# Martins v. Interstate Power Co.

> Supreme Court of Iowa · October 9, 2002 · 652 N.W.2d 657

URL: https://www.frixlaw.com/law-library/cases/9582317

## Case

- **Full name:** Daniel MARTINS and Coleen Martins, Appellees, v. INTERSTATE POWER COMPANY, Appellant
- **Court:** Supreme Court of Iowa
- **Decided:** October 9, 2002
- **Citations:** 652 N.W.2d 657; 2002 Iowa Sup. LEXIS 214; 2002 WL 31249943
- **Precedential status:** Published
- **Opinion:** Dissent by Cady
- **Judges:** Lavorato, Cady, Ternus
- **Cited by:** 14 later opinions in the Frix Law Library

## Citator (automated)

- No negative treatment found by the automated citator. That is not the same as a confirmation that the case is good law; read the citing cases.
- Full citator and citing cases: https://www.frixlaw.com/law-library/cases/9582317

## How later opinions describe it (automated extraction)

- holding that “[e]xcessive stray voltage from an electric utility resulting in damage to a dairy herd” is an inherent danger

## Opinion text

CADY, Justice
(dissenting).
I respectfully dissent.
A common law claim for nuisance does not exist as a separate tort theory of recovery from negligence in every case, but only in those circumstances where there is a “ ‘degree of danger (likely to result in damage) inherent in the thing [responsible for the harm], beyond that arising from mere failure to exercise ordinary care in its use.’ ” Guzman, 489 N.W.2d at 11 (quoting Hall v. Town of Keota, 248 Iowa 131, 142 , 79 N.W.2d 784, 790 (Iowa 1956)). This means that the inherent degree of danger must be something more than negligence. Id. If the harm is nothing more than negligence, there is no claim for nuisance. Id.
The majority incorrectly concludes that excessive stray voltage responsible for damage to a dairy herd meets this test of a nuisance. It does not, because the case *666 only satisfies part of the test. Although some stray voltage is inherent in the process of supplying electricity, the undesirable levels of stray voltage responsible for harm to cattle result because of “problems in the electrical systems.” Yelkovac, 28 Val. U.L.Rev. at 1112-13. Stray voltage can be minimized or controlled by proper methods of distribution. Id. at 1119-20. Thus, the failure of a utility to properly minimize and contain stray voltage to an acceptable inherent level would be no more than negligence. The majority has created a case for nuisance that is not supported by law, facts, or science.
The effect of the majority decision is to impose a form of strict liability on a utility in a stray voltage case. Nearly sixty years ago, we expressly said that a utility “can only be held hable for its own negligence.” Blackman, 234 Iowa at 862, 14 N.W.2d at 723. Moreover, this concept was recently reaffirmed in Schlader v. Interstate Power Co., where we refused to allow the concept of strict liability to creep into a stray voltage case brought against the utility. Schlader, 591 N.W.2d at 12. Furthermore, we indicated our legislature has expressed its intent not to impose strict liability regarding stray voltage. Id. at 13.
The majority side-steps Blackman by pointing out that it involved mixed claims of negligence and nuisance, unlike this case. Yet, this is a distinction without a difference. The plaintiff in Blackman asserted claims for nuisance and negligence, but the court made it clear that the utility could not be subject to liability for nuisance, only negligence. Blackman, 234 Iowa at 862, 14 N.W.2d at 723. The court specifically held that because “proof of negligence was essential in this case, it cannot be said to be a nuisance action.” Id. The court further concluded “a gas company is not liable as an insurer for injuries sustained as a result of the escape of gas.” Id. Proof of negligence was essential because the harm inherent in transporting gas by pipes into homes is not so great that reasonable care on the part of the utility could not make it safe. This law applies with equal force to this case.
The majority also limits the impact of Schlader by claiming that its application to this case conflicts with the existing law of nuisance. The conflict, however, is only on the surface, not in principle. Under our law of nuisance, there can be no claim for nuisance if the thing responsible for the harm involves only a breach of care. Guzman, 489 N.W.2d at 11. Under our long line of authority, supplying electricity is not so inherently harmful that reasonable care cannot make it safe. Consequently, the law of nuisance does not provide a remedy.
The decision of the majority is not only contrary to our prior cases and the intent of our legislature, it is against the great weight of authority from other jurisdictions. I would reverse the district court. Negligence was the only theory of recovery available to the plaintiffs in this case.
TERNUS, J., joins this dissent.

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Source: Frix Law Library, https://www.frixlaw.com/law-library/cases/9582317. Public record. Not legal advice.