D.S. Farms v. Northern States Power Co.
| Decision Date | 29 August 1995 |
| Docket Number | No. 94-1981,94-1981 |
| Citation | 196 Wis.2d 645,539 N.W.2d 336 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. 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. |
| Court | Wisconsin Court of Appeals |
Before CANE, P.J., and LaROCQUE and MYSE, JJ.
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.
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.
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.
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.
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...
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