Northern Indiana Public Service Co. v. Sell, 37A03-9201-CV-30

• Decision Date: 10 August 1992
• Docket Number: No. 37A03-9201-CV-30,37A03-9201-CV-30
• Citation: 597 N.E.2d 329
• Parties: NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellant-Defendant Below, v. Bernard J. SELL, Crystal Sell, and Floyd Sell, Appellees-Plaintiffs Below.
• Court: Indiana Appellate Court

Page 329

597 N.E.2d 329

NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellant-Defendant Below, v. Bernard J. SELL, Crystal Sell, and Floyd Sell Appellees-Plaintiffs Below.

No. 37A03-9201-CV-30.

Court of Appeals of Indiana Third District.

Aug. 10, 1992.

Paul A. Rake, Sherry L. Clarke, Lyle E. Hardman, Eichhorn, Eichhorn & Link, Hammond, for appellant.

Randolph A. Leerkamp, Kyle A. Jones, Carter & Leerkamp, Indianapolis, for appellees.

STATON, Judge.

Northern Indiana Public Service Co. (NIPSCO) brings an interlocutory appeal from the trial court's denial of NIPSCO's motion for summary judgment in a personal injury action brought by Bernard Sell and his parents, Floyd and Crystal Sell (the Sells). Bernard Sell was one of four passengers in a car driven by Richard Overdeer on U.S. Highway 24 when Overdeer fell asleep and lost control of his vehicle. The car crossed the center line and opposing lane of traffic, went down an embankment, and struck a NIPSCO utility pole. Overdeer and three of his passengers were killed, and Bernard Sell was seriously injured. NIPSCO makes three contentions in support of its claim that the trial court erroneously denied the motion for summary judgment. However, because we reverse, we need only address the following issue:

Whether NIPSCO owed a duty of reasonable care to the Sells in its placement of the utility pole.

Reversed.

On an appeal from the denial of a motion for summary judgment, we apply the same standard applicable in the trial court. Frost v. Phenix (1989), Ind.App., 539 N.E.2d 45. We must determine whether the record reveals a genuine issue of material fact and whether the trial court correctly applied the law. Shuamber v. Henderson (1991), Ind., 579 N.E.2d 452, 454. Rational assertions of fact and reasonable inferences therefrom are deemed to be true, and any doubt as to a fact, or an inference to be drawn, is resolved in favor of the nonmoving party. Malachowski v. Bank One, Indianapolis (1992), Ind., 590 N.E.2d 559, 562.

Thus, in order for NIPSCO to prevail on appeal, it must demonstrate that no factual dispute exists with respect to at least one element of negligence and that it is entitled to judgment as a matter of law. See Ind.Trial Rule 56(C). The elements of negligence are:

(1) a duty on the part of the defendant to conform his conduct to a standard of care arising from his relationship with the plaintiff, (2) a failure of the defendant to conform his conduct to the requisite standard of care required by the relationship, and (3) an injury to the plaintiff proximately caused by the breach.

Webb v. Jarvis (1991), Ind., 575 N.E.2d 992, 995, reh'g denied.

I. Compliance with Statute

NIPSCO first contends that its sole duty to the Sells was to comply with the statute authorizing utilities to locate and maintain their poles along public highways. At the time of the accident, this statute provided in pertinent part:

Corporations now formed or which may hereafter be organized ... for the purpose of generating and distributing electricity for light, heat or power, are authorized to set and maintain their poles ... upon, along, under, and across any of the public roads, highways and waters of this state outside of cities and incorporated towns and individuals owning ... lines for transmission of electricity are hereby given the same authority: Provided, That the same shall be erected and maintained in such a manner as not to incommode the public in the use of such roads, highways and waters [.]

IND.CODE 8-20-1-28 (1982) (emphasis added).

It is not disputed that NIPSCO applied for and received authorization to place the utility pole in its present location. However, the Sells contend that compliance with the statute and permit requirements does not relieve NIPSCO of its duty to exercise reasonable care. We agree with the Sells.

Where the unjustified or unexcused violation of a duty prescribed by statute may constitute negligence per se, see French v. Bristol Myers Co. (1991), Ind.App., 574 N.E.2d 940, trans. denied, it does not follow that compliance with a statute or ordinance constitutes the exercise of reasonable care. W. Keeton, D. Dobbs, R. Keeton & D. Owen, Prosser & Keeton on the Law of Torts Sec. 36, p. 233 (5th ed. 1984). "While compliance with a statutory standard is evidence of due care, it is not conclusive on the issue. Such standard is no more than a minimum, and it does not necessarily preclude a finding that the actor was negligent in failing to take additional precautions." Id. See also Restatement (Second) of Torts Sec. 288C (1965).

This is especially so where, as was the case here, the statute spoke merely of the duty "not to incommode" the public in its use of the roads of this state. "Incommode" is "a limited word meaning to disturb or molest; to give inconvenience or trouble to; to put out." 20A Words & Phrases 306 (1959). We do not believe that a utility's duty of reasonable care (if one is found to exist) is discharged merely because its utility poles are not an inconvenience to the public. Indiana cases decided under IC 8-20-1-28 do not provide clear guidance on this issue. For instance, in Copeland v. Public Service Co. of Indiana (1952), 123 Ind.App. 345, 108 N.E.2d 273, trans. denied (1953), 232 Ind. 10, 111 N.E.2d 47, the plaintiff's automobile struck defendant's utility pole which had been placed on the shoulder of the highway awaiting installation. On appeal from the grant of defendant's demurrer to the complaint, the appellate court reversed, concluding that the complaint was sufficient to present a question of fact as to whether the utility violated the statute. The appellate court also concluded that the complaint stated a cause of action for common law negligence. In its opinion denying transfer, our supreme court agreed that the complaint stated a common law negligence claim, but determined that the averments were not sufficient to support the statutory action because the statute speaks of utility poles "erected and maintained." The utility poles in Copeland had not been erected and maintained, but were placed two to three feet from the pavement awaiting installation.

The utility poles in this case have indeed been "erected and maintained" as contemplated by former IC 8-20-1-28. The undisputed evidence reveals that the pole in question is located some seventeen feet from the north pavement edge of U.S. Highway 24, and nearly thirty feet from the highway center line (the vehicle in which Bernard Sell was traveling was in the south lane, eastbound). The center of the pole is one foot, six inches from the northern edge of the U.S. Highway 24 right-of-way, in accordance with a state permit (looking at it another way, the northernmost edge of the pole is approximately seven inches away from private property bordering the highway right-of-way). Remaining utility poles in this (straight) stretch of highway are similarly positioned. From this set of undisputed facts, we agree with NIPSCO that its placement of the poles in this manner did not incommode the public in the use of the highway. However, in accordance with our reasoning above, we conclude that NIPSCO's compliance with the statute is not dispositive as to whether it had a common law duty to exercise reasonable care. Such compliance is, however, evidence on the issue of whether any breach of the duty occurred.

II. Existence of Duty

In Webb, supra, our supreme court articulated three factors that must be considered by a court when determining whether to impose a duty at common law. These factors are:

(1) the relationship between the parties, (2) the reasonable foreseeability of harm to the person injured, and (3) public policy concerns.

575 N.E.2d at 995. We examine each of these factors in turn.

A. Relationship Between the Parties.

It is within the province of the trial court to determine whether a relationship gives rise to a duty, although factual questions interwoven with this determination are resolved by the fact-finder. Harper v. Guarantee Auto Stores (1989), Ind.App., 533 N.E.2d 1258, 1261-62, trans. denied; Webb, supra, at 995. There is no contractual or professional relationship between the parties. However, as stated above, NIPSCO has the statutory right to locate its utility poles along state roads so long as the placement of the poles does not "incommode" the public in the use of such roads. IC 8-20-1-28. Thus, there is somewhat of a statutory relationship between NIPSCO and Bernard Sell, a member of the public using U.S. Highway 24. Nonetheless, we believe that this relationship is limited to those members of the public using state highways as they were intended to be used. Once the car in which Bernard Sell was a passenger crossed the center line and opposing lane of traffic, the use was no longer legitimate. See IC 9-21-8-2 (vehicles required to be driven on the right half of the roadway). NIPSCO's positioning of the utility pole in this case was not related to the proper use of U.S. Highway 24. The undisputed facts demonstrate that NIPSCO had no relationship with the Sells that would give rise to a duty in this case.

B. Foreseeability.

The risk reasonably to be perceived defines the duty to be obeyed.

Thus spoke Justice Cardozo in Palsgraf v. Long Island R. Co. (1928), 248 N.Y. 339, 344, 162 N.E. 99, 100, explaining that a duty to exercise reasonable care is owed only to those who might reasonably be foreseen as being subject to injury by a breach of the duty. See also Webb, supra, at 997; Thiele v. Faygo Beverage, Inc. (1986), Ind.App., 489 N.E.2d 562, 574, trans. denied. Our responsibility in this regard is to "examine what forces and human conduct should have appeared likely to come on the scene, and we weigh the dangers likely to flow from the challenged conduct in light of these forces and conduct." Webb, supra, at 997 (citing 3 F. Harper, F. James & O. Gray, The Law of Torts Sec. 18.2 (2d ed. 1986)).

In locating and installing the...