Northern Indiana Public Service Co. v. East Chicago Sanitary Dist.

• Decision Date: 29 January 1992
• Docket Number: No. 56A03-9009-CV-418,56A03-9009-CV-418
• Citation: 590 N.E.2d 1067
• Court: Indiana Appellate Court
• Parties: 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.

Page 1067

590 N.E.2d 1067

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.

Jan. 29, 1992.

Ordered Published April 16, 1992.

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.

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 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 of a duty imposed upon the defendants for their benefit; (2) that the defendant(s) breached that duty, and (3) that their injuries were proximately caused by the defendants' breach. Brown, supra, 496 N.E.2d at 796.

The Parties and Their Claims

I. NIPSCO

The trial court denied NIPSCO's motion for summary judgment, finding genuine issues of material fact relative to its duties.

A. NIPSCO's Duty.

The existence of a duty running from NIPSCO to Kelley and Kruger is a question of law to be determined by the trial court. Brown, 496 N.E.2d at 796. The trial court was to determine if a relationship existed between the parties that gave rise to a duty on the part of NIPSCO toward the plaintiffs. It must be remembered 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 797. Duty might exist then if a certain set of facts is found. Id.

The Brown case addressed the law governing electric utilities. The Brown court recognized the well-settled rule that:

[I]n 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. (citation omitted).

[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, or while cleaning and repairing a sign near power lines, or while installing a TV antenna on private property. (citations omitted)

Brown, supra, 496...