IRISH v. BNSF RAILWAY CO. (March 21, 2012)

Bagley is a small-town in southwestern Wisconsin on the banks of the Mississippi River. A huge storm in the summer of 2007 overwhelmed local drainage capacity. The runoff caused debris to collect under the Burlington Northern Railway bridge near the town. The debris blocked the runoff, which backed up and flooded most of the homes in Bagley. Some residents brought suit against the Railroad, alleging faulty design and maintenance. Judge Crabb (W.D. Wis.) dismissed the case, holding that a Wisconsin statute provided the exclusive remedy to the plaintiffs and required a timely notice of claim. Plaintiffs appeal.

In their opinion, Seventh Circuit Judges Bauer, Rovner, and Williams affirmed. The Wisconsin statute prohibits a railroad from impeding the flow of water -- and provides a remedy to an injured landholder if the railroad breaches that obligation. But it requires that the landowner file a claim in order to recover. The Court noted that the statute on its face as well as a Wisconsin appellate court decision confirms that it applies to the plaintiffs in this case. On appeal, plaintiffs argue that the statute does not apply to faulty maintenance and is concerned solely with faulty design or construction. The Court found two problems with that argument. One, plaintiffs do complain about faulty design and construction. Two, and more importantly, because plaintiffs never developed the argument below , they have forfeited it.