Gumz v. Northern States Power Co.

• Decision Date: 06 December 2007
• Docket Number: No. 2005AP1424.,2005AP1424.
• Citation: 2007 WI 135,742 N.W.2d 271
• Parties: Grace GUMZ, James Gumz, Michael Gumz and Susan Gumz, Plaintiffs-Respondents-Cross-Appellants, v. NORTHERN STATES POWER COMPANY d/b/a Xcel Energy, Defendant-Appellant-Cross-Respondent-Petitioner.
• Court: Wisconsin Supreme Court

742 N.W.2d 271

2007 WI 135

Grace GUMZ, James Gumz, Michael Gumz and Susan Gumz, Plaintiffs-Respondents-Cross-Appellants, v. NORTHERN STATES POWER COMPANY d/b/a Xcel Energy, Defendant-Appellant-Cross-Respondent-Petitioner.

No. 2005AP1424.

Supreme Court of Wisconsin.

Argued September 11, 2007.

Decided December 6, 2007.

For the defendant-appellant-cross-respondent-petitioner there were briefs by Michael J. Happe, J. Drew Ryberg, and Ryberg & Happe, S.C., Eau Claire, and Jordan J. Hemaidan, John D. Wilson, and Michael Best & Friedrich LLP, Madison, and oral argument by J. Drew Ryberg.

For the plaintiffs-respondents-cross appellants there was a brief by Scott Lawrence

and Lawrence & Des Rochers, S.C., St. Nazianz and Gregory J. Cook and Greg Cook Law Offices S.C., Milwaukee, and Kasdorf, Lewis & Swietlik, S.C., Milwaukee, and oral argument by Scott Lawrence.

An amicus curiae brief was filed by Trevor J. Will, G. Michael Halfenger, and Foley & Lardner LLP, Milwaukee on behalf of Wisconsin Public Service Corporation.

An amicus curiae brief was filed by Lynn R. Laufenberg and Laufenberg & Hoefle, Milwaukee, and William C. Gleisner, III, Milwaukee on behalf of Wisconsin Academy of Trial Lawyers.

An amicus curiae brief was filed by O. Thomas Armstrong, William P. Croke, and von Briesen & Roper, S.C., Milwaukee on behalf of Wisconsin Electric Power Company.

An amicus curiae brief was filed by H. Dale Peterson, John J. Laubmeier, and Stroud, Willink & Howard, LLC, Madison on behalf of Wisconsin Farm Bureau Federation, Cooperative.

¶ 1 ANN WALSH BRADLEY, J

The petitioner, Northern States Power Company ("Northern States"), seeks review of a published court of appeals decision affirming a judgment of the circuit court for Marathon County entered in favor of James, Grace, Michael, and Susan Gumz.¹ In this private nuisance action based on negligence, the Gumzs alleged that stray voltage from Northern States' distribution system caused damage to their dairy herd and also resulted in an invasion of and interference with the use and enjoyment of their property. After a jury trial, the circuit court entered judgment in favor of the Gumzs for damages in the amount awarded by the jury.

¶ 2 Northern States contends that the circuit court erred in the formulation of the special verdict. It asserts that the circuit court erroneously (1) failed to include a special verdict question asking whether the Gumzs commenced their lawsuit within the statute of limitations; (2) declined to give a special verdict question regarding whether the Gumzs were contributorily negligent in the management of their farm; and (3) refused to limit the damages only to those that occurred after Northern States had notice that stray voltage was harming the Gumzs' cows.

¶ 3 We conclude that the circuit court did not erroneously exercise its discretion in the formulation of the special verdict. Following precedent, we determine that the circuit court did not err in failing to include in the special verdict a question addressing the statute of limitations. Based on the facts of this case, the circuit court correctly concluded as a matter of law that the Gumzs' action was not time barred because they had exercised reasonable diligence in discovering that stray voltage from Northern States' distribution system was a cause of damages to their herd.

¶ 4 We also determine that the circuit court did not err in declining to give Northern States' proposed special verdict question regarding whether the Gumzs were contributorily negligent in the management of their farm. Finally, we determine that the circuit court appropriately allowed damages to be awarded for the period before Northern States had notice that stray voltage from its distribution system was harming the Gumzs' cows. Accordingly we affirm the court of appeals.

I

¶ 5 In 1981 James and Michael Gumz purchased a dairy farm from their parents, who had farmed at the location for many years. Northern States owns the electrical distribution system that serves the Gumzs' farm. Approximately the last mile of Northern States' distribution line to the farm consists of the original Copperweld conductor wire installed in 1937.

¶ 6 Around 1991, the Gumzs began to notice behavioral and physical problems with their herd. The cows showed signs of increased aggravation, "jumping" and "stepping around" during milking. The problem got worse over the next three years. The cows stopped drinking normally and appeared hesitant to drink out of their drinking cups. They exhibited nervous tail twitching and "dancing" (lifting their feet off the ground) during milking. The herd did not breed successfully enough to maintain its size, and milk production suffered.

¶ 7 In 1992 the Gumzs consulted their herd nutritionist, Dwight Tolk, regarding the health of their cows. Tolk observed that the cows did not come to the barn easily, walked stiff-legged, were thin, seemed sluggish, and did not lay down much. He monitored their behavior and worked with their nutrition. By approximately the summer of 1993 Tolk had ruled out the possibility that the problems were due to nutrition. Instead he believed that some "outside phenomenon . . . was causing the cows to be stressed and uncomfortable." He suggested to the Gumzs that the problem was due to stray voltage.

¶ 8 From 1994 through 1996 the Gumzs continued to work to improve the health of their herd. In the fall of 1994, the Gumzs began using Dr. Theresa Peterson as their primary herd veterinarian. Dr. Peterson testified that she was aware of some of the behavioral and health problems in cows that can result from exposure to stray voltage. However, she recommended that the Gumzs engage in a process of elimination of other causes before initiating testing for stray voltage. She testified that "I try to rule other things out before I get to the point of thinking about requesting electrical testing."

¶ 9 Around the same time they hired Dr. Peterson, the Gumzs also sought help for the herd's problems by hiring Rick Guralski to be the nutritionist for their milk cows. Tolk continued to work with the Gumzs' heifers.

¶ 10 Consistent with suggestions, the Gumzs tried to address the problems by changing their farming practices. They changed milking equipment, installing automatic take-off devices for their milking machines. The Gumzs also tried using different feeds and feed mills. In 1994, they switched to a new total mixed ration system designed to improve their feeding methods. An electrician who wired the barn addition for the ration system also checked the farm's wiring at that time. He determined that it was in good condition.

¶ 11 Despite these efforts the herd continued to deteriorate. At trial, Dr. Peterson testified that in late 1995 and 1996 she observed numerous health problems, including poor body condition, feet and leg problems, infections and mastitis, pneumonia, and weakened immune systems.

The cows had poor body condition, a lot of feet and leg problems. They started to look crippled. They had problems getting up, walked very slow, were lame, limping around. A lot of infections started, like mastitis outbreaks, . . . where the cow would become physically sick, and, without treatment, would go down and die. There was quite a bit of pneumonias at that time. A few uterine infections or nutritis cases. So their immune systems were becoming weakened.

In addition, she observed that there were numerous abortions and the herd had a poor fertility rate.

¶ 12 Dr. Peterson further testified that the problems with the Gumzs' herd were more difficult to alleviate than in other herds, and recently purchased animals that were healthy and vaccinated would get sick when they came to the Gumzs' farm. She ordered testing on blood and tissue but was still unable to isolate a particular disease causing the herd's problems.

¶ 13 In early 1996, after eliminating other potential causes, Dr. Peterson suggested to James Gumz that the farm be tested for stray voltage. On May 6, 1996, Dr. Peterson wrote a letter to Northern States listing the herd's health problems and stating her opinion that the problems were due to stray voltage.

¶ 14 Later in May 1996, she prepared a report detailing the herd's health problems and her efforts to determine the cause of those problems. She described the management practices at the Gumzs' dairy farm as "above average," and stated that those practices "should allow a herd to remain healthy, produce quality milk, and have good production records." Ultimately Dr. Peterson concluded that the problems were not due to poor management, nutrition, or a specific disease. Rather, she stated that the poor health and performance of the herd were due to stray voltage and recommended that the farm be tested.

¶ 15 Consistent with Dr. Peterson's suggestion, the Gumzs had their farm checked for stray voltage by Northern States on May 7, 1996, and by an independent electrician, John Ritchie, on May 14, 1996. Northern States' tests showed that the "cow contact voltage" was below the "level of concern." Using different testing equipment, Ritchie found much higher levels of voltage flowing onto the farm and determined that it was coming from off-farm.

¶ 16 Upon Ritchie's recommendation, the Gumzs installed an isolation transformer. After installing the device, the herd improved. Fewer animals died, the herd's food consumption improved, and the overall herd health increased.

¶ 17 In 1998 and 1999, the herd's health began to decline again. The Gumzs again asked Northern States to test for stray voltage, and again Northern States did not find voltage over the level of concern. They then hired another independent electrician, David Stetzer. Stetzer provided the Gumzs with equipment that monitored voltage on the barn floor. Measurements taken with that equipment indicated that as voltage decreased, milk production increased, and as voltage increased, milk production...