                                                               2019 WI 4

                  SUPREME COURT            OF   WISCONSIN
CASE NO.:               2017AP140
COMPLETE TITLE:         The Yacht Club at Sister Bay Condominium
                        Association, Inc.,
                                  Plaintiff-Appellant-Petitioner,
                             v.
                        Village of Sister Bay,
                                  Defendant-Respondent.

                           REVIEW OF DECISION OF THE COURT OF APPEALS
                          Reported at 378 Wis. 2d 742, 905 N.W.2d 844
                                       (2017 – unpublished)

OPINION FILED:          January 18, 2019
SUBMITTED ON BRIEFS:
ORAL ARGUMENT:          November 5, 2018

SOURCE OF APPEAL:
   COURT:               Circuit
   COUNTY:              Door
   JUDGE:               D. T. Ehlers

JUSTICES:
   CONCURRED:
   DISSENTED:
   NOT PARTICIPATING:


ATTORNEYS:


       For the plaintiff-appellant-petitioner, there were briefs
filed by John B. Tuffnell, and Tuffnell Law, S.C., Milwaukee.
There was an oral argument by John B. Tuffnell.


       For the defendant-respondent, there was a brief filed by
Remzy D. Bitar, Luke A. Martell, and Municipal Law & Litigation
Group, S.C., Waukesha. There was an oral argument by Remzy D.
Bitar.
                                                                             2019 WI 4
                                                                  NOTICE
                                                    This opinion is subject to further
                                                    editing and modification.   The final
                                                    version will appear in the bound
                                                    volume of the official reports.
No.        2017AP140
(L.C. No.     2016CV122)

STATE OF WISCONSIN                             :             IN SUPREME COURT

The Yacht Club at Sister Bay Condominium
Association, Inc.,

               Plaintiff-Appellant-Petitioner,
                                                                       FILED
       v.                                                         JAN 18, 2019

Village of Sister Bay,                                               Sheila T. Reiff
                                                                  Clerk of Supreme Court

               Defendant-Respondent.




       REVIEW of a decision of the Court of Appeals.                    Affirmed in

part, reversed in part, and cause remanded.



       ¶1      ANN WALSH BRADLEY, J.       The petitioner, The Yacht Club

at    Sister    Bay    Condominium    Association,       seeks      review      of    an

unpublished,       per     curiam   decision   of     the    court      of    appeals

affirming the circuit court's order that dismissed its complaint

against the Village of Sister Bay.1            The complaint alleged that

       1
       Yacht Club at Sister Bay Condo. Ass'n, Inc. v. Village of
Sister Bay, No. 2017AP140, unpublished slip op. (Wis. Ct. App.
Oct. 24, 2017) (per curiam) (affirming in part and reversing in
part an order of the circuit court for Door County, D.T. Ehlers,
Judge).
                                                                  No.    2017AP140



some summer concerts held in a public park were a public and

private nuisance.        Affirming the dismissal, the court of appeals

concluded that the Yacht Club failed to provide the Village with

a timely written notice of injury and that each concert held by

the Village does not constitute a new "event" giving rise to a

new opportunity to file a notice of injury.

     ¶2     Before this court, the Yacht Club asserts that the

court of appeals erred in failing to view each concert as a new

nuisance prompting a new notice of injury period.                 Thus, in the

Yacht Club's view, it should not be barred from bringing future

nuisance actions against the Village simply because it failed to

complain     within      120   days    as   required       by     Wis.      Stat.

§ 893.80(1d)(a) (2015-16)2 about a noise nuisance from the first

concert the Village held in 2014.

     ¶3     We conclude that each concert that is alleged to be a

nuisance constitutes a separate event for purposes of filing a

written    notice   of   injury.      However,   because    the     Yacht    Club

failed to serve its written notice of injury within 120 days
after the date of the last concert alleged to be a nuisance, its

written notice of injury was not timely filed.              Accordingly, we

affirm in part and reverse in part the decision of the court of

appeals and remand to the circuit court for further proceedings.




     2
       All subsequent references to the Wisconsin Statutes are to
the 2015-16 version unless otherwise indicated.


                                       2
                                                                        No.    2017AP140



                                            I

       ¶4      The facts set forth below are taken primarily from the

Yacht Club's complaint.               Because we are reviewing the circuit

court's determination of a motion to dismiss for failure to

state a claim, we must assume that these facts are true.3

       ¶5      Some time in the summer or fall of 2013, the Village

received a donation pledge from an anonymous donor.                           The donor

stipulated      that    the    donation     would    be    used    to   construct      a

performance pavilion in Waterfront Park, a public park in the

Village.       Accepting the pledge, the Village began construction

on the pavilion.

       ¶6      Construction of the pavilion was completed on or about

August 1, 2014.         Upon completion, the Village immediately began

to host public performances at the pavilion.                      Such performances

typically involved live music and often ran after official park

hours, occasionally as late as midnight.

       ¶7      The    Yacht    Club    is   a   condominium       association        that

administers a condominium complex of the same name.                      The complex
lies       within    several   hundred      feet    to    the   southwest       of    the

performance pavilion.           Facing to the southwest, the performance

pavilion's stage is designed to amplify and aim sound in that

direction, straight at the Yacht Club condominiums.

       ¶8      According to the Yacht Club, the performances create

very loud noise aimed directly at its condominiums.                       It alleges

       3
       MBS-Certified Pub. Accountants, LLC v. Wisconsin                           Bell,
Inc., 2012 WI 15, ¶7, 338 Wis. 2d 647, 809 N.W.2d 857.


                                            3
                                                                   No.     2017AP140



that the music "is loud enough to cause windows and personal

property to shake and shudder from the intensity of the volume

produced by these performances."               Further, it claims that the

sound     "is    continuous      and    penetrates    even    closed    doors     and

windows."        Such noise often keeps the Yacht Club's "residents

awake far past normal park operations."

      ¶9        Alleging   that    the     pavilion   concerts     substantially

interfere with the quiet enjoyment of its residents' property,

the   Yacht      Club   served    the    Village   with   a   written    notice   of

injury pursuant to Wis. Stat. § 893.80(1d) on March 7, 2016.4


      4
          Wisconsin Stat. § 893.80(1d) provides:

      (1d) Except as provided in subs. (1g), (1m), (1p) and
      (8), no action may be brought or maintained against
      any volunteer fire company organized under ch. 213,
      political corporation, governmental subdivision or
      agency thereof nor against any officer, official,
      agent or employee of the corporation, subdivision or
      agency for acts done in their official capacity or in
      the course of their agency or employment upon a claim
      or cause of action unless:

                (a) Within 120 days after the happening of the
                event giving rise to the claim, written notice of
                the circumstances of the claim signed by the
                party, agent or attorney is served on the
                volunteer fire company, political corporation,
                governmental subdivision or agency and on the
                officer, official, agent or employee under s.
                801.11. Failure to give the requisite notice
                shall not bar action on the claim if the fire
                company, corporation, subdivision or agency had
                actual notice of the claim and the claimant shows
                to the satisfaction of the court that the delay
                or failure to give the requisite notice has not
                been prejudicial to the defendant fire company,
                corporation, subdivision or agency or to the
                                                           (continued)
                                           4
                                                                             No.     2017AP140



The    notice      of     injury    maintained        that    "[t]he      noise    pollution

generated by the users and the performers of the performance

pavilion is a private nuisance that directly interferes with the

Association's use and enjoyment of its property."                                 It further

stated that "[t]he last use of the pavilion occurred on or about

September 1, 2015."

       ¶10     After the Village did not respond to its notice of

injury,      the    Yacht       Club   filed    suit       against    the   Village.       It

alleged causes of action for both private and public nuisance.

The    Yacht       Club    sought      damages       for    loss     of   property    value,

substantial annoyance and invasion of its property rights, as

well    as     injunctive          relief      abating       future       nuisance-causing

activities.

       ¶11     Moving      to    dismiss       the    Yacht    Club's       complaint     for

failure to state a claim upon which relief may be granted, the

Village argued that the Yacht Club neglected to comply with the

notice of injury and notice of claim provisions of Wis. Stat.

§ 893.80(1d).           First, the Village contended that the Yacht Club
failed to serve the Village with a notice of injury within 120


               defendant officer, official, agent or employee;
               and

               (b) A claim containing the address of the
               claimant and an itemized statement of the relief
               sought is presented to the appropriate clerk or
               person who performs the duties of a clerk or
               secretary   for  the   defendant  fire  company,
               corporation, subdivision or agency and the claim
               is disallowed.


                                                5
                                                                No.     2017AP140



days of the happening of the event giving rise to its claim as

is required by Wis. Stat. § 893.80(1d)(a).               Second, it asserted

that the Yacht Club never filed an itemized statement of relief

sought as required by Wis. Stat. § 893.80(1d)(b).

    ¶12    The    circuit    court    granted   the     Village's     motion    to

dismiss.   Relying on E-Z Roll Off, LLC v. County of Oneida, 2011

WI 71, 335 Wis. 2d 720, 800 N.W.2d 421, it concluded that the

notice of injury was served on the Village "almost 19 months

after   the      happening   of      the   event   giving     rise      to     the

claim . . . It's not within 120 days, and it's too late under

893.80."   In the circuit court's view, the pavilion:

    was constructed in August of 2014, concerts began
    almost immediately, and the residents of the plaintiff
    condominium association immediately started noticing
    problems     and    with     noise,    with    windows
    rattling, . . . .    And to then wait 19 months after
    the happening of that event even though the concerts
    do continue, . . . it's violative of 893.80, namely,
    to wait that long to make your claim.
    ¶13    Additionally,      the    circuit    court    rejected     the    Yacht

Club's argument that its claims could proceed even though it did

not timely file a written notice of injury because the Village

had actual notice of the claims at issue and was not prejudiced

by the delay in providing written notice.5                The circuit court
    5
       See Wis. Stat. § 893.80(1d)(a) ("Failure to give the
requisite notice shall not bar action on the claim if the fire
company, corporation, subdivision or agency had actual notice of
the claim and the claimant shows to the satisfaction of the
court that the delay or failure to give the requisite notice has
not been prejudicial to the defendant fire company, corporation,
subdivision or agency or to the defendant officer, official,
agent or employee . . . ").


                                       6
                                                                       No.    2017AP140



determined that the Yacht Club did not meet its burden to set

forth facts showing there was no prejudice to the Village.

    ¶14     After the Yacht Club appealed, the court of appeals

affirmed in part and reversed in part.               It affirmed the circuit

court's determination that the Yacht Club's written notice of

injury was not timely filed.              Yacht Club at Sister Bay Condo.

Ass'n, Inc. v. Village of Sister Bay, No. 2017AP140, unpublished

slip op., ¶¶19, 25 (Wis. Ct. App. Oct. 24, 2017) (per curiam).

The court of appeals determined first that "[t]he Association's

notice of injury was not served until March 7, 2016, and was

therefore untimely, even with respect to the September 1, 2015

concert."     Id., ¶19.        Further, it determined that E-Z Roll Off

"forecloses     the    Association's          argument    that    each       nuisance-

causing   use    of    the   pavilion     constitutes       a    new    'event'     for

purposes of Wis. Stat. § 893.80(1d)(a)."                 Id., ¶20.

    ¶15     However,     the    court    of    appeals    reversed      the    circuit

court's     conclusion       regarding    actual     notice       and    prejudice,

determining     that   the     circuit   court     improperly      placed      on   the
Yacht Club the burden to produce evidence regarding lack of

prejudice at the motion to dismiss stage.                   Id., ¶30.          Neither

party petitioned for review of the court of appeals' decision on

actual notice and prejudice.              Accordingly, we do not further




                                         7
                                                                     No.    2017AP140



address the issue.6        Remaining for our consideration is the Yacht

Club's    petition   for    review    regarding         the   timeliness     of    its

notice of injury.

                                       II

     ¶16    In our review, we consider whether the Yacht Club's

written    notice    of    injury    was       timely   filed.      We     begin    by

examining the language of Wis. Stat. § 893.80(1d), the notice of

claim    statute,    applying   the     common      law   of     nuisance    to    the

statute's plain language.           Next we examine this court's decision

in E-Z Roll Off, 335 Wis. 2d 720, and the Village's assertion

that the purpose of the notice of claim statute precludes the

Yacht Club's argument here as it did the plaintiff's argument in


     6
       See  Novell   v.  Migliaccio, 2008   WI  44,  ¶65,  309
Wis. 2d 132, 749 N.W.2d 544 (a party that fails to file a
petition for cross-review does not preserve those issues for
supreme court review); Priesler v. General Cas. Ins. Co., 2014
WI 135, ¶59, 360 Wis. 2d 129, 857 N.W.2d 136 (explaining that
this court regularly "decline[s] to consider issues not raised
in petitions for review").

     The   court  of   appeals  also   addressed  the   Village's
alternative argument that the Yacht Club's claims were properly
dismissed because the Yacht Club failed to file an itemized
statement of the relief sought in accordance with Wis. Stat.
§ 893.80(1d)(b).   See Yacht Club at Sister Bay Condo. Ass'n,
Inc., No. 2017AP140, unpublished slip op., ¶31.     The court of
appeals concluded that "[t]he Village cites no authority for the
proposition that the Association was required to affirmatively
allege compliance with § 893.80(1d)(b) in its complaint. Under
these circumstances, we cannot conclude dismissal of the
Association's complaint was warranted based on the Association's
alleged failure to file an itemized statement of relief." Id.,
¶34. Neither party petitioned for review of this determination
and we do not address the issue further.


                                           8
                                                                                      No.     2017AP140



E-Z Roll Off.              Finally, we apply the plain language of Wis.

Stat. § 893.80(1d)(a) to the notice of injury that was served on

the Village in this action.

       ¶17     This review requires us to interpret the notice of

injury    provision         set    forth       in       the    notice       of    claim      statute.

Statutory interpretation presents a question of law we review

independently        of     the    determinations               rendered         by    the    circuit

court    and    court       of    appeals.              Horizon      Bank,       Nat'l       Ass'n      v.

Marshalls Point Retreat LLC, 2018 WI 19, ¶28, 380 Wis. 2d 60,

908 N.W.2d 797 (citation omitted).

       ¶18     The application of the statute and the law of nuisance

to the facts of this case similarly presents a question of law

this    court    reviews          independently,               without      deference         to       the

circuit      court    or     court       of    appeals.              MercyCare        Ins.       Co.    v.

Wisconsin Comm'r of Ins., 2010 WI 87, ¶26, 328 Wis. 2d 110, 786

N.W.2d 785;      see       Milwaukee          Metro.      Sewerage          Dist.      v.    City      of

Milwaukee, 2005 WI 8, ¶16, 277 Wis. 2d 635, 691 N.W.2d 658.

                                                   III
                                                    A

       ¶19     Wisconsin         Stat.    § 893.80(1d),               the    notice         of     claim

statute,     contains        two       notice      provisions         that       serve      different

purposes.        Thorp      v.     Town       of    Lebanon,         2000    WI       60,    ¶22,      235

Wis. 2d 610,         612    N.W.2d 59;             Griffin       v.     Milwaukee           Transport

Servs.,      Inc.,     2001       WI    App        125,       ¶15,    246    Wis. 2d 433,              630

N.W.2d 536.       When referring to the statute as a whole, we refer

to it as the "notice of claim statute" in accordance with past
case law.       See, e.g., E-Z Roll Off, 335 Wis. 2d 720, ¶46.
                                                    9
                                                                                   No.        2017AP140



       ¶20       Subsection       (1d)(a)           is        the    "notice        of        injury"

provision, which allows governmental entities to investigate and

evaluate         potential      claims.            Griffin,         246    Wis. 2d 433,            ¶15.

Subsection (1d)(b) is the "notice of claim" provision, which

affords a municipality the opportunity to compromise and settle

a claim, thereby avoiding costly and time-consuming litigation.

Id.;     City      of     Racine       v.     Waste          Facility      Siting        Bd.,      216

Wis. 2d 616, 622, 575 N.W.2d 712 (1998).

       ¶21       Our    inquiry       here    focuses         on    the    notice        of    injury

provision,         sub.    (1d)(a),          and       its    requirement         that    "written

notice      of    the     circumstances           of    the    claim"      be   served        on   the

governmental subdivision "[w]ithin 120 days after the happening

of    the    event      giving    rise       to    the       claim . . . ."          Wis.       Stat.

§ 893.80(1d)(a).            Section 893.80(1d)(a) provides that "no action

may    be    brought       or     maintained            against     any . . . governmental

subdivision"           unless     a    claimant          files      with    the    governmental

subdivision a notice of injury:

       (a) Within 120 days after the happening of the event
       giving rise to the claim, written notice of the
       circumstances of the claim signed by the party, agent
       or attorney is served on the volunteer fire company,
       political corporation, governmental subdivision or
       agency and on the officer, official, agent or employee
       under s. 801.11. Failure to give the requisite notice
       shall not bar action on the claim if the fire company,
       corporation, subdivision or agency had actual notice
       of   the  claim   and  the   claimant  shows  to   the
       satisfaction of the court that the delay or failure to
       give the requisite notice has not been prejudicial to
       the defendant fire company, corporation, subdivision




                                                   10
                                                                          No.    2017AP140


       or agency or to the defendant officer, official, agent
       or employee . . . .7
We must interpret § 893.80(1d)(a) to determine what constitutes

"the happening of the event giving rise to the claim" in this

nuisance action.

       ¶22    Statutory interpretation begins with the language of

the statute.           State ex rel. Kalal v. Circuit Court for Dane

Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110.                           If the

meaning      of    the   statute   is   plain,      we   need       not   further     the

inquiry.      Id.

       ¶23    The Yacht Club contends that each individual concert

is     a    separate     "event"   giving        rise    to    a    separate      claim.

Conversely, the Village asserts in its brief that the "circuit

court and court of appeals both correctly determined that the

notice window began to run in August of 2014, when the pavilion

was completed, and the performances began, and did not reset

every time there was a performance held."

       ¶24    To resolve this dispute, we turn to the common law of

nuisance and its operation in this case.                       "It is well settled
that       every    continuance    of   a    nuisance         is,   in    law,    a   new

nuisance."         Kull v. Sears, Roebuck & Co., 49 Wis. 2d 1, 9, 181


       7
       Wisconsin Stat. § 893.80(1d)(b), the notice of claim
provision, also restricts lawsuits against governmental entities
unless the potential claimant files: "[a] claim containing the
address of the claimant and an itemized statement of the relief
sought is presented to the appropriate clerk or person who
performs the duties of a clerk or secretary for the defendant
fire company, corporation, subdivision or agency and the claim
is disallowed." Wis. Stat. § 893.80(1d)(b).


                                            11
                                                                        No.    2017AP140



N.W.2d 393 (1970) (citing Ramsdale v. Foote, 55 Wis. 557, 562,

13 N.W. 557 (1882)); Brown v. Milwaukee Terminal Ry. Co., 199

Wis.   575,     590,    227    N.W.    385    (1929)).       This    rule     has   been

consistently applied throughout our jurisprudence:

       There can be no doubt, under the authorities ancient
       and modern, that an action lies against him who
       erects, and against him who continues a nuisance
       erected by another. The continuance and every use of
       that which is, in its erection and use, a nuisance, is
       a new nuisance, for which the party injured has a
       remedy for his damages.
Kull; 49 Wis. 2d at 9 (citing Cobb v. Smith, 38 Wis. 21, 33

(1875)).

       ¶25     Applied to the facts here, this precedent establishes

that each use of the performance pavilion that constitutes a

nuisance, is a new nuisance for which an injured party has a

remedy for any damages incurred.                  Some concerts may be nuisances

and some may not.

       ¶26     A hypothetical scenario illustrates this point.                        If

the    first    concert       held    by    the    Village   in   the   newly       built

performance pavilion were an unamplified performance by a string

quartet that concluded by 8:00 p.m., it seems unlikely that such

a   display     would     offend      the    Yacht    Club   or     those     similarly

situated so as to occasion the filing of a notice of injury

within 120 days of the event.                     However, if after the 120 day

claim period for the first concert had expired the Village then

held a heavy metal concert lasting until midnight, under the

Village's argument the Yacht Club would forever lose the ability
to sue to abate any nuisance caused by the heavy metal concert.


                                             12
                                                                                    No.     2017AP140



      ¶27    Thus, for purposes of the notice of claim statute, we

conclude that each individual concert that is alleged to be a

nuisance constitutes a new "event" giving rise to a new 120-day

notice of injury period.

                                                   B

      ¶28    We        examine      next     the       Village's       assertion          that    this

court's decision in E-Z Roll Off, 335 Wis. 2d 720, requires a

determination          in     its    favor.         The       Village     contends         that    the

purpose     of    the       notice     of    claim       statute       precludes          the    Yacht

Club's argument here as it did the plaintiff's argument in E-Z

Roll Off.

      ¶29    In E-Z Roll Off, the plaintiff company was engaged in

the business of solid waste hauling.                             Id., ¶4.       Oneida County

executed a contract with another waste hauling company, Waste

Management, whereby Waste Management would pay a $5.25 per ton

"tipping fee" for municipal solid waste it delivered to the

county    solid        waste     facility.             Id.,     ¶5.     All    other       haulers,

including        E-Z    Roll     Off,       paid    a    lot     more——a      $54.00        per    ton
tipping fee.            Id.      E-Z Roll Off eventually served the County

with a notice of injury and subsequently filed suit, claiming

violations of Wisconsin antitrust law.                          Id., ¶11.

      ¶30    The        circuit      court     granted          summary     judgment         to   the

County,     dismissing          E-Z     Roll       Off's      complaint       for    failure        to

timely comply with the statutory notice of claim requirements.

Id., ¶12.        On appeal, E-Z Roll Off argued that for purposes of

the   notice       of       claim     statute,          there    was    a     new    injury        and


                                                   13
                                                                               No.     2017AP140



therefore a new claim on each occasion it paid the higher $54.00

per ton tipping fee.           Id., ¶44.

    ¶31     This    court      rejected      E-Z    Roll        Off's    argument.            The

reasons for its determination were twofold.                       First, E-Z Roll Off

"fail[ed]    to     cite       any    authority        applying          the     continuing

violations     doctrine        to    the     notice        of    claim       statute     under

Wisconsin law."         Id., ¶46.

    ¶32     Second,      the    court       determined          that     E-Z    Roll     Off's

interpretation of the notice of claim statute is inconsistent

with the statute's purpose.                Id.    Specifically, a purpose of the

notice of claim statute "is to afford governmental entities the

opportunity to compromise and budget for potential settlement or

litigation."       Id. (citing Thorp, 235 Wis. 2d 610, ¶¶23, 28).

The court concluded that accepting E-Z Roll Off's argument would

undermine this purpose.              "If the continuing violations doctrine

were to apply, it would be much more difficult for governmental

entities to budget for potential litigation."                          E-Z Roll Off, 335

Wis. 2d 720, ¶46.
    ¶33     Such    a    result      would       create     limitless          exposure      for

governmental      entities.          "The    legislature          did    not     intend       for

governmental entities to be exposed to indefinite periods of

liability for potential violations of Wis. Stat. § 133.18.                                   Such

a result would be unreasonable given the purposes of the notice

of claim requirements found in § 893.80."                       Id.

    ¶34     The court of appeals here determined that E-Z Roll Off

controls    the    outcome.          In    the    court     of    appeals'           view,   the
concerns    that    drove      the    decision        in    E-Z       Roll     Off    "are     as
                                             14
                                                                        No.     2017AP140



significant in a case involving nuisance claims——where, as the

Association argues, each continued nuisance is a new nuisance——

as they are in a case involving alleged antitrust violations."

Yacht Club at Sister Bay Condo.                   Ass'n, Inc., No. 2017AP140,

unpublished slip op., ¶25.               Specifically, the court of appeals

reasoned that the policy behind the notice of claim statute——

affording governmental entities the opportunity to compromise

and budget for potential settlement or litigation and shielding

them from "indefinite periods of liability"——are as germane and

dispositive in this case as they were in E-Z Roll Off.                        Id.

       ¶35     We    disagree    with    the     court    of    appeals     that     this

purpose mandates the same conclusion in this case as in E-Z Roll

Off.     First, the court in E-Z Roll Off explicitly limited its

holding      to     the    anti-trust     context        when   it    wrote,     "[t]he

legislature         did   not   intend    for    governmental        entities       to   be

exposed      to     indefinite     periods       of    liability      for     potential

violations of § 133.18."                E-Z Roll Off, 335 Wis. 2d 270, ¶46

(emphasis added).
       ¶36     Second, acceptance of the Yacht Club's argument here

does not create the same limitless liability that E-Z Roll Off's

argument would have in the context of that case.                          In E-Z Roll

Off, the plaintiff's assertion was that each and every payment

of the tipping fee constituted a new "event" triggering a new

notice    of      claim    period.       Here,    in     contrast,     there       is    no

assertion that each and every concert is a nuisance.                          The Yacht

Club seeks redress only for those concerts that it alleges to be
nuisances.          Each concert is a unique event that is different
                                           15
                                                                      No.     2017AP140



from previous concerts with respect to noise levels and length

of time.    Some concerts may be nuisances and some may not.

    ¶37     The    notice        of     claim    statute     seeks       to   provide

governmental entities with sufficient information to allow them

to budget accordingly for either a settlement or litigation.

State Dep't of Nat. Res. v. City of Waukesha, 184 Wis. 2d 178,

198, 515 N.W.2d 888 (1994) abrogated on other grounds by State

ex rel. Auchinleck v. Town of LaGrange, 200 Wis. 2d 585, 597,

547 N.W.2d 587 (1996);             Van v. Town of Manitowoc Rapids, 150

Wis. 2d 929, 933, 442 N.W.2d 557 (Ct. App. 1989)).                     This purpose

is not compromised by our determination here.                        A governmental

entity is given enough information to budget for settlement or

litigation resulting from any concert that is alleged to be a

nuisance.

    ¶38     Allowing the Yacht Club to serve a written notice of

injury and bring suit for a future concert that is alleged to be

a noise nuisance therefore does not contravene the purpose of

the notice of claim statute.               A municipality is not subject to
"limitless" liability.             It faces potential liability for each

discrete    concert      for   a      discrete   120   day     period.        We   thus

conclude    that   E-Z    Roll     Off   does    not   apply    to   this     nuisance

action.

                                           C

    ¶39     Finally, we apply the plain language of Wis. Stat.

§ 893.80(1d)(a) to the written notice of injury filed in this

action.     The written notice of injury the Yacht Club served on
the Village states:        "[t]he last use of the pavilion occurred on
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or about September 1, 2015."                    Wisconsin Stat. § 893.80(1d)(a)

requires       that       written     notice     of      injury     be    served        on    the

municipality "[w]ithin 120 days after the happening of the event

giving rise to the claim . . . ."                     In this case, that means that

the Yacht Club needed to serve the Village with its written

notice of injury by December 30, 2015.

       ¶40     The Yacht Club did not serve its written notice of

injury until March 7, 2016, well after the 120 day deadline.

Therefore,          the   written      notice       of   injury     was    untimely           with

respect       to    the     September    1,    2015      concert.         Accordingly,         we

affirm    the       court    of     appeals'    determination         that      the     written

notice of injury was not timely filed on this basis.                                  See Yacht

Club     at        Sister     Bay     Condo.     Ass'n,       Inc.,       No.     2017AP140,

unpublished slip op., ¶19.

       ¶41     Finally, as stated above, we do not opine on the court

of   appeals'        determination        that       the    circuit      court        erred    by

requiring the Yacht Club to present evidence regarding lack of

prejudice at the motion to dismiss stage.                         See supra, ¶15.               We
therefore do not upset the court of appeals' direction to remand

the cause to the circuit court for consideration of whether the

Village had actual notice of the Yacht Club's claim and was not

prejudiced by the late filing of the notice of injury.

       ¶42     In sum, we conclude that each concert that is alleged

to be a nuisance constitutes a separate event for purposes of

filing a written notice of injury.                         However, because the Yacht

Club failed to serve its notice of injury within 120 days after


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the date of the last concert alleged to be a nuisance, its

written notice of injury was not timely filed.

    ¶43    Accordingly, we affirm in part and reverse in part the

decision of the court of appeals and remand the cause to the

circuit court to consider whether the Village had actual notice

of the Yacht Club's claim and was not prejudiced by the late

filing of the notice of injury.

    By    the   Court.—The   decision   of   the   court   of     appeals   is

affirmed in part, reversed in part, and the cause remanded to

the circuit court.




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