Petroski v. Northern Indiana Public Service Co.

• Decision Date: 22 September 1976
• Docket Number: No. 3--1274A201,3--1274A201
• Citation: 171 Ind.App. 14,354 N.E.2d 736
• Parties: Steven A. PETROSKI and Steven Petroski, Appellants-Plaintiffs, v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellee-Defendant.
• Court: Indiana Appellate Court

Page 736

354 N.E.2d 736

171 Ind.App. 14

Steven A. PETROSKI and Steven Petroski, Appellants-Plaintiffs, v. NORTHERN INDIANA PUBLIC SERVICE COMPANY, Appellee-Defendant.

No. 3--1274A201.

Court of Appeals of Indiana, Third District.

Sept. 22, 1976.

Michael C. Harris, Robert A. Welsh, Harris & Welsh, Chesterton, for appellants-plaintiffs.

george W. Douglas, James H. Douglas, Douglas, Douglas & Douglas, Valparaiso, for appellee-defendants.

STATON, Presiding Judge.

Fourteen year old Steven A. Petroski received severe injuries when he touched an electrical distribution line. The line was located in the upper branches of a tree which Steven and his playmates frequented. Steven brought an action against NIPSCO, the public utility which owned and maintained the line. ¹ After Steven presented his evidence to the jury, NIPSCO moved for judgment on the evidence. This motion was granted. ² Steven's appeal to this Court raises the sole issue of whether the trial court erred when it granted NIPSCO's motion for judgment on the evidence.

In our review of the evidence and NIPSCO's motion for judgment on the evidencde, we conclude that the trial court did err, and we reverse.

I. Standard of Review

In our review of the trial court's judgment which granted NIPSCO's motion for judgment on the evidence, we will use the same standard as that used by the trial court when it granted the motion. This review is explained as follows in Hendrickson & Sons Motor Co. v Osha (1975), Ind.App., 331 N.E.2d 743, 757:

'Motions for judgment on the evidence (directed verdict) are governed by Ind. Rules of Procedure, Trial Rule 50. Pursuant to that rule, a defendant's motion for judgment on the evidence made at the close of the plaintiff's evidence or at the close of all the evidence should be granted only in the absence of evidence or reasonable inference on at least one essential element of the plaintiff's claim, Miller v. Griesel (1974), Ind., 308 N.E.2d 701; Mamula v. Ford Motor Co. (1971), 150 Ind.App. 179, 275 N.E.2d 849. The evidence must be without conflict and susceptible of but one inference, that being in favor of the moving party. In examining the evidence, the trial judge must draw all fair and rational inferences in favor of the party opposing the motion and give that party every favorable intendment of the evidence. Jordanich v. Gerstbauer (1972), Ind.App., 287 N.E.2d 784. The court may not substitute its judgment for that of the jury on questions of fact nor grant the motion because the evidence decidedly preponderates in favor of the moving party. Smith v. Chesapeake and Ohio Railroad Co. (1974), Ind.App., 311 N.E.2d 462; Galbreath v. City of Logansport (1972), 151 Ind.App. 291, 279 N.E.2d 578.

'Appellate review of rulings on motions for judgment on the evidence is subject to the same standards which govern the trial court in ruling on the motion.'

See also Gregory v. White Truck & Equipment Co. (1975), Ind.App., 323 N.E.2d 280; Smith v. Kinney (1975), Ind.App., 338 N.E.2d 507; Strong v. Commercial Carpet Co., (1975), Ind.App., 322 N.E.2d 387; Myers v. Maris (1975), Ind.App., 326 N.E.2d 577.

II. Evidence

The accident occurred in a tree adjacent to Haglund Road in the Town of Burns Harbor, Indiana. The evidence is conflicting as to whether at the time of the accident there were boards nailed to the tree serving as steps and whether there was a platform in the tree. There was testimony that children had been playing in the tree for more than five years prior to the accident and that the platform and steps had been in the tree for over three years. NIPSCO distribution ines ran through branches of the tree at approximately 17 feet above the ground. The line nearest to the ground did not carry an electrical charge, but approximately five feet above this line was a parallel line carrying 7200 volts. The two lines were identical in appearance. Neither wire was insulated. Each was covered with a green coating--a result of copper corrosion. Each line was accessible to children climbing in the tree.

On the date of the accident, October 6, 1970, Steven was fourteen years old. He was an eighth grade student. There was evidence that Steven made low grades in school and had a low average score on an IQ test administered to him when he was in the seventh grade.

As Steven and two other boys approached the tree, they discussed the touching of the lower wire. Steven told the boys that it was safe to touch the bottom wire and demonstrated by touching it. The evidence is conflicting as to whether Steven was dared to touch the upper wire. However, Steven did touch the upper wire and was severely injured.

Steven testified that prior to the accident a friend, Jim Marcum, demonstrated to him that it was safe to touch the lower wire. Jim Marcum had also told Steven that the top wire was safe to touch and that he had touched it before. Steven testified that he had heard that another boy had also touched both wires without injury.

There were no warning or danger signs in the tree. Six or seven years prior to Steven's accident another child was burned by a NIPSCO line in a tree approximately 1,000 feet west of the tree where Steven was injured. NIPSCO investigated this accident. There was testimony by a NIPSCO patrolman that he patrolled Haglund Road once or twice a year and more often if requested. He explained that his job was to report abnormal conditions that might present a safety hazard. However, distribution lines, such as those along Haglund Road, were not patrolled on a regular basis as were transmission lines. In addition to the patrolman's testimony, there was testimony that the steps and platform in the tree were visible from Haglund Road. The patrolman testified that he had made a report regarding the trees of Haglund Road, but he did not recall when he made the report.

III. Negligence

Steven contends that he is entitled to a jury determination on the facts relating to the theories of negligence and strict liability. Indiana recognizes the following elements of negligence: (1) a duty; (2) failure to adopt the standard of care which is required by the duty; and (3) an injury resulting from breach of the standard of care. ³ Miller v. Griesel (1974), 261 Ind. 604, 308 N.E.2d 701, 706.

The trial court specifically found that there was no evidence of negligence on the part of NIPSCO. It is not clear whether the trial court found that no duty was owed by NIPSCO to Steven or whether the trial court found that there was no evidence of breach of a duty. As pointed out in Miller v. Griesel, supra, and Board of Comm'rs v. Briggs (1975), Ind.App., 337 N.E.2d 852, the question of whether the law recognizes a duty flowing from the defendant to a particular plaintiff is a question of law for the trial court. Related to the question of duty is the question of what standard of care will be imposed upon the defendant once a duty is recognized. This is a also a question of law. Miller v. Griesel; Board of Comm'rs v. Briggs, supra. If the trial court based its judgment on a finding that NIPSCO owed no duty to Steven, the judgment is erroneous.

A. Common Law Duty

In Indiana, companies engaged 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. Harris v. Indiana General Service Co. (1934), 206 Ind. 351, 189 N.E. 410; Fort Wayne & Northern Ind. Traction Co. Stark (1920), 74 Ind.App. 669, 127 N.E.2d 460.

NIPSCO argues that it owed no duty to Steven because he was not injured in a place used by the general public. In Fort Wayne & Northern Ind. Traction Co. v. Stark, supra, a nine year old child was severely injured a while claimbing a tree when he came in contact with a defectively insulated wire. In discussing the electric company's duty to the injured child, this Court quoted Curtis, LAW OF ELECTRICITY § 512 as follows:

'An electric company, maintaining a dangerous wire through or near a tree is bound to anticipate that persons may lawfully climb the tree, and it is required to exercise due care to prevent injury to such persons from its wire. * * * The courts recognize that children are apt to climb trees, and impose upon electric companies the burden of using due care to keep their high tension wires insulated in places where children when climbing a tree will come in contact with them.' Fort Wayne & Northern Ind. Traction Co. v. Stark, supra, 74 Ind.App. at 672, 127 N.E. at 461.

In Wise v. Southern Indiana Gas & Electric Co. (1941), 109 Ind.App. 681, 34 N.E.2d 975, a mentally retarded sixteen year old boy was severely injured when he came into contact with a sagging, uninsulated electric wire while climbing on top of a bridge superstructure. This Court stated:

'. . . (A) duty rests upon those who maintain high voltage wires, in places where they have reason to believe that lives of children will be imperiled by coming in contact therewith, to exercise reasonable care to guard such wires so as to prevent injury to them. . . .' Wise v. Southern Indiana Gas & Electric Co., supra, 109 Ind.App. at 692, 34 N.E.2d at 979.

In both Wise and Fort Wayne & Northern Ind. Traction Co., it was argued that the child was a trespasser and that the only duty owed was the duty to refrain from willful injury. ⁴ In both cases, this argument was rejected. Even though electric lines may not be characterized as an attractive nuisance, Indiana case law recognizes that electricity is a dangerous force. Anyone utilizing this force owes a duty to exercise reasonable care to prevent injury to children who are likely to come in contract with it. Fort Wayne & Northern Ind. Traction Co. v. Stark; Harris v. Indiana General Service Co., supra. Regardless of whether Steven was a trespasser or licensee, NIPSCO owed Steven a duty to exercise reasonable care to protect him from coming into contact with its...