02-2192 City of Stoughton v. Thomasson Lumber Company

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“In this case, Smith, [the city’s expert], testified that in his opinion to a high degree of scientific certainty or probability, the decay in the poles was caused by fungi that were introduced at or prior to the treatment process in one or more of three primary ways; but he acknowledged he could not, on the basis of the investigation he had made, opine to the requisite degree of certainty which of these three caused the decay in a specific pole. Smith’s inability to give an opinion to the requisite degree of certainty on the cause of decay in a specific pole does not render inadmissible the opinions he did give to the requisite degree of certainty. Whether to accept the opinions he gave to the requisite degree of certainty in view of the opinions he could not give is a judgment for the trial court as fact finder to make.”

And, even though some of the 189 poles did not exhibit decay, the trial court could properly infer that each of the poles was defective at the time of delivery because there was testimony that properly treated utility poles should have no decay or failures for fifteen to twenty years after being placed in service, and that a failure of even 1% of a pole population within the first five years meant that something was drastically wrong with that pole population.

“Thomasson Lumber apparently believes the City had to prove that each pole was observed to have exhibited decay, but this confuses the nature of the evidence with the fact to be proved. Evidence that a particular pole was rotten within five years of delivery may be one way to prove that particular pole was defective at the time of delivery, but it is not the only way. Evidence, including reasonable inferences from the evidence, that all poles were subject to a deficient treatment process is another way to prove that each of the poles was defective at the time of delivery.”

Finally, even though the city cut up 36 of the poles without marking them for identification after this litigation began, we conclude that the trial court erred in precluding the city from recovering damages for those poles.

“[E]ven assuming that all thirty-six poles would not have shown signs of decay-and we recognize that there is evidence that some of the pieces did-we are uncertain that would have affected Smith’s opinions or the trial court’s decision to credit his opinions. We recognize that the trial court is in the best position to decide how an inspection of the thirty-six poles might have affected its view of the evidence and its findings. We also agree that, in the absence of evidence to the contrary, it is fair to assume that those poles that were not inspected because the City did not mark them would have provided evidence favorable to Thomasson Lumber. Nonetheless, in spite of having carefully reviewed the record in light of Judge Nicks’s expressed rationale, we are unable, without more explanation of her analysis, to conclude that her decision to preclude damages for the thirty-six poles is a proper exercise of discretion.

“We are therefore persuaded that the best course is to reverse Judge Nicks’s award of damages for only 189 poles and remand on this issue. This will provide the court with the opportunity to consider how Thomasson Lumber’s lack of opportunity to inspect the thirty-six poles affected the court’s findings of fact and to provide a fuller explanation of the conclusion it arrives at.”

Judgment affirmed; cross-appeal reversed and cause remanded.

Recommended for publication in the official reports.

Dist IV, Dane County, Nicks, J., Vergeront, J.