Melchert v. Pro Elec. Contrs., 2017 Wis. Lexis 169 (April 7, 2017)

The Wisconsin Department of Transportation (“DOT”) contracted with Payne & Dolan (“P&D”) as General Contractor on a road improvement project. P&D in turn contracted with Pro Electric Contractors (“Pro Electric”) to install concrete bases for new traffic signal poles.  DOT provided Pro Electric with detailed plans and specifications for the project (“Project Plan”) that specified the location of the concrete bases and the excavation equipment to be used.  Pro Electric was required to comply with the Project Plan and could only make deviations if approved by DOT’s engineer.

While excavating one of the specified locations, Pro Electric unknowingly severed a sewer line, causing sewage backup and flooding on adjoining private property. Pro Electric then backfilled the excavation site without inspecting the sewer line for damage.  The private property owners (“Owners”) brought a negligence action against Pro Electric.  The trial court granted summary judgment in favor of Pro Electric, ruling that it was immune from liability because it was merely implementing DOT’s design decisions.  The court of appeals affirmed, and Owners appealed to the Supreme Court of Wisconsin.

The Supreme Court held that Pro Electric was entitled to immunity for severing the sewer line. The court explained that in adopting the Project Plan, DOT had exercised its legislative or quasi-legislative function as a state agency to “direct, undertake and expend state and federal aid for planning, promotion and protection activities” of highways.  As such, DOT’s adoption of the Project Plan was entitled to governmental immunity.  This immunity was then conferred upon Pro Electric because the Project Plan included reasonably precise specifications for the location, dimensions, and method of excavation for the concrete bases; Pro Electric had no discretion to vary from these specifications; and Pro Electric complied with them exactly.

The Supreme Court held that Pro Electric was not entitled to immunity for backfilling the excavation site.  The Project Plan, which only required Pro Electric to “coordinate construction activities with a call to Digger’s Hotline… as required per statutes” and “use caution to ensure the integrity of underground facilities,” did not provide reasonably precise specifications for how Pro Electric should perform this responsibility.  Because Pro Electric had ample discretion in performing the backfilling, it was not entitled to immunity.

Nevertheless, the Supreme Court upheld the trial court’s grant of summary judgment in favor of Pro Electric, finding that it had not been negligent in performing the backfilling. The Wisconsin statute governing excavation called for Pro Electric to call the Digger’s Hotline at least 3 days prior to excavation, which Pro Electric had done.  The statute also mandated that Pro Electric “inspect all transmission facilities exposed during excavation” and make any necessary repairs to damaged facilities.  The facts did not show that the sewer line was a “transmission facility exposed during excavation” because there were no sewer line markings, and the excavation did not reveal the presence of the sewer line.  Thus, the facts did not support the inference that Pro Electric breached a duty in performing the backfilling.

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