Wisconsin Lawyer
Vol. 81, No. 2, February 2008

Supreme Court Digest

by Prof. Daniel D. Blinka & Prof. Thomas J. Hammer

• Criminal Procedure
• Torts
• Torts/Regulated Industries

Criminal Procedure

State v. Ford, 2007 WI 138 (filed 11 Dec. 2007)

A jury convicted Ford of committing several crimes, including battery and conspiracy to bribe a witness. On appeal he argued that he was entitled to a new trial because a bailiff had had contact with the victim and because the state introduced testimony describing images on an "unplayable" surveillance tape. In an unpublished opinion the court of appeals affirmed his conviction.

In a decision authored by Justice Bradley, the supreme court affirmed the court of appeals. The first issue concerned the bailiff's incidental contact with the victim on the night of the crime. The contact did not come to light until the first day of trial, when the victim pointed to the bailiff and said he was the person who persuaded him to call police. The bailiff himself did not recall his involvement until "the morning of trial" (¶ 10). The judge removed the bailiff from service on the case after establishing that he had had no discussions with jurors about the matter. Neither the prosecution nor the defense called the bailiff as a witness. The supreme court found no "structural error" that mandated an automatic reversal (¶ 44). The supreme court said that the bailiff played no investigative role in the case and had relatively little contact with jurors, and that the trial court did not abuse its discretion in denying the motion for mistrial. The jury learned only that the bailiff had urged the victim to call police shortly after the crime. The court noted that when the jurors were questioned by the trial judge, none of them said that the bailiff's tangential role would influence them in any way (see ¶ 61).

The second issue concerned testimony about the contents of a surveillance video, which had been rendered unplayable because it had been viewed several times before efforts were made to preserve copies. The defense argued that testimony by a witness who had viewed the images violated the best evidence rule. The court disagreed. "We are satisfied that where a tape is damaged and unplayable, the proponent of the evidence makes reasonable efforts to restore the tape to playability, and those reasonable efforts fail, the tape is destroyed within the meaning of § 910.04(1)," which permits other evidence of contents (¶ 68).

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Torts

Gumz v. Northern States Power Co., 2007 WI 135 (filed 6 Dec. 2007)

In a private nuisance action based on negligence, a jury awarded the plaintiff dairy farmers more than $500,000 in damages for harm to their cattle allegedly caused by stray voltage. The court of appeals affirmed. See 2006 WI App 165, 295 Wis. 2d 600, 721 N.W.2d 515.

In a decision authored by Justice Bradley, the supreme court affirmed the court of appeals. Most of the issues involved the special verdict. First, the defendant argued that the jury should have been asked to find when the claim accrued for purposes of the statute of limitation. The supreme court disagreed. It emphasized that negligence questions are distinct from statute of limitation questions (see ¶ 46). "Statute of limitations defenses based on failure to exercise reasonable diligence will often present questions of fact appropriate for a jury. When they do, courts should provide separate questions for negligence and reasonable diligence in discovery"

(¶ 49). Case law suggesting the contrary is "incorrect" (id.). On this record, however, the trial court correctly decided the statute of limitation issue as a matter of law.

Second, on the issue of contributory negligence, the defendant argued that the judge erred "by framing a special verdict question that was limited to the Gumzs' negligence `in the use and/or discovery of electricity on the farm.' It argues that it was entitled to a broader question of whether the Gumzs were `negligent in the operation, maintenance or management of their dairy enterprise'" (¶ 56). Although the trial judge could have "framed the question more broadly," the questions nonetheless were "carefully tailor[ed]" and had a "consistent focus" on electricity. There was no abuse of discretion.

Third, the defendant argued that damages should have been limited to those that occurred after the power company had notice that stray voltage could have been harming the dairy herd. Although the defendant effectively waived the argument by failing to preserve it as required by Wis. Stat. section 805.13(3), the supreme court addressed the issue to provide guidance to other litigants (see ¶ 73). The court held that the trial judge acted appropriately. "As stated in the jury instruction, the electric company must exercise `ordinary care to discover any unsafe or defective condition of its distribution system ….' It is contradictory to predicate the requirement to exercise ordinary care in discovering unsafe or defective conditions in its distribution system on having notice of those unsafe or defective conditions" (¶ 77).

Justice Ziegler, joined by Justices Prosser and Roggensack, dissented. The dissenting justices contended that the record revealed evidentiary disputes concerning both the statute of limitation issue and the contributory negligence claims.

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Torts/Regulated Industries

Schmidt v. Northern States Power Co., 2007 WI 136 (filed 6 Dec. 2007)

The plaintiffs filed an action in 2001 against Northern States Power Co. in which they alleged that stray voltage attributable to Northern States caused damage to the health and productivity of their dairy herd. The circuit court determined on summary judgment that the six-year statute of limitation barred the plaintiffs' claims and also that the claims were barred by the filed rate doctrine. In an unpublished decision, the court of appeals reversed. In a unanimous decision authored by Justice Ziegler, the supreme court affirmed the court of appeals.

The defendant asserted that the plaintiffs' claims were time barred because the summary judgment record shows they "discovered" their injury and its cause in 1993 but did not bring their claim until Nov. 13, 2001, more than six years later. The plaintiffs argued that, although the record reflects that they suspected early on that stray voltage was negatively affecting their cows, they did not have an objective belief that stray voltage from Northern States was the cause of their injury until much later. The supreme court held that in a situation in which the undisputed facts lead to more than one reasonable inference about when an injury and its cause were discovered, summary judgment is not proper. In this case the court concluded that it is possible to draw, from the undisputed facts in the summary judgment record, more than one reasonable inference about when discovery of the injury and its cause occurred and, accordingly, summary judgment was not appropriate (see ¶ 3).

The court next considered whether the filed rate doctrine precluded the plaintiffs' common-law tort claims as a matter of law. Under the filed rate doctrine, a plaintiff cannot claim a lower rate than the one filed by a regulated entity with the appropriate regulatory agency because the filed rate alone governs the relationship between the parties (see ¶ 1 n.3). Northern States was required by statute to file a tariff that specified the rate at which service would be provided and, once it placed a tariff on file, "it must give effect to the tariff under the filed rate doctrine and cannot provide services other than those in accordance with the tariff" (¶ 53).

Northern States asserted that stray voltage may be present on a customer's system as a matter of course. It further argued that its filed tariff gives rise to an affirmative obligation to reduce stray voltage only if the stray voltage exceeds one milliampere in the "cow contact" area as a result of off-farm sources. Therefore, Northern States contended, it cannot be liable unless evidence shows a measurement greater than one milliampere because it would violate the filed rate doctrine for Northern States to provide this "service" (stray voltage reduction) when it is not required to do so under its tariff. Put another way, it would be giving the plaintiffs more "services" than their rate includes (see ¶ 55).

The supreme court disagreed and concluded that the terms of the tariff did not alter Northern States' common-law duty of ordinary care (id.). The plaintiffs did not seek a "privilege" within the meaning of the filed rate doctrine; they seek a common-law duty of ordinary care. "The duty of ordinary care is not a `privilege' or `service' that Northern States bestows upon the [plaintiffs] or any of its customers. Northern States' tariff cannot undermine that common-law responsibility" (¶ 59). The court further concluded that conformance with certain Public Service Commission of Wisconsin findings does not abolish Northern States' common law duty of ordinary care. See Hoffmann v. Wisconsin Elec. Power Co., 2003 WI 64, 262 Wis. 2d 264, 664 N.W.2d 55 (¶¶ 65-68).

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