Lakeland Commc'ns Grp. LLC v. Polk Cnty.

• Decision Date: 03 July 2018
• Docket Number: Appeal No. 2017AP1262
• Parties: LAKELAND COMMUNICATIONS GROUP LLC, PLAINTIFF-APPELLANT, v. POLK COUNTY, DEFENDANT-RESPONDENT.
• Court: Wisconsin Court of Appeals

LAKELAND COMMUNICATIONS GROUP LLC, PLAINTIFF-APPELLANT, v. POLK COUNTY, DEFENDANT-RESPONDENT.

Appeal No. 2017AP1262

STATE OF WISCONSIN IN COURT OF APPEALS DISTRICT III

July 3, 2018

NOTICE

This opinion is subject to further editing. If published, the official version will appear in the bound volume of the Official Reports.

A party may file with the Supreme Court a petition to review an adverse decision by the Court of Appeals. See WIS. STAT. § 808.10 and RULE 809.62.

Cir. Ct. No. 2015SC914

APPEAL from an order of the circuit court for Polk County: JEFFERY L. ANDERSON, Judge. Affirmed.

Before Stark, P.J., Hruz and Seidl, JJ.

¶1 SEIDL, J. Lakeland Communications Group LLC (Lakeland) appeals an order, entered following a bench trial, dismissing two consolidated small claims actions it brought against Polk County.¹ The actions stemmed from two separate incidents where County maintenance crews damaged Lakeland's roadside transmission facilities while they were mowing vegetation. Lakeland contends the circuit court erred in determining the County was not negligent per se under WIS. STAT. § 182.0175, the Digger's Hotline statute,² because the County failed to call the Hotline before conducting mowing operations. Lakeland also contends the court erred in concluding the County had no common law liability for negligence in this case. We reject Lakeland's arguments and affirm.

BACKGROUND

¶2 The facts presented at trial are undisputed. Lakeland is a communications company that provides telecommunications, cable and internet services through buried and aerial facilities. Some years ago, Lakeland's predecessors obtained permits from the Wisconsin Department of Transportation and the County to construct and operate underground telecommunications transmission lines and facilities within the right-of-way of that section of State Highway 35 located in Polk County and within the right-of-way of County Highway I. Lakeland's predecessors installed underground transmission lines and above-ground pedestals in the rights-of-way of those highways. The pedestals were above-ground transmission facilities that housed telecommunications linesand other network cables. The light-green-colored pedestals were approximately two-and-a-half to three feet high. Those pedestals at issue in this case include the County Highway I pedestal with a rectangular base of six-by-eight inches, and the State Highway 35 pedestal with a rectangular base of four-by-six inches. Lakeland did not place a marker near either pedestal.

¶3 The Polk County highway department maintains both the county highways of Polk County and state highways within its borders; the latter highways are maintained pursuant to a routine maintenance agreement with the Wisconsin Department of Transportation. The County periodically mows the vegetation within the right-of-way when conducting maintenance on county and state highways. On separate occasions, County maintenance crews struck and damaged the two Lakeland utility pedestals while mowing vegetation on the sides of both highways at issue. The County did not contact the Digger's Hotline "one-call" system before it mowed the vegetation on the sides of either highway.

¶4 Lakeland repaired the damage to both pedestals. It then filed two small claims complaints in which it sought money judgments of $682.50 and $1108.71 from the County, stemming from the repair costs. The circuit court consolidated the small claims cases for trial.

¶5 In an oral ruling after the trial, the circuit court first considered Lakeland's argument that the Digger's Hotline statute was applicable to the County's mowing vegetation on the sides of the highways at issue and that the County was negligent per se when it did not contact Digger's Hotline before mowing. WISCONSIN STAT. § 182.0175(1)(b) of the Digger's Hotline statute defines "excavation." The court interpreted "excavation" under that statute as not being "directed at the mowing of grass, the trimming of trees or the like," but,instead, as only including the movement of dirt, earth and rocks. As so defined, the court concluded that the County was not performing "excavation" and therefore the County was not required to contact Digger's Hotline before the mowing operation.

¶6 The circuit court then addressed the County's arguments that its liability for common law negligence was barred on public policy grounds. The court initially acknowledged that the County had asserted common law negligence "was not argued or brought up" by Lakeland. However, the court stated that "rather than potentially making a decision and having the case refiled and saying there's a different cause of common law negligence, the Court decided to go further and finish its analysis." In doing so, the court first observed there did not "seem to be any question" that a causal connection existed between Lakeland's damages and the County's conduct. However, the court concluded that it "appeared to be bound by" Estate of Wagoner v. City of Milwaukee, 2001 WI App 292, 249 Wis. 2d 306, 638 N.W.2d 382, which the court interpreted as precluding it from reaching "the issue of duty" in all cases involving a "mowing situation." The court therefore "[found] no common law negligence because [it] [found] no duty" on the part of the County.

¶7 The circuit court entered an order dismissing both of Lakeland's cases on the merits. Lakeland now appeals.

DISCUSSION

I. Negligence per se and the Digger's Hotline statute

¶8 We first address Lakeland's argument that the County was negligent per se when it failed to call Digger's Hotline before it mowed the sides of thehighways and damaged the utility pedestals. This was its principal argument in the circuit court. A violation of a statute may constitute negligence per se if: (1) the harm inflicted is the type that the statute was designed to prevent; (2) the person injured is within the class of persons sought to be protected; and (3) there is an expression of legislative intent that the statute is a basis for the imposition of civil liability.³ Tatur v. Solsrud, 174 Wis. 2d 735, 743, 498 N.W.2d 232 (1993).

¶9 WISCONSIN STAT. § 182.0175(1m) establishes the "one-call" system to Digger's Hotline in this state. Generally speaking, the Digger's Hotline statute "requires an excavator to contact Digger's Hotline at least three days before beginning any [nonemergency] excavation. Under the statute, Digger's Hotline is then responsible for contacting the owners of transmission facilities in the area, and the owners are responsible for ensuring that such facilities are marked." Melchert v. Pro Elec. Contractors, 2017 WI 30, ¶9, 374 Wis. 2d 439, 892 N.W.2d 710 (citations and footnotes omitted). It is undisputed that Lakeland's above-ground utility pedestals were "transmission facilities." See § 182.0175(1)(c). As noted, it is also undisputed that the County did not contact Digger's Hotline at least three days before mowing the sides of both highways.

¶10 The issue Lakeland raises is whether the County engaged in "excavation" during its "mowing operations," such that the County was requiredto call Digger's Hotline prior to engaging in any such operations. We agree with the County and the circuit court that the County was not so required.

¶11 "Excavator" is defined in the statute as "a person who engages in excavation." WIS. STAT. § 182.0175(1)(bm). "Excavation," in turn, is defined in § 182.0175(1)(b) to mean:

any operation in which earth, rock or other material in or on the ground is moved, removed or otherwise displaced by means of any tools, equipment or explosives and includes grading, trenching, digging, ditching, drilling, augering, tunneling, scraping, cable or pipe plowing and driving and means any operation by which a structure or mass of material is wrecked, razed, rended, moved or removed.

(Emphasis added.)

¶12 We must interpret WIS. STAT. § 182.0175(1)(b) to resolve the validity of Lakeland's negligence per se claim. Statutory interpretation is a question of law that this court reviews de novo. Mueller v. Edwards, 2017 WI App 79, ¶5, 378 Wis. 2d 689, 904 N.W.2d 392. Interpreting a statute requires us to begin with its plain language. State ex rel. Kalal v. Circuit Court for Dane Cty., 2004 WI 58, ¶45, 271 Wis. 2d 633, 681 N.W.2d 110. Statutory language must be interpreted based upon its common, ordinary and accepted meaning, unless a word or phrase is given a technical or special definitional meaning. Id. We interpret statutory language "in the context in which it is used; not in isolation but as part of a whole; in relation to the language of surrounding or closely-related statutes; and reasonably, to avoid absurd or unreasonable results." Id., ¶46.

¶13 Lakeland contends that mowing operations constitute "excavation" within the scope of WIS. STAT. § 182.0175(1)(b). According to Lakeland, because "other material in or on the ground [was] moved, removed or otherwise displaced" when the County mowed vegetation on the sides of the highways, theCounty was involved in "excavation." See id. (Emphasis added.) In other words, Lakeland argues that vegetation is "other material in or on the ground."

¶14 We conclude the plain language of WIS. STAT. § 182.0175(1)(b) does not support Lakeland's interpretation. Even if we construe § 182.0175(1)(b) broadly, the statute fails to make any reference to vegetation as a type of material that "is moved, removed or otherwise displaced" thereby implicating an exercise of "excavation" under the statute when vegetation is mowed. "According to the rule of ejusdem generis, the general word is construed to embrace only items similar in nature to the enumerated items." State v. Popenhagen, 2008 WI 55, ¶47, 309 Wis. 2d 601, 749 N.W.2d 611. Here, the general term—"other material in or on the ground" under this statute—does not mean all types of material on the ground. It instead refers only to material similar to "earth" or "rock," i.e., clay or minerals.⁴ Had the legislature intended to include...