Brown v. Northern Indiana Public Service Co.

• Decision Date: 27 August 1986
• Docket Number: No. 3-785-A-163,3-785-A-163
• Citation: 496 N.E.2d 794
• Parties: James BROWN, Appellant (Plaintiff Below), v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, a corporation Appellee (Defendant Below).
• Court: Indiana Appellate Court

Page 794

496 N.E.2d 794

James BROWN, Appellant (Plaintiff Below), v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, a corporation Appellee (Defendant Below).

No. 3-785-A-163.

Court of Appeals of Indiana Third District.

Aug. 27, 1986.

Gary D. Leigh, Fisher, Leigh & Associates, Chicago, Ill., Thomas J. Roemer, Roemer Law Offices, South Bend, for appellant.

Charles W. Webster, Eichhorn, Eichhorn & Link, Hammond, Robert D. Lee, Hardig, Lee, Groves & Konopa, South Bend, for appellee.

STATON, Presiding Judge.

This is an interlocutory appeal ¹ from summary judgment entered in favor of Northern Indiana Public Service Company and against James Brown in his personal injury action against NIPSCO and others. ² We reverse.

I. Summary Judgment

Brown was a construction laborer employed by Dedelow, Inc. On the day he was injured Brown had been sent to the Dedelow construction yard to help move steel pipe from one area of the yard to another. A crane was used to carry the pipe, with Brown and another worker attaching the crane cables to the pipe and guiding the pipe as it was moved to the bed of a nearby truck. Brown was injured when some part of the crane contacted an uninsulated high voltage wire running over the construction yard.

Brown's complaint alleged that NIPSCO was negligent in placing the power lines at a height which did not allow the safe operation of a crane and in failing to warn of the dangers of operating cranes in close proximity to the power lines.

NIPSCO first moved for summary judgment on the ground that it owed no duty to Brown as a matter of law. The trial court denied NIPSCO's motion, holding that it could not find as a matter of law that no duty existed running from NIPSCO to the injured plaintiff. NIPSCO renewed its motion for summary judgment, arguing for the application of the "open and obvious" rule enunciated by the Supreme Court in Bemis Co., Inc. v. Rubush (1981) Ind., 427 N.E.2d 1058. The trial court sustained NIPSCO's motion with the following order:

The court having reviewed the documents filed herein on the renewed motion for summary judgment by the defendants, Northern Indiana Public Service Company and Pettibone Corporation, now finds that there is no material dispute as to fact and that the defendant, Northern Indiana Public Service Company, is entitled to a judgment as a matter of law.

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Having reviewed the evidence herein and further having reviewed the additional testimony of the plaintiff in the deposition and the testimony of other deponents herein, the court now finds that the situation as described by the plaintiff and other deposed witnesses brings into bearing in this cause of action, with respect to the defendant NIPSCO, the "open and obvious rule." The court having reviewed the decisions of Bemis Company, Inc., The [sic] Rubush (1981) 427 N.E.2nd 1058 and J.I. Case Company v. Sandefur (1964) 245 Ind. 213, 197 N.E.2nd 519 now finds that the plaintiff herein was aware of the risk of the crane coming in contact with the power lines.

The court further finds that the plaintiff was aware of the distance of said power lines and that he had been repeatedly warned to be aware of their existence and to avoid the same.

The court finds that the above cited decisions clearly support the position of the moving party, Northern Indiana Public Service Company, and as such, there being no dispute as to fact, the defendant, Northern Indiana Public Service Company, is entitled to a summary judgment as a matter of law.

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Summary judgment awarded to the defendant NIPSCO and denied as to the defendant, Pettibone Corporation, all per order entered.

It is from this order that Brown appeals, arguing that the trial court erred in applying the open and obvious rule in a nonproducts liability case and that there were genuine issues of material fact as to whether the risk of injury and the fact that the lines were uninsulated were open and obvious to Brown.

NIPSCO has conceded that since the trial court's order was entered, the Supreme Court's decision in Bridgewater v. Economy Engineering Co. (1985) Ind., 486 N.E.2d 484, reh. den. has foreclosed the application of the open and obvious rule in non-product negligence cases. NIPSCO continues to argue, however, that NIPSCO owed no duty to Brown and that Brown was contributorily negligent as a matter of law.

Our standard of review for summary judgment is well known; it is the same standard applied by the trial court. "If the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and testimony, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to a judgment as a matter of law" summary judgment is appropriate. Indiana Rules of Procedure, Trial Rule 56(C). The purpose of the summary judgment procedure is to terminate those causes of action which have no factual dispute and which may be determined as a matter of law. However, the procedure must be applied with extreme caution so that a party's right to the fair determination of a genuine issue is not jeopardized. Jones v. City of Logansport (1982) Ind.App., 436 N.E.2d 1138, 1143. The burden is upon the moving party to establish that there is no genuine issue as to any material fact. The court liberally views all evidence in the light most favorable to the non-movant and resolves any doubt as to a fact, or the inferences to be drawn therefrom, in favor of the non-movant. Id. We must reverse a grant of summary judgment if the record discloses an unresolved issue of material fact or an incorrect application of the laws to those facts. As NIPSCO points out, however, summary judgment will be affirmed if sustainable on any theory or basis found in the record. Wingett v. Teledyne Industries, Inc. (1985) Ind., 479 N.E.2d 51, 56. Thus, even though the trial court incorrectly based its decision on the open and obvious rule, we review the materials considered by the trial court to determine whether some other theory supports summary judgment in favor of NIPSCO.

Actionable negligence in Indiana requires proof of the following elements: (1) a duty imposed on the defendant for the benefit of the plaintiff; (2) a breach of that duty by the defendant; (3) an injury to the plaintiff proximately caused by the defendant's breach. Lambert v. Parrish (1984) Ind.App., 467 N.E.2d 791, 796.

II. Duty

The existence of a duty running from the defendant to the plaintiff is a question of law to be determined by the court. Bearman v. University of Notre Dame (1983) Ind.App., 453 N.E.2d 1196, 1198. The duty question in this case is of the type discussed by the court in Clyde E. Williams & Assoc., Inc. v. Boatman (1978) 176 Ind.App. 430, 375 N.E.2d 1138. There the court said:

While it is clear that the trial court must determine if an existing relationship gives rise to a duty, it must also be noted that a factual question may be interwoven with the determination of the existence of a relationship, thus making the ultimate existence of a duty a mixed question of law and fact.

Id. at 1141. Thus, if a certain set of facts is found, then a duty exists.

In this case, the question is whether there existed such a relationship between NIPSCO and Brown as to give rise to a duty of care on NIPSCO's part. In addressing that question we must look first to the law governing electric utilities. It is well settled that in Indiana, companies engaged in the generation and distribution of electricity have a duty to exercise reasonable care to keep distribution and transmission lines safely insulated in places where the general public may come into contact with them. Petroski v. Northern Indiana Public Service Co. (1976) 171 Ind.App. 14, 354 N.E.2d 736, 741. Generally, insulation is not required when the lines are sufficiently isolated so that the general public could not reasonably be anticipated to be dangerously close to the lines. Jones v. City of Logansport, supra at 1150. As the court in Southern Ind. Gas & Elec. Co. v. Steinmetz (1977) 177 Ind.App. 96, 377 N.E.2d 1381 explained:

This means, then, that an electric utility will not generally be required to insulate its wires with a covering or coating to protect only those persons who might come into contact with power lines in the course of their employment as electric utility employees, Denneau v. Indiana & Michigan Electric Co., supra, [ (1971) 150 Ind.App. 615, 277 N.E.2d 8], or while cleaning and repairing a sign near power lines, Jakob v. Gary Railways, Inc., supra, [ (1947) 118 Ind.App. 13, 70 N.E.2d 753], or while installing a TV antenna on private property. Northern Indiana Public Service Co. v. Howard (1957), 127 Ind.App. 488, 139 N.E.2d 558. An exception is made to this rule, however, when the utility knows or has knowledge of such facts from which it should know that a particular segment of the population will be regularly exposed to uninsulated wires for one reason or another, particularly when children are involved. Petroski v. Northern Indiana Public Service Co., supra (boy climbing tree); Wise v. Southern Indiana Gas & Electric Co. (1941), 109 Ind.App. 681, 34 N.E.2d 975 (boy climbing bridge with sagging power line nearby); Fort Wayne and...