Preisler v. Kuettel's Septic Serv., LLC

Decision Date19 July 2022
Docket Number2020AP1608,Appeal No. 2020AP1608
Citation979 N.W.2d 807 (Table),2022 WI App 49
CourtWisconsin Court of Appeals
Parties Frederick W. PREISLER and Tina L. Preisler, Plaintiffs-Respondents-Cross-Appellants, v. KUETTEL'S SEPTIC SERVICE, LLC, Defendant-Appellant-Cross-Respondent, 4 D-K Farm and Duke Kuettel, Defendants-Co-Appellants-Cross-Respondents, Dale Kuettel, Doug Kuettel and Cheryl Kuettel, Defendants-Cross-Respondents, Secura Insurance, a mutual company, Regent Insurance Company and Hastings Mutual Insurance Company, Defendants.

This opinion will not be published. See Wis. Stat. Rule 809.23(1)(b)5.

APPEAL and CROSS-APPEAL from a judgment of the circuit court for Outagamie County, Cir. Ct. No. 2010CV2601CARRIE A. SCHNEIDER Judge. Affirmed.

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

Per curiam opinions may not be cited in any court of this state as precedent or authority, except for the limited purposes specified in Wis.Stat. Rule 809.23(3).


¶1 Kuettel's Septic Service, LLC ("KSS"), and Frederick and Tina Preisler (collectively, "the Preislers") each appeal from a judgment awarding monetary damages to the Preislers following a jury trial.[1] The Preislers commenced this action against several parties, including KSS, Duke Kuettel, and 4 D-K Farm (collectively, "the Defendants"). Several experts testified at trial in support of each party. As relevant to this appeal, the jury found that the Defendants negligently spread septage on the Preislers' farm causing an increased concentration of nitrate-nitrogen ("nitrates") in the Preislers' well water and in turn, causing damage to the Preislers. The jury also found, however, that Fred was negligent in his farming practices and that his negligence was also a cause of the Preislers' damages. When apportioning responsibility, the jury found Fred and KSS to be equally negligent, and it found Duke and 4 D-K Farm to each be less causally negligent than Fred. Because Fred's causal negligence exceeded the individual causal negligence of Duke and of 4 D-K Farm, the Preislers were only able to recover, from KSS, a portion of their total damages as determined by the jury.

¶2 The parties each raise several issues on appeal. KSS argues in its appeal that the judgment should be reversed and a verdict should be directed in its favor because there is no credible evidence showing that the Defendants' negligence caused the Preislers' damages or that the Preislers suffered the $500,000 in damages the jury found. In the alternative, KSS argues that the judgment should be reversed and the cause remanded for a new trial because the jury's verdict is contrary to the great weight of the evidence.

¶3 The Preislers argue in their cross-appeal that the circuit court erroneously determined that the Defendants did not engage in a concerted action under Wis.Stat. § 895.045(2) (2019-20).[2] They also argue that the court erred by refusing to strike Dr. Richard Wolkowski's testimony. Finally, the Preislers contest the jury's finding that Fred was negligent, arguing that Fred did not have a duty of care; that Fred acted reasonably under the circumstances; and that there is no credible evidence to support the jury's finding that Fred's actions caused the Preislers' damages. For the reasons set forth below, we reject the parties' arguments and affirm.[3]


¶4 At all times relevant to this appeal, the Preislers owned and operated a dairy farm, which had been in Fred's family since the late 1800s. Fred's family began operating the farm as a full-time dairy farm in the early 1970s, and Fred began purchasing portions of the farm from his father in the early 1990s.

¶5 In late 2002 or early 2003, Duke approached Fred and asked if septage could be spread on the Preislers' property. Duke and his brothers, Doug Kuettel and Dale Kuettel, owned 4 D-K Farm (a farm located just across the road from the Preislers' property) and KSS (a business that collects and disposes of septic tank waste, which is commonly referred to as "septage"). Duke explained to Fred that the septage would be a "free fertilizer." Fred eventually permitted septage to be spread on certain fields. Fred testified at trial that he conditioned his consent on KSS following the regulations for spreading septage as set forth by the Wisconsin Department of Natural Resources ("DNR"). Thereafter, KSS, and sometimes Phil's Pumping (a contractor retained by KSS), periodically spread septage on the Preislers' fields through the spring of 2008.

¶6 In 2007, Fred started noticing a decrease in his cows' milk production. Around that same time, Fred also began noticing what he believed to be an increase in the number of metabolic disorders in his cattle. Specifically, Fred noticed an increase in ketosis and milk fever among his cattle. Fred testified at trial that by 2008, "every cow that calved had milk fever" and "[a]lmost every one … then went into having ketosis." Fred further testified that those cows in 2008 "would not recover" with treatment. Fred testified that he had a total of eighty-four milking cows at the beginning of 2009 when he should have had approximately 160 to 165 milking cows. Factoring in the typical death rate and the number of cows sold and culled, Fred estimated that sixty-seven milking cows had unexpectedly died in 2008. Fred also testified that he anticipated having 100 more nonmilking cattle than he actually had by the end of 2008. Additionally the decrease in milk production that began in 2007 continued through 2008.

¶7 Fred's longtime veterinarian, Dr. Paul Knier, treated the Preislers' cattle in 2007 and in 2008. When Knier could not identify the cause of the cattle's health issues Fred began seeking help from others as well. Fred worked with the University of Wisconsin Extension to test the cattle's feed, but the test revealed "nothing abnormal." Fred then hired an electrician to test for stray voltage on the farm, but those test results were negative as well. At the electrician's suggestion, Fred had the cattle's drinking water tested in August 2008. Fred obtained water samples from a faucet in his milk house-the source of the cattle's drinking water-and he sent the samples to two different labs. Those two water samples tested positive for, among other things, nitrates at a level of 20.46 parts per million ("ppm"), and 20.65 ppm, respectively.[4]

¶8 Concerned by the results, Fred began considering methods to reduce the amount of nitrates in the water. At that time, the well on the farm supplied water to both the Preislers' home and the milk house. The well had been drilled in 1972 and was only eighty-three feet deep. Fred hired a company in late August 2008 to drill a new, two-hundred-ten-foot-deep well, and the company subsequently closed off the old well. A water sample from the new well revealed less than 0.05 ppm of nitrates in the new well. Fred testified that "[t]he death rate [of his cattle] immediately slowed" and the other metabolic conditions declined after the cattle began drinking water from the new well.

¶9 Fred eventually began suspecting that the application of septage may have caused the increased concentration of nitrates in the Preislers' well water and that the well water, in turn, may have caused the health issues with the Preislers' cattle. Fred subsequently obtained legal counsel. At the suggestion of his attorney, Fred completed another water test in November 2008. For that test, Fred took a water sample from a water softener in the Preislers' basement that had been disconnected in May 2008, but still had water in it from that time. That sample ultimately tested positive for nitrates at a level of 46.0 ppm.

¶10 Fred also reviewed KSS's application records and its reports submitted to the DNR, and Fred compared those records to his own crop records. In his review, Fred noticed some discrepancies between KSS's records and his own. In particular, Fred determined that KSS's records did not accurately reflect where the septage was spread or the number of acres on which septage was spread. Fred found these discrepancies to be significant because DNR regulations limited the maximum application of septage to 13,000 gallons per acre in one week. See Wis. Admin. Code § NR 113.09(5) (Oct. 2001). After considering the actual location and number of acres on which septage was spread, Fred determined that at least four times KSS and Phil's Pumping applied septage in excess of the DNR's weekly limit of 13,000 gallons per acre in a single week. Specifically, an average of 20,932 gallons per acre was spread over twenty-two acres within one week in January 2006; an average of 17,954 gallons per acre was spread over twenty-two acres within one week in October 2006; an average of 15,454 gallons per acre was spread over twenty-two acres within one week in April 2007; and an average of 19,996 gallons per acre was spread over twenty-five acres within one week in April 2008.

¶11 The Preislers eventually commenced this action against KSS, alleging, among other things, that KSS negligently applied septage in such a manner as to cause the Preislers' loss in cattle and in milk production. The Preislers also alleged private nuisance and trespass causes of action. The Preislers later added as defendants individual members of the Kuettel family, 4 D-K Farm, Phil's Pumping, and several insurers. Most of the insurers were dismissed, however, after the circuit court concluded that there was no coverage under the relevant insurance policies. That decision was affirmed on appeal. See Preisler v. General Cas. Ins. Co., 2014 WI 135, 360 Wis.2d 129, 857 N.W.2d 136. The Preislers later stipulated to the dismissal of Phil's Pumping and its insurers from the action.

¶12 This case subsequently proceeded to a ten-day jury trial. The jury ultimately found that ...

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