JOHN SCHAENDORF V CONSUMERS ENERGY CO
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STATE OF MICHIGAN
COURT OF APPEALS
JOHN SCHAENDORF and CONNIE
SCHAENDORF,
UNPUBLISHED
March 6, 2007
APPROVED FOR
PUBLICATION
May 15, 2007
9:05 a.m.
Plaintiffs-Appellees,
v
No. 269661
Allegan Circuit Court
LC No. 04-035985-NZ
CONSUMERS ENERGY COMPANY,
Defendant-Appellant.
Official Reported Version
Before: Fort Hood, P.J., and Smolenski and Murray, JJ.
SMOLENSKI, J.
Plaintiffs, who own and operate a dairy farm in Allegan County, sued defendant for
negligence, nuisance, and trespass relating to injuries to their dairy herd and property allegedly
caused by stray voltage. Defendant moved for summary disposition of all three claims. The trial
court granted defendant's motion with respect to the claim for trespass, but denied the motion
with respect to the claims for nuisance and negligence. This Court granted defendant's
application for leave to appeal. We affirm in part, reverse in part, and remand.
On appeal, defendant first argues that the trial court erroneously applied the discovery
rule to conclude that plaintiffs' negligence claim was not barred by the applicable three-year
statute of limitations, MCL 600.5805(10). Defendant argues that the discovery rule should not
apply in stray voltage cases. Defendant further argues that, even if the discovery rule does apply,
plaintiffs' negligence claim was still untimely because they should have discovered their claim
more than three years before their action was filed.
This Court reviews a trial court's summary disposition decision de novo. Spiek v Dep't of
Transportation, 456 Mich 331, 337; 572 NW2d 201 (1998). Summary disposition may be
granted under MCR 2.116(C)(7) when an action is barred by the statute of limitations. In Turner
v Mercy Hospitals & Health Services of Detroit, 210 Mich App 345, 348; 533 NW2d 365
(1995), this Court explained:
A defendant who files a motion for summary disposition under MCR
2.116(C)(7) may (but is not required to) file supportive material such as affidavits,
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depositions, admissions, or other documentary evidence. MCR 2.116(G)(3);
Patterson v Kleiman, 447 Mich 429, 432; 526 NW2d 879 (1994). If such
documentation is submitted, the court must consider it. MCR 2.116(G)(5). If no
such documentation is submitted, the court must review the plaintiff 's complaint,
accepting its well-pleaded allegations as true and construing them in a light most
favorable to the plaintiff.
"If the pleadings or other documentary evidence reveal no genuine issues of material fact, the
court must decide as a matter of law whether the claim is statutorily barred." Holmes v Michigan
Capital Med Ctr, 242 Mich App 703, 706; 620 NW2d 319 (2000).
We agree with defendant that the discovery rule is inapplicable to stray voltage cases as a
matter of law. Our Supreme Court has applied the discovery rule in cases involving latent
injuries or a plaintiff 's inability to discover a causal connection between the injury and the
defendant's breach of duty. Lemmerman v Fealk, 449 Mich 56, 65-68; 534 NW2d 695 (1995).
The Court has refused to apply it in cases of ordinary negligence where the plaintiff merely
misjudges the severity of an injury. Stephens v Dixon, 449 Mich 531, 537; 536 NW2d 755
(1995). More recently, the Court refused to apply the discovery rule to fraud claims, relying in
part on the plain language of MCL 600.5827,1 which governs when a claim accrues. Boyle v
Gen Motors Corp, 468 Mich 226, 231-232; 661 NW2d 557 (2003). Indeed, the Court has
granted leave to consider whether the common-law discovery rule remains viable in light of
MCL 600.5827. See Trentadue v Buckler Automatic Lawn Sprinkler Co, 475 Mich 906 (2006).
Considering that the discovery rule has been limited to situations involving latent injuries
or a plaintiff 's inability to discover the causal connection between an injury and a defendant's
conduct, we find no basis for applying the rule to stray voltage cases
We agree with decisions from other jurisdictions observing that stray voltage claims
involve only patent injuries. In Dabb v NYNEX Corp, 262 AD2d 1079; 691 NYS2d 840 (1999),
the court held that for purposes of the statute of limitations, "the alleged harmful effect of
electricity upon the cows is in fact patent, not latent, and thus there is no interval between the
alleged exposure and resulting harm." The court distinguished stray voltage claims from cases
involving the harmful effects caused by exposure to toxins in which the adverse effects do not
manifest themselves until many years after exposure.
1
MCL 600.5827 provides:
Except as otherwise expressly provided, the period of limitations runs
from the time the claim accrues. The claim accrues at the time provided in
sections 5829 to 5838 [MCL 600.5829 to MCL 600.5838], and in cases not
covered by these sections the claim accrues at the time the wrong upon which the
claim is based was done regardless of the time when damage results.
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In Spriestersbach v Ohio Edison Co, 1995 WL 641146 (Ohio App, 1995), the Ohio Court
of Appeals refused to extend the discovery rule to a stray voltage case because that rule had been
limited to cases involving malpractice and latent defects. The court rejected the plaintiffs'
argument that the damages to their herd were similar to cases involving latent diseases:
Appellants' arguments are unpersuasive.
Apart from the medical
malpractice cases, which the Supreme Court has expressly limited to malpractice,
. . . , application of a discovery rule is predicated upon manifestation of the injury
at some point after the wrongful conduct. In the case sub judice, the injuries from
the cattle's exposure to the stray voltage occurred and manifested themselves in
timely proximity to the exposure. Stray voltage shocked the cattle over a period
of years, during which time they also produced less milk and suffered from
frequent and severe physical illnesses. Once, Mrs. Spriestersbach herself
experienced a particularly strong shock while in the milking parlor and saw a cow
immediately fall to the ground, dead. Appellants admittedly were aware of both
the electrical problems and the resulting injuries; they simply may not have put
the two together. This situation is not comparable to a latent disease, the
symptoms of which may not be experienced for years, or to a latent defect in a
product, which is not detectable until well after the sale. The injury manifested
itself immediately; therefore, the discovery rule, no matter how formulated, does
not apply to this action. [Id. at *5 (citation omitted).]
See also G & K Dairy v Princeton Electric Plant Bd, 781 F Supp 485, 488 (WD Ky, 1991).
Accordingly, we conclude that the discovery rule is inapplicable to this case as a matter
of law. Nonetheless, we disagree with defendant's assertion that, absent the discovery rule,
plaintiffs' negligence claim is necessarily barred by the three-year period of limitations.
MCL 600.5827 provides that the period of limitations runs from the time a claim accrues,
and that a claim accrues when the wrong upon which it is based occurs regardless of when
damages result. For purposes of MCL 600.5827, the term "wrong" refers to the date on which
the plaintiff was harmed by the defendant's act, not the date on which the defendant acted
negligently because that would permit a cause of action to be barred before any injury resulted.
Chase v Sabin, 445 Mich 190, 195-196; 516 NW2d 60 (1994). Accordingly, a cause of action
for a tortious injury accrues when all the elements of the claim have occurred and can be alleged
in a proper complaint. Stephens, supra at 539. At that point, the plaintiff must be able to allege,
for a negligence claim, (1) the existence of a legal duty owed by the defendant to the plaintiff, (2)
a breach of such duty, (3) a proximate causal relationship between the breach of such duty and an
injury to the plaintiff, and (4) damages suffered by the plaintiff. Id. The burden of establishing
that a claim is barred by the statute of limitations is on the party asserting the defense. Forest
City Enterprises, Inc v Leemon Oil Co, 228 Mich App 57, 74; 577 NW2d 150 (1998).
A claim involving stray voltage accrues when the plaintiff is harmed as a result of stray
voltage. There must be evidence of both stray voltage and its resulting harmful effects to the
plaintiff. Therefore, a claim based on stray voltage causing injuries to a dairy herd does not
accrue until there are harmful effects to the herd that can be attributed to stray voltage.
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Defendant relies on evidence that plaintiffs' herd began experiencing a decrease in milk
production in 2000 to argue that plaintiffs' negligence claim accrued at that time and, therefore,
was untimely filed more than three years later in 2004. Although a decrease in milk production
was identified as an effect of exposure to stray voltage, there was evidence that other factors can
also cause milk production to decrease. Moreover, there was evidence that milk production
increased again in 2001 and that it was not until 2002 that milk production began a sustained
decline and other signs of stray voltage began to appear. More significantly, the submitted
evidence showed that defendant's own employees tested plaintiffs' farm in 2002 and 2003 and
did not detect a problem with stray voltage. Viewed in a light most favorable to plaintiffs, the
evidence created a genuine issue of material fact with regard to whether plaintiffs' herd did not
begin to experience the harmful effects of stray voltage until after June 29, 2001, less than three
years before plaintiffs filed their complaint in June 2004.2
Furthermore, plaintiffs presented evidence that defendant provided service to a newly
constructed wash barn in 2003, which may have been the source of stray voltage. Because any
claim of negligence based on this new source of electricity could not have accrued until 2003,
summary disposition based on the statute of limitations was not warranted.3
Defendant argues that the trial court erred by concluding that statements made by its
employees to plaintiffs about the absence of stray voltage on plaintiffs' property negated
plaintiffs' knowledge of a possible claim, thus tolling the running of the limitations period.
Defendant's employees performed periodic testing of plaintiffs' farm to check for stray
voltage. Plaintiffs claim that defendant checked their farm in October 2002, November 2003,
and December 2003, each time advising that there was no problem with stray voltage. However,
plaintiffs began noticing a sustained decline in milk production and other physical symptoms
associated with stray voltage during this period, so they hired their own expert to test the farm in
December 2003. The expert concluded there was a stray voltage problem.
Relying on Bellville v Consumers Energy Co, unpublished opinion per curiam of the
Court of Appeals, issued August 24, 2004 (Docket No. 243719), defendant argued that its
2
We disagree with defendant that plaintiff John Schaendorf 's affidavit improperly created an
issue of fact by asserting facts contrary to his deposition testimony. Mitan v Neiman Marcus,
240 Mich App 679, 682-683; 613 NW2d 415 (2000). In his deposition, Schaendorf admitted that
there was a drop in milk production in 2000 that, in hindsight, could have been caused by stray
voltage, but he further stated that he was not certain what caused the milk production to drop. In
his affidavit, Schaendorf averred that he was not alerted to a possible problem of stray voltage
affecting the herd until 2002, when he became aware of other physical problems with the herd in
addition to a sustained drop in milk production. Schaendorf 's affidavit is not inconsistent with
his deposition testimony.
3
We agree with defendant that plaintiffs cannot rely on a theory of fraudulent concealment to
toll the period of limitations because they did not plead this theory, or allege facts in support of
it, in their complaint. Phinney v Perlmutter, 222 Mich App 513, 562-563; 564 NW2d 532
(1997).
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statements advising plaintiffs that there was no problem with stray voltage should not have been
considered by the trial court in evaluating plaintiffs' knowledge of a possible claim for purposes
of the discovery rule. Because Bellville is an unpublished decision, it was not binding on the
trial court under the rule of stare decisis. MCR 7.215(C)(1). In any event, we agree with the
trial court that Bellville is factually distinguishable. In this case, defendant's statements denying
a problem with stray voltage were made after its tests on plaintiffs' property. There is no
indication in Bellville that defendant conducted actual testing for stray voltage; rather, it appears
that it merely denied a problem with stray voltage. Unlike the trial court, however, we do not
view the significance of defendant's statements as relating to plaintiffs' knowledge of a possible
problem for purposes of applying the discovery rule. Rather, the significance of the statements is
that they give rise to a genuine issue of material fact concerning whether there was a possible
problem with stray voltage that affected plaintiffs' herd in 2002 and 2003.
For these reasons, we affirm the trial court's denial of defendant's motion for summary
disposition of plaintiffs' negligence claim based on the statute of limitations.
Next, defendant argues that summary disposition of plaintiffs' nuisance claim was
warranted under MCR 2.116(C)(8) because plaintiffs failed to state a claim for nuisance as a
matter of law. We agree.
A motion under MCR 2.116(C)(8) tests the legal sufficiency of the plaintiff 's complaint
by the pleadings alone. Corley v Detroit Bd of Ed, 470 Mich 274, 277; 681 NW2d 342 (2004).
All well-pleaded factual allegations in the complaint are taken as true, as well as any reasonable
inferences or conclusions that can be drawn from the allegations. Peters v Dep't of Corrections,
215 Mich App 485, 486-487; 546 NW2d 668 (1996). The motion should be granted only if the
claims are so clearly unenforceable as a matter of law that no factual development could justify
recovery. Id. at 487.
The allegations offered by plaintiffs in support of their nuisance claim are merely a
restatement of their negligence theory. Plaintiffs have alleged that defendant is liable for the
manner in which they supplied electricity to their property. See Jackson Co Hog Producers v
Consumers Power Co, 234 Mich App 72, 83; 592 NW2d 112 (1999). This is essentially a
product-liability claim. Plaintiffs' negligence claim is likewise based on the delivery of
electricity. Sellers or installers of defective equipment generally cannot be liable for nuisance,
because this would significantly expand the scope of nuisance law beyond its origins. See
Detroit Bd of Ed v Celotex Corp (On Remand), 196 Mich App 694, 710; 493 NW2d 513 (1992).
Although defendant has retained control of the electrical system, that does not distinguish this
case from Celotex Corp, or support the application of a nuisance theory in this case. Plaintiffs'
reliance on Traver Lakes Community Maintenance Ass'n v Douglas Co, 224 Mich App 335; 568
NW2d 847 (1997), is misplaced because that case involved a nuisance claim that arose on
adjoining property, not a claim for product liability.
Therefore, the trial court erred in denying defendant's motion for summary disposition
with respect to plaintiffs' nuisance claim.
We also agree with defendant that the continuing-wrongful-acts doctrine does not apply
in this case. The doctrine is inapplicable to cases like this one, in which the plaintiff is seeking
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compensation for the continual harmful effects caused by a completed original act. Jackson Co
Hog Producers, supra at 83. Moreover, the continuing-wrongful-acts doctrine is no longer
viable with respect to claims arising beyond the period of limitations. Garg v Macomb Co
Community Mental Health Services, 472 Mich 263, 284-285; 696 NW2d 646 (2005), amended
473 Mich 1205 (2005).
Affirmed in part, reversed in part, and remanded for further proceedings. We do not
retain jurisdiction.
Fort Hood, P.J., concurred
/s/ Karen M. Fort Hood
/s/ Michael R. Smolenski
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