Pilkington v. Hendricks County Rural Elec. Membership Corp.

• Decision Date: 20 March 1984
• Docket Number: No. 1-383A66,1-383A66
• Parties: Brian PILKINGTON, Linda Pilkington and State Bank of Lapel, as Guardian over the Estate of Donna Pilkington, Plaintiffs-Appellants, v. HENDRICKS COUNTY RURAL ELECTRIC MEMBERSHIP CORPORATION and Jack K. Elrod, Defendants-Appellees.
• Court: Indiana Appellate Court

Page 1000

460 N.E.2d 1000

Brian PILKINGTON, Linda Pilkington and State Bank of Lapel, as Guardian over the Estate of Donna Pilkington, Plaintiffs-Appellants, v. HENDRICKS COUNTY RURAL ELECTRIC MEMBERSHIP CORPORATION and Jack K. Elrod, Defendants-Appellees.

No. 1-383A66.

Court of Appeals of Indiana,

First District.

March 20, 1984.

Vernon J. Petri, Thomas C. Doehrman, Petri, Fuhs & Doehrman, P.C., Indianapolis, for plaintiffs-appellants.

Wolf, Robak & Murphy, Greenfield, Peter L. Obremskey, Parr, Richey, Obremskey & Morton, Lebanon, for Hendricks County Rural Elec. Membership Corp.

Danford R. Due, Stewart Irwin Gilliom Fuller & Meyer, Indianapolis, for Jack K. Elrod.

NEAL, Presiding Judge.

STATEMENT OF THE CASE

Plaintiff-appellants Donna Pilkington and her parents (Pilkingtons) appeal an adverse jury verdict returned in favor of defendant-appellees Hendricks County REMC (REMC) and Jack K. Elrod (Elrod). The action arose out of personal injuries Donna received while watching the National Drag Races at Indianapolis Raceway Park on September 3, 1979.

We affirm.

STATEMENT OF THE FACTS

Nine-year old Donna Pilkington, accompanied by her parents, received electrocution injuries while a spectator at the National Drag Races at Indianapolis Raceway Park (Raceway) on September 3, 1979. The races were sponsored by the National Hot Rod Association (Hot Rod). The incident occurred when another spectator at the top of the temporary metal bleachers which had been erected for the event somehow came into contact with REMC's 7200-volt uninsulated power line. The electricity was conducted down through the stands, into Donna's right hand, and out her back.

The bleachers were installed by Jack Elrod at the direction of Raceway Park. Elrod, in past years, had installed ten row elevated bleachers which rose to a height of 14 feet, 10 inches. This year, however, the management of Raceway Park was expecting a large crowd since it was the 25th anniversary of the National Drags, and it ordered 16 bleacher rows installed. The extra six rows added twelve feet of depth and brought the height of the stands to 18 feet, 10 inches. The power line was located behind the bleachers, and the additional depth and height of the stands put the top of the bleachers in dangerous proximity to the wire: investigation after the accident revealed that the line was 24 inches diagonally from the southeast uppermost corner of the stands. REMC was not informed by Raceway officials of the increased seating capacity of the bleachers and Pilkingtons do not contend that notice was given.

Kurt Walters, an employee of REMC since 1972, was the ground man at the time of the Raceway incident. One of Walters' duties included periodically inspecting the power lines for hazardous conditions. He inspected the lines at Raceway on August 27th, 1979, before the bleachers were assembled. At that time, the power line was in proper position. Walters testified that the bottom wire, the neutral wire, is normally 17-18 feet from the ground while the main wire is 21-22 feet above the ground. There was no evidence in the record that the power line violated the provisions of the National Electric Safety Code in its construction or maintenance.

Suit was originally filed by Pilkingtons against Raceway, the owner and controller of the premises; Hot Rod, the sponsor of the event; Elrod, the contractor; and REMC, who owned the power line. The complaint alleged that all defendants were jointly and severally liable in (1) erecting bleachers of metal; (2) erecting bleachers close to the power line; (3) failing to insulate power lines; and (4) failing to warn spectators. The principal target of the appeal is REMC: at trial and on appeal, the thrust of Pilkington's argument seems to be REMC's failure to inspect. Prior to trial, the suit was dismissed as to Raceway and Hot Rod and proceeded to trial against REMC and Elrod. Jury verdicts were returned in both cases for the latter defendants.

ISSUES

On appeal, Pilkingtons raise six issues, restated by us:

I. Did the trial court err in giving REMC's tendered instruction number 2 which dealt with the right to assume others will exercise reasonable care;

II. Did the trial court err in giving REMC's tendered instruction number 4 because it was a "pure accident" instruction;

III. Did the trial court err in giving REMC's tendered instruction number IV. Did the trial court err in giving REMC's tendered instruction number 3A which dealt with excuse or justification;

7 regarding constant surveillance and in failing to give Pilkingtons' tendered instruction number 5;

V. Did the trial court err in refusing to give Pilkingtons' instruction number 13 regarding the liability of property owners;

VI. Did the trial court abuse its discretion in admitting Elrod's Exhibit B, a sketch which demonstrated the assumed deflection of a utility pole.

DISCUSSION AND DECISION

Issue I: Defendant's Instruction Number 2

This instruction was tendered by REMC, given to the jury, and stated in substance that in absence of notice to the contrary, REMC had a right to assume that Hot Rod, Raceway Park, and Elrod would use reasonable care in the placement and erection of the bleachers, and that REMC had no duty to anticipate negligent acts on their part. Plaintiff-appellants argue that the instruction is an erroneous statement of the law because such language is applicable only in the context of contributory negligence. As an example of the type of contributory negligence case that employs the language in the instruction, Pilkingtons cite Smith v. Indiana Insurance Company of North America, (1980) Ind.App., 411 N.E.2d 638, 641 which states:

"unless a party has notice to the contrary he has a right to assume others who owe him a duty of reasonable care will exercise such care."

Plaintiff-appellants correctly argue that no Indiana authority extends the above rule to situations in which a defendant may assume that third parties or co-defendants will exercise reasonable care. However, Pilkingtons cite no authority which prohibits such an extension.

We first observe that negligence, either on the part of a plaintiff or a defendant, is the want of ordinary care. The standard remains constant; in determining whether a party has exercised reasonable care, the considerations utilized in the determination do not vary according to the party. Therefore, if a plaintiff is not guilty of contributory negligence in justifiably assuming that a defendant will exercise ordinary care, then it seems that a defendant likewise is entitled to the same assumption and is not guilty of negligence in assuming that third persons or co-defendants will act accordingly.

In Toenges v. Walter, (1941) 109 Ind.App. 41, 32 N.E.2d 95, the court said:

"... one who is lawfully using a public highway, in absence of knowledge to the contrary, has the right to assume that others using it in common with him will use ordinary care to avoid injurying him."

Toenges, supra, at 48, citing Kraning v. Bloxson, (1937) 103 Ind.App. 660, 9 N.E.2d 107. See also Opple et al. v. Ray, (1935) 208 Ind. 450, 195 N.E. 81. Although all above-cited cases are contributory negligence cases, the language is general and not self-limiting.

65 C.J.S. Negligence Sec. 15 (1966) states the rule without qualification:

"A person has no duty to anticipate negligence on the part of others, and in the absence of knowledge or notice to the contrary, is entitled to assume, and to act on the assumption, that others will exercise ordinary care."

Sec. 5(4) adds:

"Likewise, a person is not bound to foresee and provide against casualties which result from an unexpected act of the person injured, or, it has been held, from the unexpectable act of a negligent third person, or the criminal acts of third persons."

William L. Prosser, Law of Torts Sec. 33 (1971), draws no distinction in his discussion between the contributory negligence cases and cases in which a third party is involved. He posits that the hypothetical reasonably prudent man is required to realize that there is a certain amount of negligence in the world, and when the risk is slight, he is free to proceed on the assumption that others will exercise proper care. Prosser, supra at 171. However, when the risk becomes serious, reasonable care may demand precautions against that occasional negligence which is one of the ordinary incidents of human life and therefore to be anticipated. Id. (Citations omitted). Duty arises only where a reasonable person would recognize the existence of an unreasonable risk of harm to others through the intervention of such negligence. Id. at 172. He concludes with a recommendation that the probability that such negligence will occur and the magnitude of harm be balanced against the burden upon the defendant of exercising such care in determining liability. Id.

In Indiana, the standard of care required of companies transmitting electricity is the care a person of reasonable prudence would ordinarily use under like conditions or circumstances. Jones v. City of Logansport, (1982) Ind.App., 436 N.E.2d 1138. The doctrine of strict liability is inapplicable to electric utilities. Hedges v. Public Service Company of Indiana, (1979) Ind.App., 396 N.E.2d 933.

In situations in which injuries have occurred because the general public unexpectedly comes into contact with an uninsulated power line, determination of an electric company's liability is made on the basis of whether the utility knew or should have known of the hazard and anticipated the danger. Jones, supra, at 1150 (Our emphasis); Southern Indiana Gas and Electric Co. v. Steinmetz, (1977) 177 Ind.App. 96, 377 N.E.2d 1381; Petroski v. Northern Indiana Public Service Co., (1976) 171 Ind.App. 14, 354 N.E.2d 736. Liability of a power company for injury or death in supplying electricity to a building with faulty wiring turned on knowledge of defective wiring which was done by third parties in Aurentz...