Summary of a Recent
Judicial Development in
Agriculture and Urbanization

Stray Voltage Ruled To Be a Nuisance

Sean Brister
National AgLaw Center Graduate Fellow

In a nuisance action brought by two Iowa dairy farmers against an electric utility company for their dairy herd's alleged exposure to stray voltage produced by the utility's transmission lines, the Iowa Supreme Court has ruled that the farmers could maintain their action even though it was based solely on a nuisance theory and was not accompanied by a claim for negligence. Martins v. Interstate Power Company, 652 N.W.2d 657, 664-65 (Iowa 2002). The court ruled that in stray voltage cases a nuisance claim does not have to be predicated on a negligence claim because of the inherent degree of danger likely to result in damage. See id. at 664.

Daniel and Coleen Martins, plaintiffs, owned and operated a small dairy farm outside of Monona, Iowa. See id. at 658. Interstate Power Company ("Interstate"), defendant, operated an electric substation less than a quarter mile from the farm. See id. The Martins' farm lay between the town and the electric substation. See id.

In March, 1989, the Martins notified Interstate that they believed stray voltage from Interstate's lines was adversely affecting their dairy herd. See id. Interstate investigated and concluded that any problem that might exist was due to the wiring on the Martins' farm. See id. at 659. In 1992, Daniel experienced electrical shocks when he came in contact with some of his dairy equipment. See id. The Martins therefore reiterated their concerns to Interstate about stray voltage on their farm and its effect on their dairy herd. See id. Interstate once again investigated but maintained that the problem was not caused by its electrical lines. See id.

Daniel Martin began reporting problems often associated with stray voltage to his veterinarian in the early 1990s. See id. The veterinarian inspected the herd and described the cows as "'unruly'" and characterized by "'bad behavior.'" Id. This behavior included kicking at the milkers, kicking at their stomachs, swinging from side to side, and "'do[ing] a lot of dancing.'" Id. The cows also appeared frightened and would often refuse to enter the barn. See id.

In April, 1993, Interstate isolated the farm electrical system from the utility's electrical system and concluded that no stray voltage existed. See id. After the farm's electrical system was isolated, the veterinarian noted that "'the cow behavior instantly turned around, it was just like day and night.'" Id. He also noted that the cows began to gain weight, "'appeared to be more comfortable in the barn,'" began chewing their cuds, and looked better. Id. In 1995 and 1996 the Martins noticed that the cows' demeanor began to deteriorate again. See id. They also noticed that the cows' somatic cell counts were increasing. See id. In March, 1997, they moved the dairy herd to another nearby farm, and the cows' behavior improved immediately. See id.

In November, 1996, the Martins' brought an action against Interstate based on strict liability, negligence, nuisance, and trespass. See id. They subsequently dismissed the strict liability, negligence, and trespass claims, leaving only the nuisance claim. See id. The case went to trial and the jury awarded the Martins $700,000.00. See id. Interstate appealed this decision to the Iowa Court of Appeals. See id. The appeals court affirmed the district court's decision. See id. Interstate appealed the matter to the Iowa Supreme Court. See id. The only issue before the Iowa Supreme Court was whether the Martins could properly bring a "pure nuisance" claim against Interstate without an accompanying negligence claim. See id.

The Iowa Supreme Court explained that Iowa law defined a nuisance as

[w]hatever is injurious to health, indecent, offensive to the senses, or an obstruction to the free use of property, so as essentially to interfere with the comfortable enjoyment of life or property, is a nuisance, and a civil action by ordinary proceedings may be brought to enjoin and abate the same and to recover damages sustained on account thereof.

Id. at 660 (quoting Iowa Code § 657.1 (1995)).

The court also explained that nuisance and negligence are two separate and distinct concepts. See id. (citing Bormann v. Bd. of Supervisors, 584 N.W.2d 309, 314 (Iowa 1998)). It stated that negligence "is a type of liability-forming conduct, for example, a failure to act reasonably to prevent harm. In contrast, nuisance is a liability-producing condition." Id. (quoting Bormann, 584 N.W.2d at 314). The court also stated that "[n]egligence may or may not accompany a nuisance; negligence, however, is not an essential element of a nuisance. If the condition constituting the nuisance exists, the person responsible . . . is liable for resulting damages . . . even though the person acted reasonably to prevent or minimize the deleterious effect of the nuisance." Id. (citing Bormann, 584 N.W.2d at 315) (emphasis supplied). The court added that "[t]he true distinction between negligence and nuisance is that 'to constitute a nuisance 'there must be a degree of danger (likely to result in damage) inherent in the thing itself, beyond that arising from mere failure to exercise ordinary care in its use.''" See id. at 661 (quoting Guzman v. Des Moines Hotel Partners, L.P. , 489 N.W.2d 7, 11 (Iowa 1992) (emphasis supplied)).

Interstate cited Blackman v. Iowa Union Electric Co., 14 N.W.2d 721 (Iowa 1944), to support its argument that a nuisance claim brought against a utility company must be based on a negligence theory. See id. In Blackman, a plaintiff brought an action against an electric and gas company "for personal injury and property damage caused by the escape of gas that flooded [the] plaintiff's home." Id. (citing Blackman, 14 N.W.2d at 722). The plaintiff alleged, in part, that the electric and gas company "'negligently and carelessly allowed gas to escape from its mains and become a nuisance in [the] plaintiff's property . . . .'" Id. (quoting Blackman, 14 N.W.2d at 723). In the present case, the Iowa Supreme Court stated that because Blackman was tried, in part, on a negligence theory does not mean that Blackman stands for the proposition that a nuisance claim brought against a utility must be based on negligence. See id. (quoting Blackman, 14 N.W.2d at 723). Thus, the court rejected this part of Interstate's argument. See id.

Interstate also argued that "by allowing the Martins to proceed under a nuisance claim not predicated on negligence, the district court essentially applied a strict liability standard against the utility," in conflict with the Iowa Supreme Court's decision in Schlader v. Interstate Power Co., 591 N.W.2d 10 (Iowa 1999). See id. (citing Schlader, 591 N.W.2d at 13). In Schlader, the plaintiffs' complaint contained allegations of "negligence, strict products liability, breach of implied warranties, breach of contract, and gross negligence." Id. The complaint did not include a nuisance claim. See id. In Schlader, the Iowa Supreme Court "affirmed the district court's summary judgment ruling against the plaintiffs on their strict liability claim that was premised on strict liability under section 402A of the Restatement (Second) of Torts." Id. (citing Schlader, 591 N.W.2d at 12-13). The court stated that because the state legislature had recently repealed a statute that created a rebuttable presumption of negligence against a utility in the case of injury caused by a utility company's electrical lines, "'we would astonish the legislature if we were to adopt strict liability regarding stray voltage.'" Id. (quoting Schlader, 591 N.W.2d at 12-13). It viewed the repeal of this statute as "'weigh[ing] strongly against strict liability.'" Id. (quoting Schlader, 591 N.W.2d at 12).

In the present case the court stated that

[i]t is true that one could read Schlader as Interstate does, and come away with the impression that some underlying prerequisite conduct like negligence is necessary to establish liability against electrical utilities in stray voltage cases. This, of course, conflicts with the present state of nuisance law in Iowa, an issue that we did not consider and address in Schlader. We therefore reject any impression one might draw from Schlader that some underlying prerequisite conduct is necessary to establish a nuisance against electrical utilities in stray voltage cases.

Id.

The court stated that "[t]he key for such a stand alone claim of nuisance is that the degree of danger likely to result in damage must be inherent in the thing itself." Id. It concluded that "[e]xcessive stray voltage from an electric utility resulting in damage to a dairy herd meets that test." Id.

The dissenting opinion concluded that the only theory of recovery available to the Martins was negligence. See id. at 666. It explained that

[a] common law claim for nuisance does not exist as a separate theory of recovery from negligence in every case, but only in those circumstances where there is a degree of danger (likely to result in damage) inherent in the thing [responsible for the harm], beyond that arising from mere failure to exercise ordinary care in its use. This means that the inherent degree of danger must be something more than negligence. If the harm is nothing more than negligence, there is no claim for nuisance.

Id. 665 (citations omitted).

The dissenting opinion stated that stray voltage causing damage to a dairy herd does not meet this test for nuisance. It noted that "[a]lthough some stray voltage is inherent in the process of supplying electricity, the undesirable levels of stray voltage responsible for harm to cattle result because of 'problems in the electrical systems.'" Id. at 665-66. (citation omitted). It also noted that stray voltage "can be minimized or controlled by proper methods of distribution." Id. at 666. The dissenting opinion concluded that "the failure of a utility to properly minimize and contain stray voltage to an acceptable inherent level would be no more than negligence. The majority has created a case for nuisance that is not supported by law, facts, or science." Id.

The case was decided on October 9, 2002; this summary was posted March, 2003