Opinion
No. 368.
Argued May 1, 1973. —
Decided June 5, 1973.
APPEAL from a judgment of the circuit court for La Crosse county: PETER G. PAPPAS, Circuit Judge. Modified and, as modified, affirmed.
For the appellant there were briefs by Moen, Sheehan Meyer and Leon E. Sheehan, all of La Crosse, and oral argument by Leon E. Sheehan.
For the respondent there was a brief by Johns, Flaherty, Harman Gillette, S.C., and Robert D. Johns, all of La Crosse, and oral argument by Robert D. Johns.
Facts.
This action to recover damages for injuries to a building was brought by plaintiff-appellant, McLoone Metal Graphics, Inc., a Wisconsin corporation, against defendant-respondent, Robers Dredge, Inc., a Wisconsin corporation.
The plaintiff owned land located on the northern edge of an industrial addition site, which had previously been a marsh. In the 1950's the land on which plaintiff's buildings stand was raised and filled by hydraulic dredging from a nearby river. These buildings were subjected to river floodings in the springs of 1965, 1968 and 1969, but had apparently suffered no serious damage.
The building involved in this case was made of concrete block and was completed in 1969. It was constructed upon a base of sandfill, which fill continued north of the building for a short distance and then leveled or dropped down to an unfilled marsh area. (This marsh area consisted of approximately 25 to 30 acres.) Due to the previous filling, plaintiff's property was about 10 feet above the level of the marsh.
The Mid-City Development Corporation owned the marsh area to the north of plaintiff's property. In 1969 the Mid-City corporation entered into a contract with the defendant-respondent, Robers Dredge, Inc., under which the respondent was to fill in the marsh and raise the Mid-City property to a level four or five feet above the level of plaintiff's property.
In the summer of 1970 the respondent began the filling operation by means of hydraulic dredging. (The hydraulic dredging process sucks up sand and water from a river or stream and pumps it through pipes and discharges it in the area to be filled. The water runs off, the sand remains, creating the fill or raise in land level.) A dredge pipe was installed which ran from a nearby river to the marsh area to be filled. The dredge pipe brought in a mixture of 85 percent water and 15 percent sand. The sand settled, and the water ran off by means of gravity through a drain pipe which returned the water to the river. Respondent estimated that at least 98 percent of the water was thus removed by the drain pipe, which was located at a level about five feet lower than plaintiff's property. The water which did not run off on the surface and into the drain pipe escaped by means of percolation through the sand.
The respondent began dredging in the southwest corner of the marsh, proceeding from west to east. The first path of the discharge was along a former flood dike. (The portion of the flood dike adjacent to the plaintiff's property had been leveled out into the marsh.) As the dredging operation passed this point, the discharge pipe was moved further north and away from plaintiff's building and the angle of discharge was altered. As the dredging continued and after the discharge pipe had passed the northeast corner of the plaintiff's property, the president of the plaintiff corporation noticed water on the floor of the building and minor cracks in the floor and walls. Complaint was made to the dredging company superintendent. Dredging was continued, on the assumption that, as the operation moved away from plaintiff's building and more landfill was put between the building and the marsh, the building would be better protected and less likely to sustain damage.
However, as the dredging continued, damage to plaintiff's building increased. Water came into the building. The footings under the north wall of the building were affected, apparently by the change in the compaction of the sand and a loss of weight-bearing capacity due to the water in the surrounding sand or soil. Subsequently, the plaintiff brought an action for an injunction to stop further dredging.
A preliminary injunction was issued halting the dredging operation. Conferences were held between engineers hired by the plaintiff and representatives of the dredging company. A caisson and pump were sunk about 100 feet north of the plaintiff's building. Water was pumped from the caisson to the drain pipe, and the dredging was permitted to continue. After installation of the caisson, the level of the water under the floor of plaintiff's building was lowered. However, cracks in the walls and floors continued to enlarge. Extensive construction work was needed to repair this and other damage.
On September 14, 1970, the plaintiff commenced the present action against the defendant-respondent and the Mid-City Development Corporation, alleging negligence on the part of the respondent and Mid-City. Subsequently, the parties stipulated that the action against Mid-City Development Corporation be dismissed with prejudice and, on January 12, 1971, the trial court entered an order implementing that stipulation and dismissing as to Mid-City.
Following trial before a jury, the jury returned its verdict, finding that the damage to the building was caused by the raising of the water' table, but finding that the defendant was not negligent in performing the dredging. Following denial of motions after verdict, judgment was entered, dismissing the complaint of the plaintiff and awarding the respondent $637.50 costs and disbursements. On July 11, 1972, plaintiff filed notice of appeal.
Five separate and distinct issues are raised on this appeal.
(1) Is a dredger liable to an adjoining property owner in the absence of negligence?
(2) Was the dredger here negligent as a matter of law?
(3) Did the trial court err in its instructions as to foreseeability of harm?
(4) Did the trial court err in excluding testimony as to foreseeability of harm?
(5) Are expert witness fees limited to $25 for each witness?
Liability without negligence?
(1) Appellant does not contend that the jury finding of no negligence on the part of the dredger was unsupported by the evidence. Rather it contends that the dredger, even in the absence of a showing of negligence, is liable, under a theory of strict liability, as an insurer against damage caused by the dredging to the property or building of an adjoining property owner.Appellant's brief points out that: "There are relatively few cases involving the liability of a dredger and none in point in Wisconsin." Appellant cites cases relating to the raising of water tables by the owner of a dam and argues, "The suggestion in some of these cases . . . is that the raising of the water table on Plaintiff's land is a form of trespass for which there is liability without negligence. . . ." But these cases involve the liability of the owner of the dam, not the company that built the dam. The liability of the landowner is not before us, the case against the owner of the land being filled having been, by stipulation, dismissed. Appellant relies upon a Wisconsin case in which liability was imposed on a property owner who had the rain gutter downspout on his house fixed in such a manner as to cause damage to his neighbor's house. However, the liability was not placed on the company that installed the rain gutter. In another case cited, also involving adjoining property owners, the building owner from whose eaves water ran off onto another's property was held liable, but the liability of the contractor installing the eaves was not before the court. Both Wisconsin cases holding that there is no difference between direct discharge and percolation or permeation of the soil involved adjoining landowners, and in the later case the complaint, held not demurrable, was for negligence, not strict liability.
Blumer v. Wisconsin River Power Co. (1959), 6 Wis.2d 138, 94 N.W.2d 149; Konrad v. State (1958), 4 Wis.2d 532, 91 N.W.2d 203; Benka v. Consolidated Water Power Co. (1929), 198 Wis. 472, 224 N.W. 718. See also: Wausaukee v. Lauerman (1942), 240 Wis. 320, 3 N.W.2d 362.
Mueller Real Estate Investment Co. v. Cohen (1914), 158 Wis. 461, 149 N.W. 154.
Huber v. Stark (1905), 124 Wis. 359, 102 N.W. 12.
Schuster v. Albrecht (1898), 98 Wis. 241, 73 N.W. 990; Eickstedt v. Seifert (1956), 273 Wis. 122, 76 N.W.2d 582.
Eickstedt v. Seifert, supra, at page 129.
We deal here with the liability of a construction firm, hired to perform a landfilling operation. The only Wisconsin case dealing with a similar situation, and not entirely so, involved the depositing of fill on top of a swamp in connection with the building of a road. The county doing the landfilling and roadbuilding was sued for negligence in using ". . . the `blanketing' method of depositing fill on top of the swamp surface when it knew such method of construction would create lateral pressure in the marsh which would damage the tower . . . ." As to the landfilling and road constructing, this court stated: "Constructing the road by the defendant was not an extrahazardous activity so as to place absolute liability upon the defendant. . ."
Wisconsin Power Light Co. v. Columbia County (1962), 18 Wis.2d 39, 117 N.W.2d 597.
Id. at page 42.
Id. at page 42.
While courts appear to be divided on the issue, we conclude the better rule to be that: "An independent contractor is liable for injuries caused by his own negligence or that of his servants in the course of his performance of the work, or his liability may be stated to be for his breach of the standard of due, ordinary, or reasonable care . . . . Conversely, a contractor is not liable for an injury . . . where he was in no way negligent We do not find the landfilling operation here involved to fall within the extraordinary risk situations to which the doctrine of strict liability is customarily restricted.
See: Annot. (1925), 38 A.L.R. 1244, Injury by percolation or see page from ponded water, stating, "The courts do not appear to be in accord on the question of one's liability for damage caused by percolation or seepage from ponded water on his premises. One line of decisions holds him to be an insurer. . . . Another line of decisions holds him liable only when a lack of due care is shown on his part."
65 C.J.S., Negligence, pp. 1053, 1054, 1057, 1058, sec. 95.
See: Prosser, Law of Torts (hornbook series, 4th ed.), ch. 13, p. 518, sec. 79, stating: ". . . In general, strict liability has been confined to consequences which lie within the extraordinary risk whose existence calls for such special responsibility."
Negligent as matter of law?
(2) While no authorities for so doing are cited, appellant argues that the defendant ". . . should be held negligent either as a matter of law, or on the basis of res ipsa loquitur, under the specific facts presented. . . ." In the above-cited action involving landfilling and roadbuilding, this court stated: "The method used by the defendant was in conformity with the customary method used by the counties of its size in building the contemplated road over the marsh and would exclude an inference of negligence." Where, as in the case before us, the method used by the dredging company in doing the landfill was in conformity with the customary method used, we see no basis for holding the defendant negligent as a matter of law. As to the continuation of landfilling, after notice of damage to plaintiff's building, with the defendant assuming that since the operation had moved away from plaintiff's building and the marsh, additional damage was unlikely, we see this as a question for a jury. Here the jury answered in the negative the question as to whether harm to plaintiff's building would then have been reasonably foreseen as probable by a person of ordinary prudence under the circumstances.Did the trial court err in its instructions as to foreseeability of harm?
(3) The objection of appellant is to the trial court including in its instruction on reasonable anticipation of harm to another this sentence: "Harm to another must be reasonably foreseen as probable by a person of ordinary prudence under like circumstances." Appellant contends that the word "should" should have been used instead of the word "must." The sentence, as given by the trial court is, word for word, out of the Wisconsin Power Light Co. Case. More recently, this court stated the test in identical language: "`In Wisconsin "harm must be reasonably foreseen as probable by a person of ordinary prudence under the circumstances, if conduct resulting in such harm is to constitute negligence." . . .'" (Emphasis supplied.) The trial court's statement of the test in its jury instructions was entirely and absolutely correct.Did the trial court err in excluding testimony as to foreseeability of harm?
(4) Appellant attempted to elicit from a witness expert testimony as to the foreseeability of damage to plaintiff's building and as to whether the water from the dredging operation could have been removed in a different manner. Defendant's counsel objected on the ground that a proper foundation had not been laid. The objection was sustained. Appellant made no offer of proof. Appellant also attempted to obtain expert testimony from another witness as to what advice he would have given a dredger or landfiller with respect to the operation in question. Defendant's counsel objected on the grounds of immateriality. The court sustained the objection. Once again, appellant made no offer of proof. An offer of proof is a condition precedent to having this court pass upon an allegedly erroneous ruling on admissibility of evidence.Are expert witness fees limited to $25 for each witness?
(5) The respondent had four expert witnesses each of whom testified on only one day but who were present at trial for four days. The respondent taxed, and the trial court allowed, a $25 expert witness fee for each witness for each of the four days of trial. Appellant contends that respondent was entitled to only $25 for each expert witness regardless of the number of days each such witness was in court. The applicable statute provides for ". . . an expert witness fee of $25 for each expert who testifies, exclusive of the standard witness fee and mileage which shall also be taxed for each such expert . . . ." In a case involving not the taxing of costs but the compensation of a witness as a condition of requiring him to submit to a deposition, this court held: ". . . It lies within the competence of the trial court to fix such compensation at whatever sum that court deems reasonable, but not to exceed $25 per day." We see the case and the statutory reference, read together, as giving the trial court in this case authority to award witness fees and tax costs for expert witness fees at $25 for each expert witness for each day that such witness testifies in the proceedings. Such application of the Reynolds ruling and statutory provision requires modification of the judgment to provide for a $100, not $400, total allowance for expert witness fees ($25 for each expert witness for each day he actually testified).By the Court. — Judgment, with regard to expert witness fees, modified in accordance with this opinion and, as modified, affirmed.