Vogel v. Grant-Lafayette Elec. Co-op.

• Citation: 536 N.W.2d 140,195 Wis.2d 198
• Decision Date: 08 June 1995
• Docket Number: No. 94-0822,GRANT-LAFAYETTE,94-0822
• Parties: Dale VOGEL, and Alice Vogel, Plaintiffs-Respondents-Cross Appellants, d v.ELECTRIC COOPERATIVE, a domestic corporation, and Federated Rural Electric Insurance Corporation, a domestic corporation, Defendants-Appellants-Cross Respondents.
• Court: Wisconsin Court of Appeals

Page 140

536 N.W.2d 140

195 Wis.2d 198

Dale VOGEL, and Alice Vogel, Plaintiffs-Respondents-Cross Appellants, ^d v. GRANT-LAFAYETTE ELECTRIC COOPERATIVE, a domestic corporation, and Federated Rural Electric Insurance Corporation, a domestic corporation Defendants-Appellants-Cross Respondents.

No. 94-0822.

Court of Appeals of Wisconsin.

Submitted on Briefs April 6, 1995.

Opinion Released June 8, 1995.

Opinion Filed June 8, 1995.

For the defendants-appellants-cross respondents the cause was submitted on the briefs of Denis R. Vogel of Wheeler, Van Sickle & Anderson, S.C., Madison.

For the plaintiffs-respondents-cross appellants the cause was submitted on the briefs of Scott Lawrence of Lawrence & Des Rochers, S.C., St. Nazianz.

Before EICH, C.J., GARTZKE, P.J., and DYKMAN, J.

EICH, Chief Judge.

The Grant-Lafayette Electric Cooperative and Federated Rural Electric Insurance Corporation (GLEC) appeal, and Dale and Alice Vogel cross-appeal, from a judgment awarding the Vogels $300,000 (reduced to $200,000 for their contributory negligence) for damage to their dairy herd caused by stray electrical voltage.

GLEC claims that the trial court erred in: (1) erroneously submitting the case to the jury on a nuisance theory, thus improperly permitting the Vogels to recover additional damages for "annoyance" and "inconvenience"; (2) failing to confine the Vogels' damages to a specific period of time prior to commencement of the action; (3) denying GLEC's motion for a new trial based on improper remarks of the Vogels' counsel during closing argument to the jury; and (4) denying its motion for a new trial in the interest of justice.

The Vogels' cross-appeal asserts error in the trial court's dismissal of their claim for treble damages under § 182.017(5), STATS., ¹ and its rejection of their argument that, because theirs is an "intentional invasion" nuisance case, principles of comparative negligence should not be applied to reduce their damages.

We conclude that the trial court erred in submitting nuisance issues to the jury and, on remand, we direct the court to strike the separate nuisance-related damages from the verdict and judgment. We reject GLEC's remaining arguments. On the cross-appeal, we conclude that the Vogels are not entitled to treble damages. And because we hold that nuisance theories are inapplicable to this case, we need not consider the Vogels' argument, based on those theories, that it was improper to reduce their gross damages for their contributory negligence. ²

The basic facts are not in dispute. GLEC, a member-owned cooperative association, operates a distribution system for the transmission and provision of electrical service to its members. It is not a generator of electricity.

The Vogels are members of the cooperative and have owned and operated their farm since 1964. After building a new milking parlor in 1970, they began to notice problems with their cows, including violent behavior, unusually long milking periods and chronic mastitis, which required them to remove a large number of animals from the herd. The Vogels, concerned that these problems were caused by stray voltage on the farm, ³ reported the situation to GLEC in 1986. Tests run by GLEC at the time indicated only "normal" levels of voltage in the barn and other areas of the farm frequented by the Vogels' cows.

The Vogels continued to experience problems despite GLEC's attempts to reduce the amount of current flowing into the barn, and they commenced this action in 1992. They sought recovery for loss of milk production and other damages they claimed were caused by stray voltage.

At trial, both sides offered expert testimony as to possible causes of stray voltage on the farm. Dr. Alfred Szews, a professor of electrical engineering with extensive experience in the field, testified on behalf of the Vogels. He analyzed data that had been gathered at the Vogels' farm several years earlier by the Wisconsin Department of Agriculture and concluded that unreasonable amounts of neutral current had reached the Vogels' cows during the 1970s and 1980s. Szews testified that, in his opinion, GLEC was negligent in maintaining an electrical distribution system that allowed such levels of electrical current to enter the Vogels' barn.

Two members of the Department of Agriculture investigatory team testified for GLEC, offering opinions that the cooperative's electrical line was operating normally and that any excessive stray voltage that might be present was due to a faulty wiring system and other "dangerous conditions" on the Vogels' farm.

The case was eventually submitted to a jury on theories of negligence and nuisance. ⁴ The jury found that GLEC was negligent and awarded the Vogels general economic damages of $240,000. The jury also found that GLEC had created a nuisance on the Vogels' property and, on the basis of that finding, awarded them an additional $60,000 for "annoyance and inconvenience." Finally, the jury found that the Vogels were contributorily negligent and apportioned 66.66 percent of the negligence to GLEC and 33.33 percent to the Vogels.

Both parties filed postverdict motions. GLEC asked the court to strike the "nuisance" damages and to limit the Vogels' economic damages to a six-year period prior to the commencement of the action. It also sought to have various verdict answers changed and moved for a new trial in the interest of justice. The Vogels moved to treble the damages under § 182.017(5), STATS., and to have judgment entered in the full amount of the verdict without any reduction for their contributory negligence. The trial court denied all motions, and the appeal and cross-appeal followed. Additional facts will be referred to in the body of the opinion.

I. GLEC's APPEAL

A. Nuisance

GLEC argues first that the trial court erred in submitting the case to the jury on the theory that it had maintained a nuisance on the Vogels' property.

A trial court has "wide discretion" in instructing the jury, as long as the instructions "accurately reflect the law applicable to the facts of the specific case." Vonch v. American Standard Ins. Co., 151 Wis.2d 138, 149, 442 N.W.2d 598, 602 (Ct.App.1989). As is true with all discretionary determinations, however, if the decision is based on an erroneous view of the law it may not stand. State v. Leist, 141 Wis.2d 34, 39, 414 N.W.2d 45, 47 (Ct.App.1987). We agree with GLEC that, under the facts of this case, the trial court erred as a matter of law when it submitted the nuisance question and instructions to the jury.

A private nuisance is the invasion of a person's interest in the private use or enjoyment of land. Fortier v. Flambeau Plastics Co., 164 Wis.2d 639, 676, 476 N.W.2d 593, 608 (Ct.App.1991). See also RESTATEMENT (SECOND) OF TORTS § 821D (1979).

In State v. Deetz, 66 Wis.2d 1, 16-18, 224 N.W.2d 407, 415-16 (1974), the supreme court adopted the analysis for determining the existence of a private nuisance which now appears in the RESTATEMENT (SECOND) OF TORTS § 822 (1979) and provides as follows:

One is subject to liability for a private nuisance if, but only if, [his or her] conduct is a legal cause of an invasion of another's interest in the private use and enjoyment of land, and the invasion is either

(a) intentional and unreasonable, or

(b) unintentional and otherwise actionable under the rules controlling liability for negligent or reckless conduct, or for abnormally dangerous conditions or activities.

(Emphasis added.)

The text goes on to explain:

[Nuisance] is not a single type of tortious conduct. The feature that gives unity to ... private nuisance is the interest invaded, namely ... the private interest in the use and enjoyment of land. These interests may be invaded by any one of the types of conduct that serve in general as bases for all tort liability.

RESTATEMENT (SECOND) OF TORTS § 822 cmt. a (1979) (citation omitted) (emphasis added).

GLEC argues that the private nuisance theory is inapplicable because the activity of which the Vogels complain--the provision of electricity to their farm--cannot be considered a nuisance, and our examination of Wisconsin nuisance cases supports that position: the delivery of electricity at the Vogels' request does not, as a matter of law, constitute the type of "invasion" on which nuisance liability is predicated.

An examination of nuisance cases illustrates the point. In Fortier, 164 Wis.2d at 676, 476 N.W.2d at 608, we held that toxic chemicals deposited in a landfill which seeped or leached onto the plaintiffs' property and contaminated their well water was the type of "invasion" that would subject the defendants to nuisance liability. Other cases reaching similar conclusions include Crest Chevrolet-Oldsmobile-Cadillac, Inc. v. Willemsen, 129 Wis.2d 129, 384 N.W.2d 692 (1986) (diversion of surface water onto the plaintiff's property); Krueger v. Mitchell, 112 Wis.2d 88, 332 N.W.2d 733 (1983) (excessive noise from an airport interfering with the operation of a neighboring business); CEW Management Corp. v. First Fed. Sav. & Loan Ass'n, 88 Wis.2d 631, 277 N.W.2d 766 (1979) (failure to prevent rainwater and soil runoff caused by stripping of vegetation from entering adjoining lands); and Jost v. Dairyland Power Coop., 45 Wis.2d 164, 172 N.W.2d 647 (1969) (discharge of sulphur dioxide gases from an electrical generating plant onto adjoining cropland). The common thread in these cases is an "invasion" of the plaintiffs' land: an objectionable activity either undertaken by the defendants or within their control, which has subjected the plaintiffs to an unwanted and harmful interference with the use of their land. In no case has the activity causing the alleged interference been either agreed to or requested by the plaintiffs, as is the situation here.

The Vogels rely heavily on Prah v. Maretti, 108 Wis.2d 223, 321 N.W.2d 182 (1982), where the supreme court held that the owner of a solar-heated home stated a...