Kolpin v. Pioneer Power & Light Co., Inc.

• Decision Date: 25 January 1990
• Docket Number: No. 88-2076,88-2076
• Citation: 453 N.W.2d 214,154 Wis.2d 487
• Parties: , Prod.Liab.Rep. (CCH) P 12,415 Brad KOLPIN, and Virginia Kolpin, Plaintiffs-Respondents-Cross Appellants, d v. PIONEER POWER & LIGHT COMPANY, INC., Defendant-Appellant-Cross Respondent. . Orally
• Court: Wisconsin Court of Appeals

Page 214

453 N.W.2d 214

154 Wis.2d 487, Prod.Liab.Rep. (CCH) P 12,415

Brad KOLPIN, and Virginia Kolpin, Plaintiffs-Respondents-Cross Appellants, d v. PIONEER POWER & LIGHT COMPANY, INC.,

Defendant-Appellant-Cross Respondent.

No. 88-2076.

Court of Appeals of Wisconsin.

Orally Argued Sept. 26, 1989.

Opinion Released Jan. 25, 1990.

Opinion Filed Jan. 25, 1990.

Lindsay G. Arthur, Jr. (argued), of Arthur, Chapman & McDonough, P.A., Minneapolis, Minn., for defendant-appellant-cross respondent.

William J. Corrigan (argued), of Menn, Nelson, Sharratt, Teetaert & Beisenstein, Ltd., Appleton, for plaintiffs-respondents-cross appellants.

Before EICH, C.J., GARTZKE, P.J., and DYKMAN, J.

EICH, Chief Judge.

Pioneer Power and Light Company, Inc., appeals from a judgment upholding a jury verdict awarding Brad and Virginia Kolpin $133,326.90 for damage to their dairy herd caused by stray electrical voltage. The case was submitted on three theories of liability--negligence, strict liability in tort and nuisance--and the jury found in the Kolpins' favor on all three. Because there was a statute of limitations issue in the case the jury was also asked to determine whether the Kolpins discovered their cause of action against Pioneer more than six years before commencing suit. The jury answered the question in the affirmative but the trial court, concluding that Pioneer's negligence was "continuing," ruled that the action was not barred and upheld the jury's verdict. The Kolpins cross-appeal from the judgment insofar as it upholds that portion of the verdict dealing with their "discovery" of the cause of action.

We disagree with the trial court's ruling that the Kolpins' negligence claim was not time-barred. There is evidence to support the jury's determination of the time of discovery of the cause of action and because the Kolpins did not commence action within six years thereafter, their negligence claim is barred by sec. 893.52, Stats., which requires actions for damage to real or personal property to be brought within six years "after the cause of action accrues." As for the strict liability and nuisance claims, we hold that it was error to submit the former claim to the jury and we consider the Kolpins' failure to respond to Pioneer's arguments on nuisance as abandoning that theory of recovery. We therefore reverse the judgment.

The Kolpins are dairy farmers. In March, 1977, shortly after they moved their herd to a new milking parlor, the Kolpins began to notice unusual behavior patterns, a high incidence of mastitis among the cows and milk production declined.

The problems continued and in late 1979 or early 1980, after Brad Kolpin read an article in a farm magazine about stray voltage and its possible harmful effects on dairy cows, he purchased a volt meter and began taking measurements. He also asked an electrician to come to the farm to test for stray voltage in the milking parlor.

In the spring of 1980 Kolpin contacted Pioneer about the problems he was experiencing and the utility sent an employee and a Public Service Commission engineer to the farm to take voltage measurements. Shortly thereafter, Pioneer placed twenty additional grounding rods on the distribution line servicing the Kolpins' farm. After the rods were installed there was an immediate decrease in the measured voltage in the parlor. Although Kolpin continued to experience difficulties with his cows, he never contacted Pioneer again until he brought this suit in 1987.

The Kolpins sued on three theories--negligence, strict liability and nuisance--and, as indicated, the jury found in their favor on all three. The jury also found, however, that the Kolpins discovered their cause of action more than six years before bringing suit and, based on that finding, Pioneer moved for judgment notwithstanding the verdict dismissing the action as time-barred under sec. 893.52, Stats. The trial court denied the motion holding that the "continuum of negligence rule" applied and, as a result, the statute of limitations did not begin to run when the Kolpins discovered their cause of action but was, in effect, tolled as long as there was any stray voltage in the area of the milking parlor.

Construction and application of statutes of limitation involve questions of law which we review independently, without deference to the trial court. Esser Distributing Co. v. Steidl, 145 Wis.2d 160, 164, 426 N.W.2d 62, 64 (Ct.App.1988), aff'd, 149 Wis.2d 64, 437 N.W.2d 884 (1989).

In Hansen v. A.H. Robins, Inc., 113 Wis.2d 550, 335 N.W.2d 578 (1983), the supreme court adopted the "discovery rule" for determining accrual of tort claims within the meaning of applicable statutes of limitation. The court, overruling earlier cases holding that such claims accrue at the time of the negligent act or injury, held that all tort actions "shall accrue on the date the injury is discovered or with reasonable diligence should be discovered, whichever occurs first." Id. at 560, 335 N.W.2d at 583.

While we have not had the opportunity to decide whether the discovery rule applies to stray voltage cases, we recently gave our tacit approval to its use in such a case. In Ford Farms v. Wis. Elec. Power Co., 145 Wis.2d 650, 430 N.W.2d 94 (Ct.App.1988), a dairy farmer sued a power company alleging that the company allowed stray voltage to damage cows on his farm. Noting that there was no dispute "that the discovery rule applies," we remanded the case to the trial court to determine when the farmer discovered the cause of action. Id. at 658-59, 430 N.W.2d at 97.

The Kolpins argue that the discovery rule is inapplicable--that stray voltage cases should be governed by the "continuous negligence" rule first articulated by the supreme court in Tamminen v. Aetna Casualty & Surety Co., 109 Wis.2d 536, 327 N.W.2d 55 (1982). Tamminen was a medical malpractice case in which the court held that "where there is a continuum of negligent medical care related to a single condition occasioned by negligence," there is a single cause of action which "is not complete until the last date on which the malpractice occurred." Id. at 556, 559, 327 N.W.2d at 64-65. Thus, "[i]f an action is timely brought in relationship to that last date, the entire cause of action is ... timely." Id. at 559, 327 N.W.2d at 65-66.

The trial court applied the Tamminen rule, apparently concluding that the stray voltage constituted a continuous course of negligent conduct on Pioneer's part which, according to the Kolpins, did not cease until 1983 when they finally installed an electronic grounding system. We disagree. We believe the continuous negligence rule is limited to cases involving negligent medical treatment.

Prosser, characterizing the rule as one of "a series of transparent devices [designed] to get around the [old] rule[s]" in malpractice cases, described its underlying purpose as relieving victims of medical malpractice from the "hardship" caused by imposing a strict rule of limitation in such cases where, because of the nature of the claim, "the statute ... run[s] before the plaintiff discovers that he [or she] has suffered any injury at all." W. Prosser, The Law of Torts, 144 (4th ed. 1971).

Other commentators have observed that the continuous negligence rule has many practical justifications, including: (1) encouraging strong physician-patient relationships; (2) not punishing a patient for relying upon a physician's skill, judgment and advice; and (3) recognizing that a patient should not be forced to litigate against his or her physician while still under the physician's care. Reeves and Hirsh, For Whom the Bell Tolls: The Statute of Limitations and Medical Malpractice, 32 Medical Trial Techniques Quarterly 414, 424 (1986).

The Kolpins' principal argument is that Tamminen should not be restricted to medical malpractice actions because in that case the "court cited several nonmedical cases in support of its holding," notably Ewing v. General Motors Corp., 70 Wis.2d 962, 236 N.W.2d 200 (1975); Milwaukee County v. Schmidt, Garden & Erikson, 43 Wis.2d 445, 168 N.W.2d 559 (1969); and Oosterwyk v. Bucholtz, 250 Wis. 521, 27 N.W.2d 361 (1947). We are not persuaded.

Ewing, a strict liability automobile accident case, was mentioned by the Tamminen court not as authority for adoption of the rule but simply as an illustration of a "similar approach" used in cases defining the term "cause of action" where the claim is misjoinder of issues and the initial question is "whether a complaint states more than one cause of action...." Tamminen, 109 Wis.2d at 556-57, 327 N.W.2d at 64. The other two cases were also cited for comparison purposes--to illustrate that the continuous negligence rule being adopted by the court was "also consistent with" the holding in Oosterwyk (that a claim for false imprisonment accrues when the imprisonment terminates) and with dicta in Milwaukee County (stating that a claim for negligent supervision of construction could be maintained if any negligent acts occurred within six years prior to the filing of the action). Tamminen, 109 Wis.2d at 557, 327 N.W.2d at 65.

Tamminen was itself a medical malpractice case and the court's opinion indicates quite clearly, we believe, that in formulating and adopting the continuous negligence rule it placed specific and principal reliance on "the rationale" of three medical malpractice cases--one from Oregon and two from Virginia. ¹ Tamminen, 109 Wis.2d at 556, 327 N.W.2d at 64. After discussing those cases, the court concluded: "We hold that the statute of limitations for a course of negligent medical treatment accrues at the time of the last act of negligence that was a part of a continuum of malpractice, and that in the circumstances stated here there is but a single cause of action that encompasses the entire course of malpractice, and suit was timely brought." Id. at 563, 327 N.W.2d at 67 (emphasis added).

Finally, we note that in a later case the supreme...