Court: Construction contractor immune from suit

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A state appeals court has decided to give a government contractor immunity from being sued by the tenants and owners of a Brookfield property damaged by the company’s installation of a traffic signal.

The Wisconsin Court of Appeals on Wednesday ruled in favor of Pro Electric Contractors, a Franksville-based electrical contractor, affirming a decision by a lower court.

The case stems from Pro Electric’s August 2012 installation of a concrete base for a new traffic light in Brookfield. Pro Electric was a subcontractor of Payne & Dolan Inc., Waukesha, which was the general contractor on the project. The company was found not liable for damage caused by its work chiefly because it was acting on detailed instructions provided by the Wisconsin Department of Transportation.

WisDOT’s plans for the work had specified the dimensions and components of the base and insisting that a circular auger be used on the project.

After the work was completed, the owners and tenants of a nearby property — including Dr. Randall Melchert, an optometrist and eye doctor — reported water damage. Melchert alleged that Pro Electric had severed a sewer lateral while using a circular auger to dig a hole to set the base of the traffic light.

Melcher filed suit, claiming the work had caused flooding and damage to the property, where he rents space for an eye-care clinic. But the circuit court ruled in Pro Electric’s favor, finding the company was an agent of WisDOT and therefore shielded from lawsuits by state statutes that grant legal immunity to government contractors.

Pro Electric, according to the court of appeals decision, “simply did what the department of transportation advised them that they are supposed to do.”

The appeals court ruled that state law shields Pro Electric from the lawsuit and that the record shows no connection between the plaintiff’s allegations and the damages.

Rick Hills, an attorney for Pro Electric Contractors, declined to comment on the case.  A representative from Pro Electric could not be immediately reached Thursday afternoon.

Rudolph Kuss, an attorney for the property owners and tenants, said he and his clients were surprised by the decision and are considering either a motion for reconsideration or a petition for review. Kuss argued the decision does not follow precedent established by the Wisconsin Supreme Court.

The appeals court agreed with the circuit court’s application of a precedent set in the state Supreme Court’s decision in Showers Appraisals LLC v. Musson Bros. Inc., which reaffirmed the test for immunity under state statutes. According to the Showers ruling, a contractor cannot receive immunity unless it proves it was acting under “reasonably precise specifications” set by a government agency.

The circuit court was correct, according to the appeals court decision, because “the DOT issued voluminous, highly detailed instructions for putting in the traffic light.” Follow @erikastrebel