Grube v. Daun, 95-2353

• Decision Date: 13 June 1997
• Docket Number: No. 95-2353,95-2353
• Parties: Gordon J. GRUBE and Julie Grube, Plaintiffs-Appellants, d v. John L. DAUN, Louis Achter and Secura Insurance, Defendants-Respondents.
• Court: Wisconsin Supreme Court

Page 523

563 N.W.2d 523

210 Wis.2d 681

Gordon J. GRUBE and Julie Grube, Plaintiffs-Appellants, ^d v. John L. DAUN, Louis Achter and Secura Insurance Defendants-Respondents.

No. 95-2353.

Supreme Court of Wisconsin.

Argued April 9, 1997.

Decided June 13, 1997.

For the plaintiffs-appellants there were briefs by Robert W. Lutz, Gary Jahn and Lutz, Burnett, McDermott, Jahn & King, Chilton and oral argument by Robert W. Lutz.

For the defendant-respondent, John L. Daun, there was a brief by William F. Fale and Fale, Fale & Hemsing Law Offices, Sheboygan and oral argument by William F. Fale.

For the defendant-respondent, Louis Achter, there was a brief by Michael S. Siddall, Richard T. Elrod and Herrling, Clark, Hartzheim & Siddall, Ltd., Appleton and oral argument by Michael S. Siddall.

For the defendant-respondent, Secura Insurance Company, there was a brief by Ronald G. Pezze, Jr. And Peterson, Johnson & Murray, S.C., Milwaukee and oral argument by Ronald G. Pezze, Jr.

Amicus curiae brief was filed by John M. Van Lieshout, Colleen D. Ball, and Reinhart, Boerner, Van Deuren, Norris & Rieselbach, S.C., Milwaukee for the Firstar Corporation.

Amicus curiae was filed by Susan R. Tyndall and Hinshaw & Culbertson, Milwaukee for the Civil Trial counsel of Wisconsin.

Amicus curiae brief was filed by Lawrence E. Classen, Madison for the Wisconsin's Environmental Decade, Inc.

¶1 JON P. WILCOX, Justice

This case is on certification from the court of appeals following a jury trial in the Circuit Court for Calumet County, Eugene F. McEssey, Reserve Judge. Gordon and Julie Grube brought suit against the defendants, John Daun, Louis Achter, and Secura Insurance, for misrepresentation and negligence. The circuit court did not allow the Grubes to introduce evidence regarding Achter's alleged violation of Wis.Stat. § 144.76. The jury found that the defendants were not negligent, but did not consider the misrepresentation claims. We affirm the judgment of the circuit court.

¶2 We accepted two issues from the court of appeals on certification: (1) whether Subchapter IV of Chapter 144 of the Wisconsin Statutes creates a private cause of action for individuals who suffer damages from hazardous substance discharges, and (2) whether Wis.Stat. § 144.76 is a safety statute, violation of which is negligence per se. ¹ We hold that Subchapter IV of Chapter 144 does not create a private right of action and that Wis.Stat. § 144.76 is not a safety statute.

¶3 The relevant facts are not in dispute. In 1974, Louis Achter bought a farm in Calumet County from his father. While either Achter or his father owned the property, an underground storage tank was installed to store gasoline for the farm. In 1978, Achter noticed that the underground storage tank was leaking. He had the remaining gasoline pumped out and did not use the tank again. Achter did not notify the Department of Natural Resources (DNR) of the leak.

¶4 In 1984, Achter sold his farm to John Daun. Daun subdivided the land to create a parcel that consisted of a farmhouse, outbuildings and three acres. Daun then offered the parcel with the farmhouse for sale. This land, which included the underground storage tank, was purchased by Gordon and Julie Grube.

¶5 About three years after moving onto the property, the Grubes became aware of gasoline contamination while working on a well. They reported the contamination to the DNR and were informed that, as the current owners of the property, they were responsible for taking remedial action.

¶6 In December of 1988, the Grubes filed suit against Daun, and later added Achter and his insurance carrier, Secura, as additional defendants. The Grubes alleged negligent misrepresentation, breach of warranties, negligence by Achter in allowing the leak, negligence by Achter in failing to inform anyone of the leak, breach by Achter of his duty to keep the land environmentally safe for others, and strict liability for Achter's abnormally dangerous actions. Daun filed a cross-claim against Achter. Achter filed a third-party complaint against Secura demanding that he be provided with both a defense and insurance coverage under his farmowners policy. The defendants filed motions for summary judgment, and the circuit court dismissed a number of the Grubes' claims. The Grubes appealed that decision, and the court of appeals reversed in part the decision of the circuit court, reinstating some of the Grubes' claims. See Grube v. Daun, 173 Wis.2d 30, 496 N.W.2d 106 (Ct.App.1992). A petition for review was denied by this court.

¶7 The case was tried to a jury in March of 1995. The Grubes sought to introduce evidence concerning the Achter's alleged violation of Wis.Stat. §§ 144.76(2) and (3) (1993-94). ² Those sections provided in relevant part:

(2) NOTICE OF DISCHARGE. (a) A person who possesses or controls a hazardous substance or who causes the discharge of a hazardous substance shall notify the department ³ immediately of any discharge not exempted under sub. (9).

(b) Notification received under this section or information obtained in a notification received under this section may not be used against the person making such a notification in any criminal proceedings.

(c) The department shall designate a 24-hour statewide toll free or collect telephone number whereby notice of any hazardous discharge may be made.

. . . . .

(3) RESPONSIBILITY. A person who possesses or controls a hazardous substance which is discharged or who causes the discharge of a hazardous substance shall take the actions necessary to restore the environment to the extent practicable and minimize the harmful effects from the discharge to the air, lands or waters of this state. ⁴

The Grubes asked the circuit court to hold that § 144.76 was a safety statute and that Achter's alleged violation of the statute constituted negligence as a matter of law. The circuit court held that the Grubes could not use § 144.76 as a standard of care and prohibited the Grubes from questioning witnesses about § 144.76. The court also refused to instruct the jury as to Achter's alleged violation of the statute and refused to give a that the special verdict question on Achter's violation. The jury found defendants were not negligent.

¶8 Although the Grubes have been identified by the DNR as a potentially responsible party, they have not yet been required to remediate the property or to incur any expenses. In addition, Achter has been notified in a letter from the DNR that he is responsible for remediation. The letter further requested that Achter retain an environmental consultant to conduct an investigation.

I.

¶9 The first issue we consider is whether Subchapter IV of Chapter 144 creates a private cause of action for individuals who suffer damages from hazardous substance spills. Our resolution of this issue is dependent on our interpretation of Chapter 144. Issues involving statutory interpretation are questions of law that this court reviews de novo. Wagner Mobil, Inc. v. City of Madison, 190 Wis.2d 585, 591-92, 527 N.W.2d 301 (1995); Braatz v. LIRC, 174 Wis.2d 286, 293, 496 N.W.2d 597 (1993). Accordingly, we owe no deference to the decision of the circuit court. Colby v. Columbia County, 202 Wis.2d 342, 349, 550 N.W.2d 124 (1996).

¶10 The respondents assert that the language of Wis. Stat. § 144.76 and the structure of Chapter 144 lack the legislative intent necessary to create a private right of action. They contend that the court of appeals' case of Fortier v. Flambeau Plastics Co., 164 Wis.2d 639, 476 N.W.2d 593 (Ct.App.1991), supports their position. The Grubes maintain that Fortier is not relevant to our determination because that case concerned different sections of Chapter 144 than those at issue here. The Grubes further argue that Subchapter IV implicitly creates a private right of action.

¶11 We first consider whether the court of appeals' decision in Fortier is applicable to our decision. In Fortier, the court of appeals concluded that Wis. Stat. §§ 144.43 and 144.44 did not create a private right of action. Pursuant to these sections of Chapter 144, the DNR had adopted an administrative rule regulating the disposal of hazardous waste at landfills. The defendants violated that disposal rule by disposing of hazardous waste at an unlicensed landfill. The court held that the statutes in question did not create a private right of action because they did not contain an expression of legislative intention to do so: "We infer from these provisions that the legislature intended that the violation of the DNR's solid waste disposal regulations is a public rather than a private wrong." Fortier, 164 Wis.2d at 661, 476 N.W.2d 593. Although the court of appeals' holding is pertinent to this case, as it dealt with different sections of Chapter 144 we must independently determine whether Subchapter IV of Chapter 144 creates a private right of action.

¶12 A determination of whether a statute creates a private right of action is dependent on whether there is a clear indication of the legislature's intent to create such a right. Kranzush, 103 Wis.2d at 79-80, 307 N.W.2d 256 ("the touchstone in the determination of [whether a private right of action is created] is the presence of an expression of legislative intent specifically to create such a right ..."); McNeill, 55 Wis.2d at 258, 198 N.W.2d 611. In McNeill we stated:

The legislative intent to grant or withhold a private right of action for the violation of a statute, or the failure to perform a statutory duty, is determined primarily from the form or language of the statute. The nature of the evil sought to be remedied, and the purpose it was intended to accomplish, may also be taken into consideration. In this respect, the general rule is that a statute which does not purport to establish a civil liability, but merely makes provision to secure the safety or welfare of the public as an entity, is not subject to a construction...