PUBLISHED OPINION
Case No.: 94-0822
†Petition for
review filed
Complete
Title
of
Case:DALE VOGEL, and
ALICE VOGEL,
Plaintiffs-Respondents-
Cross Appellants,†
v.
GRANT-LAFAYETTE ELECTRIC
COOPERATIVE,
a domestic corporation, and
FEDERATED RURAL ELECTRIC INSURANCE CORPORATION,
a domestic corporation,
Defendants-Appellants-
Cross Respondents.
Submitted
on Briefs: April 6, 1995
COURT COURT OF APPEALS OF WISCONSIN
Opinion
Released: June 8, 1995
Opinion
Filed: June
8, 1995
Source
of APPEAL Appeal from a judgment
Full
Name JUDGE COURT: Circuit
Lower
Court. COUNTY: Iowa
(If
"Special" JUDGE: James
P. Fiedler
so
indicate)
JUDGES: Eich,
C.J., Gartzke, P.J., Dykman, J.
Concurred:
Dissented:
Appellant
ATTORNEYSFor the defendants-appellants-cross
respondents the cause was submitted on the briefs of Denis R. Vogel of Wheeler,
Van Sickle & Anderson, S.C., of Madison.
Respondent
ATTORNEYSFor the plaintiffs-respondents-cross
appellants the cause was submitted on the briefs of Scott Lawrence of Lawrence
& Des Rochers, S.C., of St. Nazianz.
COURT OF APPEALS DECISION DATED AND RELEASED June
8, 1995 |
NOTICE |
A party may file with the Supreme Court a petition to review an
adverse decision by the Court of Appeals.
See § 808.10 and Rule 809.62,
Stats. |
This opinion is subject to further editing. If published, the official version will appear in the bound
volume of the Official Reports. |
No. 94-0822
STATE OF WISCONSIN IN
COURT OF APPEALS
DALE
VOGEL, and
ALICE
VOGEL,
Plaintiffs-Respondents-Cross Appellants,
v.
GRANT-LAFAYETTE
ELECTRIC COOPERATIVE,
a
domestic corporation, and
FEDERATED
RURAL ELECTRIC INSURANCE CORPORATION,
a
domestic corporation,
Defendants-Appellants-Cross Respondents.
APPEAL
from a judgment of the circuit court for Iowa County: JAMES P. FIEDLER, Judge. Affirmed
in part; reversed in part and cause remanded with directions.
Before
Eich, C.J., Gartzke, P.J., and Dykman, J.
EICH,
C.J. The Grant-Lafayette Electric
Cooperative and Federated Rural Electric Insurance Corporation (GLEC) appeal,
and Dale and Alice Vogel cross-appeal, from a judgment awarding the Vogels
$300,000 (reduced to $200,000 for their contributory negligence) for damage to
their dairy herd caused by stray electrical voltage.
GLEC
claims that the trial court erred in: (1) erroneously submitting the case to
the jury on a nuisance theory, thus improperly permitting the Vogels to recover
additional damages for "annoyance" and "inconvenience"; (2)
failing to confine the Vogels' damages to a specific period of time prior to
commencement of the action; (3) denying GLEC's motion for a new trial based on
improper remarks of the Vogels' counsel during closing argument to the jury;
and (4) denying its motion for a new trial in the interest of justice.
The Vogels' cross-appeal
asserts error in the trial court's dismissal of their claim for treble damages
under § 182.017(5), Stats.,[1]
and its rejection of their argument that, because theirs is an
"intentional invasion" nuisance case, principles of comparative
negligence should not be applied to reduce their damages.
We
conclude that the trial court erred in submitting nuisance issues to the jury and,
on remand, we direct the court to strike the separate nuisance-related damages
from the verdict and judgment. We
reject GLEC's remaining arguments. On
the cross-appeal, we conclude that the Vogels are not entitled to treble
damages. And because we hold that
nuisance theories are inapplicable to this case, we need not consider the
Vogels' argument, based on those theories, that it was improper to reduce their
gross damages for their contributory negligence.[2]
The
basic facts are not in dispute. GLEC, a
member-owned cooperative association, operates a distribution system for the
transmission and provision of electrical service to its members. It is not a generator of electricity.
The
Vogels are members of the cooperative and have owned and operated their farm
since 1964. After building a new
milking parlor in 1970, they began to notice problems with their cows,
including violent behavior, unusually long milking periods and chronic
mastitis, which required them to remove a large number of animals from the
herd. The Vogels, concerned that these
problems were caused by stray voltage on the farm,[3]
reported the situation to GLEC in 1986.
Tests run by GLEC at the time indicated only "normal" levels
of voltage in the barn and other areas of the farm frequented by the Vogels'
cows.
The
Vogels continued to experience problems despite GLEC's attempts to reduce the
amount of current flowing into the barn, and they commenced this action in
1992. They sought recovery for loss of
milk production and other damages they claimed were caused by stray
voltage.
At
trial, both sides offered expert testimony as to possible causes of stray
voltage on the farm. Dr. Alfred Szews,
a professor of electrical engineering with extensive experience in the field,
testified on behalf of the Vogels. He
analyzed data that had been gathered at the Vogels' farm several years earlier
by the Wisconsin Department of Agriculture and concluded that unreasonable
amounts of neutral current had reached the Vogels' cows during the 1970s and
1980s. Szews testified that, in his
opinion, GLEC was negligent in maintaining an electrical distribution system
that allowed such levels of electrical current to enter the Vogels' barn.
Two
members of the Department of Agriculture investigatory team testified for GLEC,
offering opinions that the cooperative's electrical line was operating normally
and that any excessive stray voltage that might be present was due to a faulty
wiring system and other "dangerous conditions" on the Vogels' farm.
The
case was eventually submitted to a jury on theories of negligence and nuisance.[4] The jury found that GLEC was negligent and
awarded the Vogels general economic damages of $240,000. The jury also found that GLEC had created a
nuisance on the Vogels' property and, on the basis of that finding, awarded
them an additional $60,000 for "annoyance and inconvenience." Finally, the jury found that the Vogels were
contributorily negligent and apportioned 66.66 percent of the negligence to
GLEC and 33.33 percent to the Vogels.
Both
parties filed postverdict motions. GLEC
asked the court to strike the "nuisance" damages and to limit the
Vogels' economic damages to a six-year period prior to the commencement of the
action. It also sought to have various
verdict answers changed and moved for a new trial in the interest of
justice. The Vogels moved to treble the
damages under § 182.017(5), Stats.,
and to have judgment entered in the full amount of the verdict without any
reduction for their contributory negligence.
The trial court denied all motions, and the appeal and cross-appeal
followed. Additional facts will be
referred to in the body of the opinion.
I. GLEC's APPEAL
A. Nuisance
GLEC argues first that
the trial court erred in submitting the case to the jury on the theory that it
had maintained a nuisance on the Vogels' property.
A
trial court has "wide discretion" in instructing the jury, as long as
the instructions "accurately reflect the law applicable to the facts of
the specific case." Vonch v.
American Standard Ins. Co., 151 Wis.2d 138, 149, 442 N.W.2d 598, 602
(Ct. App. 1989). As is true with all
discretionary determinations, however, if the decision is based on an erroneous
view of the law it may not stand. State
v. Leist, 141 Wis.2d 34, 39, 414 N.W.2d 45, 47 (Ct. App. 1987). We agree with GLEC that, under the facts of
this case, the trial court erred as a matter of law when it submitted the
nuisance question and instructions to the jury.
A
private nuisance is the invasion of a person's interest in the private use or
enjoyment of land. Fortier v.
Flambeau Plastics Co., 164 Wis.2d 639, 676, 476 N.W.2d 593, 608 (Ct.
App. 1991). See also Restatement (Second) of Torts
§ 821D (1979).
In
State v. Deetz, 66 Wis.2d 1, 16-18, 224 N.W.2d 407, 415-16
(1974), the supreme court adopted the analysis for determining the existence of
a private nuisance which now appears in the Restatement
(Second) of Torts § 822 (1979) and provides as follows:
One is
subject to liability for a private nuisance if, but only if, [his or her] conduct
is a legal cause of an invasion of another's interest in the private use
and enjoyment of land, and the invasion is either
(a) intentional and
unreasonable, or
(b) unintentional
and otherwise actionable under the rules controlling liability for negligent or
reckless conduct, or for abnormally dangerous conditions or activities.
(Emphasis added.)
The
text goes on to explain:
[Nuisance] is not a single type of tortious
conduct. The feature that gives unity
to ... private nuisance is the interest invaded, namely ... the private
interest in the use and enjoyment of land.
These interests may be invaded by any one of the types of conduct
that serve in general as bases for all tort liability.
Restatement (Second) of Torts § 822 cmt. a (1979) (citation omitted) (emphasis
added).
GLEC
argues that the private nuisance theory is inapplicable because the activity of
which the Vogels complain--the provision of electricity to their farm--cannot
be considered a nuisance, and our examination of Wisconsin nuisance cases
supports that position: the delivery of electricity at the Vogels' request does
not, as a matter of law, constitute the type of "invasion" on which
nuisance liability is predicated.
An
examination of nuisance cases illustrates the point. In Fortier, 164 Wis.2d at 676, 476 N.W.2d at 608,
we held that toxic chemicals deposited in a landfill which seeped or leached
onto the plaintiffs' property and contaminated their well water was the type of
"invasion" that would subject the defendants to nuisance
liability. Other cases reaching similar
conclusions include Crest Chevrolet-Oldsmobile-Cadillac, Inc. v.
Willemsen, 129 Wis.2d 129, 384 N.W.2d 692 (1986) (diversion of surface
water onto the plaintiff's property); Krueger v. Mitchell, 112
Wis.2d 88, 332 N.W.2d 733 (1983) (excessive noise from an airport interfering
with the operation of a neighboring business); CEW Management Corp. v.
First Fed. Sav. & Loan Ass'n, 88 Wis.2d 631, 277 N.W.2d 766 (1979)
(failure to prevent rainwater and soil runoff caused by stripping of vegetation
from entering adjoining lands); and Jost v. Dairyland Power Coop.,
45 Wis.2d 164, 172 N.W.2d 647 (1969) (discharge of sulphur dioxide gases from
an electrical generating plant onto adjoining cropland). The common thread in
these cases is an "invasion" of the plaintiffs' land: an
objectionable activity either undertaken by the defendants or within their
control, which has subjected the plaintiffs to an unwanted and harmful
interference with the use of their land.
In no case has the activity causing the alleged interference been either
agreed to or requested by the plaintiffs, as is the situation here.
The
Vogels rely heavily on Prah v. Maretti, 108 Wis.2d 223, 321
N.W.2d 182 (1982), where the supreme court held that the owner of a
solar-heated home stated a claim for nuisance when he alleged that the proposed
construction of a building on an adjoining lot would interfere with his access
to sunlight. There is no question that
the Prah court was expansive in its definition of the property
interests to be protected by the law.
It stated, for example:
Courts should not
implement obsolete policies that have lost their vigor over the course of the
years. The law of private nuisance is
better suited to resolve landowners' disputes about property development in the
1980's than is a rigid rule which does not recognize a landowner's interest in
access to sunlight.
Id. at 237, 321 N.W.2d at 190.
Despite
the Prah court's expansive definition of the plaintiff's interests
protected by the law of nuisance, nothing in the opinion abrogates, or even
dilutes, the requirement that there be an invasion of property in order
for a nuisance to exist under the Restatement rule. GLEC did not unilaterally impose electrical current onto the
Vogels' farm; the Vogels requested and paid for its delivery. As users of an instrumentality they invited
onto their land, and have in many ways benefited from over the years, we do not
think they now may be heard to claim that the instrumentality has illegally
"invaded" their property.
We
are not persuaded by the Vogels' argument to the contrary: that because GLEC
maintained a defective electrical distribution system which allowed their cows
to come into contact with stray voltage, it created a nuisance. They have referred us to no case in which
the claimed nuisance was a service expressly invited onto the plaintiff's
property, and we conclude that it was error to submit the case to the jury on a
nuisance theory. It follows that the
$60,000 "annoyance and inconvenience" damages awarded by the jury
under that theory must be reversed and the total award reduced accordingly.
B. Limitation of Damages
The Vogels claimed in
this action that their stray-voltage problems began with the construction of a
new milking parlor in 1970 and continued through 1987, resulting in economic
loss to them over that period of time.
Prior to trial, GLEC sought to exclude any evidence of damage occurring
prior to March 1986, six years prior to the commencement of the action, arguing
that such a limitation is appropriate both as a matter of law and on public
policy grounds. The trial court denied
the motion, and the $240,000 "economic damages" eventually awarded by
the jury presumably covered the entire 1970-1987 period. GLEC renews its arguments on appeal, arguing
that "upon equitable principles or as a matter of law" we should
limit the period of damages, referring us first to the doctrine of laches as
support for the duration-of-damage limitation it asks us to impose.
Laches
is not a rule limiting the time within which an action may be brought; it is an
equitable defense to an action based on the plaintiff's unreasonable
delay in bringing suit under circumstances in which such delay is prejudicial
to the defendant. Anderson v. Kojo, 110 Wis.2d 22, 26-27, 327
N.W.2d 195, 197 (Ct. App. 1982). The
rule was developed by chancellors in equity to prevent the assertion of stale
claims and to remedy injustices that might arise from the fact that statutes of
limitation ordinarily applicable to the assertion of legal rights did not apply
in equitable actions. See Knox
v. Milwaukee County Bd. of Elections Comm'rs, 581 F. Supp. 399, 402
(E.D. Wis. 1984).
Neither
the rule itself nor the reasons for its existence have any relation to the case
at hand, however, and GLEC has not provided us with any authority applying the
rule to limit the period for which damages may be recovered in a timely
commenced action. So far as it is
grounded on principles of laches, the argument fails.
GLEC
next urges us to adopt and apply the "continuous tort" rule, a
common-law rule followed in some states dictating that recovery for a
"continuous tort" may be had only for such damages as occur within
the period of limitations--the period within which the action must be commenced
under the applicable statute of limitations.
See Shell Oil Co. v. Parker, 291 A.2d 64 (Md. App.
1972); Shors v. Branch, 720 P.2d 239 (Mont. 1986).
We
decline the invitation to adopt such a rule in Wisconsin and refashion it to
apply to stray-voltage cases. In Kolpin
v. Pioneer Power & Light Co., 162 Wis.2d 1, 24-25, 469 N.W.2d 595,
604 (1991), the supreme court upheld a judgment for stray-voltage-related
damages occurring over a ten-year period.
Kolpin did not address whether a limit should apply to a
plaintiff's damage period.
Finally,
GLEC argues that because the "phenomenon" of stray voltage was not
"scientifically accepted" until 1979, it should not, as a matter of
public policy, be held responsible for damages occurring before that time. We have often said that matters of public
policy are to be determined by the supreme court, not this court. State v. Grawien, 123 Wis.2d
428, 432, 367 N.W.2d 816, 818 (Ct. App. 1985).
Whether to impose a special limitation period on damages in
stray-voltage cases is a question of public policy appropriately left to either
the state's legislature or its highest court.
C. Closing
Argument
GLEC
also argues that it is entitled to a new trial because of improper remarks made
by the Vogels' attorney during closing argument.[5] The trial court, concluding that there was
no impropriety in counsel's remarks, denied the motion.
As
we have discussed above, expert testimony on the nature and cause of stray
voltage played a significant role in the trial. During closing argument, counsel for the Vogels stated:
The most
distressing part of [GLEC's] case to me ... is the extent to which people like
Mr. Dasho and Mr. Cook [GLEC's expert witnesses] are willing to basically
fabricate evidence to explain away problems away from the utility system. And that's exactly what went on in this
[c]ourtroom.... That's a strong statement that those folks fabricated evidence,
I recognize that, but frankly, it's [either] that or that they're grossly
incompetent is the only explanation for what they came in here and said. I don't say that lightly, but I believe it,
I not only believe it, I know it.
Defense
counsel objected and the trial court overruled the objection.
There
is little question that the argument was improper. "A lawyer shall not ... assert personal knowledge of facts
in issue except when testifying as a witness, or state a personal opinion as to
the justness of a cause [or] the credibility of a witness ...." SCR 20:3.4 (Lawyers Coop. 1994). Counsel's statement went far beyond simply
"drawing inferences from the evidence," as the Vogels maintain. It was plainly intended to convey to the
jury that he had evidence that GLEC's expert witnesses were fabricating
evidence.
Errors
in the course of trial, however, do not always warrant reversal. Only where the error may be said to have
prejudiced the complaining party's case are we authorized to reverse.
[N]ot all errors at trial mandate a reversal. Trial error is prejudicial [and requires
reversal] only when it reasonably could be expected to affect the outcome of
the case. The general rule ... is that
[an appellate court] will not reverse for error unless it appears probable from
the entire evidence that the result would have been different had the error not
occurred.
McCrossen v. Nekoosa-Edwards Paper Co., 59 Wis.2d 245, 264, 208 N.W.2d 148, 159 (1973).
We
see no such probability here. First, it
is apparent that the jurors believed GLEC's witnesses in large part for,
despite counsel's improper statements, they assigned a substantial proportion of the total negligence to the
Vogels. Second, the jurors were
admonished by the court that they were to be the sole judges of the credibility
of all witnesses testifying in the case, and they were instructed as follows
with respect to their consideration of counsel's closing arguments:
You should
carefully consider the closing arguments of the lawyers, but their arguments,
conclusions and opinions are not evidence.
You are to draw your own conclusions and your own inferences from the
evidence and answer the questions in the verdict according to the evidence and
under these instructions.
We
have recognized that "`possible prejudice ... is presumptively erased from
the jury's collective mind when admonitory instructions have been properly given
by the court.'" State v.
Kennedy, 105 Wis.2d 625, 641, 314 N.W.2d 884, 891 (Ct. App. 1981)
(quoting Roehl v. State, 77 Wis.2d 398, 413, 253 N.W.2d 210, 217
(1977)). "We assume that `a
properly given admonitory instruction [will be] followed.'" State v. Pitsch, 124 Wis.2d
628, 644 n.8, 369 N.W.2d 711, 720 (1985) (quoted source omitted).
We
conclude, therefore, that while counsel's argument was improper, its effect on
the trial was de minimis and we see no grounds for reversal. See Laribee v. Laribee,
138 Wis.2d 46, 51, 405 N.W.2d 679, 681 (Ct. App. 1987).
D. New Trial in the Interest of
Justice
As indicated above, GLEC
moved after verdict for a new trial in the interest of justice and the trial
court denied the motion. It argues on
appeal that the denial was "an abuse of discretion" in light of the
"overwhelming" evidence demonstrating that the Vogels' damages were
caused by their own negligence, not GLEC's.
GLEC
correctly states the scope of our review of a trial court's denial of a motion
for a new trial in the interest of justice.
The trial court's powers in this respect are highly discretionary and we
will not reverse absent a "clear" erroneous exercise of that
discretion. Heideman v. American
Family Ins. Group, 163 Wis.2d 847, 865, 473 N.W.2d 14, 21 (Ct. App.
1991). A court exercises discretion
when it considers the facts of record and reasons its way to a rational,
legally sound conclusion. Burkes
v. Hales, 165 Wis.2d 585, 590, 478 N.W.2d 37, 39 (Ct. App. 1991). And where the record shows that the court
looked to and considered the facts of the case and reasoned its way to a
conclusion that is (a) one a reasonable judge could reach and (b) consistent
with applicable law, we will affirm the decision even if it is not one with
which we ourselves would agree. Id. Indeed, "`[b]ecause the exercise of
discretion is so essential to the trial court's functioning, we generally look
for reasons to sustain discretionary decisions.'" Id. at 591, 478 N.W.2d at 39
(quoted source omitted).
We
are satisfied that the trial court properly exercised its discretion in denying
GLEC's new-trial motion. Explaining its
reasons for doing so, the court stated:
I believe that the jury fairly assessed the testimony
[it] heard.... I don't think credibility
was as important as counsel seems to think.
I think ... the jury found all experts to be credible, and it was simply
a question of assessing the amount of negligence that they found to each party
here. They did so based on the
testimony they heard, and their finding will not be upset.... I find in viewing the verdict in the light
most favorable to the [Vogels] that the motions are denied.
GLEC
has not persuaded us that the trial court's exercise of its discretion to deny
the motion was based on an erroneous view of the law, and because the court's
explanation of its decision meets all the tests discussed above, we do not
disturb the ruling.[6]
II. THE
VOGELS' CROSS-APPEAL
The
Vogels argue that they are entitled to treble damages under § 182.017(5), Stats.
The trial court, concluding that the statute is inapplicable, rejected
the argument, as do we.
Section
182.017(5), Stats., 1991-92,[7]
provides as follows:
Any [electric cooperative] which shall in any manner
destroy, trim or injure any shade or ornamental trees along any such lines or
systems, or cause any damage to buildings, fences, crops, live stock
or other property, except by the consent of the owner ... shall be liable to
the person aggrieved in 3 times the actual damage sustained, besides
costs.
(Emphasis added.)
Construction
of a statute, or its application to a particular set of facts, is a question of
law, which we decide independently, owing no deference to the trial court's
determination. Minuteman, Inc. v.
Alexander, 147 Wis.2d 842, 853, 434 N.W.2d 773, 778 (1989).
Because
our first resort in construing a statute is to the language chosen by the
legislature, State v. Rognrud, 156 Wis.2d 783, 787-88, 457 N.W.2d
573, 575 (Ct. App. 1990), where that language is plain on its face, we simply
apply it to the facts; we do not look beyond the plain and unambiguous language
of a statute. In re J.A.L.,
162 Wis.2d 940, 962, 471 N.W.2d 493, 502 (1991). Where, however, a statute is ambiguous--when it is capable of
being understood by reasonably well-informed persons in either of two senses, Robinson
v. Kunach, 76 Wis.2d 436, 444, 251 N.W.2d 449, 452 (1977)--we may
construe it in light of its history, context, subject matter and scope. Kluth v. General Casualty Co., 178
Wis.2d 808, 815, 505 N.W.2d 442, 445 (Ct. App. 1993).
We
believe that is the case here: that reasonably well-informed people could
differ as to whether § 182.017(5), Stats.,
authorizes treble damages for injuries to livestock in a stray-voltage
case. On one hand, it appears quite
broad, stating that cooperatives may be liable for treble damages for
"caus[ing] any damage to ... live stock or other property ...." The preceding language relating to tree- and
brush-trimming and damage to buildings, crops, fences or livestock, however,
supports the equally reasonable view that the statute may be limited to such
damage as may result from trimming of trees and vegetation along the
cooperative's right-of-way.[8] Because the statute is ambiguous, we may
look beyond its language and consider its terms in context, and its relation to
other statutes, in order to determine the underlying legislative intent.
GLEC
argues--correctly, we believe--that considering § 182.017(5), Stats., in context supports the
conclusion that it does not apply to the Vogels' claim. Section 182.017 deals generally with
acquisition of easements for electric transmission and the construction and
maintenance of power lines, poles and towers on the acquired lands. In addition to the provisions at issue here,
other portions of the statute regulate the location of lines, poles and towers,
authorize the removal of abandoned lines and structures, and generally prohibit
power lines from obstructing the public use of highways, bridges or waterways. Section 182.017(2), (3) and (4).
We
agree with GLEC that, considering the statute's language in light of its
context in the regulatory scheme, it was intended to address physical damage to
trees, buildings, fences or livestock attributable to activities undertaken in
the construction, maintenance and abandonment of power lines and related
structures within the cooperative's right-of-way, and does not authorize treble
damages in cases such as this, which deal with the provision of electric
service to the customer.
Our
conclusion is bolstered by the existence of a separate statute, § 182.019,
Stats., which applies to damages
caused by a utility's negligence in the distribution of power to its customers
and which contains no provision for treble damages. Were we to construe § 182.017(5), Stats., as the Vogels request, declaring it applicable to
GLEC's alleged negligence in delivering electricity to the Vogel farm, the
result would be two statutes penalizing the same act, one allowing recovery of
actual damages and the other providing for triple recovery‑‑an
absurd consequence which would result in discord, rather than harmony, in the
statutory scheme. See Walag v. Town of Bloomfield, 171
Wis.2d 659, 663, 492 N.W.2d 342, 344 (Ct. App. 1992) (statutes must be read to
avoid absurd results); State v. Fouse, 120 Wis.2d 471, 477, 355
N.W.2d 366, 369 (Ct. App. 1984) (statutory provisions appearing to conflict are
to be construed harmoniously). Beyond
that, the legislative history of the two statutes confirms our conclusion.[9] Section 182.017(5) does not authorize
treble damages in stray-voltage cases.
We
reverse the judgment insofar as it awards the Vogels $60,000 damages for
"annoyance and inconvenience" based on a nuisance theory of
liability, and we remand to the trial court with directions to delete that
portion of the judgment. In all other
respects, we affirm.
By
the Court.—Judgment affirmed
in part; reversed in part and cause remanded with directions.
[1] The statute, which will be discussed in
greater detail below, provides generally that electric suppliers destroying
trees or causing damage to buildings, livestock or other property are liable to
the owners for three times actual damages.
[2] The Vogels' argument is based on the Restatement (Second) of Torts § 822(a)
(1979), which imposes liability for a private nuisance occasioned by the
intentional and unreasonable invasion of another's land, and Crest
Chevrolet-Oldsmobile-Cadillac, Inc. v. Willemsen, 129 Wis.2d 129, 151,
384 N.W.2d 692, 700 (1986), where the supreme court stated that "a
comparative fault analysis" was inapplicable to the facts of the case--a
claim of intentional nuisance under the Restatement for the intentional
diversion of water onto the plaintiff's land.
As we conclude below, the nuisance theories set forth in § 822 are
inapplicable to this case for there was no "invasion" of the Vogels'
property; GLEC was providing a service to the farm that the Vogels had
expressly requested.
[3] In past cases, we have described stray
voltage as "a natural phenomenon [that] is present on all active
[electrical] distribution systems."
Kolpin v. Pioneer Power & Light Co., 162 Wis.2d 1, 10,
469 N.W.2d 595, 598 (1991). Because
basic principles of electricity dictate that in order to move power from one
point to another there must be a "completed circuit" from the source
to the end use and back again, GLEC's distribution lines carry electricity on
two wires: one energized and one neutral.
The energized line brings power to the customer and the neutral wire
provides a path for a portion of the return current back to the substation. A portion of the return current also can
travel back to the substation through the earth.
The
Vogel farm has a typical wiring system: two wires energized at 120 volts and a
third "neutral" wire are connected to a main electrical panel in the
barn which sends electricity to the various "circuits" (containing
both "hot" and neutral wires) required for operation of various
pieces of equipment common to dairy-farm operations. Grounding rods connected to the neutral wire system are typically
driven into the ground near the main panel, and the neutral wires are, by
design, connected to metalwork in the barn and other buildings for safety
purposes (they provide a current-to-earth path in the event of a short in the
system). Because of that attachment,
the neutral wires, which invariably carry some electrical current, will
transfer some of that current to the metal objects to which they are
connected. And this "stray
voltage," which can be transmitted to cows coming into contact with metal
objects and the earth through which the return current flows, is what the
Vogels claim caused the problems with their dairy herd.
[4] Prior to trial, GLEC moved in limine to
preclude the submission of nuisance as a cause of action and sought to limit
the period of time for the Vogels' damages.
The trial court denied the motion.
[5] The motion was brought under § 805.15, Stats., which authorizes a party to
move for a new trial on several grounds, among them "errors in the
trial" and "in the interest of justice." GLEC argued to the trial court that it was
entitled to a new trial on both grounds based on counsel's remarks.
[6] As noted, we are especially mindful of the
rule that the trial court's decision to grant or deny a new trial in the
interest of justice is entitled to deference.
It is a "highly discretionary" ruling to which we will
"`usually defer[] ... because of the trial court's opportunity to observe
the trial and evaluate the evidence ....'" Krolikowski v. Chicago & N.W. Trans. Co., 89
Wis.2d 573, 581, 278 N.W.2d 865, 868 (1979) (quoted source omitted).
Moreover,
this is not a case where we would exercise our own discretionary authority
under § 752.35, Stats., to
order a new trial in the interest of justice, a power we are cautioned to use
only "sparingly"--and then only in situations where we are satisfied
that a different result is likely on retrial.
Camelot Enters., Inc. v. Mitropoulos, 151 Wis.2d 277, 285,
444 N.W.2d 401, 404 (Ct. App. 1989).
GLEC's general arguments that the jury's apportionment of negligence was
contrary to the great weight of the evidence and that counsel's closing
argument was prejudicial (a position we have rejected) have not persuaded us
that this is one of those rare cases where relief under § 752.35 is
appropriate.
[7] Unless otherwise noted, all references to §
182.017(5), Stats., are to the
1991-92 version of the statute.
[8] The ambiguity has since been removed by the
legislature, for the statute, as amended by 1993 Wis. Act 371, § 1, now
provides:
Any [electric cooperative] which shall in any manner
destroy, trim or injure any shade or ornamental trees along any such lines or
systems, or, in the course of tree trimming or removal, cause any damage to ...
livestock ... shall be liable to the person aggrieved in 3 times the actual
damage sustained ....
[9] As originally enacted, §§ 182.017(5) and
182.019, Stats., were part of the
same paragraph of the same statute, § 1778, Stats.,
1905, which provided as follows:
Any [electric utility] ... shall be liable for all
damages occasioned by ... negligence ... in ... the furnishing of power to its
patrons for public purposes. Nothing
contained in this act shall authorize or empower such [utility] to in any
manner destroy, trim or ... injure any ... trees along any such lines ...
except by consent of the owner.
Laws of
1905, ch. 304, § 1.
As may be seen, the first sentence
of the 1905 statute related to damage caused by the utility's negligence in
delivering power to its customers and the second to damage occasioned by the
trimming of trees and other activities along power line rights-of-way. The second sentence was amended shortly
thereafter to add the following language: "or cause any damage to buildings,
fences, crops, live stock or other property except by the consent of the owner
...." Laws of 1905, ch. 505, §
1. The sentence (as amended) went on to
state that violation of "the provisions of this section" shall be
subject to treble damages. Laws of
1905, ch. 505, § 1.
The two provisions--one dealing with
liability for negligence "in the furnishing of power" and the other
dealing with damage to buildings, fences and livestock in connection with
trimming operations along the rights-of-way--were subsequently made into
separate subsections of the statute. See
§ 1778, Stats., 1911. Today, as discussed above, they exist as
separate statutes, with only the "tree-trimming" provisions relating
to damage to "buildings, fences, crops, live stock or other
property," i.e., § 182.017(5), Stats.,
containing the treble-damage clause.
The
history of the statute thus provides additional evidence of the legislature's
intent to limit treble damages to acts related to injuries arising from the
construction and maintenance of power lines and power line rights-of-way, §
182.019, Stats., and not to
impose them for the cooperative's negligence in the actual delivery of power, §
182.017(5), Stats.