Schaendorf v. Consumers Energy

• Decision Date: 06 March 2007
• Docket Number: Docket No. 269661.
• Citation: 275 Mich. App. 507,739 N.W.2d 402
• Parties: John SCHAENDORF and Connie Schaendorf, Plaintiffs-Appellees, v. CONSUMERS ENERGY COMPANY, Defendant-Appellant.
• Court: Court of Appeal of Michigan — District of US

739 N.W.2d 402

275 Mich. App. 507

John SCHAENDORF and Connie Schaendorf, Plaintiffs-Appellees, v. CONSUMERS ENERGY COMPANY, Defendant-Appellant.

Docket No. 269661.

Court of Appeals of Michigan.

Submitted February 6, 2007, at Grand Rapids.

Decided March 6, 2007.

Approved for Publication May 15, 2007, at 9:05 a.m.

Released for Publication September 12, 2007.

Foster, Swift, Collins & Smith, P.C. (by James B. Dozema and John W. Inhulsen), Grand Rapids, for the plaintiffs.

Warner Norcross & Judd L.L.P. (by Rodrick W. Lewis, John J. Burch, and Jason L. Byrne), Grand Rapids, for the defendant.

Willingham & Coté, P.C. (by John A. Yeager and Leon J. Letter), East Lansing, for amicus curiae Michigan Farm Bureau.

Before: FORT HOOD, P.J., and SMOLENSKI and MURRAY, JJ.

SMOLENSKI, J.

Plaintiffs, who own and operate a dairy farm in Allegan County, sued defendant for negligence, nuisance, and trespass relating to injuries to their dairy herd and property allegedly caused by stray voltage. Defendant moved for summary disposition of all three claims. The trial court granted defendant's motion with respect to the claim for trespass, but denied the motion with respect to the claims for nuisance and negligence. This Court granted defendant's application for leave to appeal. We affirm in part, reverse in part, and remand.

On appeal, defendant first argues that the trial court erroneously applied the discovery rule to conclude that plaintiffs' negligence claim was not barred by the applicable three-year statute of limitations, MCL 600.5805(10). Defendant argues that the discovery rule should not apply in stray voltage cases. Defendant further argues that, even if the discovery rule does apply, plaintiffs' negligence claim was still untimely because they should have discovered their claim more than three years before their action was filed.

This Court reviews a trial court's summary disposition decision de novo. Spiek v. Dep't of Transportation, 456 Mich. 331, 337, 572 N.W.2d 201 (1998). Summary disposition may be granted under MCR 2.116(C)(7) when an action is barred by the statute of limitations. In Turner v. Mercy Hospitals & Health Services of Detroit, 210 Mich.App. 345, 348, 533 N.W.2d 365 (1995), this Court explained:

A defendant who files a motion for summary disposition under MCR 2.116(C)(7) may (but is not required to) file supportive material such as affidavits, depositions, admissions, or other documentary evidence. MCR 2.116(G)(3); Patterson v. Kleiman, 447 Mich. 429, 432, 526 N.W.2d 879 (1994). If such documentation is submitted, the court must consider it. MCR 2.116(G)(5). If no such documentation is submitted, the court must review the plaintiff's complaint, accepting its well-pleaded allegations as true and construing them in a light most favorable to the plaintiff.

"If the pleadings or other documentary evidence reveal no genuine issues of material fact, the court must decide as a matter of law whether the claim is statutorily barred." Holmes v. Michigan Capital Med. Ctr., 242 Mich.App. 703, 706, 620 N.W.2d 319 (2000).

We agree with defendant that the discovery rule is inapplicable to stray voltage cases as a matter of law. Our Supreme Court has applied the discovery rule in cases involving latent injuries or a plaintiff's inability to discover a causal connection between the injury and the defendant's breach of duty. Lemmerman v. Fealk, 449 Mich. 56, 65-68, 534 N.W.2d 695 (1995). The Court has refused to apply it in cases of ordinary negligence where the plaintiff merely misjudges the severity of an injury. Stephens v. Dixon, 449 Mich. 531, 537, 536 N.W.2d 755 (1995). More recently, the Court refused to apply the discovery rule to fraud claims, relying in part on the plain language of MCL 600.5827,¹ which governs when a claim accrues. Boyle v. Gen. Motors Corp., 468 Mich. 226, 231-232, 661 N.W.2d 557 (2003). Indeed, the Court has granted leave to consider whether the common-law discovery rule remains viable in light of MCL 600.5827. See Trentadue v. Buckler Automatic Lawn Sprinkler Co., 475 Mich. 906, 717 N.W.2d 329 (2006).

Considering that the discovery rule has been limited to situations involving latent injuries or a plaintiff's inability to discover the causal connection between an injury and a defendant's conduct, we find no basis for applying the rule to stray voltage cases.

We agree with decisions from other jurisdictions observing that stray voltage claims involve only patent injuries. In Dabb v. NYNEX Corp., 262 A.D.2d 1079 691 N.Y.S.2d 840 (1999), the court held that for purposes of the statute of limitations, "the alleged harmful effect of electricity upon the cows is in fact patent, not latent, and thus there is no interval between the alleged exposure and resulting harm." The court distinguished stray voltage claims from cases involving the harmful effects caused by exposure to toxins in which the adverse effects do not manifest themselves until many years after exposure.

In Spriestersbach v. Ohio Edison Co., 1995 WL 641146 (Ohio App.,1995), the Ohio Court of Appeals refused to extend the discovery rule to a stray voltage case because that rule had been limited to cases involving malpractice and latent defects. The court rejected the plaintiffs' argument that the damages to their herd were similar to cases involving latent diseases:

Appellants' arguments are unpersuasive. Apart from the medical malpractice cases, which the Supreme Court has expressly limited to malpractice, . . ., application of a discovery rule is predicated upon manifestation of the injury at some point after the wrongful conduct. In the case sub judice, the injuries from the cattle's exposure to the stray voltage occurred and manifested themselves in timely proximity to the exposure. Stray voltage shocked the cattle over a period of years, during which time they also produced less milk and suffered from frequent and severe physical illnesses. Once, Mrs. Spriestersbach herself experienced a particularly strong shock while in the milking parlor and saw a cow immediately fall to the ground, dead. Appellants admittedly were aware of both the electrical problems and the resulting injuries; they simply may not have put the two together. This situation is not comparable to a latent disease, the symptoms of which may not be experienced for years, or to a latent defect in a product, which is not detectable until well after the sale. The injury manifested itself immediately; therefore, the discovery rule, no matter how formulated, does not apply to this action. [Id. at *5 (citation omitted).]

See also G & K Dairy v. Princeton Electric Plant Bd., 781 F.Supp. 485, 488 (W.D.Ky., 1991).

Accordingly, we conclude that the discovery rule is inapplicable to this case as a matter of law. Nonetheless, we disagree with defendant's assertion that, absent the discovery rule, plaintiffs' negligence claim is necessarily barred by the three-year period of limitations.

MCL 600.5827 provides that the period of limitations runs from the time a claim accrues, and that a claim accrues when the wrong upon which it is based occurs regardless of when damages result. For purposes of MCL 600.5827, the term "wrong" refers to the date on which the plaintiff was harmed by the defendant's act, not the date on which the defendant acted negligently because that would permit a cause of action to be barred before any injury resulted. Chase v. Sabin, 445 Mich. 190, 195-196, 516 N.W.2d 60 (1994). Accordingly, a cause of action for a tortious injury accrues when all the elements of the claim have occurred and can be alleged in a proper complaint. Stephens, supra at 539, 536 N.W.2d 755. At that point, the plaintiff must be able to allege, for a negligence claim, (1) the existence of a legal duty owed by the defendant to the plaintiff, (2) a breach of such duty, (3) a proximate causal relationship between the breach of such duty and an injury to the plaintiff, and (4) damages suffered by the plaintiff. Id. The burden of establishing that a claim is barred by the statute of limitations is on the party asserting the defense. Forest City Enterprises, Inc. v Leemon Oil Co., 228 Mich.App. 57, 74, 577 N.W.2d 150 (1998).

A claim involving stray voltage accrues when the plaintiff is harmed as a result of stray voltage. There must be evidence of both stray voltage and its resulting harmful effects to the plaintiff. Therefore, a claim based on stray voltage causing injuries to a dairy herd does not accrue until there are harmful effects to the herd that can be attributed to stray voltage.

Defendant relies on evidence that plaintiffs' herd began experiencing a decrease in milk production in 2000 to argue that plaintiffs' negligence claim accrued at that time and, therefore, was untimely filed more than three years later in 2004. Although a decrease in milk production was identified as an effect of exposure to stray voltage, there was evidence that other factors can also cause milk production to decrease. Moreover, there was evidence that milk production increased again in 2001 and that it was not until 2002 that milk production began a sustained decline and other signs of stray voltage began to appear. More significantly, the submitted evidence showed that defendant's own employees tested plaintiffs' farm in 2002 and 2003 and did not detect a problem with stray voltage. Viewed in a light most favorable to plaintiffs, the evidence created a genuine issue of material fact with regard to whether plaintiffs' herd did not begin to experience the harmful effects of stray voltage until after June 29, 2001, less than three years before plaintiffs filed their complaint in June 2004.²

Furthermore, plaintiffs presented evidence that defendant provided service to a newly constructed wash barn in 2003, which may have been the source of stray voltage. Because any claim of negligence based on this new source of electricity could not have accrued until 2003, summary...