Northern Indiana Public Serv. Co. v. Sharp

• Decision Date: 31 July 2000
• Docket Number: No. 64A03-9807-CV-320.,64A03-9807-CV-320.
• Citation: 732 N.E.2d 848
• Parties: NORTHERN INDIANA PUBLIC SERVICE CO., Appellant-Defendant, v. Grace SHARP, As the Administratrix of the Estate of Robert Sharp, Appellee-Plaintiff.
• Court: Indiana Appellate Court

732 N.E.2d 848

NORTHERN INDIANA PUBLIC SERVICE CO., Appellant-Defendant, v. Grace SHARP, As the Administratrix of the Estate of Robert Sharp, Appellee-Plaintiff.

No. 64A03-9807-CV-320.

Court of Appeals of Indiana.

July 31, 2000.

Paul A. Rake, Sherry L. Clarke, Michael E. O'Neill, Eichhorn & Eichhorn, Hammond, Indiana, Attorneys for Appellant.

David W. Holub, David M. Hamacher, Ruman, Clements, Tobin & Holub, Hammond, Indiana, Attorneys for Appellee.

OPINION

BAILEY, Judge

Case Summary

Appellee-Plaintiff Grace Sharp ("Sharp"), as Administratrix of the Estate of Robert Sharp ("Robert"), filed a complaint for wrongful death against the following: the Town of Highland, Indiana ("Highland"); Tri-State Coach Lines, Inc. ("Tri-State"); and, Appellant-Defendant Northern Indiana Public Service Company ("NIPSCO"). The trial court entered summary judgment in favor of all defendants. Sharp appealed the trial court's decision. On appeal, we affirmed the trial court's grant of summary judgment in favor of Highland and Tri-State. Sharp v. Town of Highland, 665 N.E.2d 610 (Ind. Ct.App.1996) (hereinafter referred to as "Sharp I"). As to NIPSCO, we reversed that portion of the trial court's grant of summary judgment that dealt with the question of willful and wanton misconduct, gross negligence, and bad faith. The ensuing jury trial resulted in a verdict in favor of Sharp, and damages were assessed in the sum of $750,000.00. NIPSCO now appeals that verdict. We reverse.

Issues

NIPSCO raises three issues on appeal, of which we find the following two restated issues to be dispositive:

I. Whether the trial court admitted evidence that was precluded by this Court's previous judgment;

II. Whether the trial court erred in denying NIPSCO's Motion for Judgment on the Evidence.¹²

Facts and Procedural History

The facts as set forth in Sharp I are as follows:

On November 27 and 28, 1990, an estimated seven inches of rain fell in an eight hour period in Northwest Indiana. As a result, the Little Calamut River began overflowing its banks in Highland. The water crossed Tri-State's parking lot, flowed across Indianapolis Boulevard, and entered into the Wicker Park Manor subdivision.

During the initial stage of the flooding on November 27, Krooswyk Trucking & Excavating, Inc. was engaged to provide sand for flood control. An initial attempt was made to establish a sand barrier across Indianapolis Boulevard, but the water continued to wash the sand away.

At approximately 8:00 a.m. on November 28, Gerald Krooswyk, president of Krooswyk trucking, suggested to Highland officials that a dike be built across Tri-State's parking lot to save the subdivision from further flooding. The dike would consist of gravel dumped across Tri-State's property from the river's edge along the edge of Indianapolis Boulevard to a high point at the end of the parking lot. The proposed location for the dike passed directly under NIPSCO's energized overhead power lines, which also crossed Indianapolis Boulevard.

At approximately 10:30 a.m. on November 28th, Highland officials approved the dike location and Krooswyk trucks began dumping gravel to form the dike on the Tri-State parking lot. At approximately 1:10 p.m., Robert Sharp, ["Robert"] a Krooswyk employee, began backing his truck onto the pile of gravel forming the dike. After [Robert] raised the truck bed, the truck became energized when electricity from the overhead wires arced. [Robert] was electrocuted.

On August 21, 1991, [Robert] filed suit against both Highland and NIPSCO. The complaint alleged that Highland's negligent acts and NIPSCO's negligent and/or reckless conduct caused [Robert]'s death.

Highland and NIPSCO filed separate motions for summary judgment, both asserting the immunity defense found in I.C. 10-4-1-8. After a hearing on the motions, the trial court granted summary judgment in favor of Highland and NIPSCO. . . . .

Sharp I, 665 N.E.2d at 613. In Sharp I we held as follows:

The trial court correctly determined that Highland was immune from liability under the Act [Indiana's Civil Defense and Disaster Law of 1975]. Accordingly, the grant of summary judgment in favor of Highland is correct. The grant of summary judgment is affirmed.

The trial court also correctly determined that, as a matter of law, NIPSCO was a civil defense and disaster worker under the Act. Accordingly, the [trial] court was correct in determining that NIPSCO was immune from liability for its allegedly negligent acts. To the extent that the court's grant of summary judgment dealt with this question of law, it is affirmed.

However, the trial court erred in making a determination on the question of willful misconduct, gross negligence, and bad faith. The question was not raised in NIPSCO's summary judgment motion. Furthermore, it is a question for the trier of fact. To the extent that the court's grant of summary judgment dealt with this issue, it is reversed.

Finally, the trial court correctly granted summary judgment in favor of Tri-State. The grant of summary judgment is affirmed.

Id. at 618.

A jury trial in the cause of Sharp versus NIPSCO was commenced on March 30, 1998. The facts, as further developed at trial and most favorable to the verdict, are as follows: Throughout the night of November 27th, Krooswyk Trucking & Excavating, Inc. ("Krooswyk Trucking") and employee Robert dumped sand to erect a barrier across Indianapolis Boulevard. (R. 1952-53, 1957.) At approximately 2:00 a.m., the Town began evacuating residents of the Wicker Park subdivision who were located east of Indianapolis Boulevard. (R. 809-10, 854.) Meanwhile, the sand barrier continued to be washed away by rising waters. (R. 1953.) Between 8:00 and 9:00 a.m. of the following morning, Gerald Krooswyk ("Krooswyk"), of Krooswyk Trucking, and Robert discussed the possible locations of an additional dike with town officials. (R. 1958-62.) The proposal to build an additional dike was approved by town officials between 10:30 and 11:00 a.m. (R. 1940, 1962, 1964.)

The first load of gravel for the new dike (hereinafter referred to as the "Gravel Dike") arrived at the flood scene shortly after 11:00 a.m. (R. 1962, 1964.) The Gravel Dike passed directly under NIPSCO's energized overhead lines. (R. 1964.) Before construction of the Gravel Dike began, Krooswyk Trucking did not discuss with the town officials shutting off the power to these overhead lines. (R. 1964.) At approximately the same time that the construction on the Gravel Dike commenced, NIPSCO's line supervisor, Gene Shayatovich ("Shayatovich"), arrived at the command center, which was set up on the Indianapolis Boulevard overpass bridge. (R. 902, 953.) The construction site where the Gravel Dike was being built could be seen from this command center. (R. 863.)

At this time, Shayatovich, Fire Chief Haas ("Fire Chief"), and town officials Mike Pipta ("Pipta") and William Cameon ("Cameon") discussed electrical concerns in the Wicker Park homes becoming flooded. (R. 863, 867, 902.) The Fire Chief had reports that firemen who were attempting to evacuate Wicker Park had felt a current while in the homes. (R. 865.) The Fire Chief was also concerned about the potential for NIPSCO's electricity igniting fuel from underground tanks. (R. 853.) Accordingly, the Fire Chief requested that NIPSCO shut off power to the entire flooded area, which included the area of the Gravel Dike. (R. 864, 922.) However, Pipta requested that NIPSCO leave the power on at the pump station because it was continuing to pump out flood water. (R. 866.) Additionally, Cameon testified that town officials wanted the street lights to be left on for security reasons. (R. 939-40.) The town officials and Shayatovich devised a plan whereby electric power to the Wicker Park homes would be cut, but service would continue to the pumping station and street lights. (R. 939-40, 1516-19, 1589, 1616, 1618, 1619.) At approximately 12:00 p.m., a NIPSCO line crew, consisting of Mr. Walters ("Walters") and Mr. Laws ("Laws") arrived at the command center. (R. 1106.) Traveling by boat, Walters and Laws began the process of de-energizing the cut-out fuses located in the flooded subdivision. (R. 1126-28.)

While NIPSCO workers de-energized the power to the subdivision, Krooswyk Trucking continued its construction of the Gravel Dike. Robert was in the process of dumping his second load of gravel when his truck bed came into contact with NIPSCO's overhead power lines. (R. 792-93.) Electricity traveled through the truck's metal bed to the tires, which began to smolder and smoke. (R. 796-97; 2061-62). Robert jumped from the truck onto the wet stone surface, then into the water, which resulted in his electrocution. (R. 798-99; Supp. R. 45.)

At trial, NIPSCO moved for judgment on the evidence both at the end of Sharp's case-in-chief and again at the close of all the evidence. (R. 408-12, 527-28.) The trial court denied both motions. (R. 530.) Thereafter, NIPSCO filed a motion to correct errors, which the trial court denied. (R. 539-51, 626-28.) This appeal followed.

Discussion and Decision

I. Whether the trial court admitted evidence that was precluded by this Court's previous judgment

NIPSCO contends that the trial court erred by permitting Sharp to raise issues of negligence that were not presented to this Court on Sharp's prior appeal. (Appellant's Brief at 17.) Specifically, NIPSCO alleges that it was error for the trial court to consider testimony about NIPSCO's policies regarding pre-emergency planning and training because Sharp had not raised this issue in response to NIPSCO's motion for summary judgment. (Appellant's Brief at 17.) NIPSCO relies on the doctrines of the law of the case and res judicata in support of its arguments.

A. The Doctrines of the Law of the Case and Res Judicata

The law of the case doctrine mandates that when an appellate court decides a legal issue, both the trial court and the court on appeal are bound by that...