Thompson v. Public Service Co. of Indiana, Inc., No. 1-1285A312

• Docket Nº: No. 1-1285A312
• Citation: 499 N.E.2d 788
• Case Date: November 12, 1986
• Court: Court of Appeals of Indiana

Page 788

499 N.E.2d 788 Bruce THOMPSON, Appellant (Plaintiff Below),
v.
PUBLIC SERVICE COMPANY OF INDIANA, INC., Gill Township Levee
Association, Appellee (Defendants Below). No. 1-1285A312. Court of Appeals of Indiana,
First District. Nov. 12, 1986.
Rehearing Denied Dec. 22, 1986.

Page 789

Gerald H. McGlone, Terre Haute, William W. Schooley, Granite City, Ill., Fritz D. Modesitt, Brazil, for appellant.

B. Curtis Wilkinson, John Christopher Wall, Patrick, Wilkinson, Goeller & Modesitt, Terre Haute, Gregory Troxell, Plainfield, Robert L. Gowdy, Benjamin G. Cox, Cox, Zwerner, Gambill & Sullivan, Terre Haute, for appellee.

ROBERTSON, Presiding Judge.

Appellant-plaintiff Bruce Thompson (Thompson) appeals the granting of summary judgment in favor of appellees-defendants Public Service Company and Gill Township Levee Association (GTLA).

We affirm.

The facts material to the issues in this appeal are not in dispute. Late on the night of March 27, 1981, Thompson was running his dog on a raccoon in an open area adjacent to a roadway in Sullivan County, when the raccoon ran up a wood utility pole. This was the first time Thompson had "treed" an animal on a utility pole. Using steel pole climbers, Thompson climbed the pole to a height of twelve to fifteen feet above the ground. At this point, Thompson remained well away from the charged electrical wire about 15 feet above him.

Thompson began squalling at the raccoon and slapping the pole in an effort to get the raccoon to jump off the pole. Thompson testified that the glass insulator on which the raccoon was perched at the top of the pole was slippery, and the raccoon was sliding around on it. The raccoon then began running back and forth on the cross arms at the top of the pole. Thompson was unaware that a bare, uninsulated copper wire ran down the entire length of the pole and into the ground.

When Thompson next recalled, he was lying at the foot of the pole, his dog asleep against him. Thompson had suffered severe burns on his forearms, hands, and genitals, necessitating their amputation. The raccoon, which had been burned, was found dead nearby.

Gerald Driefke, an electrical engineer who was Thompson's witness, opined that Thompson had been electrocuted when he came into contact with the bare ground wire on the pole, which became energized when the raccoon became a conductor between the lightning arrester at the top of the pole and one of the energized overhead wires.

Thompson testified he knew that the charged overhead wires were dangerous and he should avoid touching them. He had heard of people chasing animals off utility poles without becoming injured. At the time of the accident, Thompson was forty years old, was married and had grown children. He had not had any special training or education in electricity.

GTLA owns and maintains the utility pole on which Thompson was injured, as well as the electric transmission lines. Public Service supplied electricity to GTLA, which operates pumping stations in the area. ¹ The pole does not contain any rungs or steps for climbing. Neither defendant

Page 790

gave Thompson permission to climb the pole.

Thompson brought suit against Public Service and GTLA, on the theory that the defendants were negligent in failing to safeguard the public against foreseeable injury from contact with the ground wire and in failing to warn persons of the dangers inherent in the lightning arrester system on that pole.

Public Service and GTLA filed motions for summary judgment, and the trial court granted the motions.

ISSUES

I. Was Thompson contributorily negligent as a matter of law?

II. Was Thompson's contributory negligence the proximate cause of his injuries?

DISCUSSION AND DECISION

Summary judgment is a procedure for applying the law to facts when no factual controversey exists. Poxon v. G.M. Acceptance Corp., (1980) Ind.App., 407 N.E.2d 1181, 1183. The trial court should grant summary judgment only where "the pleadings, depositions, answers to interrogatories, and admissions on file, together with the affidavits and testimony, if any, show that there is no genuine issue as to any material fact and that the moving party is entitled to judgment as a matter of law. Indiana Rules of...