COURT OF APPEALS DECISION DATED AND RELEASED AUGUST
29, 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. 94-1981
STATE OF WISCONSIN IN
COURT OF APPEALS
DISTRICT III
D.S.
FARMS, A PARTNERSHIP
BY
MELVIN M. DANZINGER,
CAROLYN
M. DANZINGER,
DAVID
J. DANZINGER AND
CYNTHIA
L. DANZINGER,
Plaintiffs-Respondents-Cross-Appellants,
v.
NORTHERN
STATES POWER COMPANY,
A
DOMESTIC CORPORATION,
Defendant-Appellant-Cross-Respondent.
APPEAL
and CROSS-APPEAL from a judgment of the circuit court for Buffalo County: DANE F. MOREY, Judge. Affirmed.
Before
Cane, P.J., LaRocque and Myse, JJ.
PER
CURIAM. D.S. Farms, a dairy farm
("the farm"), brought suit to recover for losses to its dairy herd
and milk production claimed to have been caused by "stray voltage"
from its electrical supplier, Northern States Power Company.[1] Following the week long jury trial, the jury
found NSP causally negligent in the distribution of electricity and the farm
not contributorily negligent. It
awarded the farm $1,450,225 in damages.
NSP appeals, arguing that (1) it is entitled to judgment notwithstanding
the verdict; (2) insufficient evidence supports the verdict; (3) the jury
instructions misstated the law and the verdict was ambiguous; (4) NSP is
entitled to a new trial due to trial court error; and (5) the trial court
erroneously awarded costs for photocopying under § 814.04(2), Stats.
The
farm cross-appeals, arguing that the trial court erroneously denied treble
damages pursuant to § 196.64, Stats.
(1990).[2] We reject both NSP's and the farm's
challenges and affirm the judgment.
FACTS
Consistent
with our standard of review, upon a challenge to the sufficiency of the
evidence, we set forth those facts of record supporting the verdict. See Fehring v. Republic Ins.
Co., 118 Wis.2d 299, 305-06, 347 N.W.2d 595, 598 (1984). After the milking parlor was installed in
1979, the farm experienced production concerns. The cows exhibited nervousness in the parlor, mastitis, rougher
looking coats and inability of young stock to properly mature. Attempts to improve milk production included
working with a veterinarian, a nutritionist and milking equipment personnel,
but met with no success. In 1985, the
farm requested NSP to test for stray voltage.
NSP performed tests and advised that there was no stray voltage
problem. The farm also had an
electrician check on farm wiring, but he did not uncover any problems.
In
1986, the farm purchased a volt meter.
Jeff Danzinger, one of the farm's partners, discovered a correlation
between the voltage readings and the cows' behavior. On nights that he received readings of over one quarter volt, he
had problems.
The
farm arranged for additional testing and found voltage levels exceeding
one-half volt. As a result of the
tests, the farm installed an electronic grounding device in 1987. After installation, voltages were reduced to
zero. Within a month or two, milk
production increased. The cows appeared
much calmer, and their health started to improve. Gerald Bodman, professor in the department of biological systems
engineering at the University of Nebraska, testified that stray voltage can
cause the following symptoms:
restlessness, decreased milk production, breeding problems, increased
mastitis and cows lapping at, rather than sipping, water. He testified that although the farm's stray
voltage problems were solved by 1988, it was reasonable for it to take until early
1994 for the herd to fully recover from the effects.
The
herd's veterinarian, Dr. John Bengfort, testified that the farm's herd
management was above average. He
testified that the cows exhibited symptoms consistent with stray voltage. He testified that once stray voltage is
removed, the cows will drink more water and eat more feed and that herd health
will improve, resulting in increased production.
The
farm called David Winter as their expert witness. His qualifications are unchallenged. Winter testified that he participated and worked on the patent
for the electronic grounding system (EGS).
A computer device called the Waverider was created to make accurate
voltage measurements. Winter testified
that based on voltages measured by the Waverider on February 26, 1987, voltages
were at a level that was problematic for the herd. Winter testified that the source of the problematic voltage
levels was NSP's primary neutral system.
Winter
testified that NSP's power system was not adequate to meet the demands of the
farm for electricity. He testified that
the primary neutral system was not of low enough resistance to prevent voltage
spikes from being generated by the power demands of the farm. He further stated that the voltage was
adequate to keep things running on the farm, but not adequate to keep the
voltage from sagging on the 240 volt system.
Based
on his computations, Winter concluded that the average cow on the farm was
exposed to one milliampere with spikes up to 2.6, 90% of the herd would be
exposed to .8 milliamperes all night and up to two milliamperes during milking,
and 10% of the cows were exposed to 3.6 milliamperes of current flow. He testified that inadequate grounding in
the area of the farm was a substantial factor causing the harmful voltage to
access the cows.
The
trial court ruled that as a matter of law NSP was not negligent with respect to
testing, inspection or maintenance of the lines. It also ruled that the interconnection at the Cream/Alma
substation was not a factor. Nonetheless, it permitted the matter to be
submitted to the jury on the issue of negligence, concluding that the experts'
testimony was in dispute as to the issue of grounding. The court also ruled that it was disputed
whether voltage fluctuations were a contributing factor to the harm.[3]
The
farm sought damages for losses from 1979 to 1987 due to stray voltage. The matter was submitted to the jury on the
issue of common law negligence, causation and damages. The verdict determined that NSP was
negligent in the distribution of electricity, causing harmful levels of stray
voltage to contact the farm's dairy herd.
The jury returned a verdict in favor of the farm and NSP appeals.
JUDGMENT
NOTWITHSTANDING THE VERDICT
NSP
argues that it is entitled to judgment notwithstanding the verdict, §
805.14(5)(b), Stats., due to (1)
the absence of any legal duty; (2) the presence of an intervening force and
superseding cause; (3) the applicability of laches and estoppel; and (4) the
court's admission of speculative expert testimony.
"A
motion for judgment notwithstanding the verdict admits for the purpose of the
motion that the findings of the verdict are true, but asserts that judgment
should be granted the moving party on grounds other than those decided by the
jury." Kolpin v. Pioneer
Power & Light Co., 162 Wis.2d 1, 29, 469 N.W.2d 595, 606
(1991). For reasons that follow, we
conclude that the trial court properly denied NSP's motion for judgment
notwithstanding the verdict.
1. Legal Duty
Negligence
requires a duty of care on the part of the defendant, a breach of the duty and
an injury caused by the breach. Johnson
v. Seipel, 152 Wis.2d 636, 643, 449 N.W.2d 66, 68 (Ct. App. 1989). A party may be negligent under common law
even if it complies with all applicable statutory and code requirements. Beacon Bowl, Inc. v. WEPCO,
176 Wis.2d 740, 769-70, 501 N.W.2d 788, 799-800 (1993). Whether undisputed facts give rise to a duty
of ordinary care is a question of law that we review de novo. Johnson v. Misericordia Comm. Hosp.,
99 Wis.2d 708, 723, 301 N.W.2d 156, 164 (1981).[4] Although the facts giving rise to the breach
of the duty were hotly contested, the facts giving rise to existence of a duty
of care were not. It is undisputed that
NSP was the provider of electrical power to the farm. Brian Guenther, "NEV [neutral-to-earth] supervisor" for
NSP, agreed that NSP had the responsibility to provide electricity without
excessive amounts of current. He also
agreed that NSP's grounding on its line and the balance of the neutrals is
critical to keep the farm voltages down.
Consequently, we conclude that NSP had a duty of ordinary care to
provide electricity without harmful effects of stray voltage.
NSP
argues that it has no legal duty of ordinary care because the farm failed to
provide notice of stray voltage conditions.
We conclude that notice requirements do not apply to the facts of this
case.
NSP
relies on Snyder v. Oakdale Co-Op. Elec. Ass'n, 269 Wis. 531, 69
N.W.2d 563 (1955), which holds that a company furnishing electric power for use
in a private wiring system is not liable for injuries sustained by reason of a
defect in the private system "unless it supplies current actually knowing
of these conditions and the current is the cause of the injuries sued for, in
which case it is the energizing of the line with knowledge of the conditions
and not the conditions themselves which forms the basis of
liability." Id. at
533, 69 N.W.2d at 564 (quoting Oesterreich v. Claas, 237 Wis.
343, 349, 295 N.W. 766, 768 (1941)).
Here there was evidence to support the finding that the stray voltage
emanated from NSP's own primary neutral system. Consequently, the Snyder notice requirements do not
apply.
2. Intervening
Force and Superseding Cause
Next,
NSP argues that the farm's failure to provide notice of stray voltage
conditions is a superseding cause of its damages. NSP argues that it was provided only one opportunity to analyze
the stray voltage problem; that its tests showed no problem and that the farm's
"failure to provide NSP accurate information and opportunities both before
and after 1985 dictate that any negligence of NSP is too remote from the injury
or damages to impose liability" for its negligence. We disagree.
"One
policy ground for relieving a negligent tortfeasor from liability for conduct
which has been a substantial factor in producing injury is the intervening and
superseding cause doctrine." Morgan
v. Pennsylvania Gen'l Ins. Co., 87 Wis.2d 723, 738, 275 N.W.2d 660, 667
(1979). "A superseding cause is an
act by a third party, while the plaintiff's conduct is considered under the
umbrella of contributory negligence."
Id. at 736-37 n.1, 275 N.W.2d at 667 n.1. Here, NSP asserts that the plaintiff's own
omissions, not those of a third party, relieve it of liability. We conclude that contributory negligence,
not superseding cause, is the applicable doctrine and therefore a superseding
cause analysis does not apply.
NSP
also argues that the farm's failure to provide notice of stray voltage
conditions is an intervening force.
"An intervening force is one which actively operates in producing
harm ...." Restatement (Second) of Torts § 441(1) (1965). However, NSP does not argue that the farm
actively produced the harm, but rather failed to give it notice of the
harm. Because the basis of NSP's argument
rests with the farm's omissions, it raises the issue of contributory
negligence, not issues of intervening force.
Consequently, the doctrine of intervening force does not apply.
3. Laches
Next,
NSP argues that the farm's complaint should be dismissed under the doctrine of
laches. NSP argues that because the
farm failed to provide timely and accurate notice to NSP that there was a
problem that needed to be addressed, the defense of laches applies. We disagree.
To
successfully assert a defense of laches, NSP must establish (1) an unreasonable
delay; (2) lack of knowledge that the farm would assert its claim; and (3)
prejudice. Schneider Fuel &
Supply Co. v. West Allis State Bank, 70 Wis.2d 1041, 1053, 236 N.W.2d
266, 272 (1975). The trial court denied
the defense of laches because it concluded that any delay on the part of the
plaintiff farm was due to NSP's representation after it performed tests in 1985
that there was not any problem with stray voltage. Thus, the trial court concluded that the farm's delay, if any,
was reasonable. Based upon the facts as
found by the trial court, we agree.
Further, NSP fails to assert any facts to support the element of
prejudice. Therefore, we cannot dismiss
the farm's claims on the basis of laches.[5]
4. Speculative
Expert Testimony
Next,
NSP argues that it is entitled to judgment notwithstanding the verdict because
the verdict is based upon the farm's expert witnesses' speculation and
conjecture. NSP claims the farm's
expert witnesses' testimony is unreliable because (a) the engineer, David
Winter, based his analysis on EGS tests made without a shunt resistor or
measurements from the primary neutral; (b) economist Michael Behr based his
opinion on data obtained after the installation of the EGS device, not on
history prior to the time of injury; and (c) agricultural engineer Gerald
Bodman based his opinion on the Cream/Alma substation interconnect as a cause
of damages.
NSP argues that the trial court must ensure
that expert testimony is both relevant and reliable. Relying on Daubert v. Merrell Dow Pharms., 113
S.Ct. 2786, 2795 (1993), and a concurring footnote in State v. Blair, 164
Wis.2d 64, 78-81 n.9, 473 N.W.2d 566, 572-73 n.9 (Ct. App. 1991), NSP contends
that the trial court should assess the reliability of the experts' underlying
data. NSP contends that the trial court
must make preliminary assessments of an expert's methodology and that failure
to do so is reversible error. Frymire-Brinati
v. KPMG Peat Marwick, 2 F.3d 183, 186-87 (7th Cir. 1993). We reject NSP's argument.[6]
First,
to the extent NSP challenges the admission of testimony without the trial court
assessing its reliability, the argument is not a proper basis for judgment
notwithstanding the verdict. The
admissibility of evidence is not challenged by this motion. Kolpin, 162 Wis.2d at 29, 469
N.W.2d at 606.
Second,
State v. Peters, 192 Wis.2d 674, 534 N.W.2d 867 (Ct. App. 1995),
rejected evidentiary challenges to reliability. "[T]he rule remains in Wisconsin that the admissibility of
scientific evidence is not conditioned upon its reliability." Id. at 687, 534 N.W.2d at
872. Scientific evidence is admissible
if (1) it is relevant; (2) the witness is qualified as an expert; and
(3) the evidence will assist the trier of fact in determining an issue of
fact. Id. at 687-88, 534
N.W.2d at 872; State v. Walstad, 119 Wis.2d 483, 516, 351 N.W.2d
469, 486 (1984). "Once the
relevancy of the evidence is established and the witness is qualified as an
expert, the reliability of the evidence is a weight and credibility issue for
the fact finder and any reliability challenges must be made through
cross-examination or by other means of impeachment." Peters, 192 Wis.2d at 690, 534
N.W.2d at 873.
The
trial court, in its gatekeeping role, may reject relevant evidence for a
variety of reasons, including if (1) it is superfluous; (2) it is a waste of
time; (3) its probative value is outweighed by prejudicial effect; (4) the jury
is able to draw its own conclusions without it; (5) it is inherently improbable
or (6) the area is not suitable for expert testimony. Id. at 689, 534 N.W.2d at 872.
NSP
argues that experts did not "compare the data at hand with known
scientific principles," but the record discloses otherwise. Behr, Winter and Bodman all testified that
they reviewed the available data from the farm in order to reach their
conclusions. "An expert witness
may state his relevant inferences from matters perceived by him or from
evidence introduced at the trial and seen or heard by him or from his special
knowledge, skill, experience or training ...." Kolpin, 162 Wis.2d at 38, 469 N.W.2d at 610
(quoting Rabata v. Dohner, 45 Wis.2d 111, 133, 172 N.W.2d 409,
420 (1969)). Reliability of expert
testimony is to be attacked on cross-examination. Peters, 192 Wis.2d at 690, 534 N.W.2d at 873. NSP has not demonstrated that the experts'
testimony is incredible as a matter of law.
See Chapman v. State, 69 Wis.2d 581, 583, 230
N.W.2d 824, 825 (1975) (Incredible as a matter of law means inherently
incredible, such as in conflict with the uniform course of nature or with fully
established or conceded facts.). NSP's
argument fails to persuade us that as a matter of law the farm's experts'
opinions rest purely on speculation and conjecture.
SUFFICIENCY OF
EVIDENCE
The standard of review for sufficiency of evidence
requires a reviewing court to examine the record for any credible evidence
which under any rational view fairly admits of an inference that will support
the jury's finding.
Peissig v. Wisconsin Gas Co., 155 Wis.2d 686, 702-03, 456 N.W.2d 348, 355
(1990). For the reasons that follow, we
conclude that sufficient credible evidence supports the verdict.
1. Negligence
NSP
argues that no credible evidence supports the jury's finding of
negligence. It cites evidence to
support a finding that it was not negligent, such as the trial court's finding
that it was not negligent with respect to inspection, testing and maintenance
of its line. It argues that its
grounding exceeded code and that the "resistance of the majority of ground
rods or their combination on the entire distribution line were relatively
good."
NSP's
argument misconstrues the function of appellate review.[7] We must resolve all conflicts in the
testimony in the light most favorable to the verdict.
The credibility of the witnesses and the weight afforded
their individual testimony is left to the province of the jury. Where more than one reasonable inference may
be drawn from the evidence adduced at trial, this court must accept the inference that was drawn by the jury.
Fehring, 118 Wis.2d at 305-06, 347 N.W.2d at 598.
The
jury heard days of technical testimony by expert witnesses whose qualifications
are unchallenged. The record
demonstrates that numerous conflicting inferences could be drawn from the
evidence. However, it is the jury's
function, not that of the appellate court, to resolve conflicts. We review the record for credible evidence to
sustain the jury's verdict, not to search for evidence to sustain a verdict the
jury could have reached, but did not. Id.
at 306, 347 N.W.2d at 598.
The
adequacy of the grounding and the level of resistance in the distribution line
were issues of fact at trial. The jury
could have believed Winter's testimony that resistance on the line was too
high, causing harmful voltage to access the cows. Winter testified:
"The primary neutral resistance was too high allowing voltage to be
developed on the primary neutral as a result of the normal requirements for
current to supply the Danzinger's 240 volt loads." He testified that inadequate neutral
conductor size, poor neutral connections or inadequate amount of grounding
along the neutral were reasons for high resistance. Winter further criticized the lack of grounding within a quarter
mile of the farm. "[H]ad they put
those grounds in, there could have been a substantial reduction of voltage on
the farm just from that simple action."
He also testified that voltage changes caused frequent voltage spikes
harmful to the cows. The testimony was
sufficient to permit the jury to find that NSP breached its duty to distribute
electricity without harmful stray voltage.
2. Cause
NSP
also argues that the jury's finding of causation is based upon speculative
evidence in direct conflict with physical evidence. It contends that physical evidence controls when in clear
conflict with testimony, see Chart v. GMC, 80 Wis.2d 91,
111, 258 N.W.2d 680, 688 (1977), arguing that "NSP's 1987 parlor testing
with the shunt resistor controls over Winters' calculations based on the 1987
EGS tests measured without the shunt resistor." It contends that Winters' calculations must be rejected because
they lack sufficient foundation. We
disagree.
First,
the jury heard testimony that the farm's experts had reviewed NSP's tests and
that its test results did not rule out stray voltage problems. Second, NSP's argument essentially asks this
court to assess the reliability of the opposing experts' testimonies, which is
not a trial or appellate court function.
See Peters, 192 Wis.2d at 690, 534 N.W.2d at 873. NSP's argument is not based upon
"physical evidence," but rather on interpretations of physical
evidence. The farm's experts disagreed
with NSP's experts' interpretations of the various tests performed. Because the farm's experts' testimony
supported the jury's finding of causation, we reject NSP's argument.
3. Damages
Next,
NSP argues that (a) the evidence is insufficient to support the jury's finding
of damages; (b) the verdict confuses capital loss calculations with those of
fair market value, for which there was no evidence; (c) evidence of the farm's
"normal trend" was computed contrary to the requirements of Wisconsin
law; (d) the economist failed to take into account feed savings analysis and
speculated as to milk production loss and (e) damages are excessive. We disagree.
The
damages question on the special verdict asked two questions:
What
sum of money will fairly and reasonably compensate the Plaintiffs for:
(a)
Lost milk production due to harmful levels of stray voltage?
ANSWER:
$ 1161572
(b) Loss of fair market value to their dairy
herd due to harmful levels of stray voltage?
ANSWER: $ 283663
Credible
evidence supported the jury's findings.
Bodman testified that the effects of stray voltage include lowered milk
production and breeding problems.
Bodman testified that the period of time from 1987 to early 1994 was a
reasonable time frame for the herd to recover from the effects of stray
voltage. Michael Behr, a forensic
economist, was qualified as the farm's expert to testify with respect to
damages. He testified, to the requisite
reasonable degree of certainty, that the amount of damages the farm sustained
as a result of stray voltage between 1979 to 1993 totaled $1,726,586. He broke down the total loss into two
categories, the cost to replace cattle and lowered milk production. He testified that the total amount of milk
loss the farm sustained between 1979 and 1993 was $1,348,414 and the total
amount of capital loss during the same time frame due to stray voltage was
$373,182.
Behr
testified to the reasons for his opinions.
He testified that a dairy farm typically produces three commodities: (1)
milk, (2) beef and (3) young stock. He
testified that "capital loss" was the cost of purchasing cattle. He opined that but for the harmful effects
of stray voltage, the herd would have produced enough young to replace damaged
cattle. In order to mitigate lost milk
production due to damaged cattle, the farm was required to sell cattle and
purchase replacements, and the cost of purchasing replacements was taken into
account.
Behr
further testified as to how he arrived at lost milk production
calculations. Based upon farm records,
farm finances, the number of cows, his own experience in agricultural
economics, as well as publications concerning Wisconsin dairy farming, he
calculated what he called a "normal trend line," that is, the general
level of production an economist would expect to see under a certain set of
conditions, taking into account variations that would occur over time.
For
example, in 1979, the 120.70 cows in the herd each produced 12,043 pounds of
milk. Behr projected that normal
production would have been 14,686 pounds.
At the price of $.1207960, Behr calculated that actual sales were
$175,589 instead of $214,123.
Consequently, Behr arrived at a $38,534 milk loss for 1979. Behr made a similar analysis for each year
through 1993. In 1985 for example, the
herd consisted of 256.33 cows.
Production slipped to 11,466 pounds.
Milk prices increased to $.1249593.
The milk loss for 1985 was calculated to be $201,367. Behr testified that the farm did not achieve
the normal trend until 1993 and was expected to exceed the normal trend.
A party who suffers damage to his business
through a wrongful act of another is entitled to compensation for the
loss. "[A]s a general rule in tort
actions there may be recovery for loss of profits if the plaintiff can show
with reasonable certainty the anticipation of profit." Krueger v. Steffen, 30 Wis.2d
445, 450, 141 N.W.2d 200, 202 (1966).
The proper measure for damages for lost animals is the replacement cost,
reflected in market value at the time of the loss. Rosche v. Wayne Feed Div., Continental Grain Co.,
152 Wis.2d 78, 82, 447 N.W.2d 94, 96 (Ct. App. 1989). "[E]vidence of the value of full-term calves less the cost
of care and feeding to the conclusion of the term is admissible and relevant
under a broad evidence rule" when calves are marketed before the
completion of the term. Strauss
Bros. Packing Co. v. American Ins. Co., 98 Wis.2d 706, 709, 298 N.W.2d
108, 110 (Ct. App. 1980).
NSP argues that Behr failed to account for a
variety of factors, such as the general level of management, the feeding,
including feed cost savings, the effects of Johne's disease and tornado damage.[8] The jury could infer, based upon Bodman's
and Bengfort's testimony, that the herd was more susceptible to disease, such
as Johne's disease, as a result of stray voltage. Also, Behr testified that his calculations took into account
these factors. Whether his testimony is
to be believed is a credibility issue left to the jury.
NSP
also complains that there is no evidence "to support the jury's verdict on
post-injury loss of fair market value."
The record, however, supports the inference that the cow's general
health, including breeding, is affected by stray voltage. Bodman testified that the period from 1987
to early 1994 would be a reasonable time for the herd to recover from stray
voltage effects. Behr testified to the
requisite degree of reasonable certainty to the farm's anticipation of earnings
but for the harmful effects of stray voltage, as well as the cost of replacing
damaged animals. Behr report indicates
that $373,182 represented capital loss from 1979 to 1993. The jury awarded $283,663. Credible evidence supports the verdict.
Next,
NSP contends that the farm's counsel unfairly confused the concept of capital
loss calculation and fair market value.
The record shows that at closing arguments, the farm's counsel stated
"Doctor Behr's report has in it a total damage amount including some
capital losses or fair market value losses for cows, and I'll just lump 'em
together, but his report will be in evidence and you can take a look at
it."
NSP
fails to demonstrate any duplication of damages or any prejudice with respect
to using the terms interchangeably.
Behr testified that there were two categories of loss: lost milk production and loss associated
with purchase of cattle. Behr explained
capital loss as follows:
[A] normally operating dairy herd of the size and
stability of the Danzingers will normally produce internally, or by itself,
enough animals to replace the animals that are culled, and indeed to produce
somewhat more animals than that which can be sold as dairy heifers or used for
expansion of the herd. ... What we are talking about here is replacement of
damaged cattle ....
At closing argument, the farm's counsel stated that he
used the term "capital loss" interchangeably with loss to fair market
value. Despite whether the two terms
should be used interchangeably, the record demonstrates credible evidence to
support the verdict's damage finding showing the loss of value to the herd due
to the cost of replacing cattle.
Because NSP fails to demonstrate how it was prejudiced by the
terminology, we do not reverse on appeal.
NSP
argues that the calculation of damages was contrary to Wisconsin law because
Behr's normal trend was "merely his own subjective opinion, not based upon
any statistical analysis applied to the relevant facts of D.S.
Farms." The record fails to
support this argument. Behr testified
that he reviewed the actual production on the farm, as evidenced by milk check
stubs and producer milk weights, the level of management, the cost and expenses
of feed, the data available since the installation of EGS in 1987 and
information concerning dairy production in the state in order to arrive at his
opinion. Behr testified:
I do look at ... how they do their rations, how they do
their breeding, what's their degree of knowledge with respect to overall
management of the herd generally? And
whether or not the kind of things that in this case the Danzingers are doing
are consistent with other farms ... and do those similar practices result in my
experience in production that's 10 percent below the state average or 10
percent above it.
Behr testified that the herd is "[c]ertainly I
would say in the 15 top percent and possibly in the top 10 percent but not in
the top five percent." He
testified that he evaluated the Danzinger farm and compared his findings to
other Wisconsin farms. An expert
witness may state his opinions based upon evidence perceived by him, introduced
at trial or from his special knowledge, skill, experience or training. Kolpin, 162 Wis.2d at 38, 469
N.W.2d at 610. NSP's attack on Behr's
credibility is an issue for cross-examination, not appeal. See Peters, 192 Wis.2d at 690,
534 N.W.2d at 873; Fehring, 118 Wis.2d at 305-06, 347 N.W.2d at
598.
NSP also argues that
because Bodman offered the only opinion that lowered milk production was
the result of stray voltage and Bodman's opinion was based upon invalid
assumptions, the farm failed to meet the burden of establishing its damages to
requisite certainty. The record fails
to support NSP's argument. Bodman's
testimony concerning the effects of
stray voltage was based on many factors, including data perceived by him, data
introduced at trial, as well as his specialized knowledge, experience and
training. The validity of his opinion
was a matter for cross-examination.
Also, testimony of Behr, Winter and Bengfort support the jury's
findings.
We
further conclude that the trial court properly determined that damages are not
excessive in view of Behr's report that would have supported a damage figure
substantially higher than the jury award.
It is evident that the jury
considered NSP's vigorous cross-examination, which succeeded in convincing the
jury to award significantly less than what Behr reported.
JURY
INSTRUCTIONS AND SPECIAL VERDICT
NSP
argues that the jury was erroneously instructed with respect to causation.[9] NSP argues that "as instructed, the
'yes' answer to the cause question was a given because NSP will always be
contributing some stray voltage absent mitigation devices." It argues that because some stray voltage is
always present, see Kolpin, 162 Wis.2d at 499-500, 469
N.W.2d at 598, "[t]he issue which the jury should have determined was
whether NSP's contribution to the cow contact voltages, in and of itself,
caused a harmful level."
The
trial court correctly instructed the jury.
The trial court has broad discretion in instructing the jury. McKnight v. GMC, 143 Wis.2d
67, 69, 420 N.W.2d 370, 371 (Ct. App. 1987).
Under Wisconsin's "substantial factor" test, it is sufficient
that the farm demonstrate that the utility was negligent and that its
negligence was a substantial factor in producing the harm.
[T]here may be several substantial factors contributing
to the same result. The contribution of
these factors under our comparative negligence doctrine are all considered and
determined in terms of percentages of total cause.
Sampson v. Laskin, 66 Wis.2d 318, 325-26, 224 N.W.2d 594, 598 (1975)
(footnote omitted). Here, the jury was
correctly instructed that in order to find cause, they must find that
negligence was a substantial factor in producing the damages. Also, the verdict inquired whether the
negligence caused harmful levels of stray voltage to contact the dairy
herd. Consequently, the instructions
were proper.
NSP
argues that the verdict was ambiguous.[10] NSP failed to preserve its objection to the
form of the verdict. At the instruction
and verdict conference, NSP stated that in light of the court's previous
rulings and without waiving previous objections, "we have no objection to
the form" of the verdict.
Counsel may object to the proposed instructions or
verdict on the grounds of incompleteness or other error, stating the grounds
for objection with particularity on the record. Failure to object at conference constitutes a waiver of any error
in the proposed instructions or verdict.
Section 805.13(3), Stats.
(Emphasis added.) Given the
multi-volume transcript in this record, we conclude that NSP's failure to cite
to the record its specific objection to the verdict waives error. Cf. Tam v. Luk, 154
Wis.2d 282, 291 n.5, 453 N.W.2d 158, 162 n.5 (Ct. App. 1990).
NEW
TRIAL
Next,
NSP argues that it is entitled to a new trial because the trial court
erroneously (1) misinterpreted the electrical code and (2) misapplied the
statute of limitations.[11]
We disagree.
NSP
argues that the trial court erroneously concluded that Wis. Admin. Code § PSC requires nine grounds per circuit
mile.[12] NSP contends the correct number is
four. The trial court observed that
even experts did not agree as to the appropriate application of the code. The trial court determined that "rural
electrical distribution systems utilizing multiple ground systems which are
grounded to on-farm water systems must have nine grounds per mile."[13] The court stated: "[I]t doesn't mean you can't prove up that four is all you
need because you had all the additional grounds you needed, but based upon the
norms in a rural area, I think you have got to have the nine. Because we don't know the quality of the underground
piping ... on a farm ...."
The
code sections requiring nine grounds states:
The neutral, which shall be of sufficient size and
ampacity for the duty involved, shall be connected to a made or existing
electrode at each transformer location and at a sufficient number of additional
points with made or existing electrodes to total not less than nine grounds in
each mile ... of line, including those grounds at transformer locations but not
including grounds at individual services.
Wis. Admin. Code § PSC at 114-96C.
NSP
argues that the above section does not apply.
Instead, it argues that the following applies:
The
primary neutral conductor ... may be interconnected solidly with the secondary
neutrals and may come under the clearance requirements specified for 0 to 750
volts in Order 1232 provided (a) the customer service entrances and supply end
are grounded in such a way that the requirements of 1038 are met and (b) or (c)
below are complied with.
(b) The neutral is connected to an extended metallic
underground piping system or artificial grounds complying with the resistance
requirements of Order 1038 at each transformer location and at a sufficient
number of additional points to total four ground connections per mile.
WSEC Order 1031.B.5 (5th ed. 1960).
NSP
also relies on Order 1038, which provides:
A. Limits The combined resistances if the grounding
wire and the connection with the ground shall not exceed 3 ohms for water-pipe
connections nor 25 ohms for artificial (buried or driven) grounds. Where it is
impracticable to obtain, with one electrode, artificial ground resistance as
low as 25 ohms, this requirement shall be waived, and two electrodes at least 6
feet apart, shall be provided.
B. Checking ... Ground connections on
distribution circuits should, when installed, be tested for resistance unless
multiple grounding is used.
We
conclude that NSP fails to demonstrate the trial court misapplied the
code. Although the interpretation of
the code is generally a question of law,
Wausau Hosps., Inc. v. DHSS, 95 Wis.2d 601, 605, 291
N.W.2d 602, 604 (Ct. App. 1980), the issue here is not one of interpretation
but rather of application. Based upon
evidence of record, the trial court concluded that nine grounds applied in
rural areas where no common water systems and driven grounds not meeting Order
1038 were used. NSP fails to
demonstrate that based upon the record before the court, the trial court
erroneously found that the farm was a rural area without a common water system
and with driven grounds not meeting Order 1038.
NSP
contends that it was precluded by the court's ruling to establish that its
construction practices conformed to Order 1038A. We disagree. The trial
court specifically stated that its ruling did not mean that NSP could not prove
that all it needed was four grounds.
NSP cites to the pretrial deposition of Duttee Holmes, Jr. This reference is insufficient to conclude
that the court erroneously concluded on the record before it that Order 1038
did not govern.
Next,
NSP argues that the trial court misapplied the statute of limitations. It argues that a jury question is presented
whether the farm exercised reasonable diligence in discovering NSP's possible
causal relationship to the stray voltage.
We disagree.
A
tort claim accrues on the date the injury is discovered or with reasonable
diligence should have been discovered. Hansen
v. A.H. Robins, Inc., 113 Wis.2d 550, 560, 335 N.W.2d 578, 583
(1983). "The issue of reasonable
diligence is ordinarily one of fact."
Spitler v. Dean, 148 Wis.2d 630, 638, 436 N.W.2d 308, 311
(1989).
Here,
the trial court granted the farm's motion for a directed verdict on the issue
of statute of limitations. It concluded
as a matter of law that the statute of limitations started to run in 1987. It stated:
Kolpin makes it very clear the standard to use in this type of case,
particularly where it is very difficult in this area to determine, as admitted
by both sides, to determine what the causes are of the problems that are being
experienced. And it is [the] opinion of
the Court that the statute of limitations started to run when the EGS was
installed and a neutral to earth voltage was I would call separated from the
farm.
Cases
should be taken from the jury and verdict directed only if the evidence gives
rise to no dispute as to material issues or when evidence is so unbiased that
impartial minds come to but one conclusion.
Holloway v. K-Mart Corp., 113 Wis.2d 143, 150, 334 N.W.2d
570, 574 (Ct. App. 1983). Here, it is
undisputed that the relationship between stray voltage and the injuries it
causes is difficult to determine. It is
also undisputed that "[t]he Danzingers were checking into stray voltage
problems as early as 1983 and 1984 ...."
It is also undisputed that the Danzingers did not observe a resolution
of their stray voltage problems until they installed the EGS system in
1987. There is no evidence that the
Danzingers delayed the installation of the EGS system while knowing that they
had a stray voltage problem.
Consequently, the trial court correctly determined that the undisputed
facts permitted the only reasonable inference:
that the Danzingers knew, or with reasonable diligence should have known
that they experienced stray voltage problems in 1987 with the installation of
EGS. Cf. Kolpin, 162
Wis.2d at 27, 469 N.W.2d at 605 ("We hold that the Kolpin's case against
Pioneer did not accrue until ... they installed the electronic grounding
device.").
PHOTOCOPYING
COSTS
In
a four-sentence argument, NSP argues that the trial court erroneously assessed
costs of photocopying. NSP does not
cite to the record or indicate what the photocopies were used for. It points out that in two cases contrary
results were obtained, see Zintek v. Perchik, 163 Wis.2d 439,
475, 471 N.W.2d 522, 535 (Ct. App. 1991); Ramsey v. Ellis, 163
Wis.2d 378, 385-386, 471 N.W.2d 289, 292 (Ct. App. 1991), but does not explain
why Ramsey should apply here.
We do not develop the argument and decline to address undeveloped
arguments on appeal. State v.
Gulrud, 140 Wis. 2d 721, 730, 412 N.W.2d 139, 142 (Ct. App. 1987).
CROSS-APPEAL
The
farm argues that the trial court erroneously denied it treble damages under §
196.64, Stats. We disagree. Section 196.64 now provides for treble damages under the
following circumstances:
Public
utilities, liability for treble damages. (1) If a director, officer, employe or
agent of a public utility, in the course of the discharge of his or her duties,
wilfully, wantonly or recklessly does, causes or permits to be done any matter,
act or thing prohibited or declared to be unlawful under this chapter or ch.
197, or wilfully, wantonly or recklessly fails to do any act, matter or thing
required to be done under this chapter, the public utility shall be liable to
the person injured thereby in treble the amount of damages sustained in
consequence of the violation. No
recovery as in this section provided shall affect a recovery by the state of
the penalty prescribed for such violation.
(2) The burden of proof in an action under sub. (1)
rests with the person injured to prove the case by clear and convincing
evidence.
The current version of
this statute is a response to Peissig v. Wisconsin Gas. Co., 155
Wis.2d 686, 456 N.W.2d 348 (1990), which held that an award of treble damages
does not require proof of wilful, wanton or reckless behavior. Beacon Bowl, 176 Wis.2d at
774, 501 N.W.2d at 801. Peissig reached
this conclusion because gross negligence was abolished in 1962 with Bielski
v. Schulze, 16 Wis.2d 1, 114 N.W.2d 105 (1962). Because gross negligence was necessary to
find treble damages under former § 196.64, Stats.,
and gross negligence was abolished, then what constituted gross negligence was
no longer held to be necessary to support an award of statutory treble
damages. Peissig, 155
Wis.2d at 694, 456 N.W.2d at 351.
Peissig held that "[i]t is not mere negligence that
results in the imposition of liability under sec. 196.64. Rather only actions or omissions amounting
to negligence that constitute a failure to comply with the provisions of chs.
196 or 197, warrant the imposition of treble damages." Id. at 700, 456 N.W.2d at
354. The farm contends that it is
entitled to treble damages because a finding of wilful, wanton or reckless
conduct is not required and the record here shows failure to comply with
provisions of ch. 196, Stats. We disagree.
"Before
Peissig, a finding of [wilful, wanton, or reckless] conduct was
necessary." Beacon Bowl,
176 Wis.2d at 774, 501 N.W.2d at 801. Peissig
was decided in 1990. Because there is
no dispute that EGS was installed in 1987 in response to a suspected stray
voltage problem, we conclude that the pre-Peissig standard
applies. Because a finding of willful,
wanton or reckless conduct was required before 1990, and it is undisputed that
there is no evidence to support such a finding, the imposition of treble
damages under § 196.64, Stats.,
is not warranted.
The farm argues that we
should apply Peissig standards to pre-1990 conduct because Peissig
did not change the law but only clarified the law. We are bound by supreme court
precedent. State v. Lossman,
118 Wis.2d 526, 533, 348 N.W.2d 159, 163 (1984). Beacon Bowl expressly states that before Peissig,
a finding of wilful, wanton or reckless conduct was required. Beacon Bowl, 176 Wis.2d at
774, 501 N.W.2d at 801. Consequently,
we conclude that absent any showing of such conduct, § 196.64, Stats., treble damages are not
warranted.[14]
By
the Court.—Judgment
affirmed. No costs on appeal.
This
opinion will not be published. Rule 809.23(1)(b)5, Stats.
[1] "Stray
voltage" has been described as neutral to earth voltage, a phenomenon
present in all active distribution systems, that can come from a variety of
sources both on and off the farm. In
unreasonably high amounts flowing along paths that conduct electricity, such as
metal and water, it becomes harmful. Kolpin
v. Pioneer Power & Light Co., 162 Wis.2d 1, 10, 469 N.W.2d 595, 598
(1991). The farm's expert witness,
Gerald Bodman, testified that one milliamp of current has an adverse effect on
the majority of cows and that one milliamp of current is the equivalent of .5
volts.
[2] Because we
affirm the judgment, we need not address the farm's additional arguments on
cross-appeal raising the issues of negligence per se, strict liability,
nuisance and trespass. Cf. Gross
v. Hoffman, 227 Wis. 296, 300, 277 N.W. 663, 665 (1938) (court need
only address dispositive issues).
[3] However, the
court ruled that there was no violation of Wis.
Admin. Code §§ PSC 113.25 or 113.26.
[4] "The duty
of any person is the obligation of due care to refrain from any act which will
cause foreseeable harm to others" although the nature of the harm, and the
identity of the person or interest harmed is unknown at the time of the
act. Johnson v. Misericordia
Comm. Hosp., 99 Wis.2d 708, 723, 301 N.W.2d 156, 164 (1981) (citation
omitted).
[5] NSP also argues
that equitable estoppel requires dismissal.
It fails to identify in what part of the record it raised the defense of
equitable estoppel. The portion of the
trial transcript that it identifies merely discussed nuisance and laches. Consequently, we decline to address this
argument. See Keplin v. Hardware
Mut. Cas. Co., 24 Wis.2d 319, 324, 129 N.W.2d 321, 324 (1964).
[6] Objections to
Wisconsin's general relevancy test approach have been articulated in the
past. See Craig A. Kubiak,
Comments, Scientific Evidence in Wisconsin:
Using Reliability to Regulate Expert Testimony, 74 Marq. L. Rev. 261 (1991); Daniel
Blinka, Scientific Evidence in Wisconsin after Daubert, 66 Wis. Law. 10 (Nov. 1993).
[7] Without citation
to legal authority, NSP argues: "The standard for changing an answer in
the verdict is lesser than for granting judgment notwithstanding the
verdict." NSP misstates the
law. The standards are qualitatively,
not quantitatively, different. See
Kolpin v. Pioneer Power & Light Co., 162 Wis.2d 1, 28-29, 469
N.W.2d 595, 606 (1991).
[8] Contrary to
NSP's assertions, Behr testified that he took into account the tornado, the
effects of Johne's disease and the cost of feed, as well as the Danzingers'
farm finances and management. Behr's
report broke down the losses for milk on a year-by-year basis. On cross, Behr was asked:
Q And you have calculated from a thousand
pounds and so on the difference it would make per animal in the cost of doing
the feed and so on to indicate what the difference would be relatively between
production at say 14,000 and 20,000, correct?
A That is correct.
He further answered on cross that he had taken into account the tornado
damage: "I have determined that my
damage figure attributable to the stray voltage is consistent with whatever
damage may have existed from the storm, and there certainly was some. ...
[M]y damage figures attributable to stray voltage acknowledge the fact
that the Johne's existed ...."
The
cause question. It's asked whether
there was a causal connection between the negligence of any person or party and
the damages. These questions do not ask
about the cause, but rather, a cause.
The reason for this is that there may be more than one cause of
damages. The negligence of one person
or one party may cause damages or the combined negligence of two or more
persons or parties may cause it. Before
you can find that a person's negligence was a cause of the damages, you must
find that his or its negligence was a substantial factor in producing the
damages.
[10] The verdict
asked the following questions with respect to negligence and causation:
1. Was NSP,
through its employees and agents, negligent in the distribution of electricity
to the plaintiffs?
2. If you have
answered Question 1, "yes", then answer this question:
Did that
negligence cause harmful levels of neutral to earth (stray) voltage to contact
plaintiffs' dairy herd?
3. If you
answered Question 2, "yes", then answer this question:
Was that
negligence a cause of damage to the plaintiffs' dairy operation?
The jury answered the
three questions in the affirmative. The
verdict then inquired as to the plaintiffs' negligence, to which the jury
answered in the negative.
[11] NSP also argues
that for a variety of reasons, including trial court error, (3) the jury's
conclusions were contrary to the great weight and clear preponderance of the
evidence and (4) damages are excessive.
We have already addressed these issues and do not repeat the discussion
here.
[12] Although the
matter was submitted to the jury on the basis of common law negligence, and the
jury was not instructed with respect to code requirements, NSP contends that it
was prejudiced by the court's ruling.
Winter testified that NSP's failure to have a minimum of nine grounds
per mile on its distribution line was a contributor of the injurious
voltages. He also testified that had
there been more grounds according to the Wisconsin code, the voltage would have
been less, and the current through the cows would have been less. The farm offered into the record the court's
order that there should be nine grounds per circuit mile.