01-0740 Racine County v. Cape, et al.

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We agree with defendant that its operation of the modernized crusher system only increases the frequency, intensity and volume of its recycling capabilities and presents no identifiable change in use.

We disagree with the county’s argument that an identifiable change has occurred because the crusher produces gravel which is a new product in the stream of commerce. Although the production of gravel is new, none of the county’s affidavits demonstrate that the gravel is a product that defendant puts into the stream of commerce.

“The gravel is simply produced and recycled into Cape’s construction projects as its recycled materials always have been. We cannot conclude, therefore, that Cape’s production of gravel for its own use is a change in the type of services offered or products sold. If the facts demonstrated that Cape had purchased concrete from other sources, broken it down into gravel and then sold it to outside customers, then we might conclude that an identifiable change in use had occurred. This scenario might indeed comprise a ‘multi-faceted enterprise’ of buying and selling gravel in addition to Cape’s construction activities. This is not the case presented to us, however.”

Accordingly, we reverse the entry of summary judgment for the county and enter summary judgment for defendant.

Recommended for publication in the official reports.

Dist II, Racine County, Torhorst, J., Brown, J.

Attorneys:

For Appellant: R.W. Phenicie, Burlington; John E. Hotvedt, Burlington

For Respondent: Matthew W. McVey, Racine