J.P. STADTMUELLER, District Judge.
On June 30, 2011, the parties in this action filed cross-motions for summary judgment (Docket #67, #75). The case arises under the Resource Conservation and Recovery Act's citizen suit provision, 42 U.S.C. § 6972, as well as Wisconsin tort law. Plaintiff Tilot Oil, LLC ("Tilot") has essentially alleged that defendant BP Products North America, Inc. ("BP") is liable for petroleum-contaminated groundwater that is impairing the use of buildings on Tilot's property. The court will deny Tilot's motion for summary judgment, and grant BP's motion in part.
Tilot owns and operates a parcel of land in Green Bay, Wisconsin, adjacent to the Fox River ("Tilot Site"). (Stipulated Facts ¶¶ 2, 4) (Docket #69). Prior to Tilot's ownership, the site, made up of three parcels, was owned by a number of parties before its transfer to Wolf Acquisition, LLC, in 2003. (Stipulated Facts ¶¶ 6-7); (June 30 Schaefer Aff. ¶ 9 & Ex. 51) (Docket #71).
Releases of petroleum products and/or constituents have occurred at the BP Site both prior to 1982 and subsequent to 1987. (Stipulated Facts ¶ 20). The releases contained fuel oil, diesel fuel, and gasoline. (Stipulated Facts ¶ 22). Reports from 1991 show the presence of a plume of petroleum contamination on the Tilot Site beneath Building D. (Def.'s Resp. to Pl.'s Proposed Material Facts [hereinafter DRPMF] ¶ 27) (Docket #101). The petroleum plume extending from the BP Site to the Tilot Site contains both "free product" as well as dissolved phase petroleum. (DRPMF ¶¶ 30-31).
Numerous tests have been done in and around Building D in order to determine the level of health risk presented by the contamination. Around February 2005, Tilot installed a ventilation fan in the basement of Building D. (PRPMF ¶ 80). Various parties have taken a number of air samples for benzene, which happens to have the lowest Occupational Safety and Health Administration ("OSHA") permissible exposure level ("PEL") of any hydrocarbon associated with petroleum products.
The parties dispute what legal standards ought to be applied to the various benzene concentration samples, as well as the validity of certain samples based on the methods used, but for the sake of setting out the factual bases, sampling has shown concentrations of: 63 μg/m
March 2008 testing of near-slab soil gas outside Building D also showed benzene concentrations ranging from 500 μg/m
According to Tilot, the existence of the contamination at issue has led it to seal off the basement stairs in Building D in order to reduce employee exposure to any vapors rising from the basement to the main floor. (Wolf Aff. ¶ 14) (Docket #72). The existence of the contamination also has caused Tilot to continually maintain and operate the ventilation fan in the basement of Building D. (Wolf Aff. ¶ 15).
"The court shall grant summary judgment if the movant shows that there is no genuine dispute as to any material fact and the movant is entitled to judgment as a matter of law." Fed.R.Civ.P. 56(a); see also Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Celotex Corp. v. Catrett, 477 U.S. 317, 324, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986); McNeal v. Macht, 763 F.Supp. 1458, 1460-61 (E.D.Wis.1991). "Material facts" are those under the applicable substantive law that "might affect the outcome of the suit." See Anderson, 477 U.S. at 248, 106 S.Ct. 2505. A dispute over "material fact" is "genuine" if "the evidence is such that a reasonable jury could return a verdict for the nonmoving party." Id. In other words, in determining whether a genuine issue of material fact exists, the
A party asserting that a fact cannot be or is genuinely disputed must support the assertion by: "(A) citing to particular parts of materials in the record, including depositions, documents, electronically stored information, affidavits or declarations, stipulations (including those made for purposes of the motion only), admissions, interrogatory answers, or other materials; or (B) showing that the materials cited do not establish the absence or presence of a genuine dispute, or that an adverse party cannot produce admissible evidence to support the fact." Fed.R.Civ.P. 56(c)(1). "An affidavit or declaration used to support or oppose a motion must be made on personal knowledge, set out facts that would be admissible in evidence, and show that the affiant or declarant is competent to testify on the matters stated." Fed.R.Civ.P. 56(c)(4).
As a beginning point, discussed below, the court will deny both of BP's motions with regard to striking from or adding to materials in the record before the court on summary judgment. As to summary judgment, the court will grant BP's motion, and deny Tilot's motion, with regard to the claim under the Resource Conservation and Recovery Act. However, a genuine dispute of material fact remains with regard to Tilot's tort claims, which are not barred by the economic loss doctrine, and thus the court will deny both parties' motions on those claims. BP's arguments boil down to two key issues that exert primary control over the disposition of these motions: (1) whether Tilot can establish that the contamination may present an imminent and substantial endangerment to health or the environment; and (2) whether Tilot's tort claims are barred by the economic loss doctrine. Only Tilot moves for judgment on the merits of the tort claims, while BP merely opposes that motion should its argument regarding the economic loss doctrine fail.
BP requests the court strike a series of exhibits for various reasons: Exhibit 3 to the Affidavit of James Drought contains information obtained after the expert disclosure deadline and the information was not disclosed to BP prior to filing for summary judgment; Exhibits 29, 30, 36, 43, 49, and 53 to the June 30 Affidavit of Pamela Schaefer, Exhibits 11, 12-A, 71-D, 95, 118-D, and 131 to the August 24 Affidavit of Pamela Schaefer, and Exhibit 9-B to the September 14 Affidavit of Pamela Schaefer contain inadmissible hearsay and are not properly authenticated; and the report of Dr. Michael Borkowski contradicts opinions of two other experts previously retained by Tilot. BP also moves to supplement the record with additional materials obtained after filing the motions for summary judgment, along with a supplemental brief.
BP cites Rule 56 and various cases to establish that the court should not consider these documents in deciding the summary judgment motion. However, motions to strike are generally disfavored as they most often serve only to delay proceedings. Heller Fin., Inc. v. Midwhey Powder Co., 883 F.2d 1286, 1294 (7th Cir. 1989); W. Publ'g Co. v. MindGames, Inc., 944 F.Supp. 754, 755 n. 1 (E.D.Wis.1996). In this case, even considering all of the materials that BP wishes stricken, the court still finds in favor of BP on the Resource Conservation and Recovery Act claim, and against Tilot on its request for judgment on the merits of the tort claims.
For those same reasons, the court will deny the motion to supplement as well. Considering the materials originally submitted, without reference to the supplemental materials, is sufficient to rule on the summary judgment motions in BP's favor (with the exception of the economic loss doctrine, which, as discussed above, would likewise be unaffected by considering the additional materials). Again, any issues with regard to the admissibility of these materials at trial may be the subject of later motions in limine.
Because the court concludes that no imminent and substantial danger to health or the environment exists, it will grant summary judgment to BP on this claim. Under the Resource Conservation and Recovery Act ("RCRA"), any person can bring an action against a person,
42 U.S.C. § 6972(a)(1)(B). A prima facie claim under this citizen suit provision requires: "(1) that the defendant has generated solid or hazardous waste, (2) that the defendant is contributing to or has contributed to the handling of this waste, and (3) that this waste may present an imminent and substantial danger to health or the environment." Albany Bank & Trust Co. v. Exxon Mobil Corp., 310 F.3d 969, 972 (7th Cir.2002). Remedies available under the provision are limited to mandatory or prohibitory injunctions. Meghrig v. KFC W., Inc., 516 U.S. 479, 484, 116 S.Ct. 1251, 134 L.Ed.2d 121 (1996).
The imminence standard does not require an existing harm, but the threat of harm must be present and ongoing. Albany Bank & Trust Co., 310 F.3d at 972; Meghrig, 516 U.S. at 485-86, 116 S.Ct. 1251. As to a substantial danger, the threat must be serious and "there must be some necessity for the action." Price v. U.S. Navy, 39 F.3d 1011, 1019 (9th Cir. 1994); see also Burlington N. & Santa Fe
While BP argues that Tilot has not offered sufficient evidence of potential endangerment, it also argues that there is no injunctive relief available. BP's basis for this argument is that it is already engaged in remediation overseen by the WDNR. Two cases illustrate why the court disagrees that ongoing remediation automatically creates a situation lacking a remedy, but also why, despite the fact that a remedy could be fashioned, there is no potentially imminent and substantial endangerment, making a remedy unnecessary here. In a Northern District of Illinois case, the court held that ongoing remediation did not bar a RCRA suit. Spillane v. Commonwealth Edison Co., 291 F.Supp.2d 728, 736-37 (N.D.Ill.2003). Denying a motion to dismiss, the court noted that a major issue involved whether there had been proper investigation into the contamination, "which brings into question whether the level and degree of ongoing remediation is appropriate." Id. at 737. In a different district court case, the plaintiffs argued that methane presented an actionable danger through the potential for explosion. Adams v. NVR Homes, Inc., 135 F.Supp.2d 675, 688-89 (D.Md.2001). More than 175 tests over two-and-one-half years never detected explosive levels of methane in any plaintiff's home. Id. at 688. Moreover, remedial efforts taken by the defendants, combined with the testing evidence, showed "there [was] no longer a `serious' threat coupled with `some necessity for action.'" Id. at 689.
To begin, it is not the case that available injunctive relief is lacking in this case. As Tilot argues, potential injunctive relief could include ordering BP to install a barrier wall between the two properties in order to prevent further migration of contaminants onto the Tilot site. That remedial action is not currently being pursued by BP and the WDNR. Thus, if the court found it appropriate, it could issue a mandatory injunction requiring such. Further, the court agrees with the logic behind the Spillane court's decision. Simply because remediation is currently occurring does not eliminate the question of whether the extent of remediation is appropriate in order to abate a possibly imminent and substantial endangerment. It is conceivable that existing remedial action could be insufficient, leaving a continuing threat of substantial harm from contamination and, thus, a continuing RCRA violation. As such, the court finds that there is no lack of potential injunctive relief in this case. However, the existence of a potential remedy does not resolve the question of whether a remedy is necessary.
While RCRA does not require an existing harm, the court finds that test results for the conditions in Building D combined with currently ongoing remediation by BP foreclose a conclusion that any threat of harm is currently serious and
Even looking to Tilot's asserted measure of the danger presented by benzene, relevant exceedances of any standard have only been shown when the ventilation fan was not running, or were procured from tests that occurred within the sealed well casing, not the ambient air found in the basement of Building D. Thus, when the fan is running, there is no substantial threat. And, while there may still be some threat of harm, through the possibility of the fan being shut off or losing power, that harm is not substantial or serious in that it necessitates action; it is simply too remote.
Tilot disputes the effectiveness of current remedial action, arguing that the newly installed system in fact increases the level of endangerment by increasing the draw down of the water table and leading to increased migration of contamination from the BP Site to the Tilot Site. However, Tilot itself, in responding to BP's proposed statement of facts, noted that it had originally objected to the technical adequacy of BP's suggested remedial system because the planned wells were not deep enough and that deeper wells would allow for greater flexibility and a more aggressive final remedy by creating greater draw down. (PRPMF ¶ 70, Response); (see also Aug. 24 Schaefer Aff. Ex. 70-D) (Docket #97-9); (PRPMF ¶ 69, Sentence 2, Response). Though the addition of a physical barrier might help prevent further migration of contamination between the sites, Tilot's environmental consultant noted that contaminant flow from the BP Site could also be addressed through operation and system controls. (Aug. 24 Schaefer Aff. Ex. 70-D, at 2). In sum, greater draw down could actually contribute to more efficient treatment, and to the extent it promotes contamination migration, no facts show that the increased migration, in and of itself, will create additional threat of harm or increase the seriousness of any existing threat sufficient to raise any possible endangerment to the level of a RCRA violation. And in any event, as noted, the system can control draw down and its effect on migration without the physical barrier.
The combination of the fact that Tilot has never really used the basement for any activity in the first instance, that BP is currently engaged in remedial activities, and the lack of any relevant exceedances while the ventilation fan is running places the threat of harm outside that sufficient for a RCRA violation. Given the apparent effectiveness of the fan, in combination
Tilot argues that various cases establish that endangerment may continue to exist despite ongoing cleanup, and that BP's current remedial actions do not preclude the RCRA claim. In the one case cited from this district, there was no ongoing cleanup by the defendant; it appears that the plaintiff may have been continuing to undertake its own cleanup efforts, but the case is, therefore, distinguishable from the case at hand. Raytheon Co. v. McGraw-Edison Co., 979 F.Supp. 858, 861-62 (E.D.Wis.1997). At most, the court in that case found endangerment where contaminated soils remained on the property and the defendant was not engaged in a cleanup. Id. at 862. Another case, from the Western District of Michigan, cited for the same proposition, again deals with a situation wherein the plaintiff, not the defendant, was engaged in remedial action. Organic Chems. Site PRP Grp. v. Total Petroleum, Inc., 6 F.Supp.2d 660, 665 (W.D.Mich.1998). Tilot cites two other cases, somewhat more persuasive, but from outside the circuit. In one, the court held summary judgment was inappropriate, despite the defendants' claim that they were sincerely attempting to remediate contamination, primarily because no discovery had commenced and the parties disputed the status of remediation. Kara Holding Corp. v. Getty Petroleum Marketing, Inc., 67 F.Supp.2d 302, 311-12 (S.D.N.Y.1999). While the Kara Holding court did note that the defendant, though claiming sincere remediation, had not claimed cleanup was complete, id., the case has little to say about the action here given the lack of information on the remediation in that case. Finally, Tilot's most persuasive case comes from the Southern District of New York in which the court found that ongoing remediation by the state environmental agency did not foreclose the RCRA action because cleanup was not complete, citing to Kara Holding. 87th St. Owners Corp. v. Carnegie Hill-87th St. Corp., 251 F.Supp.2d 1215, 1218-19 (S.D.N.Y.2002) ("endangerment that may justify RCRA relief continues to exist" until cleanup complete (emphasis added)). But to the extent those cases hold that endangerment continues to exist until cleanup is completed, this court disagrees that such a conclusion is compelled in all cases. Determining whether sufficient endangerment exists under RCRA is fact-specific, and adopting such a per se rule would be both unwise and antithetical to the purpose of the statute.
The court, likewise, finds no potentially imminent and substantial endangerment of the environment. Importantly,
Tilot's only passing argument is that groundwater contamination constitutes imminent and substantial endangerment per se.
BP next argues that Tilot's claims for trespass, nuisance, and negligence are barred by the economic loss doctrine. However, Tilot first responds that the issue has already been adjudicated and that res judicata prevents BP from relitigating
The court holds that the economic loss doctrine continues to be inapplicable in this case, regardless of whether issue preclusion might otherwise apply to bar relitigation of the issue. Issue preclusion bars relitigation of an issue actually litigated or decided in a prior action. Aldrich v. Labor and Indus. Review Comm'n, 2011 WI App 94, ¶ 20, 334 Wis.2d 495, 801 N.W.2d 457. Issue preclusion also applies to prior adjudications within the same lawsuit. Estate of Rille v. Physicians Ins. Co., 2007 WI 36, ¶ 41 & n. 21, 300 Wis.2d 1, 728 N.W.2d 693. The requirement of actual litigation requires the issue to be properly raised, submitted, and determined. City of Sheboygan v. Nytsch, 2006 WI App 191, ¶ 12, 296 Wis.2d 73, 722 N.W.2d 626.
By order of July 15, 2009 (Docket #30), Judge Randa denied BP's earlier Motion to Dismiss, which urged that Tilot's tort claims were barred by the economic loss doctrine. Tilot is correct that BP's current arguments track the arguments and cases cited in its earlier motion almost to a tee. However, BP argues that issue preclusion does not apply here because of the differences between a motion to dismiss and a motion for summary judgment. In support, it cites to Federal Practice and Procedure for the proposition that
5C Charles Alan Wright, et al., Federal Practice and Procedure § 1387 (3d ed. 2004). Despite the disagreement, the court finds it unnecessary to resolve whether issue preclusion applies because the bulk of Judge Randa's analysis remains undisturbed, and the court, even in reconsidering the issue, continues to find that the economic loss doctrine does not apply in this case.
The economic loss doctrine prevents a commercial purchaser from recovering solely economic damages from the manufacturer under tort theories where the parties have the opportunity to allocate risk of loss through the contracting process. Sunnyslope Grading, Inc. v. Miller, Bradford & Risberg, Inc., 148 Wis.2d 910, 437 N.W.2d 213, 215-18 (1989). The doctrine serves to: (1) maintain the distinction between tort and contract law; (2) protect freedom to allocate economic risk by contract; and (3) encourage the commercial purchaser to assume, allocate, or insure against risk of economic loss. White v. Marshall, 693 F.Supp.2d 873, 879 (E.D.Wis.2009) (citing Harley-Davidson Motor Co. v. Powersports, Inc., 319 F.3d 973, 985 (7th Cir.2003)). While the doctrine originated in the context of contracting for products or goods, Wisconsin courts have held the doctrine to apply to commercial real estate transactions as well. Mose v. Tedco Equities-Potter Rd. Ltd. P'ship, 228 Wis.2d 848, 598 N.W.2d 594, 599-600 (Wis.Ct.App.1999). Wisconsin courts apply the doctrine even in cases where there is an "absence of privity." Daanen & Janssen, Inc. v. Cedarapids, Inc., 216 Wis.2d 395, 573 N.W.2d 842, 844 (1998); see also Mose, 598 N.W.2d at 598.
Despite BP's reliance on those holdings, there are critical distinctions from the instant
These considerations, particularly references to manufacturers, remote purchasers, and distribution, make it clear that, though the court saw fit to extend the doctrine to cases where the parties lacked contractual privity, it still contemplated some connection through the chain of distribution or sale. BP and Tilot not only lack contractual privity, but they have no relationship within the chain of sale regarding the Tilot Site.
As to the second policy goal, the Daanen court wrote that the economic loss doctrine recognizes the importance of enforcing bargains rather than allowing tort remedies to sidestep the bargain. 573 N.W.2d at 847. The court elaborated that if remote purchasers are allowed tort recovery against manufacturers, "the entire risk of economic loss is borne by that manufacturer. If no such action is permitted, the manufacturer and its distributors and purchasers are free to allocate the risk...." Id. As an example, the court noted that not applying the doctrine would encourage remote purchasers to purchase goods as-is for a lower price, seemingly bearing full risk of loss and then "[i]f the product does fail down the road, the commercial purchaser could still reach all the way back through intervening transactions, contracts, and warranties to sue the original manufacturer in tort." Id. at 848 (emphasis added). This analysis again contemplates a relationship in which the "tortfeasor" manufacturer is connected to the ultimate buyer by way of the distribution or sales process, but, as noted, BP does not stand in the same position as a manufacturer or prior seller/vendor. As to enforcing bargains, not only did Tilot lack an opportunity to negotiate regarding BP's potential liability for migrating contamination, but BP itself could not negotiate regarding its liability for releases on an adjacent property. The focus of the second policy goal is primarily the protection of the manufacturer. But here, failing to apply the doctrine will not deprive BP of freedom to contract around potential liability for contamination migrating from the neighboring site; it did not bargain with the Tilot Site's prior owner over tort liability from the BP Site which in turn could have or should have been bargained over by Tilot itself and the prior owner, and which Tilot is now attempting to sidestep with this tort action against BP. BP bears the same risk of loss for its allegedly tortious activity as any other landowner, not a party to a neighbor's real estate transaction, bears for tortious activity. Thus, the freedom to allocate economic risk is not implicated here.
As to the third policy, the Daanen court explained that allowing a remote purchaser to recover in tort might hamper the efficiency of commercial markets. 573 N.W.2d at 849. "[T]he question whether this court should impose tort liability on manufacturers distills to whether the consuming public as a whole should bear the cost of economic losses sustained by those commercial purchasers who failed to bargain for adequate contract remedies." Id.
Mose does not change the court's analysis. In Mose, one of the defendants, Empire, manufactured devices on property it leased from E.L.M. 598 N.W.2d at 596. During the course of its operations, Empire deposited numerous hazardous substances on the property. Id. Empire later moved its operations off the property and, subsequent to this, co-defendant Tedco purchased the property from E.L.M. Id. The plaintiff, Mose, later entered a purchase agreement with Tedco for the property under which Tedco agreed to remediate the contamination. Id. at 597. Tedco then sued Empire for damages related to the contamination, and the parties entered a settlement agreement in which Empire agreed to perform the cleanup. Id. Mose later brought suit against Tedco and Empire, alleging five tort causes of action against Empire. Id. In affirming application of the economic loss doctrine to the claims against Empire, the appellate court noted that the plaintiff was essentially arguing that lack of privity between it and Empire precluded application of the doctrine. Id. at 598. The court simply stated that Daanen had settled that point to the contrary. Id. The court continued, noting that Mose had knowingly assumed the risk upon entering the transaction and had obtained warranties from Tedco in exchange for a reduced purchase price. Id. The court concluded that Mose could not "now expect to circumvent the contract to sue the original owner/occupier for a tort recovery for his economic losses." Id. at 599 (emphasis added). Thus, while not exactly analogous to Daanen, the Mose case illustrates that a lack of privity is no bar where there remains some connected chain of privity between the plaintiff and the party sought to be sued in tort. While Empire never specifically owned the property, it occupied and operated on the property as a lessee, subject to the same opportunity to bargain with regard to liability for the condition of the property with E.L.M. E.L.M., in turn, had a full opportunity to bargain with regard to liability when it sold the property to Tedco, and the same can be said as between Tedco and Mose. Thus, to allow Mose to "reach back" through prior transactions, contracts, and warranties to sue Empire would violate the policy goal of maintaining the distinction between tort and contract law. It would also restrict Empire's freedom to negotiate around liability when entering leases, and would allow Mose to sidestep the risk of loss around which it had bargained in its purchase agreement with Tedco. But here, as explained above, BP was never involved in the chain of sale. Further, even if the court were to look solely to the relationship between Tilot and the prior owner, there was no real opportunity to bargain around the risk of loss because the prior owner could not effectuate a cleanup of the BP Site. The prior owner had absolutely no control over BP's actions on that site. And, given that the source of the contamination rests on the BP Site, and that no cleanup on the Tilot Site can be complete until contamination no longer migrates from the BP Site, this case is plainly distinguishable from Mose, wherein Empire, as a lessee of the property in question, deposited the contamination directly onto that property.
Moving to the merits of Tilot's tort claims, there remain genuine disputes of material fact, preventing a grant of summary judgment. Negligence requires establishing: "(1) the existence of a duty of care ... (2) a breach of that duty of care, (3) a causal connection between the ... breach ... and the ... injury, and (4) actual loss or damage resulting from the injury." Dyer v. Blackhawk Leather LLC, 2008 WI App 128, ¶ 18, 313 Wis.2d 803, 758 N.W.2d 167. Duty is a question of law, and in Wisconsin "everyone owes to the world at large the duty of refraining from those acts that may unreasonably threaten the safety of others." Tesar v. Anderson, 2010 WI App 116, ¶ 5 n. 8, ¶ 6, 329 Wis.2d 240, 789 N.W.2d 351. Determining whether a duty exists depends upon the circumstances. Id. at ¶ 6 n. 10; see also Hocking v. City of Dodgeville, 2009 WI 70, ¶ 12, 318 Wis.2d 681, 768 N.W.2d 552 ("the duty owed to the world is not unlimited but rather is restricted to what is reasonable under the circumstances").
BP attempts to argue that Tilot has not established that it owes a duty, but its arguments essentially appeal to what it sees as a lack of facts to establish the "circumstances" under which BP supposedly owes a duty.
As to the remaining elements, however, there remain genuine disputes of material fact. BP does not argue that the facts entitle it to judgment on this claim, only that there remain disputes sufficient to foreclose a grant of summary judgment to Tilot. With respect to the element of breach, the facts show that a reasonable jury could conclude that BP has not breached its duty, given that it has engaged in remediation and worked with the WDNR. Causation also remains in dispute, given that there is evidence of contamination originating from the Tilot Site in addition to the BP Site. A reasonable jury could view the evidence of contamination
Finally, while Tilot does not request judgment as to the amount of damages, it still must establish that loss or damage has occurred in order for the court to grant it judgment on the claim of negligence. For example, damage might include repair and replacement costs, diminution in property value, lost profits or lost use of property. See Midway Motor Lodge of Brookfield v. Hartford Ins. Grp., 226 Wis.2d 23, 593 N.W.2d 852, 857 (Wis. Ct.App.1999) (listing examples of damages that might satisfy fourth element of negligence claim when attempting to state a claim for faulty sewer system and repair). Tilot, to establish that it has suffered damage, points to: physical illness of employees; the sealing of Building D's basement; the inability to use Building D without continuing operation of a blower; loss of time by supervisory staff addressing the issues; and redirection of business resources to this dispute rather than growing business. While some of the alleged damages, such as physical illness of employees and "redirection" of resources to this dispute, appear to be non-compensable,
As to Tilot's claims for trespass and nuisance, both require a plaintiff to establish the defendant was either negligent or reckless. Fortier v. Flambeau Plastics Co. a Div. of Flambeau Corp., 164 Wis.2d 639, 476 N.W.2d 593, 608 (Wis.Ct.App. 1991) (trespass is intentional or unintentional intrusion "resulting from reckless or negligent conduct" or abnormally dangerous activity; private nuisance may occur by unintentional invasion of private use and enjoyment of land that is otherwise actionable under rules controlling liability for negligent or reckless conduct). Here, because the court has found that genuine issues of material fact remain in dispute as to BP's alleged negligence, those same disputes also prevent granting Tilot summary judgment on its claims for trespass and nuisance.
Accordingly,
