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(2017 – unpublished)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,

 v.

Village of Sister Bay,

 Defendant-Respondent.

FILED

JAN 18, 2019

Sheila T. Reiff

Clerk of Supreme Court

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unpublished, per curiam decision of the court of appeals 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Sister Bay, No. 2017AP140, unpublished slip op.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 

2

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.
No. 2017AP140 

3

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.
No. 2017AP140 

4

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)
No. 2017AP140 

5

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.
No. 2017AP140 

6

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 . . . ").
No. 2017AP140 

7

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 nuisancecausing 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 
No. 2017AP140 

8

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.
No. 2017AP140 

9

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.
No. 2017AP140 

10

¶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 
No. 2017AP140 

11

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).
No. 2017AP140 

12

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.
No. 2017AP140 

13

¶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 
No. 2017AP140 

14

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 
No. 2017AP140 

15

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 
No. 2017AP140 

16

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 
No. 2017AP140 

17

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 
No. 2017AP140 

18

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.
No. 2017AP140 

1