Vogel v. Grant-Lafayette Electric Cooperative
201 Wis. 2d 416, 548 N.W.2d 829 (1996)
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Rule of Law:
Excessive stray voltage from an electrical utility can constitute an actionable private nuisance when it unreasonably interferes with a person's interest in the private use and enjoyment of their land, even if the person requested the underlying electrical service from which the stray voltage originates.
Facts:
- Dale and Alice Vogel, who operated a dairy farm, began experiencing problems with their herd after building a new milking facility in 1970.
- The cows exhibited erratic behavior, suffered from chronic mastitis, and experienced a decline in milk production, forcing the Vogels to frequently cull the herd.
- In March 1986, the Vogels suspected that stray voltage from the electrical system provided by their cooperative, Grant-Lafayette Electric Cooperative (GLEC), was harming their cows and contacted GLEC.
- GLEC's electrical distribution system, a multi-grounded neutral system, created a pathway for stray voltage to travel onto the farm's grounded metal equipment that the cows contacted.
- GLEC responded to the Vogels' complaint by installing a device known as an 'isolator' at the farm's transformer.
- Immediately after the isolator was properly installed, the herd's behavior and health problems began to improve.
Procedural Posture:
- Dale and Alice Vogel sued Grant-Lafayette Electric Cooperative (GLEC) in a Wisconsin circuit court (trial court), alleging negligence and private nuisance.
- A jury found GLEC liable on both claims, awarding $240,000 for negligence and $60,000 for nuisance, but also found the Vogels one-third contributorily negligent.
- The trial court denied GLEC's motion to strike the nuisance damages and the Vogels' motion to disregard their contributory negligence.
- The trial court entered a final judgment for the Vogels in the amount of $200,000, reflecting the one-third reduction for contributory negligence.
- GLEC, as appellant, appealed to the Wisconsin Court of Appeals (intermediate appellate court), and the Vogels, as cross-appellants, also appealed.
- The court of appeals reversed in part, holding that private nuisance law is inapplicable to stray voltage claims, and ordered the trial court to strike the $60,000 nuisance award.
- The Vogels petitioned the Wisconsin Supreme Court for review.
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Issue:
Does the provision of electricity that results in excessive stray voltage constitute an actionable private nuisance, even though the recipient of the electricity requested the service?
Opinions:
Majority - Bradley, J.
Yes, the provision of electricity that results in excessive stray voltage can constitute an actionable private nuisance. The court rejects the lower court's reasoning that a nuisance requires a 'unilateral encroachment' and that the Vogels' request for electricity bars a nuisance claim. A distinction must be made between a request for electrical service and the non-consensual invasion of excessive, harmful stray voltage. Following the Restatement (Second) of Torts, a private nuisance is a 'nontrespassory invasion of another's interest in the private use and enjoyment of land,' a broad and flexible concept that protects against disturbances like discomfort and annoyance, not just physical invasions. The court also determined that the invasion was unintentional, not intentional, because GLEC did not know harmful levels of voltage were occurring before being notified and took immediate remedial action upon notification. Because the nuisance was unintentional and arose from negligence, the trial court correctly reduced the damages award to account for the Vogels' contributory negligence.
Analysis:
This decision clarifies that the common law doctrine of private nuisance is flexible enough to apply to modern, intangible invasions like stray voltage. It establishes the key principle that a plaintiff's consent to receive a general service, such as electricity, does not constitute consent to harmful byproducts of that service. By distinguishing between the requested service and the unintended, harmful side effect, the court preserved nuisance as a viable theory of recovery in such situations, while also confirming that if the nuisance is unintentional and based in negligence, traditional defenses like contributory negligence remain applicable.
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