Opinion
Case No. 96-1667.
Opinion Released: December 18, 1996 Opinion Filed: December 18, 1996 This opinion will not be published. See Rule 809.23(1)(b)4, Stats.
APPEAL from a judgment of the circuit court for Washington County: LAWRENCE F. WADDICK, Judge. Affirmed.
Helen Sramek, a resident at Mapledale Manor in Kewaskum, Wisconsin, filed a small claims action alleging that the hunting dogs raised at the neighboring Hon-E-Kor Country Club, Inc., bark too often and too loudly, causing her loss of sleep, emotional distress, adverse health effects and the loss of the use and enjoyment of her home. The trial court found the dogs caused a private nuisance and awarded Sramek $1000 in damages even though it candidly acknowledged that Sramek's proof of damages was "scant." Nonetheless, because there was sufficient evidence presented from which a trial court could reasonably find a private nuisance, we affirm that finding. In addition, we are satisfied that the trial court's damage award for sleep interruption is sufficiently supported by the record and that $1000 is fair and reasonable. Further, although we hold that the court misused its discretion when refusing evidence of an opinion survey which suggested that the dogs were not disturbing the neighborhood, as well as a statement from a police officer who apparently could not locate the dogs because they were not barking, these were harmless errors not affecting the outcome.
Sramek is eighty-five years old and has been living at Mapledale Manor since 1990. The dogs have been at the neighboring golf course under a special land use permit since 1979. Sramek testified that when she first came to Mapledale Manor, the barking was not bad, but it worsened over time. Her room is in the corner of the building closest to the dogs. She said that the barking causes her to wake up every night. The barking also makes her nervous, so much so that she has to walk down the hallway of her building to calm her nerves. She also believes that the loud barking has irritated her eardrums and affected her hearing.
Sramek explained that she first complained about the dogs to the village of Kewaskum police. While an officer investigated the complaint, he learned from the village attorney that the village did not have jurisdiction over the matter. Sramek next circulated a petition around Mapledale Manor. The petition was signed by twenty-one residents and staff who all acknowledged that the barking was "excessive." This petition was admitted into evidence.
Named as defendants were the golf course; its owner, Randall J. Dreher; and James G. Korth, who helps raise the dogs. Dreher testified that his family has been raising Plotts, a type of hunting dog, on the land for decades. He explained that he acquired a special land-use permit which allows him to keep up to eight dogs in a kennel on his property, although he admitted keeping up to seventeen dogs on certain occasions.
Dreher and the other defendants tried to rebut Sramek's evidence with a survey that Dreher conducted of his other neighbors. It suggested that these neighbors were not bothered by the dogs. The survey, however, was not admitted into evidence. The defendants also offered a statement from a police officer who reportedly could not find the dogs, after Sramek complained about them, because the dogs were not barking. This statement was also excluded from evidence.
In this appeal, the defendants contend that the trial court erred when it found a nuisance. They argue that Sramek failed to demonstrate that the barking created an unreasonable interference with the use and enjoyment of her apartment and that Sramek failed to prove that she was damaged by the barking. The defendants also challenge the trial court's two evidentiary rulings.
Finding of Nuisance
Determining whether a particular nuisance is actionable depends on whether the interference with the use and enjoyment of land is unreasonable and substantial. Krueger v. Mitchell , 112 Wis.2d 88, 107, 332 N.W.2d 733, 743 (1983). The defendants claim that the dogs have been a long-time tradition on the property which is now the golf course, and, therefore, the use of the land is not unreasonable. They cite to Abdella v. Smith , 34 Wis.2d 393, 401, 149 N.W.2d 537, 541 (1967), and argue that Sramek is guilty of "coming to the nuisance."
In Abdella , after the plaintiff built a drive-in restaurant next to a fifty-horse stable, he sued the stable for nuisance. See id. The supreme court concluded, however, that the restaurant was the unreasonable use of the land under the circumstances, not the horse stable. Id.
Sramek counters with an argument based on the Krueger decision. There, the neighbors of an airport alleged a nuisance when the airport installed a paved runway. Even though the airport had been in existence before the neighbors moved to the area, the court found a private nuisance. See Krueger , 112 Wis.2d at 105, 332 N.W.2d at 742.
In regard to the present case, we conclude that building a group home near a golf course is more than reasonable — such residential and commercial uses are a common and natural compliment to each other. We reject the defendants' argument that this case is similar to Abdella.
The record supports the trial court's finding that the dogs were not a nuisance in 1990, but became a nuisance as the barking increased after a few years. Indeed, this is similar to Krueger where the airport did not become a nuisance until it installed a paved runway a few years after the neighbors moved into the area. See Krueger , 112 Wis.2d at 105, 332 N.W.2d at 742. Moreover, in support of its decision that the airport became a nuisance, the Krueger court cited Prosser for the following hypothetical:
Thus, many interferences with personal comfort, such as a dog next door which makes night hideous with his howls, which at first glance would appear to be wrongs purely personal to the landholder, are treated as nuisances because they interfere with that right to the undisturbed enjoyment of the premises which is inseparable from ownership of the property.
Id. at 106, 332 N.W.2d at 742 (quoting Prosser, Law of Torts 591, § 89 (4th ed. hornbook series)). With Prosser's description at hand, we hold that the facts here fit the Krueger scenario. We conclude that Sramek met her burden of proving an unreasonable interference.
We now turn to the trial court's finding that the barking was a substantial interference. Whether injuries claimed in a particular action are substantial depends on the particular facts in light of the effect the complained of activity would have on a person of ordinary sensibilities. Id. at 108, 332 N.W.2d at 743. Here, the defendants claim that Sramek failed to establish that persons of ordinary sensibilities would be offended by the barking because no witnesses other than Sramek testified to the degree of the noise.
However, the test for a private nuisance "is not the number of persons injured but the character of the injury and of the right impinged upon." Costas v. City of Fond du Lac , 24 Wis.2d 409, 414, 129 N.W.2d 217, 220 (1964). Further, the trial court found that Sramek was not hypersensitive. It commented that "we cannot discount [her testimony] simply because she may not be 20 years old and in perfect, fine health." Consequently, because one competent witness is sufficient to establish a cause of action for private nuisance, and there is no evidence to indicate that Sramek is hypersensitive, we conclude that the plaintiff met her burden of proving a substantial interference.
Damages
The defendants also allege that Sramek failed to establish damages. They first argue that no medical evidence was introduced — Sramek only offered her opinion of her injuries. We acknowledge that expert medical corroboration is necessary when dealing with more complex personal injuries, such as a back injury. See, e.g., Pucci v. Rausch , 51 Wis.2d 513, 517, 187 N.W.2d 138, 141 (1971). Sramek's damage claims, however, were not for anything as complex. She was awarded compensation for sleep interruption, irritation and annoyance. In fact, the Krueger court awarded damages for similar injuries even though the plaintiffs did not corroborate their claims with expert medical opinion. See Krueger , 112 Wis.2d at 105-06, 332 N.W.2d at 742. Moreover, while Sramek also sought recovery for hearing loss, a more complex injury suggesting a need for expert medical opinion, the trial court specifically found a lack of evidence for this claim.
Next, the defendants allege that no concrete evidence was presented as to when or how much sleep Sramek lost and argue that the damages for her sleep interruption were therefore not proven to a reasonable certainty. They quote the trial court statement, "[t]here is scant evidence as to what damages have been sustained." We also observe that the court stated: "I don't have an exact inclination as to how frequently this [sleep interruption] was; whether it was daily or weekly. I certainly got the impression from her that it was frequent enough to be of almost daily concern."
The trial court's impression regarding daily sleep loss is supported by the record as Sramek testified that her sleep was interrupted "[e]very day."
The defendants' argument appears to be that the "amount" of damage — here, an exact number of lost nights of sleep — is material to a finding of "reasonable certainty." But the supreme court has noted to the contrary that "[i]t is now generally held that the uncertainty which prevents a recovery is uncertainty as to the fact of the damage and not to its amount and that where it is certain that damage has resulted, mere uncertainty as to the amount will not preclude the right of recovery." Cutler Cranberry Co. v. Oakdale Elec. Coop ., 78 Wis.2d 222, 234, 254 N.W.2d 234, 240 (1977) (quoted source omitted). This is especially true when the amount of the damage is not capable of exact and accurate proof. See id. Under such circumstances, all that can be required is that the evidence "lay a foundation" which will enable the trier of fact to make a fair and reasonable estimate. Id. (quoted source omitted).
While an award for damages should nonetheless be estimated in a "fair and reasonable manner," the actual amount of the award rests largely in the discretion of the fact finder. See Parr v. Douglas , 253 Wis. 311, 323, 34 N.W.2d 229, 235 (1948). Thus, a damage award may not be reversed on appeal unless it is so clearly excessive as to indicate that it was the result of passion, prejudice or corruption, or it is clear that the fact finder disregarded the evidence or the rules of law. Id. We hold that Sramek provided enough information regarding her sleep loss to lay a foundation for a reasonably certain damage award.
Evidentiary Challenges
The trial court sustained Sramek's two hearsay objections. One involved a statement from the investigating officer who could not allegedly find the dogs because they were not barking loud enough. The other involved the defendants' survey of other neighbors who apparently were not bothered by the dogs.
The defendants claim that this evidence should have been admitted because § 799.209(2), Stats., waives many of the formal rules of evidence in small claims proceedings and specifically permits hearsay evidence to be used in the factfinding process. The defendants further contend that the evidence about the officer was relevant because it would have indicated the dogs were not constantly barking, and the evidence about the survey was relevant because it would have indicated that ordinary people in a position similar to Sramek did not consider the barking a problem.
We agree ee with the defendants and hold that this evidence was relevant and that the trial court erred by excluding it. Under § 799.209(1), Stats., the trial court is required to conduct a small claims action "informally" and to allow each party to present its "proofs" so that the court gains a "full and true disclosure of the facts." Moreover, the rules governing small claims actions provide a corollary to the general rule against using hearsay evidence to establish facts. Cf. § 908.02, Stats.
But these errors do not require reversal. An evidentiary error only requires reversal or a new trial where the improper admission of evidence has affected the substantial rights of the party seeking relief on appeal. Nischke v. Farmers Merchants Bank Trust , 187 Wis.2d 96, 108, 522 N.W.2d 542, 547 (Ct.App. 1994). This is the harmless error test. Id . Under this test, we only reverse where there is a reasonable possibility that the error contributed to the final result. Id.
We conclude that there is no reasonable possibility that the inadmissible evidence substantially prejudiced the defendants. While the trial court did not admit this evidence, it is obvious that the court "heard" it and considered its potential probative value when making the decision to disregard it. In a bench trial, whether the court explicitly dismisses evidence at the time it is first offered, or implicitly rejects it by making a finding contrary to it, is of little consequence. Either way, the trial court evaluates the evidence's probative value and finds it of little or no probative value. Hence, we conclude that the trial court's decision to exclude this evidence, though erroneous, was harmless.
By the Court. — Judgment affirmed.