Minn. farmers can seek compensation for shocked cows

Jessica M. Karmasek Feb. 1, 2011, 1:23pm


ST. PAUL, Minn. (Legal Newsline) - The Minnesota Supreme Court has upheld a decision to possibly award a pair of dairy farmers damages to make up for lost milk production caused by a power company's stray voltage.

The Court, in its opinion filed Jan. 26, affirmed the ruling of an appeals court that neither the filed rate doctrine nor the primary jurisdiction doctrine barred Greg and Harlan Siewert's claims for monetary damages.

However, the Court reversed with respect to the Siewerts' claim for injunctive relief to prevent further alleged nuisance by defendant Northern States Power Company, or NSP.

The Siewerts had sued NSP for both damages and injunctive relief based on negligence, strict liability, trespass and nuisance for the stray voltage, which they claim was caused by an electrical distribution system owned and operated by the company.

The Siewerts -- a father-and-son team -- moved to a new farm in rural Wabasha County in 1989. At the time, they owned between 150 and 200 cows.

Following the move, the cows' milk production decreased and continued to seriously decrease by the late 1990s and early 2000s. The Siewerts' herd also began experiencing various health problems and unusually high mortality rates.

The dairy farmers then hired several experts to figure out the cause of the decreased milk production and the unusual number of deaths.

In 2004, at the recommendation of one forensic veterinarian, the two began looking at stray voltage as a possibility.

Stray voltage is when an electrical current -- voltage that returns to the ground after powering an appliance -- passes through an object not intended as a conductor. In this case, that object would be the Siewerts' cows.

Later in 2004, the Siewerts hired an electrician to test for stray voltage. The electrician found 6.6 amps of current and took measurements showing "cow contact voltages" exceeding 1.5 volts. The electrician concluded the voltage was "excessive."

Meanwhile, NSP had responded to the dairy farmers' concerns by designing a new three-phase configuration for electrical service to the farm. That included a primary neutral isolator with a greater capacity.

Greg Siewert testified that following the company's adjustments, the stray voltage levels dropped but were not eliminated altogether.

Associate Justice Alan C. Page delivered the Court's opinion.

As to the Siewerts' claim for injunctive relief, the Court said, "The filed rate doctrine precludes adding terms to a tariff and the district court therefore could not direct NSP to 'reconstruct the distribution lines to reduce or eliminate stray current.'

"But the Siewerts requested, in the alternative, an order 'compelling (NSP) to cease trespass and nuisance in the form of stray current over and through the property of (the Siewerts)," without specifying how NSP must accomplish that task.

"Ordering NSP to abate the nuisance created by stray current, without directing NSP as to the particular means by which it was to do so, would not have added terms to the tariff or direct the scope of service to be provided," it wrote.

NSP argued that the Siewerts, if their claims were to go forward, would receive an undue advantage.

The Court disagreed, "Allowing the Siewerts' common law tort claims to go forward presents no undue advantage over other consumers of NSP's electric distribution services because, as noted above, stray voltage is not a service, and the creation of such stray voltage is also not a service for which other consumers are paying."

A damages award, the Court said, would also not require a redesign or implementation of a new system, nor would it require that NSP replace the multi-grounded system.

"Rather, damages would compensate for the harm the Siewerts have already experienced," it wrote.

From Legal Newsline: Reach Jessica Karmasek by e-mail at jessica@legalnewsline.com.

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