Rogers v. Grunden, No. 59A05-9108-CV-254

• Docket Nº: No. 59A05-9108-CV-254
• Citation: 589 N.E.2d 248
• Case Date: March 30, 1992
• Court: Court of Appeals of Indiana

Page 248

589 N.E.2d 248 Prod.Liab.Rep. (CCH) P 13,214 Elsie Lucille ROGERS, Individually, Widow of Weldon Lee
Rogers, and as Personal Representative of Daniel
Lee Rogers, Son of Weldon Lee Rogers,
Appellant-Plaintiff,
v.
Owen GRUNDEN, Ruth Grunden, Dubois County Remc, Inc., and
Public Service of Indiana, Appellees-Defendants. No. 59A05-9108-CV-254. Court of Appeals of Indiana, Fifth District. March 30, 1992.
Rehearing Denied June 2, 1992.

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Gary Becker, Becker Law Office, Louisville, for appellant-plaintiff.

Irvin H. Sonne, III, Tackett, Taurman & Sonne, P.C., New Albany, for appellees-defendants, Owen Grunden and Ruth Grunden.

J. William DuMond, PSI Energy, Inc., Plainfield, for appellee-defendant, Public Service Co. of Indiana, Inc.

Peter L. Obremskey, Carol Sparks Drake, Parr, Richey, Obremskey & Morton, Lebanon, Arthur C. Nordhoff, Jr., Jasper, Charles F. Perry, Farlow & Perry, Paoli, for appellee-defendant, Dubois County Rural Elec. Co-op., Inc.

RUCKER, Judge.

Elsie Lucille Rogers, the personal representative of Weldon Rogers' estate, (Representative) filed an action for wrongful death against Owen and Ruth Grunden (the Grundens), the Dubois County Rural Electric Cooperative, Inc. (REMC), and the Public Service Company of Indiana (PSI) (collectively referred to as "Defendants"). Defendants filed motions for summary judgment which the trial court granted. Representative now appeals the decision raising several issues for review which we consolidate and rephrase as:

1. Did the trial court err in granting summary judgment in favor of the Grundens?

2. Did the trial court err in granting summary judgment in favor of REMC?

3. Did the trial court err in granting summary judgment in favor of PSI?

We affirm in part and reverse in part.

In 1972, Owen and Ruth Grunden purchased a tract of rural land for farming purposes. Two uninsulated 7,200 volt power lines ran over the property. The power lines were positioned 26.5 feet and 27.5 feet above the ground, well above National Electrical Safety Code (NESC) and Indiana Utility Regulatory Commission regulations.

In 1978, the Grundens decided to build a grain bin on the property as part of their farming operations. Before building the bin, the Grundens contacted REMC with an inquiry to ensure that REMC could provide electrical service to the grain bin. When an REMC employee visited the site, the Grundens indicated the general vicinity of the prospective grain bin and the REMC employee selected the location of the pole to which the electric meter would be attached.

Soon, thereafter, the bin was constructed and REMC installed the pole and meter. The minimal horizontal distance between the bin and a point beneath the power lines was 55 feet. To the west side of the bin there existed an area of over several hundred feet which was free from overhead obstruction. The Grundens also purchased an auger, a farm instrument used to load and unload grain from the bin. This particular auger could be attached to a tractor and moved from one location to the other. Operating properly, the auger could be lowered to a height of approximately fifteen feet or raised to a height of approximately sixty feet.

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From the installation of the meter until 1984, an REMC employee would visit the property every month to read the meter for billing purposes and to check the lines for violations. No violations were ever reported.

From 1978 until 1981, the Grundens used the bin and auger for their personal farming use and manipulated the auger without contacting the power lines. In 1981, the Grundens quit their farming activities and discontinued use of the bin and auger. In 1984, the Grundens leased the bin to Ramsey Popcorn Company (Ramsey) and have renewed the lease every year since that time. ¹ In addition, the Grundens and Ramsey entered into an oral agreement which allowed Ramsey employees to use the auger at any time throughout the duration of the lease without obtaining the Grunden's permission or consent. Record at 207-08. Ramsey employees loaded and unloaded the bin two or three times a year using either the Grundens' auger or an auger owned by Ramsey.

In 1984, REMC relinquished to PSI control of the power lines over the Grundens' property. PSI continued to visit the property once a month for billing purposes and to check for regulatory violations. No violations were ever reported.

On April 7, 1986, Ramsey directed its employees Weldon Rogers and Kevin Baumgartle to unload corn from the grain bin on the Grundens' property. When the employees arrived, the auger was elevated in the loading position. In order to unload the bin, Rogers and Baumgartle needed to reverse the auger's position by moving the discharge end over the trailer and moving the intake end to the base of the bin. Rogers and Baumgartle attempted to lower the auger before moving it to its proper position but the auger would not move downward. Because the auger could not be lowered, the men attempted to move the auger to its proper position while the auger was in its fully elevated position.

The men chained the lower intake end of the auger to the front of the tractor and Baumgartle, driving the tractor, began backing up the tractor. Rogers held on to the lower end of the auger to keep it from damaging the tractor radiator. The men moved the auger into direct contact with the uninsulated 7,200 volt power lines. Rogers, who was in direct contact with the auger, was electrocuted.

Representative filed suit against the Grundens, REMC, and PSI under Indiana's Wrongful Death Statute. ² At the time of filing, Representative's wrongful death claim was captioned, "Elsie Rogers, individually and as representative of Daniel Lee Rogers." Before the summary judgment proceedings, well after two years from the date of the accident, the trial court allowed Representative to amend the caption on the complaint to read, "Elsie Rogers as administratrix of Weldon Rogers' estate."

Representative appeals the trial court's grant of summary judgment in favor of the Grundens, REMC, and PSI.

When reviewing the propriety of ruling on a motion for summary judgment, this court applies the same standard applicable to the trial court. Ayres v. Indian Heights Volunteer Fire Dep't, Inc. (1986), Ind., 493 N.E.2d 1229. We must consider the pleading and evidence sanctioned by Ind. Trial Rule 56(C) without deciding its weight or credibility. Id. All evidence must be construed in favor of the nonmoving party. Id. Only if such evidence shows that there is no genuine issue of material fact and that the moving party is entitled to summary judgment as a matter of law should summary judgment be granted. Id.

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We may affirm the summary judgment where this result is correct, although rendered upon a different theory than that upon which it was sustained, i.e., summary judgment should be affirmed if sustainable on any theory or basis found in the record. Howard v. H.J. Ricks Constr. Co., Inc. (1987), Ind.App., 509 N.E.2d 201, trans. denied. Even if the facts or inferences conflict on some elements of a claim, summary judgment may be proper when there is no dispute regarding the facts which are dispositive of the litigation. Bridgewater v. Economy Engineering Co. (1985), Ind., 486 N.E.2d 484. The purpose underlying summary judgment procedure is to terminate those causes of action which have no factual dispute and which may be determined as a matter of law, thus eliminating undue burdens upon litigants and exposing spurious causes. Jones v. City of Logansport (1982), Ind.App., 436 N.E.2d 1138, reh. denied, 439 N.E.2d 666. The summary judgment procedure must be applied with extreme caution so that a party's right to a fair determination of a genuine issue is not jeopardized; mere improbability of recovery by a plaintiff does not justify summary judgment for the defendant. Id.

I.

Representative contends the trial court erred in ordering summary judgment in favor of the Grundens. Specifically, Representative argues the trial court erred in finding the Grundens owed no duty to Rogers. Representative claims a duty exists because 1) the Grundens were the landowners of the property, 2) the Grundens leased a defective auger to Ramsey, and 3) the Grundens supplied the auger, regardless of its condition, for use in close proximity with the power lines.

In order to sustain an action for negligence, Representative must prove: duty on the part of the defendant to conform its conduct to a standard of care arising from a relationship with the plaintiff, breach of that duty, and injury to plaintiff resulting from breach. Webb v. Jarvis (1991), Ind., 575 N.E.2d 992. Thus, the initial question is whether a duty was owed to Rogers by the Grundens.

The existence of duty is a question of law for the court to determine and depends upon the relationship between individuals which imposes upon the defendant a legal obligation for the benefit of the particular plaintiff. Webb, supra. Here, Representative argues the relationship between the Grundens and Rogers gave rise to such a duty.

In support of her argument, Representative cites to Indiana cases imposing on a landlord a duty of care to persons upon landowners' property. Daben Realty Co., Inc. v. Stewart (1972), 155 Ind.App. 39, 290 N.E.2d 809 (held landowner owed tenant duty to exercise ordinary care to keep leased building and its means of egress and ingress in a reasonably safe condition); Coleman v. DeMoss (1969), 144 Ind.App. 408, 246 N.E.2d 483 (held landlord has a duty to keep and maintain in reasonably safe condition those areas over which he retains control). In addition, Representative cites to Section 388 of the Restatement (Second) of Torts which imposes a duty on those who supply chattel in a defective condition ³ and Section 389 which imposes a duty on those who supply defective chattel and know or reasonably should know it will

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not be made safe before being put to use. ⁴...