶36
(alterations in original; citation omitted). Therefore, the Families failed to allege
sufficient facts to demonstrate that the Operators’ conduct was unreasonable.

CONCLUSION

¶85 We conclude that the circuit court dismissed the Families’ complaint
without prejudice. We further conclude that the Families’ private nuisance claims
for personal injury and property damage stemming from affected “views and vistas”

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No. 2021AP989

constitute permanent nuisances and are barred by WIS. STAT. §§ 893.54(1m)(a) and
893.52(1). Furthermore, the Families’ complaint was properly dismissed for failure
to state an actionable property damage claim based on the blinking red lights, LFN,
vibrations, and infrasound. Because the Families alleged an intentional but
unreasonable private nuisance—in other words, that the Operators created the
nuisance—they were required to allege that the Operators had knowledge of the
alleged harms and that the Operators’ conduct was unreasonable. The Families
failed to adequately allege either of these facts. We affirm.

By the Court.—Order affirmed.

41