Justices to probe attorneys in lawsuit over road project

By: Erika Strebel, [email protected]//November 7, 2016//

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The Wisconsin Supreme Court is considering whether a government contractor should be held liable for damaging a sewer lateral and flooding a property in Brookfield.

The justices are scheduled Wednesday to grill attorneys in oral arguments presented in the case of Dr. Randall Melchert v. Pro Electric Contractors, which stems from Pro Electric’s installation in August 2012 of a concrete base for a new traffic light in Brookfield. Pro Electric was a subcontractor of Payne & Dolan, a Waukesha paving contractor.

ARGUE ON

In addition to hearing oral arguments in Dr. Randall Melchert v. Pro Electric Contractors at 10:45 a.m. Wednesday, the justices are scheduled to hear arguments in four other cases this week. Here is a summary of their schedule:

Wednesday
9:45 a.m. Dennis Teague v. Brad Schimel: The case involves three plaintiffs who allege that the Wisconsin Department of Justice is knowingly distributing inaccurate information every time it makes reference to them in criminal-history reports it has released. The Dane County Circuit Court had dismissed the lawsuit, which had alleged equal-protection and constitutional violations. The District 4 Court of Appeals affirmed that decision, noting the plaintiffs had failed to state any statutory or constitutional violations.

1:30 p.m. State v. Jeffrey Lepsch: A jury in 2013 convicted Lepsch of a double homicide in downtown La Crosse. He appealed the conviction, for which he is serving two life sentences, to the Court of Appeals, contending the jurors were improperly sworn-in outside his presence and that the jurors were subjectively and objectively biased. The Court of Appeals disagreed, and Lepsch asked the Supreme Court to review the case.

Thursday
9:45 a.m. State v. Thornton Talley: The case involves a defendant who was found to be sexually violent and committed in 2005. He later petitioned for discharge in 2011 and 2012. His first petition was denied by both the trial court and the District 4 Court of Appeals, and the high court declined to review his appeal. Talley is now appealing the trial court’s and district court’s denials of his petition from 2012.

10:45 a.m. Lela Operton v. LIRC: The Labor and Industry Review Commission is challenging an appeals court decision that found a former Walgreens clerk should not have been denied unemployment benefits. The appeals court found that the mistakes the clerk had made at a cash register did not constitute substantial fault, a new standard by which benefits can be denied.

After the work was completed, the owners and tenants of a nearby property — including Dr. Randall Melchert, an eye doctor who rented space there for his clinic — 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 a nearby traffic light.

Melchert filed suit, contending the work had caused flooding and damage to the property he was leasing and alleging that Pro Electric was liable for that damage.

Both a circuit court and appeals court ruled in Pro Electric’s favor. The circuit court found the company was an agent of WisDOT and therefore shielded from lawsuits by state statutes that grant immunity from lawsuits to government contractors.

The appeals court upheld that decision after finding that the circuit court had properly applied the 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 appeals court found Pro Electric “simply did what the department of transportation advised them that they are supposed to do.”

On appeal before the Wisconsin Supreme Court, the parties have been asked to decide whether the Diggers Hotline statute, Wis. Stat. 182.0175(2), creates a so-called ministerial duty, which is an obligation that must be met without room for exercising discretion. The statute requires excavators to provide advance notice of excavation projects, and to avoid damaging underground utilities.

Melchert tried to argue before the circuit court that the statute had defined duties that Pro Electric later failed to live up to and therefore triggered liability. However, the circuit court found that the statute did not apply to the auguring of a hole.

Mechert brought the argument again before the court of appeals, which rejected it on the grounds that Melchert had made no showing that any utility lines were exposed during the project. Follow @erikastrebel

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