Butler v. City of Peru, 52S02-0002-CV-117.

• Decision Date: 14 August 2000
• Docket Number: No. 52S02-0002-CV-117.,52S02-0002-CV-117.
• Citation: 733 N.E.2d 912
• Parties: Miriam BUTLER, Individually and as personal representative of the Estate of James E. Butler, Appellants (Plaintiffs Below), v. CITY OF PERU and Peru Municipal Utilities, Appellees (Defendants Below).
• Court: Indiana Supreme Court

733 N.E.2d 912

Miriam BUTLER, Individually and as personal representative of the Estate of James E. Butler, Appellants (Plaintiffs Below), v. CITY OF PERU and Peru Municipal Utilities, Appellees (Defendants Below).

No. 52S02-0002-CV-117.

Supreme Court of Indiana.

August 14, 2000.

Donald J. Tribbett, Logansport, Indiana, Attorney for Appellants.

Thomas J. Trauring Kokomo, Indiana, Attorney for Appellees.

ON PETITION TO TRANSFER

BOEHM, Justice.

We grant transfer in this case to clarify the phrase "user or consumer" in the Products Liability Act and to reiterate the correct standard for summary judgment under Trial Rule 56.

Factual and Procedural Background

James E. Butler was employed as a maintenance worker for Peru Community School Corporation. On September 23, 1993, Butler was electrocuted trying to restore power to an electrical outlet near the Peru High School baseball field. The power source to the outlet was an electrical box located within a fenced-in area containing one of the field's lighting towers. The fenced-in area contained equipment carrying several levels of electrical power ranging from 110 to 7200 volts. Butler and a co-worker had been unable to identify the cause of the outlet's power outage, but had determined that the box that served the outlet had no power. Butler used a pocket tester rated for 600 volts to check the power supply to the other equipment in the fenced-in area. He was killed when he came into contact with a 7200-volt line.

The school and environs are in the service area of Peru Municipal Utilities, which is operated by the City of Peru. Butler's wife and his estate filed suit against the City and Peru Municipal Utilities (collectively Peru)¹ alleging ten counts of negligence based on "the close proximity of high power lines to low power lines and the lack of any proper warning regarding, or insulation of, the high power lines." The Butlers alleged, and Peru denied, that Peru owned, operated, or maintained the electrical transmission system at the baseball diamond. Peru filed a motion for summary judgment on November 18, 1996. On February 10, 1998, the trial court granted Peru's motion for summary judgment on the ground that Peru did not own, maintain, or control the allegedly defective equipment. The Court of Appeals affirmed the trial court. See Butler v. City of Peru, 714 N.E.2d 264 (Ind.Ct.App.1999)

.

Standard of Review

On appeal the standard of review of a summary judgment motion is the same as that used in the trial court: summary judgment is appropriate only where the evidence shows there is no genuine issue of material fact and the moving party is entitled to a judgment as a matter of law. See Ind. Trial Rule 56(C); Shell Oil Co. v. Lovold Co., 705 N.E.2d 981, 983-84 (Ind.1998). All facts and reasonable inferences drawn from those facts are construed in favor of the nonmoving party. See Shell Oil, 705 N.E.2d at 983-84

; Colonial Penn Ins. Co. v. Guzorek, 690 N.E.2d 664, 667 (Ind.1997). The review of a summary judgment motion is limited to those materials designated to the trial court. See T.R. 56(H); see also Rosi v. Business Furniture Corp., 615 N.E.2d 431, 434 (Ind. 1993). We must carefully review decisions on summary judgment motions to ensure that the parties were not improperly denied their day in court. Estate of Shebel ex rel. Shebel v. Yaskawa Elec. Am., Inc., 713 N.E.2d 275, 277 (Ind.1999).

I. Summary Judgment as to the Negligence Claim

A. Summary Judgment Standard

The Butlers first claim that the trial court and Court of Appeals misapplied Indiana Trial Rule 56 and Indiana summary judgment law. Trial Rule 56(C) provides that a summary judgment movant must 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." The movant must designate sufficient evidence to foreclose the nonmovant's reasonable inferences and eliminate any genuine factual issues. Once the movant has put forward evidence to establish this, the burden shifts to the nonmovant to make a showing sufficient to establish the existence of a genuine issue for trial on each challenged element of the cause of action. See Mullin v. Municipal City of South Bend, 639 N.E.2d 278, 281 (Ind. 1994)

; see also Ind. Trial Rule 56(E); Shell Oil Co. v. Lovold Co., 705 N.E.2d 981, 984 (Ind.1998).

It is well established that the designated evidence on a summary judgment motion is to be evaluated in the light most favorable to the nonmoving party. See, e.g., Shell Oil, 705 N.E.2d at 984

; Tibbs v. Huber, Hunt & Nichols, Inc., 668 N.E.2d 248, 249 (Ind.1996); Cowe v. Forum Group, Inc., 575 N.E.2d 630, 633 (Ind. 1991). Although both courts stated the correct standard, the Butlers claim that the courts did not in fact apply that standard in making their rulings.

B. Disputed and Undisputed Facts

Several facts are undisputed. Lighting for the field was installed around 1970. Peru owns, maintains, and controls the electrical transmission system up to a pole on the border of the School's property. The electricity travels underground from the pole to a transmission system that serves the baseball field and the light towers. The School owns both the electrical transmission system itself and the property containing the wiring from the riser pole to the electrical transmission system.

The dispute focuses on the Butlers' claim that Peru helped design the electrical system and asserted control over it by maintaining, monitoring, and repairing it. The trial court and Court of Appeals determined that Peru had only a minor role in the construction of the electrical facilities and that the School owned the electrical system that electrocuted Butler. See Butler, 714 N.E.2d at 266-67, 269

. Peru contends that the items the Butlers identified do not establish that Peru maintained the facility in question and the Butlers point to no direct evidence that this occurred. However, at this summary judgment stage it is Peru's burden to foreclose the reasonable inferences raised by the Butlers' designated evidence as to the design, maintenance, or control of the system.

The Butlers point to evidence that tends to establish that Peru designed and participated in the construction of the defective equipment. This includes a construction drawing of the baseball field electrical system prepared for Peru, not the School. It also includes evidence that Peru determined the height and location of the equipment and necessary clearances for the system, furnished and installed the connections where Butler was injured, and conducted inspections and issued a letter refusing to supply power if a safety problem was not corrected.

The Butlers also point to evidence that Peru generally maintained and repaired equipment it installed if it retained ownership of the equipment. It seems to be undisputed that Peru does not own the equipment involved in the accident, but that fact does not establish that Peru had no role in designing or monitoring the baseball field equipment it did not own.

We agree with the Butlers that this evidence is minimally sufficient to preserve a genuine issue of material fact as to Peru's design or exercise of control over or maintenance of the equipment. This is not the case, as in Northern Indiana Public Service Co. v. East Chicago Sanitary District, 590 N.E.2d 1067, 1073 (Ind.Ct.App. 1992), where the plaintiff failed to present any evidence to support its contention that the utility designed, owned, or controlled the power lines on another's property.

C. Duty

In its complaint, the Butlers alleged ten counts of negligence. The trial court granted summary judgment for Peru on all counts, in part on the basis that, as a matter of law, Peru owed Butler no duty and accordingly none was breached. On appeal, the Butlers contend that the trial court erred by: (1) finding that Peru had no duty because the power lines were owned and operated by the School, (2) finding that Peru had no duty to insulate the lines, (3) finding that Peru had no duty based on actual knowledge of an imminent danger to Butler, and (4) finding no gratuitous assumption of duty by Peru. The Court of Appeals affirmed the trial court's grant of summary judgment.

The Butlers claim that the trial court erred by finding that Peru owed Butler no duty because the power lines in question were owned by the School. It is true that a utility company generally owes no duty to those injured by power lines owned by its customers. See NIPSCO, 590 N.E.2d at 1073; Caldwell v. Alley, 70 Ind.App. 313, 321, 123 N.E. 432, 434 (1919). However, in this case, it is not entirely clear that Peru did not design or maintain some supervision and control over these lines. Viewing the evidence in the light most favorable to the Butlers, there is at least some support for the argument that Peru designed the electrical system and monitored it. This includes construction drawings, Peru's inspections and refusal to supply power until safety violations were fixed, and Peru's practice of repairing equipment it installed. This evidence could lead a jury to conclude that Peru had either "the right or power of control[ ] and the opportunity to exercise it," Southern Ind. Gas & Elec. Co. v. Indiana Ins. Co., 178 Ind.App. 505, 511, 383 N.E.2d 387, 391 (1978) (quoting W. Prosser, Handbook of the Law of Torts § 39 (4th ed.1971)), or negligently designed the configuration that produced the injury.

The Butlers also claim that the trial court erred in determining that Peru had no duty to insulate the power lines because they were not accessible to the public. Generally, electric utilities have no duty to insulate even those lines that they own if the general public is not exposed to the lines and the utility has no knowledge of a particular segment of the population that is regularly exposed to the uninsulated lines. See NIPSCO,590 N.E.2d at 1072. Stated another way, the utility company has a duty to insulate its...