Hoffmann v. Wisconsin Electric Power Co.
Hoffmann v. Wisconsin Electric Power Co.
Concurring Opinion
¶ 32. (concurring). I join the mandate. I do not join the opinion because I am concerned about key aspects of the opinion.
¶ 33. First, the majority opinion rejects WEPCO's argument that the circuit court should have deferred its jurisdiction to the PSC on the abatement issue. The reason the majority opinion gives is that "[o]nly a court has the authority to grant an injunction."
¶ 34. Madison Teachers, however, does not provide support for the majority opinion's conclusion that the circuit court need not defer to the PSC on abatement. Madison Teachers involved a question of the court deferring to Wisconsin Employment Relations Commission (WERC). Madison Teachers states only that WERC cannot provide injunctive relief.
¶ 35. The majority opinion in the present case picks up this sentence from Madison Teachers relating to WERC and injunctions and apparently equates WERC with the PSC and "injunction" with "abatement." At least some administrative agencies do, however, have the power to issue abatement orders.
¶ 36. Second, the majority opinion concludes that the circuit court could have consulted with the PSC in making its determination regarding the method of abatement.
¶ 38. I am authorized to state that Justice ANN WALSH BRADLEY joins this concurrence.
Majority op., ¶ 29.
The same is true for the case Madison Teachers relies on, Local 913 v. Manitowoc County, 140 Wis. 2d 476, 485, 410 N.W.2d 641 (Ct. App. 1987).
Madison Teachers, Inc. v. Madison Metro. Sch. Dist., 197 Wis. 2d 731, 747, 541 N.W.2d 786 (Ct. App. 1995) (citing Wis. Stat. § 111.70(1)).
See State v. Dairyland Power Co-op., 52 Wis. 2d 45, 54, 187 N.W.2d 878 (1971).
Majority op., ¶ 29.
Public Service Commission Amicus Brief at 9.
See Mid-Plains Tel., Inc. v. Pub. Serv. Comm'n, 56 Wis. 2d 780, 786, 202 N.W.2d 907 (1973).
Opinion of the Court
¶ 1. Wisconsin Electric Power Company (WEPCO) petitioned this court for review of an unpublished decision of the court of appeals,
I. FACTS AND PROCEDURAL HISTORY
¶ 2. The Hoffmanns have operated a dairy farm in New London, Wisconsin since 1977. That same year, WEPCO installed an underground, bare-concentric, multi-grounded electrical distribution cable along a road that is adjacent to the Hoffmanns' farm. From 1977 to 1987, the Hoffmanns built a dairy herd, which was generally healthy and productive. However, they felt their milk production was not as high as it should have been, based on state averages for milk production.
¶ 3. In the late 1980s, the Hoffmanns noticed that their cows were behaving erratically, kicking at milkers, acting listless and lame, and failing to eat and drink normally. The herd also had a high calf mortality rate. The Hoffmanns worked to address the problems with their dairy herd, including installing a new free stall barn in 1994, and working closely with their herd
¶ 4. In response, the Hoffmanns made several electrical changes on their farm from 1988 to 1999. One of the changes involved installing an equipotential plane in their newly constructed milking parlor in order to deal with potential "stray voltage." "Stray voltage" has been defined by the Wisconsin Public Service Commission (PSC) as voltage that is present across points (generally grounded metal objects), in which an electrical current is produced when an animal simultaneously contacts two conductive points to complete a circuit, which allows an electrical current to flow.
¶ 5. In an attempt to divert a portion of the ground current, the Hoffmanns had a ring of copper wire buried around the dairy complex. After installing the copper wire, calf mortality improved, but milk production remained erratic. The Hoffmanns also contacted WEPCO to test for stray voltage on their farm. In November 1995, WEPCO tested for traditional stray voltage on the Hoffmann farm, in accordance with the PSC's protocol as set forth in Docket 106, and concluded that the current detected was below the PSC's "level of concern." The "level of concern" has been defined by the PSC as the level above which corrective or mitigative
¶ 6. In an unrelated testing, WEPCO examined the underground, bare-concentric, multi-grounded electrical distribution cable that served the Hoffmanns' farm, as part of a developmental test protocol for corrosion. The cable was found to have deteriorated more rapidly than expected due to corrosion and had a bad splice, which was replaced. According to the trial testimony, there was no way to predict future deterioration of the cable and only follow-up testing could confirm whether the cable was still performing in an acceptable manner. WEPCO refused to remove and replace the bare-concentric cable, instead favoring the less expensive option of testing and mitigation. WEPCO further refused to re-test the cable until shortly before trial, and at the Hoffmanns' expense. Upon re-testing, the cable showed further deterioration. The expert witnesses for WEPCO testified that the deterioration of the cable did not present any significant threat of traditional stray voltage. However, the expert witnesses for the Hoffmanns contended that the deteriorating cable led to increased "non-traditional" stray voltage that adversely affected the dairy herd.
¶ 7. In June 1997, the Hoffmanns sued WEPCO on theories of negligence and nuisance, alleging that WEPCO's electrical distribution system was causing excessive amounts of electrical current to flow through
¶ 8. In an unpublished per curiam opinion, the court of appeals affirmed both the money judgment and the abatement order of the circuit court. The court of appeals affirmed the circuit court's decision to uphold the jury's verdict because the verdict was supported by the record, and the court affirmed the abatement order because it was within the discretion of the circuit court.
II. STANDARD OF REVIEW
¶ 9. Appellate review of a jury's verdict is very limited, narrow, and circumscribed. See, e.g., Morden v. Cont'l AG, 2000 WI 51, ¶ 38, 235 Wis. 2d 325, 611 N.W.2d 659. This court must sustain a jury verdict if there is any credible evidence to support the verdict. Id.; Meurer v. ITT Gen. Controls, 90 Wis. 2d 438, 450, 280 N.W.2d 156 (1979); see also Wis. Stat. § 805.14 (2001-02).
¶ 10. The standard of review of a circuit court's decision to grant injunctive relief is within the sound discretion of the circuit court. Sunnyside Feed Co., Inc. v. City of Portage, 222 Wis. 2d 461, 468, 588 N.W.2d 278 (Ct. App. 1998) (citing State v. Seigel, 163 Wis. 2d 871, 889, 472 N.W.2d 584 (Ct. App. 1991)). Therefore, an injunction ordered by a circuit court will be reviewed to determine whether there was an erroneous exercise of discretion. Id.
III. ANALYSIS
¶ 11. At the outset, we briefly address WEPCO's contention that the PSC's findings have the force and effect of law, having the same status as statutes enacted by the legislature. WEPCO essentially argues that pursuant to its authority under Wis. Stat. § 196.857,
¶ 12. We note that it is a "well-established rule that the enactment of safety statutes or legislation giving a commission jurisdiction over a certain activity does not abolish the duty arising under common-law negligence." Kemp v. Wis. Elec. Power Co., 44 Wis. 2d 571, 579, 172 N.W.2d 161 (1969) (citing Schulz v. Chicago M., St. P. & P. R. Co., 260 Wis. 541, 51 N.W.2d 542 (1952)). This court has determined that
[A] safety statute merely establishes a minimum standard of care and the conduct, even though sanctioned or in conformity with the statute, is not thereby necessarily relieved of conforming to the common-law requirements of ordinary care. In any event the establishment of a statutory definition of negligence per se does not thereby result in a preemption of the entire negligence question. There remains the question of possible common-law negligence.
Blanchard v. Terpstra, 37 Wis. 2d 292, 299, 155 N.W.2d 156 (1967). See also Restatement (Second) of Torts, § 288C (1979).
¶ 13. Furthermore, it is well-recognized that a "statute does not change the common law unless the legislative purpose to do so is clearly expressed in the language of the statute. To accomplish a change in the common law, the language of the statute must be clear, unambiguous, and peremptory." Fuchsgruber v. Custom Accessories, Inc., 2001 WI 81, ¶ 25, 244 Wis. 2d 758, 628 N.W.2d 833 (citations omitted). Nowhere in the lan
¶ 14. Based on the above, we must decline WEPCO's invitation to hold that it cannot be liable to the Hoffmanns if there are no cow contact measurements of more than one milliampere because the PSC's findings have the force and effect of law. Moreover, even if WEPCO is correct, the Hoffmanns presented an alternative theory at trial: that non-traditional stray voltage was harming their dairy herd and that traditional stray voltage is not the only kind of electrical current that can harm animals. The jury believed the case presented by the Hoffmanns that non-traditional stray voltage was a cause of the damage to their dairy herd. Therefore, whether the PSC's findings regarding cow contact measurements have the force and effect of law is not dispositive in this case since these findings
A. Sufficiency of Evidence: Negligence and Nuisance
¶ 15. The jury found that WEPCO was negligent in providing electrical service to the Hoffmann farm and that its distribution of electricity to the farm constituted a nuisance. The jury found that WEPCO's negligence and the nuisance were each a cause of the damages sustained by the Hoffmanns.
¶ 16. Both WEPCO and the Hoffmanns produced various expert witnesses who testified regarding the effect of electricity on the health and milk production of dairy cows. In Wisconsin, a witness who is qualified as an expert by knowledge, skill, experience, training or education may give his or her expert opinion if his or her scientific, technical, or other specialized knowledge will assist the trier of fact to understand the evidence or determine a fact in issue. See Wis. Stat. § 907.02. In cases where there is conflicting expert testimony, it is up to the jury, as the trier of fact, to determine weight and credibility. Schultz v. State, 87 Wis. 2d 167, 173, 274 N.W.2d 614 (1979). As Judge Kirk commented in his decision on motions after verdict, the jury determines the weight of expert testimony and, in this case, the jury chose the Hoffmanns' experts.
¶ 18. The Hoffmanns' expert witnesses also disputed studies introduced at trial by WEPCO's expert witnesses regarding the effect of electricity on cows. The Hoffmanns' expert witnesses testified that there is
¶ 19. The Hoffmanns' witnesses further testified that the substantial electrical current on the Hoffmann farm was due to WEPCO's deteriorated, underground cable. There was testimony that in testing the electrical current on the farm using a ground ring, there was an increase in earth current when the electrical load on WEPCO's underground line was increased, rather than an increased return current on the primary neutral, where the current was supposed to be. In contrast, when the same increased load was placed on a farm generator, there was no increase in earth current. There was also trial testimony that WEPCO employees had told the Hoffmanns that this particular bare-concentric cable had been causing problems for years, but WEPCO had not done anything about it.
¶ 20. The Hoffmanns also presented evidence that WEPCO was negligent in failing to address the problems caused by non-traditional stray voltage on their farm. The Hoffmanns argued that WEPCO was negligent when it realized that the underground, bare-concentric cable was deteriorating at a faster rate than expected due to corrosion, but yet failed to remove and replace the line. One of the Hoffmanns' expert witnesses, William English, PE., testified that this kind of cable was originally thought to last 25-30 years, but that they have generally only lasted 10-15 years. Moreover, Mr. English testified that this kind of cable is no longer generally used in the utility industry due to its inadequate performance. Consistent with Mr. English's testimony, when WEPCO re-tested the cable shortly
¶ 21. In addition, the Hoffmanns themselves testified regarding their extensive efforts to address the problems with their dairy herd, which were largely to no avail. The Hoffmanns, with the assistance of their herd veterinarian and nutritionist, explored and exhausted possible causes of the poor health and reduced milk production of their cows, and ultimately concluded that electricity was the only source that had not been eliminated.
¶ 22. Based on all the above, we agree with Judge Kirk that the "entire evidentiary picture [as] painted by the plaintiffs' experts and [the] plaintiffs personally . . . is sufficient to sustain the verdict." As the trier of fact, the jury determines the weight and credibility of the evidence presented, and we will uphold their findings if there is any credible evidence to support their verdict. In fight of the substantial testimony of the Hoffmanns and their witnesses, we conclude that there was ample evidence for the jury to find that non-traditional stray voltage resulting from WEPCO's deteriorated, underground, bare-concentric electrical distribution cable was a cause of damage to the Hoffmanns' dairy herd.
B. Abatement Order
¶ 23. A circuit court's decision to grant an injunction, determine its form, and determine its scope, are within the broad discretion of the circuit court. City of Wis. Dells v. Dells Fireworks, Inc., 197 Wis. 2d 1, 15, 539 N.W.2d 916 (Ct. App. 1995) (citing Seigel, 163 Wis. 2d at 889-90). When a party seeks injunctive relief, a circuit
Generally the means whereby the nuisance is to be abated is left to the direction of the defendant tortfea-sor. If the means by which the defendant may abate the nuisance is immaterial and the court is looking solely to the end-result, it has been said that the means of abating the nuisance is of no concern of the court.... However, there are situations in which the balancing of convenience or equities is attempted by the court and the decree does provide in detail how the nuisance shall be abated or partially controlled. It is recognized the court may require the defendant to adopt methods and appliances where their adoption will avoid the conditions complained of.
Costas v. Fond du Lac, 24 Wis. 2d 409, 418 129 N.W.2d 217 (1964) (citations omitted).
¶ 24. In this case, it was disputed whether merely replacing the underground, multi-grounded cable would effectively abate the nuisance or whether an overhead delta system is needed. Consequently, it appears that it was proper for the circuit court to specify the method of abatement in order to satisfactorily address the jury's finding that the Hoffmanns' cows were being damaged by the deteriorated WEPCO line.
¶ 26. Based on our review of the record, we conclude that the circuit court erroneously exercised its discretion in ordering the ungrounded, overhead delta system by relying on an improper factor. In the transcript of a motion hearing on September 29, 2000, Judge Kirk stated:
The reason that I believe that the plaintiffs are entitled to this relief to the overhead delta system that they request is that they were the victors of this hard-fought lawsuit. As much as we attempt in our business to dress things up and doing [sic] justice and doing [sic] equity, there is still a lot to be said for that philosophy that, "To the victor goes the spoils."
¶ 27. In ruling on motions after verdict, Judge Kirk reasoned: "I will grant the injunctive relief as
¶ 28. In addition, the circuit court erroneously exercised its discretion by failing to take into account relevant factors in ordering a method of abatement. Specifically, there appears to be uncertainty regarding the safety and reliability of an ungrounded delta system, as well as whether an ungrounded delta system complies with Wisconsin's electrical code. See Wis. Admin. Code ch. PSC 114 (Sept., 1997).
¶ 29. WEPCO claims that these kinds of findings are within the PSC's area of expertise; therefore, the circuit court erroneously exercised its discretion by not deferring to the PSC on the issue of abatement. While we conclude that the circuit court did not properly take into account all of the relevant factors in ordering a specific method of abatement, we disagree with WEPCO that the circuit court should have deferred its jurisdiction to the PSC on the abatement issue. Only a court has the authority to grant an injunction; therefore, it was not an erroneous exercise of discretion for the circuit court not to defer its jurisdiction to the PSC. See, e.g., Madison Teachers v. Madison Sch. Dist., 197 Wis. 2d 731, 747, 541 N.W.2d 786 (Ct. App. 1995).
¶ 30. Consequently, we conclude that remand to the circuit court is required for the court to properly exercise its discretion by considering the following relevant factors: (1) the safety and reliability of an overhead, ungrounded delta system and (2) whether an ungrounded delta system complies with Wisconsin's electrical code, and if the court deems necessary— requesting comments from the PSC regarding these factors.
¶ 31. In sum, we conclude that there was sufficient evidence to support the jury's verdict that WEPCO's deteriorated, underground, bare-concentric electrical distribution cable was a cause of damage to the Hoffmanns' dairy herd. We further conclude that
By the Court. — The decision of the court of appeals is affirmed in part, reversed in part, and remanded to the circuit court for Waupaca County for further proceedings consistent with this opinion.
Hoffmann v. Wis. Electric Power Co., No. 00-2703, unpublished slip op. (Wis. Ct. App. Apr. 4, 2002).
Public Service Commission of Wisconsin, Investigation on the Commission's Own Motion Into the Practices, Policies and Procedures Concerning Stray Voltage for Electric Distribution Utilities in Wisconsin, Docket #05-EI-106 at 5 (1989) (Docket 106).
"Cow contact points" are areas where an animal simultaneously accesses two points of different voltage of a sufficient magnitude, which causes an objectionable current to flow through the animal. Id. at 8.
Public Service Commission of Wisconsin, Investigation on the Commission's Own Motion Into the Practices, Policies and Procedures of Providing Electric Utility Service as It Relates to the Potential Adverse Effects on Dairy Livestock From Electromagnetic Fields, Ground Currents, and Direct Currents Associated With That Service, Docket #05-EI-108 at 3 (1995) (Docket 108).
Rural Electric Power Services, "Glossary of Terms," 10 (2002), at http://psc.wi.gov/electric/newsinfo/document/glossary .pdf.
Docket 106 at 4.
On the special verdict form submitted to the jury, the jury answered "Yes" to the following questions:
(1) Was Wisconsin Electric Power Company negligent with respect to the electrical service and facilities which it provided to the Hoffmann farm?
(2) Was such negligence a cause of any damage sustained by the Hoffmanns?
(3) Did Wisconsin Electric Power Company distribute electricity to the Hoffmann farm in a manner that constituted a nuisance?
(4) Was such nuisance a cause of any damage sustained by the Hoffmanns?
All references to the Wisconsin Statutes are to the 2001-02 version unless otherwise noted.
Wis. Stat. § 196.857 provides:
(lg) Program Elements, (a) The commission shall establish and administer a stray voltage program. The program shall focus on regulation, education, inspection and investigation relating to stray voltage.
(b) The commission shall identify standardized test procedures check lists and equipment to he used by public utilities to investigate stray voltage. The commission may audit the results of investigations.
See Deborah Kades & Chris Hardie, "Governor retracts utilities' immunity," The LaCrosse Tribune, Mar. 22, 2001, at A-1.
In Docket 106, the PSC made findings regarding the effect of "traditional" stray voltage on cows, utilizing "cow contact" measurements. In contrast, the PSC's findings in Docket 108 were inconclusive regarding "non-traditional" stray voltage, such as ground current.
The circuit court gave several instructions to the jury, including instructions on the burden of proof, negligence, nuisance, causation, and damages. The circuit court instructed the jury, in part:
The burden of proof, rests upon the party contending that the answer to a question should be "yes." This burden is to satisfy you to a reasonable certainty by the greater weight of the credible evidence that "yes" should be the answer.
Credible evidence is evidence which in the light of reason and common sense is worthy of your belief.
A person [company] fails to exercise ordinary care, when, without intending to do any harm, it does something or fails to do something under circumstances in which a reasonable person would foresee that by its action or failure to act, it will subject a person or property to an unreasonable risk of injury or damage.
*281 The cause questions ask whether there was a causal connection between the negligence of Wisconsin Electric Power Company and any damages sustained by the Hoffmanns. These questions do not ask about "the cause" but rather "a cause." The reason for this is that there may be more than one cause of damage. Before you find that negligence was a cause of damage, you must find that the negligence was a substantial factor in producing the damages.
A nuisance is an unreasonable activity that interferes substantially with another person's interest in the private use and enjoyment of land. To be a nuisance, an activity must cause significant harm.
If ordinary persons living in the community would regard the activity in question as substantially offensive, seriously annoying, or intolerable, then the interference is significant.
Public Service Commission of Wisconsin, Investigation on the Commission's Own Motion Into the Practices, Policies and Procedures Concerning Stray Voltage for Electric Distribution Utilities in Wisconsin, Docket #05-EI-115 (1996) (Docket 115).
See, e.g., Gerald R. Bodman, PE., Ground Currents: A Cause of Undesirable Animal Performance?, Address at the 1994 Winter Meeting of the American Society of Agricultural Engineers (Dec. 13-16, 1994).
The electrical code for the State of Wisconsin is issued and administered by the PSC, along with the department of commerce, division of safety and buildings. Wis. Admin. Code § PSC 114.001(1). In addition, Wis. Admin. Code § PSC 114.002(1) states:
The purpose of this chapter is the practical safeguarding of persons during the installation, operation or maintenance of electric supply and communication lines and their associated equipment. This chapter contains minimum provisions considered necessary for the safety of employees and the public. [However,] [t]his chapter is not intended as a design specification or an instruction manual.
Reference
- Full Case Name
- Allan Hoffmann and Beverly Hoffmann, Plaintiffs-Respondents-Cross-Appellants, v. Wisconsin Electric Power Company, Defendant-Appellant-Cross-Respondent-Petitioner
- Cited By
- 29 cases
- Status
- Published