Kuper v. Lincoln-Union Elec. Co.

• Decision Date: 31 December 1996
• Docket Number: LINCOLN-UNION,No. 19334,19334
• Citation: 1996 SD 145,557 N.W.2d 748
• Parties: Douglas L. KUPER and Peggy D. Kuper, Plaintiffs and Appellees, v.ELECTRIC COMPANY, Defendant and Appellant, v. Alvin BOSSMAN, d/b/a Bossman Electric, Defendant.
• Court: South Dakota Supreme Court

Page 748

557 N.W.2d 748

1996 SD 145

Douglas L. KUPER and Peggy D. Kuper, Plaintiffs and Appellees, v. LINCOLN-UNION ELECTRIC COMPANY, Defendant and Appellant, v. Alvin BOSSMAN, d/b/a Bossman Electric, Defendant.

No. 19334.

Supreme Court of South Dakota.

Argued May 21, 1996.

Decided Dec. 31, 1996.

Michael J. Schaffer and Sandra K. Hoglund of Davenport, Evans, Hurwitz & Smith, Sioux Falls, for plaintiffs and appellees.

Thomas G. Fritz, R. Alan Peterson and Mary A. Gubbrud of Lynn, Jackson, Shultz & Lebrun, Rapid City, and Charles R. Kennedy of Kennedy and Nervig, Wadena, MN, for defendant and appellant Lincoln-Union Electric.

AMUNDSON, Justice.

¶1 AMUNDSON, J., delivers the majority opinion of the Court on the jury instructions regarding the standard of care required for an energy distributor, preclusion of witness testimony, jury instructions concerning circumstantial evidence, and sufficiency of the evidence, Issues I, II, IV, and V.

¶2 KONENKAMP, J., delivers the majority opinion of the Court on submission of the case to the jury on the theory of nuisance, Issue III.

¶3 AMUNDSON, J., writing the majority opinion as to the standard of care required for an energy distributor, preclusion of witness testimony, jury instruction concerning circumstantial evidence, and sufficiency of the evidence, Issues I, II, IV, and V.

¶4 Lincoln-Union Electric Company (L-U) appeals the jury verdict of $575,283.59 in damages awarded to Douglas L. and Peggy D. Kuper (Kuper). We reverse and remand for a new trial.

FACTS AND PROCEDURAL HISTORY

¶5 L-U is a rural electric, nonprofit cooperative, existing under SDCL ch 47-21, to supply electrical power to members in Lincoln, Union, Minnehaha, Turner, and Clay Counties. L-U purchases its electricity from East River Electric Power, which supplies power to a facility known as the Davis substation. The line carrying the electricity from the substation to the individual farm transformer is at 7,200 volts. The electricity L-U distributes to the farms is reduced at each farm transformer to between 120 and 240 volts and is then delivered to the house and farm buildings. Once the electrical power passes through the meter on the farmstead, the electricity belongs to, and is the responsibility of, the customer.

¶6 The portion of the system from the substation to the meter pole or individual transformer is known as the primary side, which is the responsibility of L-U. Everything past the meter pole or individual transformer is called the secondary side, which is the responsibility of Kuper. The electricity must make a complete circuit from the substation to Kuper's farm and back to the substation. On both the primary and the secondary sides of the system, a neutral wire accompanies the "hot" wire. The neutral wire is intended to be the primary path for the current to return to the transformer and the substation. For safety, the electrical wires must be grounded. (This is required by the National Electric Safety Code (NESC), which is the code governing a utility's construction and maintenance.) South Dakota has codified the NESC standards at SDCL 47-21-75. The ground rod is a steel rod driven into the soil. A wire called a "down ground" is attached to the primary neutral and the ground rod. This results in current flowing into the earth. Part of the current stays on the neutral wire and returns to the substation. Another part of the current returning to the substation on the neutral wire will travel down a ground wire into the earth and uses the earth to return to the substation. Once into the earth, the current follows an infinite number of pathways back to the substation to complete the circuit. This is known as "ground current."

¶7 Kuper began dairy farming in 1985 near Lennox, South Dakota. The dairy cows are machine-milked in a dairy barn. In March 1985, after three to four weeks of milking, Kuper noticed that one of the heifers began kicking and stomping like it was getting a shock. Kuper contacted an electrician, Alvin Bossman (Bossman), to investigate. It was at this time that Kuper learned that stray voltage ¹ could be a factor causing the cow to react. On March 18, 1985, Kuper notified L-U, which was their electricity cooperative, that 1.3 volts of stray voltage had appeared between the dairy barn's floor and the steel milk pipeline. This exceeds the electrical industry average and L-U's stated policy maximum of .5 volts.

¶8 About six months later, Kuper noticed strange and nervous behavior in more cattle. In addition, the herd began to experience severe problems with mastitis. ² Kuper's veterinarian examined the herd, their eating habits and living conditions, and could not find a cause for the affliction. Other stray voltage symptoms that arose were a reluctance to enter or exit the barn or stall, irritation or agitation, high-stepping, not eating, kicking or dancing, miscarriages of calves, abnormal tail swishing, reduced butterfat yields and decreased milk production. Kuper's veterinarian opined stray voltage was the cause of these problems. Kuper's evidence asserts stray voltage can prevent cows from going into heat and interfere with the development of an embryo after breeding. Also, stray voltage can cause mastitis because the voltage irritates the bottom of a cow's udder which prevents the udder's ability to ward off bacteria.

¶9 In May or June, 1990, Kuper again contacted L-U about the electrical problems. Numerous tests were performed by L-U employees on Kuper's farm at this time. In June, 1990, L-U installed an isolator to prevent electrical problems. ³ This device eliminated the connection between the two neutrals so there would be no path for electricity from the primary side neutral to the secondary side neutral. By the end of 1991 or the beginning of 1992, Kuper again called L-U for assistance when one of their children received a shock in the barn.

¶10 In May, 1992, Kuper experienced an electrical shock. Bossman completely rewired Kuper's dairy barn upon suggestion of one of L-U's employees. Following the rewiring of the barn, L-U performed tests for stray voltage and found no problematic levels. In June, 1992, Kuper sold their least productive cattle and bought replacement heifers. These replacement cattle also showed stray voltage symptoms. On October 23, 1992, L-U tested Kuper's farm and found no levels of concern. Problems were found in the hog house, however, which Kuper rewired in the fall of 1992. The only time L-U's testing in Kuper's barn in December 1992 would show abnormal voltage levels was when chores were performed. In the latter part of 1992 or early 1993, an L-U employee explained to Kuper how voltage can become "ground current."

¶11 At L-U's suggestion, Wes Lane (Lane), a specialist in electrical testing from Otter Tail Power Company, came to the Kuper farm in January 1993. He took measurements at various locations and found acceptable levels of voltage. After completing his investigation, Lane submitted his report to Kuper and L-U. In February, 1993, Kuper purchased dairy cows from their neighbor. There had been no known previous health problems with these cows, however, after they were moved to Kuper's barn the cows became nervous and hard to drive into the barn. One newly purchased heifer miscarried her calf. In March, 1993, Kuper purchased from L-U a meter to measure stray voltage. Kuper found measurements in the barn ranged from 7.25 volts to 10.85 volts.

¶12 During this same time, Kuper hired Gerald Bodman (Bodman), an expert in the field of stray voltage, to come to their farm and conduct tests. Bodman tested every piece of on-farm equipment and did not find sources that contributed to the stray voltage problem. Throughout the day, Bodman was unable to detect any voltage levels which were of a problematic magnitude on the farm. Shortly after 3:00 p.m. on the day of testing, Bodman noticed a recorder change showing .877 volts on a milk pipeline. He cut the primary grounding wire and noticed a voltage drop in the barn to .26 volts. Bodman did not find levels of stray voltage on the farm to be problematic, however, he did recognize symptoms of stray voltage in the dairy herd. Bodman believed that the stray voltage initially came directly from L-U's neutral conductor onto Kuper's neutral conductor then, after isolation, it came indirectly from L-U's neutral conductor through ground current. Bodman recommended that L-U: (1) not use metal to attach the conductors to a utility pole; (2) check every connection on their lines to make sure the connections were good; (3) increase the size of L-U's neutral conductor to reduce its resistance; and (4) move L-U's ground rod away from Kuper's transformer to eliminate the risk of ground current. On June 4, 1993, the ground rod for Kuper's transformer was moved. While L-U was moving this ground rod, the power was turned off to Kuper's farm. The stray voltage levels in the barn remained the same when the power to the farm was turned off.

¶13 By the time of trial, Kuper was milking only fifteen cattle because the herd had severe health problems. Before May, 1992, Kuper had only lost one cow, which died of milk fever. Between May, 1992, and the time of trial, seven of Kuper's cows died at or near the same location in the Kuper's yard. From 1988 through the time of trial, Kuper had to sell many cows due to mastitis. Kuper lost twelve to fifteen calves through miscarriages from May, 1993, until 1994. In addition, from 1992 to 1995, twenty to forty percent of Kuper's cattle did not conceive after being bred.

¶14 On September 9, 1993, Kuper commenced this action against L-U and Bossman for damages culminating from 1988 until 1995. ⁴ Portions of Lane's findings were received in evidence, but he was not called by Kuper as a witness and L-U was not allowed to depose him because the trial court found that Lane was a nontestifying expert under SDCL 15-6-26(b)(4)(B). ⁵ At the end of trial, L-U renewed...