Nischke v. Farmers & Merchants Bank & Trust

522 N.W.2d 542, 187 Wis. 2d 96, 1994 Wisc. App. LEXIS 1003
CourtCourt of Appeals of Wisconsin
DecidedAugust 16, 1994
Docket93-2634
StatusPublished
Cited by37 cases

This text of 522 N.W.2d 542 (Nischke v. Farmers & Merchants Bank & Trust) is published on Counsel Stack Legal Research, covering Court of Appeals of Wisconsin primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Nischke v. Farmers & Merchants Bank & Trust, 522 N.W.2d 542, 187 Wis. 2d 96, 1994 Wisc. App. LEXIS 1003 (Wis. Ct. App. 1994).

Opinions

[102]*102LaROCQUE, J.

Lois Nischke appeals the reduction of her $250,000 property damage award. The award was to compensate her for damages she suffered when gasoline leaked from an underground storage tank on her property contaminating her soil and water. The court found the award contrary to law and reduced it to reflect the lesser of the cost of repair or the property's diminished value. For reasons explained herein, we reverse and remand for a new trial. However, we conclude that because Nischke is legally obligated to incur the costs of removing the hazard on her property, on retrial she may recover for those costs even though they exceed the property's diminished value.

Farmers & Merchants Bank & Trust (the bank) cross-appeals. It argues that the court erred by admitting testimony that the bank promised Nischke, in a phone call and visit to her, that it would remove the tank. The bank claims this testimony was prejudicial inadmissible hearsay lacking in foundation. We agree that the bank was prejudiced by the court's erroneous admission of this evidence. We therefore reverse and remand for a new trial.

In the interest of judicial economy, we address additional issues that we expect to arise again on retrial. We conclude that the bank possessed the tank and thus owed Nischke a duty of due care while it possessed the tank. We further conclude that while the bank did not have a duty independent of its duty of due care to inform Nischke it was abandoning the tank, a jury might find the bank's failure to so inform Nischke was a breach of the bank's duty of due care. Finally, we conclude that the court is not required to impute Nischke's husband's negligence to her.

[103]*103BACKGROUND

In 1966, Carl and Lois Nischke entered into a lease agreement with the Rowley Oil Company (Rowley). Under the contract, Rowley installed and leased a gasoline pump and an underground storage tank on the Nischke farm in exchange for their agreement to buy all their gas from Rowley. The Nischkes stopped using the tank in the late 1970s, and the pump broke and became idle in 1982. In 1979, Rowley borrowed money from the bank. The loan agreement gave the bank a security interest in certain assets, including Rowley's equipment. In 1984, Rowley defaulted on the loan and, in lieu of foreclosure, transferred the secured property to the bank, which agreed to attempt to sell the property and apply the proceeds to the debt. Toward this end, the bank sent a letter to Carl Nischke in 1984 stating that it had taken possession of Rowley's assets and offering to sell the gas pump and tank to Carl. Carl did not answer the letter.

Around 1989, after Carl died, Nischke's water began tasting and smelling like gasoline. A Department of Natural Resources specialist discovered petroleum-contaminated soil around her gas tank, confirmed that her water was contaminated with a hazardous substance due to a leak in the underground tank and advised Nischke to stop consuming the water. The DNR also advised Nischke that because she was legally responsible for the contamination under § 144.76(3), STATS.,1 she was required to conduct a site [104]*104investigation and take remedial action to restore the environment if necessary. Nischke was financially unable to test for and clean her property's contamination. She filed this lawsuit against the bank.

Nischke's cause of action was based in negligence. She argued that the bank was negligent for failing to inform her that it was abandoning its security interest in the gas tank. She also argued that the bank, as a secured creditor, had exercised dominion and control over the secured property and therefore had a duty to protect against dangerous conditions in the property. In support of these theories, Nischke presented evidence of the bank's letter. She also testified that sometime in 1984, she received a call from someone saying that he was from the bank and informing her that the bank had taken over Rowley's holdings and wanted to come to the property to remove the pump and tank. She testified that a few days later, two men who said they were from the bank came to the property, removed the gas pump and said they would return to remove the tank at a later date.

The bank admitted sending the letter offering to sell the pump and tank, but consistently denied it ever promised Nischke in a call, visit or otherwise that it would remove them. In motions in limine, objections at trial and motions after verdict, the bank objected to Nischke's testimony. The court denied these motions and objections. It instructed the jury that if the bank exercised dominion and control over the tank, it was liable for any unsafe condition in the secured property that caused injury. It also instructed the jury that if it found the bank had informed Nischke that it possessed the gas tank, the bank had a separate duty to inform her it was abandoning the tank and was negligent if it failed to do so. The bank requested a special verdict [105]*105question asking whether the Nischkes had signed a hold harmless agreement releasing Rowley from liability. The court refused to submit the question.

The jury returned a special verdict finding that the bank negligently exercised dominion and control over the tank and negligently breached a separate duty to inform. The jury attributed 70% of Nischke's injuries to the bank's negligence; 10% to her own negligence; 5% to her husband, Carl's, negligence and 15% to Rowley's negligence. It found Nischke's damages were $250,000. On the bank's motions after verdict, the court reduced the damages from $250,000 to $49,000 to reflect the diminution in the property's value. The court refused to impute Carl's negligence to Lois and denied the bank's motions to change the answers in the verdict and to order a new trial. The parties filed this appeal and cross-appeal.

ADMISSIBILITY OF ALLEGED EMPLOYEES' STATEMENTS

The bank argues that the trial court erred by admitting evidence of the purported phone call and visit to the Nischkes. It argues that this evidence was highly prejudicial inadmissible hearsay lacking foundation. A trial court's decision to admit or exclude evidence is a discretionary determination that will not be upset on appeal if it has a reasonable basis and was made in accordance with the facts of record. State v. Jenkins, 168 Wis. 2d 175, 186, 483 N.W.2d 262, 265 (Ct. App. 1992). If the court's decision is supportable by the record, we will not reverse even if the trial court gave the wrong reason or no reason at all. Id. We conclude that the court erred by admitting the out-of-court [106]*106statements because they were not sufficiently authenticated as being made by bank employees.

A prerequisite to the admissibility of all evidence is that it meet the authentication requirements of § 909.01, STATS. Nelson v. Zeimetz, 150 Wis. 2d 785, 797, 442 N.W.2d 530, 535 (Ct. App. 1989). Section 909.01 states that the "requirements of authentication or identification as a condition precedent to admissibility are satisfied by evidence sufficient to support a finding that the matter in question is what its proponent claims." Thus, Nischke's testimony is only admissible against the bank if sufficient evidence in the record supports a finding that the statements were actually made by bank employees.

Free access — add to your briefcase to read the full text and ask questions with AI

Related

State v. Billy Ray Edward Johnson
Court of Appeals of Wisconsin, 2025
Aaron Carmody v. Byline Bank
Court of Appeals of Wisconsin, 2024
State v. Engine & Transmission World, LLC
2023 WI App 42 (Court of Appeals of Wisconsin, 2023)
Wisconsin Central LTD v. Soo Line Railroad Company
993 F.3d 503 (Seventh Circuit, 2021)
Champion Companies of Wisconsin, Inc. v. Stafford Development, LLC
2011 WI App 8 (Court of Appeals of Wisconsin, 2010)
Dyer v. Blackhawk Leather LLC
2008 WI App 128 (Court of Appeals of Wisconsin, 2008)
Zastrow v. Journal Communications, Inc.
2005 WI App 178 (Court of Appeals of Wisconsin, 2005)
Hatleberg v. Norwest Bank Wisconsin
2005 WI 109 (Wisconsin Supreme Court, 2005)
Felton Oil Co., L.L.C. v. Gee
182 S.W.3d 72 (Supreme Court of Arkansas, 2004)
New Mexico v. General Electric Co.
335 F. Supp. 2d 1185 (D. New Mexico, 2004)
Hatleberg v. Norwest Bank Wisconsin
2004 WI App 48 (Court of Appeals of Wisconsin, 2004)
Schauer v. Baker
2004 WI App 41 (Court of Appeals of Wisconsin, 2004)
Johnson Controls, Inc. v. Employers Insurance of Wausau
2003 WI 108 (Wisconsin Supreme Court, 2003)
Paulson v. Allstate Insurance Co.
2002 WI App 168 (Court of Appeals of Wisconsin, 2002)
Koffman v. Leichtfuss
2001 WI 111 (Wisconsin Supreme Court, 2001)
Winkelman v. Town of Delafield
2000 WI App 254 (Court of Appeals of Wisconsin, 2000)
Rus v. Family Land, Inc.
29 F. Supp. 2d 475 (N.D. Illinois, 1998)
Concrete Spaces, Inc. v. Henry Sender
Court of Appeals of Tennessee, 1998
State v. Mendoza
584 N.W.2d 174 (Court of Appeals of Wisconsin, 1998)

Cite This Page — Counsel Stack

Bluebook (online)
522 N.W.2d 542, 187 Wis. 2d 96, 1994 Wisc. App. LEXIS 1003, Counsel Stack Legal Research, https://law.counselstack.com/opinion/nischke-v-farmers-merchants-bank-trust-wisctapp-1994.