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

• Citation: 469 N.W.2d 595,162 Wis.2d 1
• Decision Date: 21 May 1991
• Docket Number: No. 88-2076,88-2076
• Parties: Brad KOLPIN and Virginia Kolpin, Plaintiffs-Respondents-Cross Appellants-Petitioners, v. PIONEER POWER & LIGHT COMPANY, INC., Defendant-Appellant-Cross Respondent.
• Court: United States State Supreme Court of Wisconsin

Page 595

469 N.W.2d 595

162 Wis.2d 1

Brad KOLPIN and Virginia Kolpin Plaintiffs-Respondents-Cross Appellants-Petitioners, v. PIONEER POWER & LIGHT COMPANY, INC. Defendant-Appellant-Cross Respondent.

No. 88-2076.

Supreme Court of Wisconsin.

Argued Feb. 26, 1991.

Decided May 21, 1991.

Joseph J. Beinsenstein, argued, William J. Corrigan and Menn, Nelson, Sharratt, Teetaert & Beisenstein, Ltd., on brief, Appleton, for plaintiffs-respondents-cross appellants-petitioners.

Lindsay G. Arthur, Jr., argued, Lindsay G. Arthur, Jr. and Arthur, Chapman & McDonough, P.A., on brief Minneapolis, Minn., for defendant-appellant-cross respondent.

Marsha M. Mansfield, James W. Gardner and Lawton & Cates, S.C., Madison, amicus curiae, for WI Academy of Trial Lawyers and The Electromagnetics Research Foundation, Inc.

Terrence C. Thom, Dorothy H. Dey and Quale, Feldbruegge, Calvelli, Thom & Croke, S.C., Milwaukee, amicus curiae, for Northern States Power Co., WI Elec. Power Co., WI Public Service Corp., Superior Water, Light & Power Co., WI Power and Light Co. and WI Elec. Co-op. Ass'n DAY, Justice.

This is a review of a decision by the court of appeals. Kolpin v. Pioneer Power & Light Co., 154 Wis.2d 487, 453 N.W.2d 214 (Ct.App.1990). The majority of the court of appeals (Gartzke, P.J., dissenting) reversed a judgment in favor of Brad and Virginia Kolpin (Kolpins) against the Kolpins' electric company, Pioneer Power & Light (Pioneer) for damages to their dairy herd caused by stray voltage. Id. at 501, 453 N.W.2d 214. A jury found in favor of the Kolpins on theories of negligence, strict liability and nuisance. The jury also found that the Kolpins knew, or with the exercise of reasonable care should have known, that Pioneer's distribution system was a cause of damage to their dairy operation over six years prior to the time the Kolpins filed their complaint. The circuit court for Marquette county, the Honorable David C. Willis, presiding, ruled on motions after verdict that Pioneer's negligence was "continuing," and therefore the Kolpins' suit was not barred by the six year statute of limitations. ¹

The majority of the court of appeals upheld the jury's verdict on "discovery" of the cause of action and determined that the Kolpins' negligence claim was time-barred. Id. at 490, 453 N.W.2d 214. It also held that the circuit court erred in submitting the strict liability claim to the jury, and that the Kolpins had abandoned their nuisance claim on appeal. Id. Judge Gartzke, in his dissent, was of the opinion "that the cause of the [Kolpins'] damages was temporary," and therefore the Kolpins should have been allowed to bring successive actions against Pioneer. Id. at 502-503, 453 N.W.2d 214. Judge Gartzke stated that a new trial should be ordered under sec. 752.35, Stats., ² and the Kolpins should be able to attempt to recover damages for the six years preceding the date they commenced their action; but recovery for damages anytime prior to that was barred by the statute of limitations. Id. at 506, 453 N.W.2d 214.

The issues the Kolpins presented for review are:

(1) Are the Kolpins' claims barred by the statute of limitations?

(2) Should the jury's answer to the "discovery" question be changed as a matter of law?

(3) Are the Kolpins entitled to a new trial for the six years before they filed suit?

(4) Was the case properly submitted to the jury on the theory of strict liability? and

(5) Did the Kolpins abandon nuisance as a theory of recovery on appeal?

In addition, Pioneer, in its brief, claims that the circuit court erred in refusing to grant Pioneer a new trial, and raises the following issues:

(6) Did the circuit court err in refusing to grant judgment notwithstanding the verdict?

(7) Did the circuit court err in refusing to instruct the jury on standards for electrical companies?

(8) Did the circuit court err in refusing to give the jury a state-of-the-art instruction?

(9) Did the circuit court err in allowing one of the Kolpins' experts to testify about stray voltage on the farm between 1977 and 1983? and (10) Did the circuit court err in admitting exhibit fifty-six--notice of a meeting on stray voltage?

We conclude that under the "discovery rule," the Kolpins' claims are not time-barred, and that the jury's answer to the "discovery" question should be changed from "yes" to "no" as a matter of law.

Second, we conclude that the circuit court did not err in denying Pioneer's motion for judgment notwithstanding the verdict and did not abuse its discretion in refusing to grant Pioneer a new trial. Finally, we conclude that the Kolpins have succeeded on a theory of negligence and therefore it is unnecessary to address their strict liability and nuisance claims.

This action was filed by the Kolpins on February 17, 1987, against Pioneer for damages to their dairy herd caused by stray voltage. According to David Winter, the Kolpins' electrical expert, "neutral to earth" voltage produces voltage that strays from the area one would think it would be. It is a natural phenomenon and is present on all active distribution systems. It can come from a variety of different sources, both on and off the farm. ³ When this voltage strays in unreasonably high amounts, and flows along paths which conduct electricity, such as metal and water, it becomes dangerous.

Mr. Winter testified:

We are talking about the voltage that strays from those grounding rods to ours where we didn't expect it. That's where our term came from, and the voltage that accesses a cow, then, is considered to be stray when it accesses her when she is drinking water.... We need to know what is the voltage going to be in the water cup, the milk parlor, or at the water stands. We need to know how much voltage is going to get through and traumatize the cow.

(Transcript of Proceedings, June 16, 1988, pp. 24, 26).

[S]tray voltage is a voltage of very low level voltage that accesses the cow. In order to access that cow it changes her behavior. It makes her nervous, it make her not want to eat or drink properly, it creates--can cause a lot of stress on the cow which causes production drops, causes increased mastitis [inflammation of the udder] possible bleeding problems, causes a lot of frustration to the dairymen because he's working very hard to make his herd go in the positive direction and it's not happening.

(Transcript of Proceedings, June 14, 1988, pp. 19-20).

The Kolpins began to notice this type of behavior among their cows in March, 1977. The cows refused to enter the milking parlor; they were kicking the milkers; they were weaving, stopping, bellowing and urinating during milking; they were lapping at the waterers; and they were not eating. The Kolpins noticed that it took longer to milk their cows, and the cows would not let down their milk. They also noticed a dramatic increase in the incidence of mastitis. At this same time, electrical consumption on the farm had increased when they installed a new milking parlor.

The Kolpins, trying to remedy the problem with their cows, called their veterinarian. The veterinarian suggested they contact some experts. An equipment expert and state veterinarian thought the problem might be with equipment, but they could not find any equipment problems.

In the fall of 1979 or spring of 1980, Mr. Kolpin read an article about stray voltage in a farm magazine. The herd in the article had symptoms similar to the Kolpins' herd. The article related the symptoms to electrical problems.

Mr. Kolpin decided to purchase a voltmeter and test for voltage. After discovering voltage readings of 12-15 volts in the milking parlor, he called his electrician, Pete Matteoni, to investigate the problem and look for stray voltage. In 1980, Mr. Matteoni did his own test for voltage in the barn. He found voltage readings, but did not know what they meant. Mr. Matteoni suggested that Mr. Kolpin contact his utility company.

Mr. Kolpin contacted Pioneer, and the company sent Dennis Dahlke to the farm to take some measurements. Mr. Dahlke testified that at that time, he did not know where or how to measure for stray voltage or what any voltage readings might mean. Mr. Dahlke told Mr. Kolpin that he would call someone to find out more about the voltage readings.

A few days later, Stuart Rasmussen, of the Public Service Commission, took some voltage readings on the farm, but he did not tell Mr. Kolpin whether or not he had stray voltage. Mr. Kolpin testified:

Q. Now, did--After Mr. Rasmussen was there the first time, did he tell you one way or another whether you had any problems with stray voltage?

A. No. Mr. Rasmussen is a--well, he's a little different. He's kind of--Sometimes he comes on to you and he tells you a lot of stuff and the next time he'll clam up and won't say anything. At that particular time he was a little disturbed, maybe by these figures or these voltage levels, and he did mention some things, but they didn't make any sense to me at that particular time.

Q. Just focusing on that particular time. Did you have any idea what the levels you were measuring meant?

A. No, I didn't.

Q. Did you know whether or not that the cows were being affected by any voltage that might be in the parlor?

A. No.

(Transcript of Proceedings, June 14, 1988, pp. 26-27).

Mr. Rasmussen continued to visit the Kolpin farm until 1985. He suggested changing electrical motors and circuitry on the farm, which the Kolpins did. But the Kolpins did not notice any change in their cows or milk production.

In the spring of 1980, Pioneer made some changes in its distribution system by driving in twenty additional grounding rods on the distribution line that served the farm. After the rods were in, the voltage level in the barn dropped from fifteen volts to two volts. But Mr. Kolpin still did not notice any changes in his cows or in his milk production. He testified that Mr. Rasmussen told him maybe the problem was "on farm" or maybe the problem was "off...