McKinney v. Public Service Co. of Indiana, Inc., 30A01-9108-CV-228

• Decision Date: 26 August 1992
• Docket Number: No. 30A01-9108-CV-228,30A01-9108-CV-228
• Citation: 597 N.E.2d 1001
• Parties: Beverly McKINNEY, as the Administratrix of the Estate of Hugh L. McKinney, Appellant-Plaintiff, and Corporation of the Presiding Bishop of Church of Jesus Christ of Latter-Day Saints, and Eugene Brobst, Appellants-Defendants, v. PUBLIC SERVICE COMPANY OF INDIANA, INC., and Wanda R. Schnell, Appellees-Defendants.
• Court: Indiana Appellate Court

Page 1001

597 N.E.2d 1001

Beverly McKINNEY, as the Administratrix of the Estate of

Hugh L. McKinney, Appellant-Plaintiff,

and

Corporation of the Presiding Bishop of Church of Jesus

Christ of Latter-Day Saints, and Eugene Brobst, Appellants-Defendants, v. PUBLIC SERVICE COMPANY OF INDIANA, INC., and Wanda R.

Schnell, Appellees-Defendants.

No. 30A01-9108-CV-228.

Court of Appeals of Indiana,

First District.

Aug. 26, 1992.

Clarification granted; Rehearing denied,

Oct. 5, 1992.

Richard S. Ewing, William N. Ivers, Stewart & Irwin, Indianapolis, for appellants.

Donald L. Dawson, John B. Drummy, Kightlinger & Gray, Indianapolis, J. William DuMond, Plainfield, for appellees.

ROBERTSON, Judge.

Beverly McKinney, as the Administratrix of the Estate of Hugh L. McKinney [McKinney], and the Corporation of the Presiding Bishop of the Church of Jesus Christ of Latter-Day Saints [Church], and Eugene Brobst, appeal the summary judgments

                awarded in favor of both Wanda R. Schnell and Public Service Company of Indiana, Inc.  [PSI] in McKinney's wrongful death action arising out of an automobile accident brought against Brobst, Schnell, and PSI. 1  We address three (3) theories presented in support of the trial court's awards of summary judgment and reverse and remand for trial
                

FACTS

The facts in the light most favorable to the nonmovant, McKinney, indicate that the present lawsuit arose out of an automobile accident which occurred on August 11, 1988 on southbound Interstate 65 near Seymour, Indiana. Interstate 65 is a four-lane divided highway. About 10:30 a.m. Wanda Schnell, southbound on I65, began driving over a long bridge that spanned a river. The right front tire of her car blew out and her car became difficult to steer. She stopped her car in the right lane of traffic on the bridge, obstructing the interstate. The tires on the right side of Schnell's car were approximately on the white line which marked the right boundary of the travel lane. The shoulders of the bridge were narrow, there being approximately forty-two (42) inches between the outside of each lane and the bridge railing. Schnell turned on her emergency flashers. Although her tire was flat, her car was operable and she could have driven the rest of the way across the bridge in order to pull off the traveled part of the interstate into the emergency lane.

About that time, Raymond Johnson, a maintenance mechanic for PSI came along southbound on the interstate driving PSI's bright yellow flat-bed truck. Johnson saw Schnell's car and stopped the truck approximately fifty (50) to seventy-five (75) feet behind Schnell's car. He turned on the truck's emergency flashers. The PSI truck's right front wheel was on the right white boundary line of the travel lane and the rear wheels of the truck straddled the white line. Johnson got out of the truck, walked over to Schnell's car and prepared to change Schnell's flat tire. He got the spare out of the trunk. McKinney's claim against PSI is predicated upon Johnson's negligence.

Richard and Florence Kreis were also proceeding south on I65 in the right lane approaching the bridge. Richard was driving the couple's van. He noticed the PSI truck obstructing the right lane from about one-half ( 1/2) mile away. Kreis slowed his van down and changed into the left lane.

Finally, Eugene Brobst and Larry McKinney were also proceeding south down I65 in the right lane. They were in a refrigerated truck owned by the church. Brobst was driving and McKinney was asleep. Brobst's view of the blocked right lane of the highway became unobstructed when Kreis, driving his van, changed lanes ahead of Brobst. When Brobst and McKinney passed the Kreis' van, there were approximately six (6) car lengths between the church truck and the PSI truck parked on the highway. Nevertheless, Brobst's attention was diverted to the side of the highway and he did not notice that the PSI truck was obstructing the interstate until it was too late. At approximately ten (10) feet from the PSI truck, Brobst swerved to the left and struck the left rear of the PSI truck, pushing it into Schnell's car. Brobst and Schnell suffered injuries and McKinney was killed in the accident.

Brobst and McKinney were members of the church. At the time of the accident, they were performing volunteer work for the church by delivering food to the needy. Brobst and McKinney were unemployed at the time and were themselves receiving assistance from the church in the form of food and the payment of utility and other bills. A church representative had asked them to volunteer to operate the truck for the church to deliver food to the needy. The performance of this volunteer service was not a condition to receiving assistance from the church.

It was initially contemplated that Brobst and McKinney would take turns driving the truck. However, McKinney failed the Additional facts are supplied as necessary.

physical examination administered by the Department of Transportation [DOT] and was not permitted to drive the truck. So, while both Brobst and McKinney would load and unload the truck, only Brobst would drive the truck. Brobst and McKinney would take turns driving their personal cars from their homes in Alexandria, Indiana to the church's warehouse on the north side of Indianapolis. The church reimbursed them for the use of their cars at twenty-two ($0.22) cents per mile or approximately twenty-two dollars ($22.00) per day. Brobst stated that McKinney was interested in doing more volunteer work for the church in order to get the mileage reimbursement for the use of his car.

DECISION

When we review a trial court's ruling on a motion for summary judgment, we are bound by the same standard as the trial court: we must consider all the designated material including pleadings, affidavits, depositions, admissions, answers to interrogatories, and testimony in the light most favorable to the nonmoving party in order to determine whether a genuine issue of material fact remains for resolution by a trier of fact. Ind.Trial Rule 56(C); Ayres v. Indian Heights Volunteer Fire Dept., Inc. (1986), Ind., 493 N.E.2d 1229, 1234. A genuine issue of material fact exists where facts concerning an issue which would dispose of the litigation are in dispute or where the undisputed facts are capable of supporting conflicting inferences on such an issue. Scott v. Bodor, Inc. (1991), Ind.App., 571 N.E.2d 313. If we have any doubts concerning the existence of a genuine issue of material fact, we must resolve those doubts in favor of the nonmoving party. Woodward Insurance, Inc. v. White (1982), Ind., 437 N.E.2d 59, 62. If no genuine issue of material fact exists, summary judgment is appropriate if the moving party is entitled to judgment as a matter of law. Id. The moving party bears the burden of showing the absence of a factual issue and his entitlement to judgment as a matter of law. Norman v. Turkey Run Community School Corp. (1980), 274 Ind. 310, 313, 411 N.E.2d 614, 615.

I.

Whether any negligence of Johnson and/or Schnell in parking on and obstructing the interstate was such a remote cause of the accident that, as a matter of law, such negligence cannot constitute a proximate cause of McKinney's death?

or, the same theory stated differently:

Whether Brobst's negligence was the superseding cause of the accident and as such was the sole proximate cause of the accident and McKinney's death?

Our analysis proceeds from the premise that summary judgment is rarely appropriate in negligence actions. Harper v. Guarantee Auto Stores (1989), Ind.App., 533 N.E.2d 1258, trans. denied. Tort liability is predicated upon proximate cause. Havert v. Caldwell (1983), Ind., 452 N.E.2d 154; Walker v. Jones (1987), Ind.App., 511 N.E.2d 507. It is well-settled that where a defendant's negligence merely creates a condition by which the subsequent injury producing acts of another are made possible, the existence of the first condition cannot be the proximate cause of the injuries, but is a remote cause. Id. In determining whether a cause of injury is actionable, the test is to be found not in the number of intervening events, but in the character of the original act and its natural and probable consequences. Harper, 533 N.E.2d 1258.

A negligent act or omission is the proximate cause of an injury if the injury is a natural and probable consequence which, in light of the circumstances, should reasonably have been foreseen or anticipated, regardless of whether the earlier negligence concurs with other proximate causes of injury or whether another act of negligence intervenes. Id.; Havert, 452 N.E.2d 154; Walker, 511 N.E.2d 507. The requirement of foreseeability is directly related to the rule that an intervening cause may serve to cut off the liability of one whose original act sets in motion the chain of events leading to the injury. Id. Such intervening cause is not a concurrent or PSI and Schnell argue that Havert, 452 N.E.2d 154, operates to exonerate them from liability as a matter of law. Havert involved four (4) cars. The first car, a police car, stopped and parked on a street where parking was permitted. The second car stopped immediately behind the police car. The third car then negligently struck the second car in the rear. A police officer and the the driver of the second car were standing between the second and third cars when a fourth car struck the third car in the rear which pushed all the cars together. The policeman, the driver of the second car, and his wife all suffered serious personal injuries as the result of the final collision. Our supreme court exonerated the third driver, who negligently drove into the second car, from liability for the injuries caused by the final collision, holding:

contributory cause, but is a superseding cause. Id. When an independent agency does intervene between the defendant's negligence and the injury, the legal effect of the intervening agency is not determined by...