Allen v. Wisconsin Public Service Corp
In Allen v. Wisconsin Public Service Corp., 279 Wis.2d 488, 2005 WI App 40, 694 N.W.2d 420, both the plaintiff and defense experts found current measuring less than one milliampere on the plaintiff's farm. 2005 WI App 40, at P 27, 279 Wis. 2d 488, 694 N.W.2d 420. The jury determined that stray voltage from the utility's distribution system caused harm to the dairy farm, and that the utility's negligence had caused the harm.
On appeal, the court of appeals affirmed the jury verdict, finding, among other things, that the nuisance award was not excessive in light of the plaintiff's "experience ultimately leading to finding the source of his herd's problems." Id. at P 23.
The court observed that the plaintiff had endeavored for years to discover the source of his problems, and had called the utility to his farm on multiple occasions to test for stray voltage, but had been told "he did not have a problem or that the problem was on his farm and not a result of WPS's [the utility's] electrical system." Id. Accordingly, the court concluded that the award was justified. Id.
In considering the plaintiff's cross appeal for treble damages, which could have been awarded if the utility's conduct had been wanton, willful, or reckless, the court of appeals commented that:
"WPS points to studies by the United States Department of Agriculture and by state agencies such as the Public Service Commission of Wisconsin, which regulates WPS, that discuss an electric current's effect on dairy cattle. These sources agree that current below four milliamperes has no adverse affect on dairy cows. The USDA has determined that cows do not perceive electricity below one milliampere, and voltage at that level does not affect milk production. Both WPS's and Allen's experts found current measuring less than one milliampere on Allen's farm. WPS cannot be faulted for following 'plausible' science when it concluded there was no problem. Consequently, Allen has not shown that WPS acted willfully, wantonly or recklessly. Thus the trial court did not err in denying Allen's request for treble damages." Id. at P 26-27.