Penterman v. Wisconsin Elec. Power Co., No. 96-0164

CourtUnited States State Supreme Court of Wisconsin
Citation211 Wis.2d 458,565 N.W.2d 521
Decision Date02 July 1997
PartiesFrancis PENTERMAN, Sr. and Ruth Kamnik, Plaintiffs-Appellants-Petitioners, Dupont Mutual Insurance Company, a Wisconsin Insurance Corporation, Involuntary-Plaintiff, v. WISCONSIN ELECTRIC POWER COMPANY, a domestic corporation, Defendant, Daniel M. Dasho, Defendant-Respondent.
Docket NumberNo. 96-0164

Page 521

565 N.W.2d 521
211 Wis.2d 458
Francis PENTERMAN, Sr. and Ruth Kamnik,
Plaintiffs-Appellants-Petitioners,
Dupont Mutual Insurance Company, a Wisconsin Insurance
Corporation, Involuntary-Plaintiff,
v.
WISCONSIN ELECTRIC POWER COMPANY, a domestic corporation, Defendant,
Daniel M. Dasho, Defendant-Respondent.
No. 96-0164.
Supreme Court of Wisconsin.
Argued May 29, 1997.
Decided July 2, 1997.

Page 525

[211 Wis.2d 461] For the plaintiffs-appellants-petitioners there were briefs by Lynn R. Laufenberg and Cannon & Dunphy, S.C., Brookfield and Scott Lawrence and Lawrence & Des Rochers, S.C., St. Nazianz and oral argument by Lynn R. Laufenberg.

[211 Wis.2d 462] For the defendant-respondent the cause was argued by Charles D. Hoornstra, Assistant Attorney General, with whom on the brief Richard A. Victor, Assistant Attorney General, and James E. Doyle, Attorney General.

¶1 JANINE P. GESKE, Justice.

This is a review of an unpublished decision of the court of appeals 1 affirming the order of the Circuit Court for Outagamie County, John A. Des Jardins, Judge. The circuit court dismissed the claims of Francis Penterman, Sr. and Ruth Kamnik against Daniel Dasho, an employee of the Wisconsin Public Service Commission, for failure to state a claim upon which relief could be granted. The circuit court also concluded that Dasho was entitled to qualified immunity against the plaintiffs' claims. Penterman and Kamnik alleged in their amended complaint that Dasho deprived them of their constitutionally protected rights, and sought remedies under 42 U.S.C. § 1983. 2

Page 526

¶2 The court of appeals affirmed the circuit court in part, holding that Penterman and Kamnik failed to state a claim upon which relief could be granted. In a footnote to its decision, the court of appeals concluded that it was unnecessary to address [211 Wis.2d 463] the issue of qualified immunity for Dasho because the amended complaint failed to state a claim. Slip op. at 2, n. 2.

¶3 This case presents unique legal claims. Because damage to livestock and loss of use of farm property are not commonly claimed to result from constitutional violations, and because the affirmative defense of qualified immunity turns on whether the plaintiffs have alleged a violation of clearly established constitutional rights, we consider the questions presented in reverse order from the court of appeals. Since we conclude that Penterman and Kamnik have not made a sufficient showing that Dasho violated a clearly established constitutional right, defined in such a way that a reasonable official in Dasho's position could believe that his or her conduct violates that right, we do not consider whether the plaintiffs have stated a claim against Dasho upon which relief can be granted. We therefore affirm the mandate of the court of appeals, but on the ground of qualified immunity. 3 In this case we make no new law but apply a traditional qualified immunity inquiry to unusual pleadings. We caution, therefore, that our qualified immunity inquiry is fact-specific, limited to the facts alleged in the pleadings.

FACTS AND PROCEDURAL HISTORY

¶4 For purposes of the qualified immunity analysis on review of a motion to dismiss, we accept the facts pled as true. See State v. Wisconsin Telephone, 91 Wis.2d 702, 720, 284 N.W.2d 41 (1979). Penterman [211 Wis.2d 464] and Kamnik acquired a farm in Waushara County in April, 1992. They operated the property as a dairy farm. A distribution line, owned and operated by Defendant Wisconsin Electric Power Company (WEPCo), provided electrical service to the farm.

¶5 It appears from the complaint that for some time between April 1992 and January 12, 1993, Penterman and Kamnik experienced substantial problems with their dairy operation, including reduced milk production, increased illness and death of cattle, calves, and other livestock, and infertility. On January 12, 1993, Penterman received an electrical shock from the bulk tank in the milk house located on the farm. Penterman believed the shock originated from stray electrical voltage accessing his barn through WEPCo's distribution line. On January 31, 1993, Penterman disconnected the barn service cable from the WEPCo distribution line and connected a portable generator to supply power to the barn equipment. Once he took that action, Penterman did not detect any voltage between equipment and fixtures and the concrete floor.

¶6 The next day, February 1, 1993, Penterman contacted the Wisconsin Public Service Commission's ("PSC") Stray Voltage Analysis Team (SVAT) about the problems on the farm. Penterman was told that SVAT would contact WEPCo on his behalf to advise WEPCo of a possible stray voltage problem. WEPCo representatives conducted tests at the Penterman/Kamnik farm, concluding that the stray voltage was the result of "on farm problems."

¶7 On February 8, 1993, WEPCo performed further tests at the Penterman/Kamnik farm. Penterman and Kamnik claimed that WEPCo's testing procedures contained irregularities and reported these claims to Daniel Dasho, Program Manager of SVAT. On February[211 Wis.2d 465] 12, 1993, Dasho and WEPCo representatives came to the Penterman/Kamnik farm. During that visit, Dasho supervised the reinstallation of WEPCo's test equipment and observed voltage readings on Penterman's test equipment.

¶8 On February 24, 1993, Dasho and WEPCo representatives again went to the

Page 527

Penterman/Kamnik farm. Dasho observed additional tests conducted by WEPCo, and then told WEPCo's representatives that the stray voltage was a utility problem. Dasho instructed WEPCo to "deep ground" its distribution line. WEPCo placed grounding rods, but Penterman and Kamnik contend that the excess voltage continued.

¶9 After the February 24, 1993 testing, Penterman and Kamnik continued to ask WEPCo and the PSC for additional testing and further assistance. Dasho informed Penterman and Kamnik that the utility responsibility had been fixed, and that any remaining voltage was from "on-farm" sources. Dasho also told Penterman and Kamnik that a full SVAT analysis was unnecessary.

¶10 On March 24, 1994, almost fourteen months after Penterman first discovered the stray voltage on his farm, Dasho directed and supervised a limited SVAT analysis for stray voltage at the Penterman/Kamnik farm at Penterman's request. Dasho reported afterwards that SVAT had found no severe levels of stray voltage. Penterman and Kamnik contend that there were irregularities in these SVAT tests and inconsistencies between Dasho's report and the data actually discovered during the course of the testing.

¶11 Penterman and Kamnik filed suit against WEPCo on January 25, 1995, alleging strict liability, nuisance, negligence, trespass, spoliation of evidence, [211 Wis.2d 466] and statutory violations. After conducting some discovery, Penterman and Kamnik filed an amended complaint on June 13, 1995, adding Dasho as a defendant and asserting claims against Dasho and WEPCo for damages under42 U.S.C. § 1983. Penterman and Kamnik alleged that Dasho, acting under color of state law, deliberately, intentionally, 4 and/or recklessly deprived them of their constitutionally protected rights to procedural due process, access to the courts, substantive due process, and equal protection. Specifically, Penterman and Kamnik alleged that Dasho, in concert with WEPCo,

(a) failed to follow or employ PSC procedures for the identification and measurement of stray voltage;

(b) approved or ratified testing procedures and practices employed by WEPCo which he knew or should have known were ineffective for identifying or eliminating utility-caused stray voltage;

[211 Wis.2d 467] (c) attributed stray voltage detected and documents by Penterman and Kamnik to faulty equipment or testing procedures when he knew or should have known that such attribution was false;

(d) reported information obtained through testing he knew or should have known was improperly conducted and would produce inaccurate results;

(e) attributed stray voltage to on-farm wiring problems or electrical usage patterns when he knew or should have known that such attribution was false;

(f) refused to recommend or require WEPCo to implement corrective action which he knew or should have known was required to reduce or eliminate harmful utility-caused stray voltage on the farm;

(g) characterized stray voltage on the Penterman/Kamnik farm as "not severe" or "insignificant" when he knew or should have known that such characterization was inaccurate; and

(h) conspired with and/or aided and abetted WEPCo in its effort to conceal evidence of utility-caused stray voltage on the farm.

¶12 On August 3, 1995, Dasho filed a motion to dismiss the amended complaint on the ground that it failed to state a claim upon which relief could be granted. In his brief in support of that motion, Dasho also argued that he was entitled to qualified immunity from the claims. After a hearing, the circuit court granted Dasho's motion to dismiss in an order dated November 27, 1995. The

Page 528

circuit court, basing its decision on the pleadings and the briefs, concluded that Penterman and Kamnik had failed to state a claim upon which relief could be granted against Dasho for interference with their right to procedural and substantive due process, access to courts, and to equal protection. The circuit court also concluded that Dasho was entitled to qualified immunity from Penterman and Kamnik's constitutional claims.

¶13 Penterman and Kamnik appealed. The court of appeals affirmed the circuit court's order, concluding that the amended complaint against Dasho failed to state a claim upon which relief could be [211 Wis.2d 468] granted. The court of appeals further concluded that because Penterman and Kamnik failed to state a claim, it was unnecessary to determine whether Dasho was entitled to qualified immunity. This court granted Penterman and Kamnik's petition for review on both issues. 5

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36 practice notes
  • Black v. City of Milwaukee, No. 2014AP400.
    • United States
    • Wisconsin Supreme Court
    • June 23, 2016
    ...substantive constitutional rights;” rather, it “provides a remedy for a deprivation of such rights.” Penterman v. Wis. Elec. Power Co., 211 Wis.2d 458, ¶ 22, 565 N.W.2d 521 (1997) (citing Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617–18, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979) ). A......
  • Kroner v. Oneida Seven Generations Corp., No. 2010AP2533.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 11, 2012
    ...or suffer a defeat according to the strength or weakness of the case which he presents”); see also Penterman v. Wis. Elec. Power Co., 211 Wis.2d 458, 474, 565 N.W.2d 521 (1997) (“The right of access to the courts is secured by the First and Fourteenth Amendment[s]. It entitles the individua......
  • Arneson v. Jezwinski, UW-M
    • United States
    • United States State Supreme Court of Wisconsin
    • May 5, 1999
    ...that this court decides independently of and without deference to the reasoning of the lower courts. Penterman v. Wis. Elec. Power Co., 211 Wis.2d 458, 468, 565 N.W.2d 521 (1997); Barnhill v. Board of Regents, 166 Wis.2d 395, 406, 479 N.W.2d 917 (1992). It is a question that is appropriatel......
  • McAdams v. Marquette Univ., No. 2017AP1240
    • United States
    • United States State Supreme Court of Wisconsin
    • July 6, 2018
    ...Access to state courts for conflict resolution is thus implicit in the state constitution."); Penterman v. Wis. Elec. Power Co., 211 Wis. 2d 458, 474, 565 N.W.2d 521 (1997) ("The right of access to the courts is secured by the First and Fourteenth Amendment[s]. It entitles the individual to......
  • Request a trial to view additional results
35 cases
  • Black v. City of Milwaukee, No. 2014AP400.
    • United States
    • Wisconsin Supreme Court
    • June 23, 2016
    ...substantive constitutional rights;” rather, it “provides a remedy for a deprivation of such rights.” Penterman v. Wis. Elec. Power Co., 211 Wis.2d 458, ¶ 22, 565 N.W.2d 521 (1997) (citing Chapman v. Houston Welfare Rights Org., 441 U.S. 600, 617–18, 99 S.Ct. 1905, 60 L.Ed.2d 508 (1979) ). A......
  • Kroner v. Oneida Seven Generations Corp., No. 2010AP2533.
    • United States
    • United States State Supreme Court of Wisconsin
    • July 11, 2012
    ...or suffer a defeat according to the strength or weakness of the case which he presents”); see also Penterman v. Wis. Elec. Power Co., 211 Wis.2d 458, 474, 565 N.W.2d 521 (1997) (“The right of access to the courts is secured by the First and Fourteenth Amendment[s]. It entitles the individua......
  • Arneson v. Jezwinski, UW-M
    • United States
    • United States State Supreme Court of Wisconsin
    • May 5, 1999
    ...that this court decides independently of and without deference to the reasoning of the lower courts. Penterman v. Wis. Elec. Power Co., 211 Wis.2d 458, 468, 565 N.W.2d 521 (1997); Barnhill v. Board of Regents, 166 Wis.2d 395, 406, 479 N.W.2d 917 (1992). It is a question that is appropriatel......
  • McAdams v. Marquette Univ., No. 2017AP1240
    • United States
    • United States State Supreme Court of Wisconsin
    • July 6, 2018
    ...Access to state courts for conflict resolution is thus implicit in the state constitution."); Penterman v. Wis. Elec. Power Co., 211 Wis. 2d 458, 474, 565 N.W.2d 521 (1997) ("The right of access to the courts is secured by the First and Fourteenth Amendment[s]. It entitles the individual to......
  • Request a trial to view additional results
1 books & journal articles
  • Criminal Enforcement of Air Pollution Control Laws
    • United States
    • Air pollution control and climate change mitigation law
    • August 18, 2010
    ...1990). 174. No. 1-89-00001 (N.D. Tex. 1989). 175. No. 89-283-P (W.D. Okla. 1990). 176. 96 F.3d 420, 27 ELR 20173 (9th Cir. 1996). 177. 565 N.W.2d 521 (Sup. Ct. Wis. 1997). See also Christopher Harris & Patrick O. Cavanaugh, Environmental Crimes and the Responsible Government Oicial , 6 Nat.......

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