Sharp v. Town of Highland, 64A05-9409-CV-371
| Decision Date | 17 May 1996 |
| Docket Number | No. 64A05-9409-CV-371,64A05-9409-CV-371 |
| Citation | 665 N.E.2d 610 |
| Parties | Grace SHARP, as Administratrix of the Estate of Robert Sharp, Appellant-Defendant, v. The TOWN OF HIGHLAND, Northern Indiana Public Service Company, a Subsidiary of NIPSCO Industries, Inc., and Tri-State Coach Lines, Inc., Appellee-Plaintiff. |
| Court | Indiana Appellate Court |
Plaintiff-Appellant Grace Sharp, as Administratrix of the Estate of Robert Sharp, (the Estate) appeals the trial court's grant of summary judgment in favor of Defendants-Appellees The Town of Highland (Highland) and Northern Indiana Public Service Co. (NIPSCO).
Cross-Appellant NIPSCO appeals the trial court's grant of summary judgment in favor of Cross-Appellee Tri-State Coach Lines, Inc. (Tri-State).
We affirm in part; and reverse in part.
The Estate raises six issues for our review. We consolidate and restate the issues as:
1. Whether the trial court erred in finding that Highland was immune from liability under IND. CODE 10-4-1-8.
2. Whether the trial court erred in finding that NIPSCO was a civil defense and disaster worker under I.C. 10-4-1-8.
3. Whether the trial court erred in finding, as a matter of law, that there was no evidence of wilful misconduct, gross negligence, or bad faith.
On cross-appeal, NIPSCO raises the restated issue of:
4. Whether the trial court erred in granting summary judgment in favor of Tri-State.
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 Calumet 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, a Krooswyk employee, began backing his truck onto the pile of gravel forming the dike. After Sharp raised the truck bed, the truck became energized when electricity from the overhead wires arced. Sharp was electrocuted.
On August 21, 1991, the Estate filed suit against both Highland and NIPSCO. The complaint alleged that Highland's negligent acts and NIPSCO's negligent and/or reckless conduct caused Sharp'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. The Estate now appeals. 1
The purpose of summary judgment is to terminate litigation about which there can be no factual dispute and which may be determined as a matter of law. Ind.Trial Rule 56(C); Fawley v. Martin's Supermarkets, Inc., 618 N.E.2d 10, 12 (Ind.Ct.App.1993), trans. denied. The moving party bears the burden of making a prima facie showing that there are no genuine issues of material fact. T.R. 56(C); Campbell v. Criterion Group, 613 N.E.2d 423, 428 (Ind.Ct.App.1993), on reh'g 621 N.E.2d 342. Once the moving party makes a prima facie showing of the non-existence of a genuine issue of material fact, the burden shifts to the non-moving party to set forth specific facts showing the existence of a genuine issue for trial. T.R. 56(E); Campbell, 613 N.E.2d at 428. Summary judgment will be affirmed on appeal if it is sustainable on any theory or basis found in the evidentiary matter designated to the trial court. Fawley, 618 N.E.2d at 12.
The Estate contends that I.C. 10-4-1-1 et seq., Indiana's Civil Defense and Disaster Law of 1975 (the Act), requires the official declaration of a disaster before the immunity provisions of I.C. 10-4-1-8 become effective. 2 The Estate further contends that there is a genuine issue of material fact as to whether such a declaration was made prior to Sharp's death.
The Act is designed to insure that preparations for disasters or emergencies will be adequate to protect the public peace, health, and safety, and to preserve the lives and property of the people of the state. I.C. 10-4-1-2(a). Accordingly, it provides for: (1) the creation of state and local civil defense departments; (2) authority in the governor and officials of political subdivisions to deal with disasters and emergencies; (3) mutual aid among political subdivisions of the state; and (4) the creation of organizations to deal with disasters or emergencies. Id. The Act is further designed to (1) coordinate all civil defense functions of the State with comparable Federal functions; (2) prepare for prompt and efficient rescue, care, and treatment during a disaster; (3) provide for rapid and orderly restoration and rehabilitation after a disaster; (4) clarify and strengthen the role of government in response to disasters; (5) authorize coordination between departments of government; and (6) provide a disaster management system embodying all aspects of pre-disaster preparedness, disaster operations, and post-disaster response. I.C. 10-4-1-2(b).
Generally speaking, the Act is intended to facilitate rescue and remedial measures in response to a disaster. I.C. 10-4-1-3 defines "disaster" as an "occurrence or imminent threat of widespread or severe damage, injury, or loss of life or property resulting from any natural or manmade cause, including but not limited to fire, flood...."
In recognition of the need of government to act promptly and efficiently in response to disasters, the legislature created an immunity from liability for any death or injury to persons or damage to property that may result from disaster relief activities. In pertinent part, I.C. 10-4-1-8(a) provides:
All functions hereunder and all other activities related to civil defense and disaster are hereby declared to be government functions. Neither the state nor any political subdivision thereof nor any other agencies of the state or political subdivision thereof, nor, except in cases of wilful misconduct, gross negligence, or bad faith, any civil defense and disaster worker complying with or reasonably attempting to comply with this chapter, or any order, rule or regulation promulgated pursuant to the provisions of this chapter, or pursuant to any ordinance relating to blackout or other precautionary measures enacted by any political subdivision of the state, shall be liable for the death of or injury to persons, or for damage to property, as a result of such activity....
The Estate contends that I.C. 10-4-1-8 should be strictly construed as it is in derogation of the common law right to sue the government. The Estate recognizes that I.C. 10-4-1-8 provides for immunity in the case of disaster emergencies. However, it argues that the immunity provisions become effective only after a formal declaration of a disaster by the proper town official. In support of its argument, the Estate cites to I.C. 10-4-1-23(b), which provides that "[t]he effect of a declaration of a local disaster emergency is to activate the response and recovery aspects of any and all applicable local or interjurisdictional disaster emergency plans and to authorize the furnishing of aid and assistance under them."
We agree that strict construction is generally appropriate in ascertaining the meaning of ambiguous statutes which are in derogation of the common law. However, when the language of a statute is plain and unambiguous, a court has no power to construe the statute for the purpose of limiting or extending its operation. C & C Oil Co., Inc. v. Ind. Dep't of State Revenue, 570 N.E.2d 1376, 1380 (Ind.Tax Ct.1991).
I.C. 10-4-1-8 neither states nor implies that immunity is activated by a formal declaration of an emergency disaster or conditioned upon strict compliance with other portions of the Act. The plain language clearly establishes immunity from liability for the death or injury to persons arising out of "[a]ll functions hereunder and all other activities relating to civil defense and disaster." We will not construe an unambiguous statute for the purpose of limiting the clear grant of immunity.
The unambiguous grant of immunity in I.C. 10-4-1-8 is not qualified by the language of I.C. 10-4-1-23. Furthermore, the grant of immunity is not inconsistent with I.C. 10-4-1-23, which neither mandates the official declaration of an emergency nor refers to immunity. I.C. 10-4-1-23 simply activates plans of response and recovery and authorizes recovery of financial assistance from state and federal governments.
In the present case, the designated...
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