                          This opinion will be unpublished and
                          may not be cited except as provided by
                          Minn. Stat. § 480A.08, subd. 3 (2014).

                               STATE OF MINNESOTA
                               IN COURT OF APPEALS
                                     A15-0983

                                 Randall Norman, et al.,
                                     Respondents,

                                           vs.

                    Crow Wing Cooperative Power & Light Company,
                                     Appellant.

                                Filed February 22, 2016
                                       Affirmed
                                      Reilly, Judge

                               Cass County District Court
                                File No. 11-CV-12-1670

David F. Herr, Jesse D. Mondry, Maslon LLP, Minneapolis, Minnesota; and

Charles A. Bird, Jeremy R. Stevens, Grant M. Borgen, Bird, Jacobsen & Stevens, PA,
Rochester, Minnesota; and

William D. Mahler, Will Mahler Law Firm, Rochester, Minnesota (for respondents)

Eric J. Magnuson, Lisa L. Beane, Robins Kaplan LLP, Minneapolis, Minnesota; and

Paul F. Carlson, Matthew S. Van Bruggen, Kennedy, Carlson & Van Bruggen, LLP,
Wadena, Minnesota (for appellant)

         Considered and decided by Reilly, Presiding Judge; Worke, Judge; and Chutich,

Judge.
                         UNPUBLISHED OPINION

REILLY, Judge

       Respondents Randall and Peggy Norman (the Normans) operated a dairy farm in

Pine River, Minnesota, from 1983 to 2012. Appellant Crow Wing Cooperative Power and

Light (the cooperative) is a member-owned electrical cooperative that provides electricity

to the Normans’ farm. The Normans sued the cooperative alleging that its negligent

delivery of electricity caused stray electrical voltage that injured the Normans’ herd of

dairy cows, causing the Normans to suffer economic harm. The Normans also alleged that

the cooperative created a nuisance causing the Normans to suffer loss of use and enjoyment

of their property. A Cass County jury awarded the Normans $4,861,478 in negligence

damages and $1.5 million in nuisance damages. On appeal, the cooperative challenges:

(1) the sufficiency of the evidence to establish that damages began to accrue in 1994,

(2) the method of computing negligence damages, (3) the sufficiency of the evidence to

support the nuisance award, (4) a jury instruction, (5) the district court’s refusal to submit

a question on the verdict form asking about the farmers’ contributory negligence in the

design and maintenance of their farm, and (6) the district court’s grant of permanent

injunctive relief. For the reasons stated below, we affirm.

                                          FACTS

       The Normans are dairy farmers who started operating their farm in 1983. Beginning

in 1994, the Normans’ herd began experiencing health issues that caused a decline in milk

production. In 1994 the herd’s milk production was 27% above the state average. Over

the next 18 years, the herd experienced numerous problems including fresh-cow issues,


                                              2
displaced abomasum, ketosis, mastitis, body-condition issues, difficulty getting pregnant,

refusal to eat or drink water, and excessive weight loss. The cause of these problems was

unknown to the Normans at the time. In 1991 and again in 2011 stray voltage was detected

on the farm. It is widely recognized that stray voltage can use cow hooves as an unintended

pathway causing health issues in cows. Poppler v. Wright Hennepin Co-op. Elec. Ass’n,

834 N.W.2d 527, 534 (Minn. App. 2013) (Poppler I), aff’d on other grounds 845 N.W.2d

168 (Minn. 2014) (Poppler II). The Normans ultimately liquidated their herd in September

2012. When the herd was sold, the milk production had declined to 20% below the state

average.

       The Normans sued the electrical cooperative alleging negligence and nuisance. In

October 2014, after a three-week trial, the jury found the cooperative negligent in the

delivery of electrical service to the Normans’ dairy farm, and the Normans not negligent

with respect to their use or maintenance of their on-farm electrical facilities. The jury also

found that the cooperative created a nuisance that interfered with the Normans’ use and/or

enjoyment of their farm. The jury awarded the Normans $4,861,478 on their negligence

claim and $1.5 million in nuisance damages. The cooperative filed a motion for a new trial

or remittitur, which was denied. The district court granted the Normans injunctive relief

in the form of changes to the electrical delivery system to their farm.

                                      DECISION

                                              I.

       The cooperative first argues that the district court erred by allowing recovery dating

back to 1994, when “no one could testify at trial to the presence of stray voltage on the


                                              3
farm before 2011.” It asserts that the damages award was “based on impermissible

conjecture and speculation” because “(1) stray voltage was first measured on the Norman

farm in 2011, and (2) no evidence was offered that showed the difference between

production before and after there was a claimed stray voltage problem.” While it is true

that damages that are speculative, remote, or conjectural are not recoverable, Cardinal

Consulting Co. v. Circo Resorts, Inc., 297 N.W.2d 260, 267 (Minn. 1980) (citations

omitted), the cooperative’s “speculation” argument regarding the damages is based on a

challenge to the underlying evidence, and is ultimately a challenge to the sufficiency of the

evidence. We treat it as such.

       In challenges to sufficiency of the evidence, the evidence must be reviewed in the

light most favorable to the verdict. Reedon of Faribault, Inc. v. Fid. & Guar. Ins.

Underwriters, Inc., 418 N.W.2d 488, 491 (Minn. 1988). “[A]n appellate court should not

set aside a jury verdict unless it is manifestly and palpably contrary to the evidence viewed

as a whole.” Raze v. Mueller, 587 N.W.2d 645, 648 (Minn. 1999) (internal quotation

omitted). In a recent stray-voltage case we noted that “[t]he jury is entitled to make

reasonable inferences, and we review the jury’s inferences in the light most favorable to

the verdict.” Poppler I, 834 N.W.2d at 544.

       The cooperative does not dispute that the Normans’ herd suffered health issues, but

argues that, because stray voltage was not detected on the farm until 2011, there is not

sufficient evidence in the record to support the damages award dating back to 1994. The

cooperative’s assertion that stray voltage was first measured on the Norman farm in 2011

is factually inaccurate. The record contains a “stray voltage checklist” from 1991 which


                                              4
indicated stray voltage was present on the farm at that time. The cooperative asserts that

the stray-voltage checklist “strongly suggests that the source of the voltage detected in

1991 was on the farm side rather than the utility side,” but the jury found on the special

verdict that the Normans were not “negligent with respect to their use or maintenance of

their on-farm electrical facilities.”

       In essence, the cooperative is asking this court to credit evidence that the jury

rejected. We only overturn a jury verdict “if no reasonable mind could find as the jury

did.” Reedon, 418 N.W.2d at 491. Sufficient evidence in the record supports a finding

that stray voltage was present on the farm dating back to 1994 because evidence showed

the presence of voltage on the farm in 1991. Although the Normans’ herd did not

experience issues until 1994, the jury also heard that in 1993 the Normans replaced wooden

tie stalls with metal tie stalls, and that the cows thereafter were chained to neck rails of

galvanized steel. Thus a reasonable mind could conclude that stray voltage was present on

the farm, but did not begin affecting the herd until the changes were made to the tie stalls

and barn.

       The cooperative notes that no person “who worked on [the Normans’] farm from

1994 to 2012 contemporaneously identified stray voltage as a possible cause of the

problems.” However, the cooperative acknowledges that “every witness presented by the

Normans at trial identified stray voltage as a possible cause of the problems.” We are not

persuaded that it was necessary for the Normans to provide evidence that someone

“contemporaneously identified” stray voltage as a cause of the problems on the farm to

sustain the jury’s verdict.


                                             5
       In Poppler I, Wright Hennepin Cooperative argued that “the Popplers’ evidence

[was] insufficient to prove that the dairy herd was exposed to stray voltage throughout the

entire damages period.” 834 N.W.2d at 543. We determined that the district court did not

abuse its discretion by allowing various experts to testify that stray voltage was the cause

of the herd’s health problems when the experts “collectively . . . rule[d] out potential

alternative causes of the herd’s health problems in their respective areas of expertise.” Id.

at 539. We noted that “at least one court has held that expert evidence is not even necessary

to prove causation in stray-voltage cases because ‘the nature of electricity and the results

of contact with it by humans and animals is not beyond a common person’s

understanding.’” Id. (quoting Schlader v. Interstate Power Co., 591 N.W.2d 10, 14 (Iowa

1999)). Further, scientific testing throughout the period for which the Popplers sought

damages was not necessary to establish that they sustained damages during that time frame.

Id. We held that the evidence was sufficient to prove that the dairy herd was exposed to

stray voltage when there was evidence presented that the herd began experiencing health

problems in 2006 and that from 2006 to the 2011 trial the herd was not producing milk at

the usual rate. Id.

       In this case, numerous experts testified that stray voltage caused the Normans’

herd’s health problems. For example, Dr. Steven Koskiniemi, the Normans’ veterinarian

from 1993 to 2001 and 2011 to 2012, testified that he witnessed behaviors in the herd that

were consistent with exposure to stray voltage. Dr. John Niemi, the Normans’ primary

veterinarian as of 1999, testified that it was his opinion to a reasonable degree of scientific

certainty that stray voltage was the cause of the herd’s problems. Dr. Kenneth Learmont,


                                              6
a dairy technical service veterinarian, testified that, based on the issues with the herd, he

believed that stray voltage began affecting the herd in 1994 and was the cause of the health

and milk production problems.

       The cooperative’s sufficiency argument also rests on the assertion that “no evidence

was offered that showed the difference between production before and after there was a

claimed stray voltage problem.” But there is evidence that the Normans’ herd began having

issues in 1994 and at that time the milk production of the herd was 27% above the state

average; that the herd experienced erratic milk production for the next 18 years; and that,

when the Normans sold their herd in September 2012, the milk production had declined to

20% below the state average. This evidence of declining production over 18 years is

sufficient to support the jury’s verdict.

       The jury heard from numerous experts who testified, at minimum, that the problems

with the herd were consistent with problems caused by stray voltage. The jury also heard

that stray voltage was present on the farm as early as 1991. The onset of the herd’s issues,

which were consistent with stray voltage, was in 1994. Juries are entitled to make

reasonable inferences, and the inferences made by the jury in this case were reasonable.

Poppler I, 834 N.W.2d at 544. When viewed in the light most favorable to the jury’s

verdict, the evidence in the record is sufficient to support the jury’s verdict. And, because

there was sufficient evidence to support the jury’s verdict, we reject the cooperative’s

argument that the damages award was speculative.




                                             7
                                             II.

       The cooperative next argues that the district court erred by denying its motion for a

new trial or remittitur because the negligence damages awarded included some of the lost

profits twice. “[A] plaintiff may not recover duplicative money damages.” Abraham v.

Cnty. of Hennepin, 639 N.W.2d 342, 347 (Minn. 2002). “A double recovery occurs any

time the damages recovered exceed the total loss sustained by the parties.” Lefto v.

Hoggsbreath Enters., Inc., 567 N.W.2d 746, 749 (Minn. App. 1997) (citing Black’s Law

Dictionary 491 (6th ed. 1990)), aff’d, 581 N.W.2d 855 (Minn. 1998). However, damages

are a question of fact for the jury to decide based on the evidence, and wide deference is

accorded to a jury’s finding as to how much money will adequately compensate the

plaintiff. Koehler v. Kline, 290 Minn. 485, 487, 185 N.W.2d 539, 541 (1971). We will set

aside a damages award only if it is “manifestly and palpably contrary to the evidence,”

when viewed in a light most favorable to the verdict. Levienn v. Metro. Transit Comm’n,

297 N.W.2d 272, 273 (Minn. 1980).

       Lost profits are an appropriate measure of damages, Poppler I, 834 N.W.2d at 548,

and excess operating costs are an element of lost profits. N. Petrochemical Co. v. Thorsen

& Thorshov, Inc., 297 Minn. 118, 125, 211 N.W.2d 159, 166 (1973). In this case, the jury

awarded damages in the precise amount calculated by the Normans’ damages expert, Dr.

Michael Behr. Behr is a forensic economist who specializes in agricultural economics and

has been involved in 400 stray voltage cases.1 Behr prepared an expert damages report,


1
  The cooperative notes in its reply brief that the Normans rely heavily on this court’s most
recent stray-voltage case, Poppler I, where we rejected Behr’s method for calculating

                                             8
basing his damages calculation on both “reduced milk production” and “reduced feed

intake.” Reduced milk production, or milk loss, refers to the decrease in revenues from

lost sales of milk. Poppler I, 834 N.W.2d at 546. Reduced feed efficiency occurs when

the “costs of feed are higher than they should be for the amount of milk that was actually

realized.” Behr determined that the Normans’ loss was $4,861,478 based on “reduced milk

production, reduced feed efficiency, and capital loss,” subtracting for any cost savings in

milk production.

       Behr testified extensively at trial regarding his calculation of damages. Appellant’s

trial counsel vigorously cross-examined Behr. Asked whether the milk-production and

reduced-feed-efficiency damages were duplicative, Behr responded, “Absolutely not.” He

explained that there is nothing “in this feed efficiency analysis that duplicates anything that

is in the earlier milk loss section of the report.” He further explained that, “when the cows

give less milk than they should have been giving, that’s an element of loss. Then the

additional question, which is not an overlap of the first one, is the extent to which the milk

that was produced was done under higher cost conditions [than] it should have been.” The


damages. In Poppler I, we reversed when we determined the “Popplers’ evidence [was]
insufficient to support the jury’s damages award” because their theory of “milk loss” was
incompatible with Minnesota caselaw on lost profits. Poppler I, 834 N.W.2d 548. This
court explained that the Popplers “provided only one component of the lost-profits equation
by introducing evidence that the decrease in milk production caused a decrease in
revenues[, but] did not provide the other component by introducing any evidence as to
whether their expenses also decreased.” Id. at 547. We held that the Popplers “needed to
introduce evidence of the existence and amount of their decrease in revenues as well as the
existence or non-existence and amount of any offsetting decrease in their expenses.” Id. at
547-48. The method Behr used to calculate damages in the present case is different from
the method he used to calculate damages in Poppler I because he accounted for cost savings
as part of the equation of lost profits.

                                              9
cooperative’s expert, Dr. James Kliebenstein, questioned Behr’s inclusion of reduced feed

efficiency in the damages calculation, testifying that

              it’s a complex issue . . . but from what I’ve seen, it seems to
              indicate that maybe the feed stayed the same. It’s just the milk
              production loss decreased so let’s bring the milk value back up
              to where the feed was. So I’m not sure there’s a feed
              adjustment that’s even needed in this particular case.

       We conclude that the evidence is sufficient to support a damages award

encompassing both milk loss and reduced feed efficiency.            Behr provided specific

testimony on the differences between the two calculations, essentially explaining that

reduced milk production is a measure of outputs and reduced feed efficiency is a measure

of inputs. The jury was free to credit Behr’s unequivocal testimony that there was no

overlap in the damages calculations over Kliebenstein’s less certain testimony questioning

the calculation method. See Kundiger v. Prudential Ins. Co. of Am., 219 Minn. 25, 28, 17

N.W.2d 49, 52 (1944) (explaining that, “if there was expert testimony in support of

plaintiff’s theory as well as defendant’s, the choice of which testimony to accept and which

to reject was for the jury”). Because we cannot conclude that the jury’s verdict is

“manifestly and palpably contrary to the evidence,” Levienn, 297 N.W.2d at 273, we reject

the cooperative’s argument for a new trial or remittitur on this basis.

                                            III.

       The cooperative challenges the $1.5 million nuisance award, arguing that it includes

impermissible emotional-distress damages. As an initial matter, we note that the jury was

properly instructed on nuisance law, and “[w]e presume that juries follow the instructions

they are given.” Frazier v. Burlington N. Santa Fe Corp., 811 N.W.2d 618, 630 (Minn.


                                             10
2012), modified (Minn. Apr. 19, 2012). We, therefore, treat the cooperative’s challenge as

a challenge to the sufficiency of the evidence to sustain the nuisance award.

       A nuisance is “[a]nything which is injurious to health, or indecent or offensive to

the senses, or an obstruction to the free use of property, so as to interfere with the

comfortable enjoyment of life or property.” Minn. Stat. § 561.01 (2014). A nuisance action

“may be brought by any person whose property is injuriously affected or whose personal

enjoyment is lessened by the nuisance, and by the judgment the nuisance may be enjoined

or abated, as well as damages recovered.” Id. The Minnesota Supreme Court has

“recognized nuisance claims when a plaintiff can show that the defendant’s conduct caused

an interference with the use or enjoyment of the plaintiff’s property.”         Johnson v.

Paynesville Farmers Union Co-op. Oil Co., 817 N.W.2d 693, 706 (Minn. 2012). In

Johnson, soybean farmers whose crops had been damaged by pesticides from a neighboring

farm sought to bring a nuisance claim because the pesticide drift “caused additional record-

keeping and other burdens in connection with the operation of their farm[,]” and one of the

farmers suffered from “cotton mouth, swollen throat and headaches” due to the pesticide

drift. Id. at 713. The court concluded:

              In Highview North Apartments v. County of Ramsey, we held
              that “disruption and inconvenience” caused by a nuisance are
              actionable damages. 323 N.W.2d 65, 73 (Minn. 1982). The
              “inconvenience” and adverse health effects the Johnsons allege
              are the type of claims contemplated in Highview North
              Apartments, and if proven, they may affect the Johnsons’
              ability to use and enjoy their land and thereby constitute a
              nuisance. See Minn. Stat. § 561.01.

Id.



                                            11
       The Normans contend the record is replete with evidence supporting their

discomfort, annoyance, and loss of enjoyment in their property. We agree. The jury heard

how the Normans had increased labor due to extra feces in the milking parlor and caring

for sick cows, including forcing medication down the throats of the cows. The jury

additionally heard how the Normans were afraid to use their river for swimming and

fishing, and were afraid to let their grandchildren play outside due to the stray voltage. We

see no legally significant difference between the nuisance the soybean farmers in Johnson

alleged, and the nuisance experienced by the Normans, and thus we conclude that sufficient

evidence sustains the nuisance award.

       The cooperative attempts to cast the nuisance damages as emotional-distress

damages because the finding of nuisance in this case was predicated on a determination

that the cooperative was negligent. See Highview North Apartments, 323 N.W.2d at 70-71

(“[T]here must be some kind of conduct causing the nuisance harm which is wrongful.”).

Nuisance actions are always predicated on wrongful conduct. Id. (“This wrongful conduct

varies, and may at times be characterized as intentional conduct, negligence,

ultrahazardous activity, violation of a statute or some other tortious activity.”). The

legislature created a statute to allow for recovery under nuisance and we defer to its

legislative authority. To not allow recovery in nuisance because it was predicated in

negligence is contrary to the plain language of the nuisance statute.

       In support of its position, the cooperative relies on State by Woyke v. Tonka Corp.,

420 N.W.2d 624, 627 (Minn. App. 1988), and Randall v. Village of Excelsior, 258 Minn.

81, 86, 103 N.W.2d 131, 135 (1960). In Woyke we explained that


                                             12
             [n]uisance is most often considered a type of damages, not a
             cause of action. Merely attaching the label ‘nuisance’ to an
             action does not alter the nature of the action. Where the acts or
             omissions constituting negligence are the identical acts which
             it is asserted gave rise to a cause of action for nuisance, the
             rules applicable to the negligence will be applied.

420 N.W.2d at 627 (quoting Randall, 258 Minn. at 86, 103 N.W.2d at 135). However,

both Woyke and Randall are distinguishable. In Woyke the plaintiff made no claim that a

nuisance occurred, expressly sought emotional-distress damages, and argued the damages

could be sustained on an “implied finding of nuisance.” Woyke, 420 N.W.2d at 627-28

(emphasis added). Here, the Normans did not seek to recover for emotional distress based

on negligence, and instead brought a statutory nuisance cause of action. In Randall, the

plaintiff attempted to bring a nuisance claim in place of the negligence claim, which was

statutorily barred. 258 Minn. at 87, 103 N.W.2d at 135 (“As much as we might wish to

reach for the result plaintiff seeks, judicial restraint prevents us from doing so. We are

dealing here with an important area of tort responsibility in which the legislature has

already by the Civil Damage Act extended common-law liability.”). In the present case

the Normans did not attempt to bring a nuisance claim where they could not bring a

negligence claim; to the contrary, they had to prove appellant’s negligence before

recovering in nuisance under Minn. Stat. § 561.01.




                                            13
       We are not persuaded by the cooperative’s attempt to characterize the nuisance

award as emotional-distress damages, and hold there was sufficient evidence of the

Normans’ loss of use and enjoyment in their property to sustain the nuisance award.2

                                             IV.

       The cooperative next argues it is entitled to a new trial because the district court

erred in its jury instruction on the Normans’ burden to prove damages. “The district court

has broad discretion in determining jury instructions and [an appellate court] will not

reverse in the absence of abuse of discretion.” Hilligoss v. Cargill, Inc., 649 N.W.2d 142,

147 (Minn. 2002). “[A] court errs if it gives a jury instruction that materially misstates the

law.” Rowe v. Munye, 702 N.W.2d 729, 735 (Minn. 2005).

       A plaintiff “must demonstrate with reasonable certainty the nature and probable

duration of the injuries sustained,” Canada v. McCarthy, 567 N.W.2d 496, 507 (Minn.

1997), but, “[o]nce the fact of loss has been shown, the difficulty of proving its amount

will not preclude recovery so long as there is proof of a reasonable basis upon which to

approximate the amount,” Leoni v. Bemis Co., 255 N.W.2d 824, 826 (Minn. 1977).


2
  We note other jurisdictions allow for farmers to recover nuisance damages based on
annoyance and inconvenience caused by stray voltage. Gumz v. N. States Power Co., 721
N.W.2d 515, 522 (Wis. App. 2006) (“the jury . . . hear[d] evidence regarding the time and
effort he put into attending to his dairy herd over the years due to the stray voltage, which
is part of the compensable annoyance and inconvenience.”), aff’d, 742 N.W.2d 271(Wis.
2007); see also Vogel v. Grant-Lafayette Elec. Co-op., 548 N.W.2d 829, 834 (Wis. 1996)
(“We conclude that nuisance law is applicable to stray voltage claims because excessive
levels of stray voltage may invade a person’s private use and enjoyment of land. Although
excessive levels of stray voltage may be found to constitute a nuisance in certain
circumstances, we do not hold that it constitutes a nuisance under all circumstances. The
determination of whether stray voltage unreasonably interferes with a person’s interest in
the private use and enjoyment of land is reserved for the trier of fact.”).

                                             14
       The district court gave the following jury instruction on the burden of proof:

                     A party seeking damages must prove the nature, extent,
              duration and consequences of his harm. Determination of
              damages must not be based upon speculation or guess, but
              proof of damages to an absolute certainty is not required. The
              Normans need only prove a reasonable basis upon which to
              approximate the amount.3

The cooperative contends that the instruction materially misstated the law on burden of

proof because the last sentence of the instruction contains the term “reasonable basis”

instead of “reasonable certainty.” But the cooperative did not object to the instruction at

trial on the grounds that it misstated the law; instead, it observed that the last sentence of

the instruction was “unnecessary.” Thus, it is questionable whether the challenge to the

jury instruction is properly before the court. See Ferguson v. Larson, 260 N.W.2d 467,

470 (Minn. 1977) (“An appellant may not on appeal allege as error a trial court’s failure to

give an instruction that was never requested.”). Assuming that it is properly before this

court, we conclude that appellant is not entitled to a new trial because the jury instruction

did not materially misstate the law. See Rowe, 702 N.W.2d at 735.

       The use of the term “reasonable basis” did not refer to the nature or duration of the

damages, but instead to the approximate amount of damages.              Therefore, the jury

instruction did not materially misstate the law because it properly reflects the standard for



3
  In contrast, the Minnesota Civil Jury Instructions Guides states that “A party asking for
damages must prove the nature, extent, duration, and consequences of his or her
(injury)(harm). You must not decide damages based on speculation or guess.” 4A Minn.
Dist. Judges Ass’n, Minnesota Practice, Jury Instruction Guides – Civil, CIVJIG 90.15 (6th
ed.).


                                             15
burden of proof that the approximate amount of recovery only need to be proved by a

reasonable basis. Although the jury instruction could have been clearer by adding “once

nature and duration of damages have been proven to a reasonable certainty” before “[t]he

Normans need only prove a reasonable basis upon which to approximate the amount,” the

instruction as written was not so misleading as to constitute reversible error. See Hilligoss,

649 N.W.2d at 147 (“An instruction that is so misleading that it renders incorrect the

instruction as a whole will be reversible error, but a jury instruction may not be attacked

successfully by lifting a single sentence or word from its context. Where instructions

overall fairly and correctly state the applicable law, appellant is not entitled to a new trial.”)

(quotations omitted). The jury instruction was not a material misstatement of the law, and

therefore, the cooperative is not entitled to a new trial on this basis.

                                               V.

       The cooperative next argues it was prejudiced because the special verdict form

prevented the jury from attributing negligence to Normans’ management of their farm and

herd. “District courts have broad discretion to decide whether to use special verdicts and

what form special verdicts are to take.” Poppler II, 845 N.W.2d at 171. Notwithstanding

this discretion, special verdict forms in comparative-negligence cases are subject to certain

statutory requirements. Under Minn. Stat. § 604.01, subd. 1 (2014),

               [t]he court may, and when requested by any party shall, direct
               the jury to find separate special verdicts determining the
               amount of damages and the percentage of fault attributable to
               each party and the court shall then reduce the amount of
               damages in proportion to the amount of fault attributable to the
               person recovering.



                                               16
See also Frey v. Snelgrove, 269 N.W.2d 918, 923 (Minn. 1978) (“If there is evidence of

conduct which, if believed by the jury, would constitute negligence (or fault) on the part of

the person inquired about, the fault or negligence of that party should be submitted to the

jury.”) (citations and internal quotations omitted). The statutory language clearly assigns

separate tasks to the jury and the court. The jury is to make separate findings as to (1) the

comparative negligence of each party (and any identified third parties); and (2) the damages

suffered by the plaintiff. Importantly, the damages finding is made without regard to

comparative fault. Minn. Stat. § 604.01, subd. 1; see also CIVJIG 90.10 (instructing jury,

in deciding damages, not to “consider the possible effect of your answers to other

questions”). The district court then is tasked with apportioning damages based on the jury’s

comparative-fault findings. Minn. Stat. § 604.01, subd. 1.

       In this case, the district court departed from the statutory process in two ways. First,

the district court limited the comparative-negligence questions on the special verdict form

to negligence related to the handling of electricity. At trial, the cooperative had advanced

the alternative theory that the Normans’ damages were caused by their negligence in the

design and maintenance of their farm. The cooperative presented evidence to support this

theory,4 and it was entitled to a special verdict form that would allow the jury to allocate



4
  Veterinarian, David Reid, who visited the farm in September 2012, shortly before the
Normans liquidated their herd, testified about problems with the Normans’ milking
techniques and equipment, issues with cow nutrition, and the water quality on the farm.
Reid opined that the facilities’ design and maintenance contributed to and caused injuries.
But Reid first visited the farm only days before the Normans liquidated their herd, and his
testimony was contradicted by numerous veterinarians and other experts who testified the
Normans were excellent farmers.

                                              17
fault based on this theory. Although the special verdict form asked the jury to attribute

fault to the Normans based on any negligence “with respect to their use or maintenance of

their on-farm electrical facilities,” it did not ask the jury to attribute fault to the Normans

based on their negligence in the design and maintenance of the farm. This was error.

       The district court also erred by limiting the damages question on the special verdict

to damages caused by the cooperative. This was contrary to the statutory requirement of

separate findings on comparative-fault and damages and obviated the statutory requirement

that the district court reduce the damages based on the jury’s comparative-fault findings.

       Special verdict forms in comparative-negligence cases must be carefully worded to

minimize the risk of inconsistent verdicts. See Meinke v. Lewandowski, 306 Minn. 406,

410, 237 N.W.2d 387, 391 (1975) (noting “extremely difficult position” of district court

after wording of special verdict led to inconsistent verdict). We cannot condone the district

court’s errors in departing from the statutory process. Nevertheless, we will not disturb the

jury’s verdict on this basis if the errors were harmless. See Minn. R. Civ. P. 61 (“The court

at every stage of the proceeding must disregard any error or defect in the proceeding which

does not affect the substantial rights of the parties.”).

       To prevail on appeal, an appellant must show both error and prejudice resulting from

the error. Midway Ctr. Assocs. v. Midway Ctr. Inc., 306 Minn. 352, 356, 237 N.W.2d 76,

78 (1975). “[A]n error affects substantial rights where there is a reasonable likelihood that

the absence of the error would have had a significant effect on the jury’s verdict.” Poppler

I, 834 N.W.2d at 553 (quotation omitted). The cooperative bears the burden of persuasion




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to establish that the district court’s error affected its substantial rights. Midway Ctr.

Assocs., 306 Minn. at 356, 237 N.W.2d at 78.

       The final question on the special verdict form asked, “What sum of money will fairly

and adequately compensate the Normans for losses directly caused by Crow Wing Power,

its agents or employees’ negligent delivery of electrical service to the Norman dairy

farm[?]” Thus, the special verdict form was narrowly tailored so that the Normans could

only be awarded damages caused by the cooperative’s negligence. Although the jury could

not attribute fault to the Normans for their negligent design and maintenance of the farm,

the jury also could not award damages to the Normans attributable to their own fault. Thus,

although we do not condone the phrasing of the final question, we are not persuaded that a

properly worded special verdict form would have produced a different damages award.

Accordingly, we conclude that the erroneously worded special verdict form was harmless.

                                            VI.

       The cooperative argues that the district court abused its discretion in granting

permanent injunctive relief. We review orders granting permanent injunctions under an

abuse-of-discretion standard. Williams v. Nat’l Football League, 794 N.W.2d 391, 395

(Minn. App. 2011), review denied (Minn. Apr. 27, 2011).

       In December 2014, the Normans sought injunctive relief in the form of changes to

the electrical delivery system to their farm. The district court requested that the parties

exchange electrical-engineering-design proposals. The parties were able to reach an

agreement on the majority of the design, but an evidentiary hearing was held for four design

issues the parties were unable to resolve. Both parties presented testimony from engineers.


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By agreement of the parties, additional affidavits were submitted to the district court after

the hearing. The district court granted the Normans’ “requested injunctive relief of

installation of [a] three-phase wiring to [the Normans’] farm” and ordered:

              2. The transformer connection between the primary and
              secondary electrical systems shall be the Wye-Wye
              transformer connection proposed by [the Cooperative’s expert]
              Mr. Sonju.
              3. [Crow Wing Cooperative] shall remove the 48-foot ground
              rods from [the Normans’] farm. In the event the couplings
              break and the rods are unable to be completely removed, then
              the service station shall be relocated to a mutually agreed upon
              location.
              4. The new ground rods installed on [the Normans’] farm shall
              be 8 feet in length and shall be placed 50 feet apart.
              5. The ground wires shall be protected by a conduit and buried
              deeply to protect their integrity.
              6. [Crow Wing Cooperative] shall not be required to remove
              the bare or jacketed neutral portions of the underground cable.

       The cooperative argues that the district court abused its discretion in ordering this

injunctive relief because “there is no evidence in the record to support the conclusion that

the 48-foot ground rods need to be removed or that the new 8-foot ground rods need to be

placed 50 feet apart.” See City of N. Oaks v. Sarpal, 797 N.W.2d 18, 24 (Minn. 2011)

(“[A] district court abuses its discretion when its decision is against the facts in the

record.”).

       Our review of the record reveals that there is support for the district court’s

determination. Donald Johnson, a licensed professional electrical engineer, testified as an

expert witness for the Normans. Johnson testified that the 48-foot ground rods needed to

be removed and that the new ground rods should be placed 50 feet apart. The cooperative’s

expert, Erik Sonju, provided contradictory testimony on both issues. As the cooperative


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notes in its brief, “[t]he district court adopted [the Normans’ expert’s] assertions in its

injunction order, despite the testimony from [the cooperative’s expert].” In essence, the

cooperative asks this court to make a credibility determination regarding the competing

experts’ testimony. We defer to the district court on matters of credibility. Minn. R. Civ.

P. 52.01 (“[D]ue regard shall be given to the opportunity of the [district] court to judge the

credibility of the witnesses.”). The district court’s findings were based on reasonable

evidence provided by the Normans’ expert and we will not disturb a district court’s findings

if there is reasonable evidence to support them. Rogers v. Moore, 603 N.W.2d 650, 656

(Minn. 1999). The district court did not abuse its discretion in granting permanent

injunctive relief.

       Affirmed.




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