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Decision Highlights How Jury May Handle Claims of Negligence in Nutrient Applications

Updated: Mar 8, 2023

Wisconsin farm with barn and silo in background and corn in foreground image is by Jimmy Emerson, DVM
Wisconsin farm with barn and silo in background and corn in foreground image is by Jimmy Emerson, DVM

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A recent decision by Wisconsin’s Court of Appeals highlights how a court may handle claims that a jury verdict was improper. This case involves a dairy farmer who allowed a septic company to spread septage on his farmland. At the same time, the dairy farmer appears to continue spreading manure on these same fields. The farmer’s cattle began to have health issues caused by excessive nitrates in their water source. The jury eventually agreed that both parties were at fault. This case allows us to examine how a court might handle claims that a jury did not have enough evidence to reach its decision. The decision is in Preisler v. Kuettel's Septic Service, LLC.


The Preislers owned the dairy involved in this case. In the early 2000s, Preisler was approached by Duke Kuettel and his brother about spreading septage on the Preislers’ farmland. The septage was explained to Preisler as free fertilizer, and he agreed for it to be applied to specific fields. This continued until the spring of 2008 and was done according to Wisconsin regulations on spreading septage.

In 2007, Preisler noticed a decrease in milk production and an increase in illness in his cattle. He also began to see his cattle die at a higher than the average rate. His longtime veterinarian was unable to determine the causes of the health issues. Preisler had an electrician test for stray voltage and had the water tested. Water tests returned that the drinking water contained high levels of nitrates. To reduce the number of nitrates in the water, Preisler hired a well driller to drill a new 210-foot deep well (the existing well was 83 feet deep) and had that water tested for nitrates. The new well returned samples with nitrate levels at safe levels. The old well was closed, and the new well was used.

Preisler began to suspect that the increased nitrates came from the septage applications. He obtained legal counsel and requested to review Kuettel’s records, comparing his records with Kuettel’s and those filed with the state. Preisler noticed discrepancies between the records; at various points, Kuettel had spread more than the weekly limit available on Preisler’s farmland.

Preisler eventually sued the Kuettels and Kuettel’s Septic Services (KSS) for negligently applying septage on his farmland. Preisler eventually added Kuettel’s farming operation (4 D-K Farm), Phil’s Pumping, an independent contractor that Kuettel hired to spread septage, and several insurers to his lawsuit. At trial, the jury found that KSS, Duke Kuettel, and 4 D-K Farm were negligent in the septage applications on Preisler’s farmland. At the same time, the jury determined that Preisler was negligent in his farming practices. The jury apportioned the negligence on the parties as follows: 30 percent to Preisler, 30 percent to KSS, 28 percent to Duke Kuettel, and 12 percent to 4 D-K Farm. In the end, the jury determined that the economic losses from the negligent application were $500,000. All parties in the suit appealed the decision.

Cattle eating from apple tree in pasture image is by Daniel M. Hendricks
Cattle eating from apple tree in pasture image is by Daniel M. Hendricks

Court of Appeals Decision

On appeal, the defendants (Kuettel, KSS, and 4 D-K Farm) argue that there was no credible evidence to support the finding that the defendants caused the damages or the economic losses. Looking at the claims that the evidence proved the defendants’ excessive application of septage, Preisler offered expert testimony from a hydrologist, their veterinarian, and a retired animal science professor. The defendants argued that none of the experts spoke to nitrate levels in the groundwater before the septage applications started, demonstrating that the excessive application was the cause. The court rejects this argument because the testimony was sufficient to prove the excessive application could have been a substantial factor in causing the elevated concentrated nitrate levels.

Looking at the veterinarian’s testimony, the court agreed with Preisler that excessive nitrates in the water caused the damages. The vet’s testimony showed that the cattle had been healthy until 2008 and that high levels of nitrates in cattle diets can cause several health issues. The retired animal scientist also testified that many of the health issues the cattle had were more likely to occur in cattle exposed to high levels of nitrates. Based on this, the court found that there was credible evidence to support the jury’s finding that the excessive application of septage caused Preisler’s damages.

Next, the defendants challenged the jury’s finding on damages. The defendants contended that Preisler’s expert on damages did not prove with a reasonable degree of certainty that the cattle died as a result of the nitrates. Defendants argued that the expert’s calculations were based on the improper belief that the cattle were lost due to nitrates in the water. The expert calculated damages at $1,669,797, but the jury reduced that amount to $500,000. The court agreed with Preisler that there was ample evidence to support the damages awarded by the jury.

Finally, the last issue before the Court of Appeals to highlight is Preisler’s cross-appeal that he was not negligent in his farming and wants to modify the jury’s verdict to reflect that. That he always followed a nutrient management plan when applying nutrients to the farm. The court highlights that everyone owes a duty of care to act reasonably under the circumstances; when a person fails, it could lead to a negligence claim. In this case, Preisler would have had a duty of care to refrain from applying nutrients above those necessary that would create an unreasonable risk of harm. Here expert testimony from the defendants demonstrated that Preisler breached the duty of care he owed himself. To the court, based on the expert testimony, a jury could have found Preisler’s own negligent farming practices caused his damages. The court leaves alone the jury’s damages allocations.

Why Care?

This case highlights some issues that may pop up in negligence cases. First, experts will often be called in to provide expert testimony on how a party failed to exercise a duty of care in a particular case. Expert testimony may not always be able to say definitively that the action caused the results but can only speak to the action having a higher probability of causing the outcome. In many cases, however, that will be enough to prove a negligence case, as it was in this case, especially when juries are presented with competing experts and can weigh the credibility of these experts’ testimonies.

In negligence cases, the jury will be asked to consider the plaintiff’s own negligence in causing the event. Preisler allowed for septage application and then applied manure himself beyond what the nutrient management plan needed. Since this could have caused his nitrate issues, the jury determined to reduce his damages by 30 percent (his percentage at fault) to prevent him from recovering.


Preisler v. Kuettel's Septic Service, LLC, 2022 WL 2817287, No. 2020AP1608 (Wis.App., July 19, 2022).


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