590 N.E.2d 1067 (Ind.App. 3 Dist. 1992), 56A03-9009-CV-418, Northern Indiana Public Service Co. v. East Chicago Sanitary Dist.

Docket Nº56A03-9009-CV-418.
Citation590 N.E.2d 1067
Party NameNORTHERN INDIANA PUBLIC SERVICE COMPANY, Carol G. Kelley, Patricia L. Kelley, Terry D. Kruger, Judy S. Kruger, CITY of East Chicago, Appellants, v. EAST CHICAGO SANITARY DISTRICT, Bittner & Detella, Inc., Tenech Engineering, Inc., Appellees, Carol G. Kelley, Patricia Kelley, Terry Kruger, Judy Kruger, City of East Chicago, Northern Indiana Public S
Case DateJanuary 29, 1992
CourtCourt of Appeals of Indiana

Page 1067

590 N.E.2d 1067 (Ind.App. 3 Dist. 1992)

NORTHERN INDIANA PUBLIC SERVICE COMPANY, Carol G. Kelley,

Patricia L. Kelley, Terry D. Kruger, Judy S.

Kruger, CITY of East Chicago, Appellants,

v.

EAST CHICAGO SANITARY DISTRICT, Bittner & Detella, Inc.,

Tenech Engineering, Inc., Appellees,

Carol G. Kelley, Patricia Kelley, Terry Kruger, Judy Kruger,

City of East Chicago, Northern Indiana Public

Service Company, Cross-Appellees.

No. 56A03-9009-CV-418.

Court of Appeals of Indiana, Third District.

January 29, 1992

Ordered Published April 16, 1992.

Page 1068

[Copyrighted Material Omitted]

Page 1069

[Copyrighted Material Omitted]

Page 1070

Paul A. Rake, Sherry L. Clarke, Linda J. Kibler, Eichhorn, Eichhorn & Link, Hammond, for appellant and cross-appellee, Northern Indiana Public Service Co.

George Gessler, Gessler, Flynn, Fleishman, Hughes & Socol, Ltd., Chicago, Ill., for appellants and cross-appellees, Carrol G. Kelley and Patricia L. Kelley.

John R. Pera, Greco, Pera & Bishop, Merrillville, for appellants and cross-appellees, Terry D. Kruger and Judy S. Kruger.

John Barce, Barce, Ryan & Howard, Kentland, for appellants and cross-appellees, Carrol G. Kelley, Patricia L. Kelley, Terry D. Kruger and Judy S. Kruger.

Joseph Stalmack, Galvin, Stalmack & Kirschner, Hammond, for appellees, East Chicago Sanitary Dist. and Tenech Engineering, Inc., and for appellant and cross-appellee, City of East Chicago.

Terrance Smith, Smith & Debonis, East Chicago, for appellant and cross-appellee, City of East Chicago.

Gary J. Dankert, Kenneth T. Ungar, Ice Miller Donadio & Ryan, Indianapolis, for appellee, Bittner and Detella, Inc.

Robert Hawk, Spangler, Jennings & Dougherty, Merrillville, for appellee, Bittner and Detella, Inc.

GARRARD, Judge.

Carrol G. Kelley and Terry D. Kruger were seriously injured while they were working on a waste water treatment plant renovation project at the East Chicago Sanitary District in East Chicago, Indiana. They were carpenters employed by the Lombard Company (general contractor) of Alsip, Illinois. Their injuries occurred on September 15, 1987, when they were attempting to move large concrete forms. The task required the use of a crane. When they moved the first form the boom of the crane either contacted or came within close proximity to an overhead power line. This particular line was uninsulated and carried 34,500 volts. An electrical charge traveled down the crane cable and into the spreader cable each was holding.

On September 11, 1989 Carrol G. Kelley and Patricia L. Kelley (Kelley) and Terry D. Kruger and Judy S. Kruger (Kruger) filed a complaint against East Chicago Sanitary District (ECSD), City of East Chicago (City), Bittner & Detella, Inc. (Architect), Tenech Engineering, Inc. (Engineer), and Northern Indiana Public Service Company (NIPSCO). The complaint alleged that City, ECSD, Architect, and Engineer breached the duty, owed by them to Kelley and Kruger, to exercise reasonable care in the management and control of the construction project and asserted that each had a nondelegable duty to comply with all federal and state laws and regulations that were applicable to the construction project. NIPSCO was alleged to have breached the duty it owed to Kelley and Kruger to exercise reasonable care in the management and use of its uninsulated high tension power lines.

Page 1071

Substantial discovery was conducted by the parties. Each defendant moved for summary judgment. Affidavits, documentary evidence, and briefs of counsel were attached to the motions. Kelley and Kruger, by counsel, filed a motion in opposition. Additionally, more than twenty depositions were properly before the court. The trial court ruled on the motions on September 6, 1990 as follows:

  1. As to ECSD and City, the court found that for the 'purpose of this litigation both of said Defendants are the same entity' namely City. ECSD was removed as a named party and summary judgment was granted as to them. As to City, the trial court found that there existed 'genuine issues of material fact' relative to their duties which precluded the granting of summary judgment as to them.

  2. As to Architect, the trial court found 'that as a matter of law said Defendant had no contractual obligation relative to safety responsibilities and further as a matter of law, considering the evidence most favorable to the non-moving parties, said Defendant by its conduct assumed no responsibilities relative to safety herein and therefore said Defendant is entitled to Summary Judgment.'

  3. As to Engineer, the trial court, likewise, found that 'said Defendant had no contractual obligation for safety responsibilities and further as a matter of law, given the evidence most favorable to the non-moving party, said Defendant did not assume safety responsibilities herein and therefore is entitled to Summary Judgment.'

  4. As to NIPSCO, the trial court found that there were 'genuine issues of material fact relative to their duties and that their motion for Summary Judgment should be denied.'

Record at 489-90.

The case is before this court upon the proper interlocutory appeal of Kelley and Kruger, NIPSCO and City. Further proceedings were stayed pending the determination of this certified appeal.

Standard of Appellate Review

To test the law of the case, summary judgment proceedings offer the means for determining if there exist genuine issues of material fact that require trial. The procedure is to be applied with caution in view of a party's rights to have his issues fairly determined. Brown v. Northern Indiana Public Service Co. (1986), Ind.App., 496 N.E.2d 794, 796. They do not have as their purpose the trial of real and genuine factual issues. See Harvey, 3 Indiana Practice, 2d ed., Civil Code Study Commission Comments, p. 609 (1988). Although applied in almost all types of cases, summary judgment proceedings are generally inappropriate in negligence cases. Rediehs Express, Inc. v. Maple (1986), Ind.App., 491 N.E.2d 1006, 1008, cert. denied 480 U.S. 932, 107 S.Ct. 1571, 94 L.Ed.2d 762. If the facts of the case are not in dispute, however, summary judgment is certainly appropriate to test the law of a negligence action.

"The grant or denial of summary judgment is reviewed on appeal by the same standard as used by the trial court." (citations omitted). Ogden Estate v. Decatur County Hosp. (1987), Ind.App., 509 N.E.2d 901, 902. Summary judgment proceedings can be viewed as involving two levels of inquiry. See Brandon v. State (1976), 264 Ind. 177, 340 N.E.2d 756, 758-61; English Coal Co., Inc. v. Durcholz (1981), Ind.App., 422 N.E.2d 302, 307; Doe v. Barnett (1969), 145 Ind.App. 542, 251 N.E.2d 688, 694-95. 1 Initially, the trial court must determine if any genuine issues as to the material facts of the case exist. The moving party bears the burden of establishing that no genuine issues of material fact exist. See Ogden Estate, supra, 509 N.E.2d at 902. All facts asserted by the non-moving party are accepted as true and any doubts are to be resolved in the non-movant's favor. Id. This process necessarily involves an appreciation of the legal

Page 1072

issues of the case, the characteristic facts that are generally material to those issues and the identification of the material facts contained within the instruments and testimony before the court. The trial court can then determine if there exists genuine disputes about material facts. If genuine factual issues exist, the motion is properly denied. Brandon, supra, 340 N.E.2d at 758-61.

A fact is material if its resolution is decisive of either the action or a relevant secondary issue. (citation omitted). The factual issue is genuine if it can not be foreclosed by reference to undisputed facts. That is, a factual issue is genuine if those matters properly considered under TR 56 evidence a factual dispute requiring the trier of fact to resolve the opposing parties' differing versions. (citation omitted).

Jones v. City of Logansport (1982), Ind.App., 436 N.E.2d 1138, 1143. If no genuine issue of material fact exists, the trial court must then decide if the moving party is entitled to relief as a matter of law. Ogden Estate, supra, 509 N.E.2d at 902.

Actionable Negligence

The elements of actionable negligence that Kelley and Kruger are required to prove in their case are: (1) the existence...

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34 practice notes
  • 694 N.E.2d 1198 (Ind.App. 1998), 61A05-9701-CV-14, Downs v. Panhandle Eastern Pipeline Co.
    • United States
    • Indiana Court of Appeals of Indiana
    • May 29, 1998
    ...Northern Indiana Public Service Company v. East Chicago Sanitary District ("NIPSCO ") in support of this contention. NIPSCO, 590 N.E.2d 1067 (Ind.Ct.App.1992). NIPSCO addressed the liability of an electric utility company for injuries caused by faulty electrical wiring. In NIPSCO,......
  • 990 N.E.2d 470 (Ind.App. 2013), 89A04-1204-PL-159, Lyons v. Richmond Community School Corp.
    • United States
    • Indiana Court of Appeals of Indiana
    • May 8, 2013
    ...would have acted as the plaintiff did under the circumstances." Page 484 N. Ind. Pub. Serv. Co. v. E. Chicago Sanitary Dist., 590 N.E.2d 1067, 1075 (Ind.Ct.App.1992). Below RCSC asserted that, if it were liable for failing to cut Megan's sandwich into pieces on the day that Megan choke......
  • 622 N.E.2d 1044 (Ind.App. 4 Dist. 1993), 49A04-9302-CV-71, Kelly v. Ladywood Apartments
    • United States
    • Indiana Court of Appeals of Indiana
    • November 8, 1993
    ...are to be resolved in favor of the nonmoving party. Northern Indiana Public Service Co. v. East Chicago Sanitary Dist. (1992), Ind.App., 590 N.E.2d 1067, 1071. Even if the facts are not in dispute, summary judgment is inappropriate if conflicting inferences could be drawn from those facts. ......
  • 631 N.E.2d 932 (Ind.App. 4 Dist. 1994), 46A04-9301-CV-20, Schooley v. Ingersoll Rand, Inc.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 29, 1994
    ...any genuine issue of material fact. See Northern Indiana Public Service Co. v. East Chicago Sanitary District (1992), Ind.App., 590 N.E.2d 1067, 1071. Even if the facts are not in dispute, summary judgment is inappropriate if conflicting inferences could be drawn from those facts. Newhouse ......
  • Request a trial to view additional results
34 cases
  • 694 N.E.2d 1198 (Ind.App. 1998), 61A05-9701-CV-14, Downs v. Panhandle Eastern Pipeline Co.
    • United States
    • Indiana Court of Appeals of Indiana
    • May 29, 1998
    ...Northern Indiana Public Service Company v. East Chicago Sanitary District ("NIPSCO ") in support of this contention. NIPSCO, 590 N.E.2d 1067 (Ind.Ct.App.1992). NIPSCO addressed the liability of an electric utility company for injuries caused by faulty electrical wiring. In NIPSCO,......
  • 990 N.E.2d 470 (Ind.App. 2013), 89A04-1204-PL-159, Lyons v. Richmond Community School Corp.
    • United States
    • Indiana Court of Appeals of Indiana
    • May 8, 2013
    ...would have acted as the plaintiff did under the circumstances." Page 484 N. Ind. Pub. Serv. Co. v. E. Chicago Sanitary Dist., 590 N.E.2d 1067, 1075 (Ind.Ct.App.1992). Below RCSC asserted that, if it were liable for failing to cut Megan's sandwich into pieces on the day that Megan choke......
  • 622 N.E.2d 1044 (Ind.App. 4 Dist. 1993), 49A04-9302-CV-71, Kelly v. Ladywood Apartments
    • United States
    • Indiana Court of Appeals of Indiana
    • November 8, 1993
    ...are to be resolved in favor of the nonmoving party. Northern Indiana Public Service Co. v. East Chicago Sanitary Dist. (1992), Ind.App., 590 N.E.2d 1067, 1071. Even if the facts are not in dispute, summary judgment is inappropriate if conflicting inferences could be drawn from those facts. ......
  • 631 N.E.2d 932 (Ind.App. 4 Dist. 1994), 46A04-9301-CV-20, Schooley v. Ingersoll Rand, Inc.
    • United States
    • Indiana Court of Appeals of Indiana
    • March 29, 1994
    ...any genuine issue of material fact. See Northern Indiana Public Service Co. v. East Chicago Sanitary District (1992), Ind.App., 590 N.E.2d 1067, 1071. Even if the facts are not in dispute, summary judgment is inappropriate if conflicting inferences could be drawn from those facts. Newhouse ......
  • Request a trial to view additional results