High court finds public contractor had immunity, followed digger’s statute

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The Wisconsin Supreme Court has found that tenants and the owner of a Brookfield strip mall are barred from suing a contractor over damage done to the property while it was working on a nearby road project.

Friday’s 5-2 majority decision in Melchert v. Pro Electric was penned by Justice Michael Gableman. Justices Rebecca Bradley and Dan Kelly dissented, and Justice Shirley Abrahamson wrote a concurring opinion.

The justices’ decision Friday affirmed rulings by the state Court of Appeals and Waukesha County Circuit Court Judge James Kieffer in favor of Pro Electric.

The case stemmed from flood damage from Pro Electric’s severing of a sewer lateral while it was installing a traffic light at the corner of 128th Street and Capitol Drive as part of a five-mile long state Department of Transportation road improvement project. Pro Electric had been hired to install traffic lights for the project by Payne & Dolan, a general contractor out of Waukesha.

Dr. Randall Melchert, an eye doctor, and others sued in 2013, alleging that Pro Electric had also back-filled over a sewer lateral without first checking it for damage.

The high court found on Friday that Pro Electric was shield by the principle of government immunity from liability for the damage caused by severing the sewer lateral. The justices noted the company was merely following precise design specifications made by WisDOT.

However, responding to the claim that Pro Electric should have checked the sewer lateral for damage before back-filling over it, the justices found that the company was not entitled to immunity. The high court noted that WisDOT had not given Pro Electric specifications for checking sewer laterals.

But the majority still affirmed the lower courts’ rulings on that point because the record did not show Pro Electric had not fulfilled duties laid out by the state’s Digger’s Hotline statute, which requires excavators to provide advance notice of excavation projects and to avoid damaging underground utilities. Follow @erikastrebel