Town of Montezuma v. Downs
| Decision Date | 09 September 1997 |
| Docket Number | No. 61A01-9701-CV-13,61A01-9701-CV-13 |
| Citation | 685 N.E.2d 108 |
| Parties | TOWN OF MONTEZUMA and Montezuma Municipal Gas Utility, Appellants/Cross-Appellees-Defendants, v. Kristy S. DOWNS, Individually and as personal representative of the estate of Ivan Dean Downs, and as Guardian of Susan Downs and Matthew Downs, Appellee/Cross-Appellant-Plaintiff. |
| Court | Indiana Appellate Court |
William H. Kelley, Jennifer A. Bauer, Kelly, Belcher & Brown, Bloomington, for Appellants.
George M. Plews, Jeffrey D. Claflin, Donna C. Marron, Plews Shadley Racher & Braun, Indianapolis, for Appellee.
In this interlocutory appeal, appellants/cross-appellees Town of Montezuma and Montezuma Municipal Gas Utility (Montezuma) challenge the trial court's grant of partial summary judgment in favor of appellee/cross-appellant Kristy S. Downs individually, as personal representative of the Estate of Ivan Dean Downs, and as guardian of Susan and Matthew Downs. In particular, Montezuma contends that genuine issues of material fact exist which preclude the entry of summary judgment on the issue of its violation of several federal regulations. On cross-appeal, Downs contends that the trial court erroneously denied her motion for summary judgment on the issue of whether Montezuma waived the limitation of liability provisions of Indiana's Tort Claims Act (ITCA). 1
At approximately 1:30 a.m. on January 21, 1993, a natural gas explosion destroyed the Downs' home, killing Ivan Dean Downs and injuring Kristy, Suzanne and Matthew Downs (hereinafter collectively the Downs). Specifically, the explosion occurred after a natural gas pipeline leading into the Downs' home corroded and leaked gas, which ignited. This pipeline was installed by Montezuma in 1934 and placed into service in 1942. Although the pipeline leading into the Downs' home was made of bare steel, Montezuma had implemented a plan in the early 1990's to systematically replace all of the pipelines within its system with polyethylene pipe, which is less susceptible to corrosion than steel. As part of this plan, Montezuma had replaced the steel gas main on Jefferson Street, in front of the Downs' home, with a polyethylene gas main. During this excavation although a portion of the Downs' service line was exposed in order that the new pipeline could be run under the Downs' line, the Downs' pipeline was not replaced.
Following the explosion, federal, state and local authorities investigated. Soon thereafter, the National Transportation and Safety Board (NTSB) concluded that the explosion had been caused by corrosion of the bare steel service pipe which connected the Downs' home with the gas main on Jefferson Street. Specifically, the NTSB's report provided as follows:
[T]he probable cause of the accident was the failure of a corroded bare steel coupling under stress from a growing tree root pressing downward on the curb box and transferring the load to the pipe and coupling. Contributing to the accident was the failure of Montezuma Utilities to have an adequate surveillance program to detect corrosion and external forces such as those created by the tree.
On March 8, 1994, the Downs filed a complaint against Montezuma, alleging that it negligently operated and maintained its pipeline system. 2 Thereafter, the Downs filed a motion for partial summary judgment, claiming that Montezuma was negligent per se for violating several federal pipeline safety regulations. R. at 44. Additionally, the Downs argued that because Montezuma had purchased insurance in excess of the liability limitations provided in the ITCA, it had waived those liability limits.
On September 20, 1996, the trial court granted the Downs' motion in part and denied it in part. Specifically, the trial court concluded that Montezuma was negligent per se for violating 49 CFR § 192.747 (Valve Maintenance Regulation), which requires yearly maintenance of those valves "which may be necessary for the safe operation of a distribution system," and that this negligence was the proximate cause of the Downs' injury. In addition, the court held that Montezuma had violated 49 CFR § 192.459 (Exposed Pipeline Regulation), which requires pipeline operators to inspect for corrosion any time a buried pipeline is exposed, and 49 CFR §§ 192.613 and 192.614(a) (Surveillance and Excavation Regulations), which require the utility to have procedures for surveillance of corroded lines and for prevention of damage by excavation activities. However, the court determined that genuine issues of material fact existed regarding whether Montezuma's failure to inspect the exposed pipeline and develop surveillance and excavation procedures was the proximate cause of the Downs' damage. Finally, the court determined that Montezuma's purchase of excess liability insurance did not waive the limitation of liability provisions of the ITCA. As a result, the trial court entered judgment in favor of the Downs on the issue of Montezuma's negligence and liability, but denied summary judgment on the issue of the ITCA. Both parties now appeal.
Summary judgment is appropriate only when no genuine controversy exists. O'Neal v. Throop, 596 N.E.2d 984, 986 (Ind.Ct.App.1992), trans. denied. In reviewing the propriety of the grant of summary judgment, this court applies the same standard as the trial court. Id. The party seeking summary judgment has the initial burden of demonstrating that no genuine issue of material fact exists and that he or she is entitled to judgment as a matter of law. Ind.Trial Rule 56(C); Whiteco Industries, Inc. v. Nickolick, 571 N.E.2d 1337, 1339 (Ind.Ct.App.1991), trans. denied. Once the movant presents pleadings, depositions, answers to interrogatories, admissions or affidavits showing he or she is entitled to summary judgment, the non-movant cannot rest on his pleadings, but must set forth specific facts establishing a genuine issue of material fact. Ogden Estate v. Decatur County Hosp., 509 N.E.2d 901, 902 (Ind.Ct.App.1987), trans. denied. A failure to establish a disputed issue of material fact will result in the grant of summary judgment provided the movant is entitled to judgment as a matter of law. Id.
Montezuma challenges the trial court's grant of summary judgment in favor of the Downs on the basis of its alleged violation of several federal regulations. Under Indiana law, an unexcused or unjustified violation of a duty dictated by a statute is negligence per se. Inland Steel v. Pequignot, 608 N.E.2d 1378, 1383 (Ind.Ct.App.1993), trans. denied. Before determining that the violation of a statute constitutes negligence, however, the court must scrutinize the statute and consider "the purpose of the enactment, the persons whom it was intended to protect and the injuries which it was intended to prevent." Id., quoting Reuille v. Bowers, 409 N.E.2d 1144, 1148 (Ind.Ct.App.1980).
In addition to determining whether a defendant violated a duty dictated by statute, the court must also consider whether the breach was the proximate cause of any injury. Id. "The violation of a statute raises no liability for injury to another unless the injury was in some manner the result of such violation." Conway v. Evans, 549 N.E.2d 1092, 1095 (Ind.Ct.App.1990). In order for an injury to be the proximate result of a statutory violation, the injury must have been a foreseeable consequence of the violation and would not have occurred if the requirements of the statute had been observed. Ray v. Goldsmith, 400 N.E.2d 176, 179 (Ind.Ct.App.1980).
First, Montezuma contends that the trial court erred in determining, as a matter of law, that it violated the Valve Maintenance Regulation, 49 CFR § 192.747, and that this violation was the proximate cause of the Downs' damages. 4 The Valve Maintenance Regulation provides, in pertinent part, as follows: "[e]ach valve, the use of which may be necessary for the safe operation of a distribution system, must be checked and serviced at intervals not exceeding 15 months, but at least once each calendar year." (emphasis added). According to Montezuma, summary judgment in favor of the Downs was inappropriate because a genuine issue of material fact exists regarding whether the valve on the pipeline leading to the Downs' home was necessary for the safe operation of a distribution system and, therefore, whether the regulation applies in the instant case. Additionally, Montezuma argues that issues of fact exist regarding whether its failure to inspect the valve was the proximate cause of the Downs' injuries. 5
Initially, we address Montezuma's argument regarding the application of the Valve Maintenance Regulation. As previously stated, the inspection requirements of the Valve Maintenance Regulation only apply to valves which are necessary for the safe operation of a distribution system. According to Montezuma, the regulation is inapplicable because the valve at issue in the present case was a service-line valve, rather than a distribution valve.
In support of its argument, Montezuma designated the affidavit of Rick Nichols, the superintendent of Montezuma Utilities, who stated that a distribution valve services a large area and would only be found on a main pipeline, as opposed to a pipeline servicing a single residence. Additionally, Montezuma cited its own operating and maintenance plan, which provides that the Utility will "maintain a list of all distribution valves necessary for the safe operation of the distribution system." R. at 1046. Because the Downs' service-line valve was not on this list, Montezuma claims that the valve was not necessary for the safe operation of the distribution system.
The Valve Maintenance Regulation is a subpart of Part 192, which is entitled, Transportation of Natural and Other Gas by Pipeline: Minimum Federal Safety Standards. The...
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