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

• Decision Date: 05 June 1996
• Docket Number: No. 94-0822,GRANT-LAFAYETTE,94-0822
• Citation: 548 N.W.2d 829,201 Wis.2d 416
• Parties: , 65 USLW 2028 Dale VOGEL and Alice Vogel, Plaintiffs-Respondents-Cross Appellants-Petitioners, v.ELECTRIC COOPERATIVE, a domestic corporation and Federated Rural Electric Insurance Corporation, a domestic corporation, Defendants-Appellants-Cross Respondents.
• Court: Wisconsin Supreme Court

Page 829

548 N.W.2d 829

201 Wis.2d 416, 65 USLW 2028

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

No. 94-0822.

Supreme Court of Wisconsin.

Argued April 2, 1996.

Decided June 5, 1996.

For the plaintiffs-respondents-cross appellants-petitioners there were briefs by Scott Lawrence and Lawrence & Des Rochers, S.C., St. Nazianz and oral argument by Scott Lawrence.

For the defendants-appellants-cross respondents there was a brief by Denis R Vogel, Stuart G. Monschein, Jennifer S. McGinnity and Wheeler, Van Sickle & Anderson, S.C., Madison and oral argument by Stuart G. Monschein.

Amicus curiae brief was filed by Mark S. Henkel and Terwilliger, Wakeen, Piehler & Conway, S.C., Stevens Point for the Wisconsin Utilities Association, Inc.

Amicus curiae brief was filed by Frank Jablonski, Madison for the Wisconsin Farmers Union.

Amicus curiae brief was filed by Mark L. Thomsen and Cannon & Dunphy, S.C., Brookfield and Edward E. Robinson, and Warshafsky, Rotter, Tarnoff, Reinhardt & Bloch, S.C., Milwaukee for the Wisconsin Academy of Trial Lawyers.

ANN WALSH BRADLEY, Justice.

The plaintiffs, Dale and Alice Vogel, seek review of a decision of the court of appeals, ¹ reversing in part a judgment in their favor for damages caused by stray voltage from electricity distributed by the defendant, Grant-Lafayette Electric Cooperative (GLEC). The Vogels assert that the court of appeals erred in holding as a matter of law that stray voltage may not be considered a private nuisance. Because we conclude that private nuisance is a viable cause of action under the facts of this case, we reverse that portion of the court of appeals' decision directing the circuit court to strike the nuisance-related damages from the judgment. We further conclude that because the stray voltage constituted an unintentional invasion and was otherwise actionable under negligence, the circuit court properly considered the Vogels' contributory negligence when it reduced the total damage award.

The following background facts are undisputed. The Vogels were dairy farmers and members of GLEC, a cooperative association that distributes electricity to its members. Shortly after the Vogels built a new milking facility in 1970, they noticed problems with their herd. Many cows exhibited violent or erratic behavior while in the facility. The herd also suffered from excessive and chronic mastitis. As a result, the Vogels suffered a decline in their herd's milk production and cows were repeatedly culled from the herd. Despite the fact that the Vogels made various changes with their equipment and in the facility itself, these problems persisted in varying degrees over subsequent years.

In March of 1986, the Vogels contacted GLEC because they suspected that the cows were suffering from the effects of excessive stray voltage. The Vogels received their electricity via a distribution system referred to as a multi-grounded neutral system, based on the fact that neutral wires in both the provider's primary system and the farm's secondary wiring system are connected to metal grounding rods driven into the earth. Because the neutral wires in a typical farm's electrical system are connected to metal work in the barn for safety purposes in order to provide a path for electrical current to flow to earth, a cow that contacts grounded metal objects may provide a path for this "stray voltage" traveling on the farm's secondary system.

GLEC responded to the Vogels' concerns about possible stray voltage by installing an "isolator" at its transformer on the Vogel farm, which is intended to reduce the risk of excessive stray voltage. After the isolator was properly installed, the behavior of the herd and the other problems began to improve immediately. GLEC subsequently visited the farm on numerous occasions to conduct tests and respond to other concerns raised by the Vogels.

In 1992, the Vogels filed suit against GLEC on theories of negligence and nuisance. They alleged that GLEC was negligent with respect to the maintenance of its system and that its negligence resulted in unreasonably high levels of stray voltage through their farm which caused substantial economic damage. The Vogels also alleged that GLEC had created a nuisance, and they sought recovery for damages for their "annoyance and inconvenience" caused by the stray voltage. GLEC denied these allegations and affirmatively alleged that the Vogels were contributorily negligent in the design maintenance, and operation of their electrical equipment.

The case was tried to a jury, which found that GLEC was negligent and that it had created a nuisance. It awarded the Vogels $240,000 in economic damages on their negligence claim and $60,000 for annoyance and inconvenience damages on their nuisance claim. The jury also found that the Vogels were one-third causally negligent.

Both GLEC and the Vogels filed motions after verdict. GLEC moved the court to strike the amount awarded for annoyance and inconvenience on the grounds that damages for stray voltage are not recoverable in nuisance as a matter of law. The Vogels sought entry of judgment in the amount of $300,000, arguing that the nuisance constituted an "intentional invasion" not subject to reduction for their contributory negligence. The trial court denied both requests and entered judgment in favor of the Vogels in the amount of $200,000, reducing the jury's $300,000 damage award by one-third for the Vogels' contributory negligence.

GLEC appealed, challenging the application of the nuisance doctrine to stray voltage claims, and the Vogels cross-appealed, challenging the circuit court's reduction of the jury's damage award. The court of appeals held that because private nuisance is inapplicable to stray voltage claims, the circuit court erred in submitting the Vogels' nuisance cause of action to the jury. Vogel v. Grant-Lafayette Elec. Coop., 195 Wis.2d 198, 212, 536 N.W.2d 140 (Ct.App.1995). It directed the court to strike the $60,000 in damages awarded for annoyance and inconvenience attributed to nuisance. Id. Because the court of appeals concluded that nuisance was not applicable, it did not reach the question of whether the circuit court properly reduced the jury's award based on the Vogels' contributory negligence. Id. at 205-06, 536 N.W.2d 140.

Three issues are presented for review by the Vogels: (1) whether the doctrine of private nuisance applies to stray voltage claims; (2) whether the circuit court erred in refusing to submit the nuisance question to the jury on an intentional invasion theory; and (3) whether damages for annoyance and inconvenience are recoverable in negligence, even if they are not recoverable under a private nuisance theory. We will discuss each issue in turn, along with any additional relevant facts.

I. PRIVATE NUISANCE ACTION FOR STRAY VOLTAGE

We first consider whether the doctrine of private nuisance applies to stray voltage claims. The Vogels assert that private nuisance is a viable theory of recovery for stray voltage claims because it constitutes an invasion by the utility of another's interest in the private use and enjoyment of land. GLEC argues that the court of appeals correctly determined that private nuisance is inapplicable to stray voltage claims, and, therefore, the circuit court erred when it submitted the nuisance verdict question and instruction to the jury.

A circuit court has wide discretion as to the instructions and special verdicts given to a jury, provided that they adequately cover the law applicable to the facts. See Kolpin v. Pioneer Power & Light Co., 162 Wis.2d 1, 32, 469 N.W.2d 595 (1991). The question at issue here is not the sufficiency of credible facts to warrant sending the nuisance issue to the jury. Rather, the question is whether damages caused by stray voltage are recoverable in a private nuisance cause of action. Whether the facts of a particular case fulfill a legal standard is a question of law we review de novo. See Nottelson v. DILHR, 94 Wis.2d 106, 116, 287 N.W.2d 763 (1980).

This court has previously adopted the definition of private nuisance set forth in the Restatement (Second) of Torts (1979). ² The Restatement defines nuisance as "a nontrespassory invasion of another's interest in the private use and enjoyment of land." Restatement (Second) of Torts § 821D. "The phrase 'interest in the private use and enjoyment of land' as used in sec. 821D is broadly defined to include any disturbance of the enjoyment of property." Prah v. Maretti, 108 Wis.2d 223, 232, 321 N.W.2d 182 (1982).

GLEC argues that the concept of invasion in the Restatement necessarily involves a "unilateral encroachment." It contends that a nuisance is produced by an activity under the defendant's control to which the plaintiff objects, and not by activity which the plaintiff has requested and facilitated. According to GLEC, the Vogels' act of requesting electrical service and cooperating in the receipt of electricity by connecting its system to GLEC's distribution system negates the concept of unilateral invasion and thus defeats a claim for nuisance.

The court of appeals agreed with GLEC and concluded as a matter of law that the provision of electricity to the Vogels' farm cannot be considered a nuisance because it does not constitute the type of invasion on which nuisance liability is typically predicated. According to the court of appeals, "[a]s users of an instrumentality they invited onto their land, and have in many ways benefited from over the years, we do not think they now may be heard to claim that the instrumentality has illegally 'invaded' their property." Vogel, 195 Wis.2d at 212, 536 N.W.2d 140.

Both the court of appeals and GLEC rely on previous Wisconsin nuisance cases to...