Stevens v. Wis. Pwr. Lgt.
| Decision Date | 05 August 1985 |
| Citation | 381 N.W.2d 619,128 Wis.2d 553 |
| Parties | NOTICE: UNPUBLISHED OPINION. RULE 809.23(3), RULES OF CIVIL PROCEDURE, PROVIDE THAT UNPUBLISHED OPINIONS ARE OF NO PRECEDENTIAL VALUE AND MAY NOT BE CITED EXCEPT IN LIMITED INSTANCES. JUDIE STEVENS and WILLIAM STEVENS, Plaintiffs-Respondents, v. WISCONSIN POWER & LIGHT CO., Defendant-Appellant, CITY OF JANESVILLE and EMPLOYERS MUTUAL LIABILITY INSURANCE CO., Defendants-Respondents. ALLEN S. PORTER and FRANCES W. PORTER, Plaintiffs-Respondents, v. WISCONSIN POWER & LIGHT CO., Defendant-Appellant. CITY OF JANESVILLE and EMPLOYERS MUTUAL LIABILITY INSURANCE CO., Defendants-Respondents. JUDIE STEVENS and WILLIAM STEVENS, Plaintiffs-Cross-Appellants, v. WISCONSIN POWER & LIGHT CO., Defendant, CITY OF JANESVILLE and EMPLOYERS MUTUAL LIABILITY INSURANCE CO., Defendants-Cross-Respondents. ALLEN S. PORTER and FRANCIS PORTER, Plaintiffs-Cross-Appellants, v. WISCONSIN POWER & LIGHT CO., Defendant, CITY OF JANESVILLE and EMPLOYERS MUTUAL LIABILITY INSURANCE CO., Defendants-Cross-Respondents. JUDIE STEVENS and WILLIAM STEVENS, Plaintiffs-Cross-Respondents, v. WISCONSIN POWER & LIGHT CO., Defendant, CITY OF JANESVILLE, Defendant, EMPLOYERS MUTUAL LIABILITY INSURANCE CO., Defendant-Cross-Appellant. 84-0520. |
| Court | Wisconsin Court of Appeals |
Before DEAN and LaROCQUE, JJ., and BRUCE F. BEILFUSS, Reserve Judge.
Wisconsin Power & Light Co. appeals and Judie and William Stevens and Allen and Francis Porter cross-appeal judgments and an order. In addition, Employers Mutual Liability Insurance Company cross-appeals an order. On appeal, the issues raised are whether the trial court properly limited the liability of the City of Janesville to $25,000, properly instructed the jury on the duty of care applicable to a gas utility, properly admitted statistical evidence of gas leaks in WP&L's service area and proposed regulations of gas line excavations and properly denied Employers interest on its portion of the judgment. Because we conclude that the trial court erroneously limited the liability of the City of Janesville, we reverse that portion of the judgments and order. Because we also conclude that the trial court correctly instructed the jury and did not abuse its discretion by admitting the statistical evidence and proposed regulations and correctly denied Employers interest on its portion of the judgment, we affirm the remainder of the judgments and order.
These consolidated claims arose out of a natural gas explosion and fire on June 1, 1981. A Janesville employee, installing storm sewers, was operating a power driven backhoe when he struck an underground gas lateral. As a result of the explosion and fire, the Porters and the Stevens suffered substantial personal injuries and property damage. At trial, the jury found Janesville 75% causally negligent, WP&L 25%, and awarded damages of $471,000. The trial court, relying on sec. 893.80(3), Stats. (1979-80), set Janesville's maximum liability at $25,000.
WP&L, the Stevens, and the Porters argue that the liability limit of sec. 893.80(3), Stats. (1979-80), 1 is not applicable in this case because, pursuant to sec. 345.05, Stats., 2 the damage was caused by the negligent operation of a motor vehicle owned and operated by a municipality in the course of its business. We agree.
Section 345.05(2), Stats., eliminates the dollar limitation on liability for tort claims against municipalities. Manor v. Hanson, 123 Wis.2d 524, 532, 368 N.W.2d 41, 45 (1985). In order to make a successful claim against the state or a municipality, the statute requires that the damage result from (1) the negligent operation of a motor vehicle owned and operated by the state or municipality; and (2) an operation of the motor vehicle in the course of the state's or municipality's business. Lemon v. Federal Insurance Co., 111 Wis.2d 563, 566, 331 N.W.2d 379, 380 (1983). 3 In order for Janesville's sec. 893.80(3) liability limit to be eliminated, we must determine whether the backhoe was a 'motor vehicle' being 'operated' within the meaning of sec. 345.05.
A 'motor vehicle' within the meaning of sec. 345.05 is a 'vehicle which is self-propelled . . ..' Section 340.01(35), Stats. The Lemon court held that a county-owned tractor used to repair a roadside culvert was a 'motor vehicle.' There, a collision occurred between the tractor and an automobile when the tractor was not traveling on the road, but rather was in a working position. The supreme court reasoned that because the tractor was self-propelled, it fell within the 'motor vehicle' definition.
The backhoe in this case is also self-propelled. The record indicates that the backhoe had a four-cylinder diesel engine, which made it capable of speeds of up to twenty miles per hour on the roadway. The backhoe also had a four-speed transmission, clutch, brake system, and steering wheel. 4 Consequently, we conclude that the backhoe is a 'motor vehicle' within the meaning of sec. 345.05. Although the backhoe was not moving at the time of the accident, a mechanism need not be physically moving to be considered a motor vehicle; it only need be capable of such movement on the highway. Lemon, 111 Wis.2d at 567, 331 N.W.2d at 381.
We also conclude that the backhoe was being 'operated' within the meaning of the statute. Janesville and Employers argue that the backhoe was not being operated as a motor vehicle at the time of the accident because the backhoe was stationary with its outriggers in place. Janesville and Employers assert that 'operation' of a motor vehicle only occurs when the vehicle is driven down the highway for transportational purposes. This argument sidesteps the language of sec. 345.05 and is contrary to Lemon. The backhoe in this case was operating in the course of Janesville's business when digging for the installation of storm sewers. 5
WP&L argues that the trial court erred by instructing the jury on the duty of care applicable to a gas utility. We disagree. A trial court has broad discretion when instructing a jury. State v. Higginbotham, 110 Wis.2d 393, 403, 329 N.W.2d 250, 255 (Ct. App. 1982). We will not reverse if the instructions, as a whole, communicate the correct statement of the law. Leahy v. Kenosha Memorial Hospital, 118 Wis.2d 441, 451, 348 N.W.2d 607, 613 (Ct. App. 1984). Where the instruction is erroneous, however, and probably misleads the jury, we will reverse because the misstatement constitutes prejudicial error. Id. at 452, 348 N.W.2d at 613.
The trial court set out in its instruction the common law duty of a gas utility to use ordinary care to inspect or supervise the work of others digging near its pipes. See Brown v. Wisconsin Natural Gas Co., 59 Wis.2d 334, 345, 208 N.W.2d 769, 775 (1973). WP&L argues that this common law duty was overruled by sec. 182.0175(2)(f), Stats., adopted after Brown. Section 182.0175(2)(f) provides in relevant part:
Unless the owner of any transmission facility is notified . . . or has knowledge of frequent damage to transmission facilities by a person doing emergency or nonemergency excavation or demolition, such owner shall not be responsible or be required to make an inspection of its transmission facilities, nor shall the owner, in the absence of such notification or knowledge, be responsible for supervising in any manner the excavation or demolition work.
When construing statutes, meaning should be given to every word, clause, and sentence in the statute, and a construction that would make part of the statute superfluous should be avoided. Kollasch v. Adamany, 104 Wis.2d 552, 563, 313 N.W.2d 47, 52 (1981). The primary source for construction of a statute is the statutory language itself. Northwest General Hospital v. Yee, 115 Wis.2d 59, 63, 339 N.W.2d 583, 585 (1983).
WP&L's argument would render a portion of sec. 182.0175, Stats., superfluous. Section 182.0175(4) provides that:
This section shall not release or waive or otherwise affect any right of action, forfeiture or penalty which the state or any person has or may have.
We conclude that the plain language of this provision preserves a gas utility's duty of ordinary care set out in Brown. Consequently, sec. 182.0175(2)(f) imposes a forfeiture for a violation of its inspection and supervision standards and does not change a gas utility's common law duty to inspect or supervise an excavation of its pipes. See sec. 182.0175(3), Stats.
WP&L complains, in the alternative, that even if sec. 182.0175 did not supersede Brown, the trial court's instruction would lead a jury to infer that it had an absolute duty to inspect and supervise. WP&L points to that part of the instruction where the court stated:
[Y]ou are instructed that the defendant Wisconsin Power & Light Company at the time and place in question had a duty to exercise ordinary care. Ordinary care may require a gas utility company to inspect and supervise the work of others digging near its pipes. Failure to exercise ordinary care to inspect and supervise the work of others digging near its pipe--digging near its pipes is negligence as that term is used in these instructions.
We cannot agree with WP&L's assertion. Looking at the whole instruction, we conclude that it directly sets out the duty of a utility, and that failure to exercise ordinary care constitutes negligence.
WP&L argues that the trial court erred by admitting statistics concerning other gas leaks and proposed rule making of the Department of Transportation. A trial court's decision to admit evidence of prior accidents is discretionary. Callan v. Peters Construction Co., 94 Wis.2d 225, 233, 288 N.W.2d 146, 150 (Ct. App. 1979). We therefore will not disturb a trial court's ruling if it has a...
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