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Kenneth Irish, et al v. Bnsf Railway Company, F/K/A

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ARGUED SEPTEMBER 12, 2011

Before BAUER, ROVNER and WILLIAMS, Circuit Judges.

This is a lawsuit in search of a viable theory of recovery. The plaintiffs have sued the BNSF Railway Company and Burlington Northern and Santa Fe Railway Company (collectively “Burlington Northern”), along with two Burlington Northern em- ployees, under theories of negligence and nuisance for damage that occurred to their homes after a BNSF trestle became clogged with debris during a rainstorm, resulting in widespread flooding. The district court concluded that section 88.87 of the Wisconsin Statutes provides the exclusive remedy for claims resulting from the construction and maintenance of railroad grades, and that because the plaintiffs had failed to follow the governing notice procedures for claims under that statute, relief was unavailable to the plaintiffs. Irish v. BNSF Ry. Co., 2010 WL 4293578 (W.D. Wis. Oct. 21, 2010). We affirm.

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