Goodrich v. Indiana Michigan Power Co., 71A03-0205-CV-167.

• Decision Date: 25 February 2003
• Docket Number: No. 71A03-0205-CV-167.,71A03-0205-CV-167.
• Citation: 783 N.E.2d 793
• Parties: Robert GOODRICH, Appellant-Plaintiff, v. INDIANA MICHIGAN POWER COMPANY dba American Electric Power, Appellee-Defendant.
• Court: Indiana Appellate Court

783 N.E.2d 793

Robert GOODRICH, Appellant-Plaintiff, v. INDIANA MICHIGAN POWER COMPANY dba American Electric Power, Appellee-Defendant.

No. 71A03-0205-CV-167.

Court of Appeals of Indiana.

February 25, 2003.

Robert J. Lasalvia, Grainger, IN, Stanley White, White & White, Indianapolis, IN, Attorneys for Appellant.

Carmen M. Piasecki, Thomas H. Singer, Nickle & Piasecki, South Bend, IN, Attorneys for Appellee.

OPINION

KIRSCH, Judge.

Robert Goodrich appeals the trial court's grant of partial summary judgment on his negligence claim against American Electric Power ("AEP") and the jury's verdict in favor of AEP, raising the following issues for review:

I. Whether the trial court erred in ruling as a matter of law that AEP did not owe a duty to the general public to insulate its power lines that were twenty-three feet above the ground and ran over an abandoned, grassy alleyway.

II. Whether the trial court committed reversible error when it granted the jury's request during its deliberations to view a specific exhibit in the jury room.

We affirm.

FACTS AND PROCEDURAL HISTORY

On October 7, 1997, Goodrich was working for North Central Roofing as a foreman of a roofing crew. He and a fellow worker were installing a drip edge on a two-story home. Goodrich was standing on a platform several feet above the ground. Goodrich's fellow worker handed him a ten-foot section of aluminum drip edge. While Goodrich was holding the drip edge, it came into contact with a 7200 volt electric distribution line owned by AEP. Goodrich fell from the platform, hitting a window air conditioner and then the ground. From this fall, he suffered injuries that rendered him paraplegic.

Goodrich brought suit against AEP for negligence, arguing that AEP breached its duty of care in a number of ways. AEP moved for summary judgment, and the trial court granted the motion with regard to the claims that alleged that Goodrich was a member of the general public to whom a duty is owed. The trial court denied summary judgment on Goodrich's claims to the extent that he alleged "that he is a member of a particular segment of the population who Defendant knows or has reason to know will be regularly exposed to the subject power line." Appellant's Appendix at 10.

The case was tried to a jury on the remaining theories. During deliberations, the jury sent a note to the judge requesting to see Exhibit 7. Without informing the parties, the court complied and sent the exhibit to the jury room. The jury continued deliberations, took a break for lunch, and returned to its deliberations. It returned a verdict that Goodrich was ten percent at fault, North Central Roofing was ninety percent at fault, and AEP was not at fault.

Goodrich now appeals.

DISCUSSION AND DECISION

Goodrich contends that the trial court erred in ruling as a matter of law that AEP did not owe a duty to the general public with regard to its power lines that were twenty-three feet above the ground and ran over an abandoned, grassy alleyway.

When reviewing the grant or denial of a summary judgment motion, this court applies the same legal standard as the trial court, i.e., summary judgment is appropriate when no designated genuine issues of material fact exist and the moving party is entitled to judgment as a matter of law. Indiana Ins. Co. v. Am. Cmty. Servs., Inc., 718 N.E.2d 1147, 1152 (Ind.Ct.App.1999); May v. Frauhiger, 716 N.E.2d 591, 594 (Ind.Ct.App.1999) (citing Ind. Trial Rule 56(C)); Birrell v. Indiana Auto Sales & Repair, 698 N.E.2d 6, 7 (Ind.Ct.App.1998), trans. denied. This court may not search the entire record but may only consider the evidence that has been specifically designated. Indiana Ins. Co., 718 N.E.2d at 1152; Birrell, 698 N.E.2d at 7. All pleadings, affidavits, and testimony are construed liberally and in the light most favorable to the nonmoving party. May, 716 N.E.2d at 594. We need not rely on the theory espoused by the trial court, and we will affirm a grant of summary judgment if it is sustainable on any basis found in the record. Brazauskas v. Fort Wayne-South Bend Diocese, Inc., 714 N.E.2d 253, 259 (Ind.Ct.App.1999), trans. denied.

Previous opinions of this court have explained that companies engaging 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. Rogers v. Grunden, 589 N.E.2d 248, 256 (Ind.Ct.App.1992),trans. denied; Brown v. N. Indiana Pub. Serv. Co., 496 N.E.2d 794, 797 (Ind.Ct.App.1986),trans. denied (1987); Pilkington v. Hendricks County Rural Elec. Membership Corp., 460 N.E.2d 1000, 1007 (Ind.Ct.App.1984). Conversely, insulation is not required when lines are sufficiently isolated so that the general public could not reasonably be anticipated to be dangerously close to the lines. Rogers, 589 N.E.2d at 256; Brown,496 N.E.2d at 797; Jones v. City of Logansport, 436 N.E.2d 1138, 1150 (Ind.Ct. App.1982); S. Indiana Gas & Elec. Co. v. Steinmetz, 177 Ind.App. 96, 99-100, 377 N.E.2d 1381, 1383 (1977). "General public" has been defined by this court as a person of that "`great multitude of persons' who would, in the course of daily events, be exposed to danger by the presence of an uninsulated wire carrying a dangerous voltage of electricity." Rogers, 589 N.E.2d at 256 (quoting Brown,496 N.E.2d at 797). Moreover, 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. Spudich v. N. Indiana Pub. Serv. Co., 745 N.E.2d 281, 291 (Ind.Ct.App.2001),trans. denied; Brown,496 N.E.2d at 797-98; Jones, 436 N.E.2d at 1150. 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. Brown,496 N.E.2d at 797-98; Jones, 436 N.E.2d at 1150; Steinmetz, 177 Ind.App. at 100,377 N.E.2d at 1383. As our supreme court summarized:

"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. Stated another way, the utility company has a duty to insulate its lines in places where the general public comes into contact with them, but not where the only people who come into contact with them are utility employees or others charged with knowledge of necessary safety precautions."

Butler v. City of Peru, 733 N.E.2d 912, 916-17 (Ind.2000) (citations omitted).

However, a duty, when found to exist, is the duty to exercise reasonable care under the circumstances. Correll v. Indiana Dept. of Transp., 783 N.E.2d 706 (Ind.Ct.App. 2002), trans. pending. The duty never changes, although the standard of conduct required to measure up to that duty varies depending upon the particular circumstances. Id.

Accordingly, although the cases discussing liability for injuries from electric lines refer to a duty to insulate the lines, our review of the opinions leads us to conclude that what these courts have intended by such language is that an electric company does not breach its duty to exercise reasonable care by failing to take protective measures with regard to power electric transmission lines with which the general public is unlikely to come into contact.

In Steinmetz, 177 Ind.App. at 100,377 N.E.2d at 1383-84, the plaintiff was injured by the defendant's electric lines. The defendant argued that it could not be liable for the injury even though it failed to insulate its lines. In holding in favor of the defendant, we noted that the lines were elevated to a height of over thirty feet, and there was little evidence of any facts which reasonably should have put the defendant on notice that the general public might come into contact with the lines at the place of the accident with any regularity.

In this case, the power lines were located twenty-three feet above the ground between two residences and over an abandoned, grassy alleyway that the two property owners mowed. Goodrich's contact with the lines resulted from his standing on an elevated platform and extending a long, conductive object over his shoulder. Under these circumstances, the general public is not likely to come into contact with the lines in question. Thus, AEP did not breach its duty to exercise reasonable care, and the trial court did not err in granting partial summary judgment on Goodrich's claims that relied on AEP's duty to the general public. See also Spudich, 745 N.E.2d at 291-92

(electric utility owed no duty to plaintiff, not a member of general public, who contacted lines forty feet above the ground while elevated to place Christmas decorations on trees); Rogers, 589 N.E.2d at 256 (no duty to insulate lines on private property leased by plaintiff's employer, an area to which the general public had no access, where plaintiff's exposure to power lines occurred as a result of his use of sixty foot auger in proximity to lines); Brown,

496 N.E.2d at 797-98 (plaintiff was not member of general public where he was on totally fenced, private property of employer, to which general public had no access, and exposure to electric lines occurred as a result of his working with crane in proximity to lines).¹

Goodrich next argues that the trial court committed reversible error when it granted the jury's request during its deliberations to have Exhibit 7 sent to the jury room. IC XX-XX-X-X states:

"If, after the jury retires for deliberation:

(1) there is a disagreement among the jurors as to any part of the testimony; or

(2) the jury desires to be informed as to any point of law arising in

...