Northern Indiana Public Service Co. v. Sharp

ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:

PAUL A. RAKE DAVID W. HOLUB

MICHEL E. O’NEILL DAVID M. HAMACHER

Eichhorn & Eichhorn Ruman, Clements, Tobin & Holub,
P.C.
Hammond, Indiana Hammond, Indiana

IN THE

SUPREME COURT OF INDIANA

NORTHERN INDIANA PUBLIC )
SERVICE COMPANY, )
) Supreme Court Cause Number
Appellant (Defendant), ) 64S03-0306-CV-284
)
v. )
)
GRACE SHARP, as the Administratrix of ) Court of Appeals Cause Number
the Estate of ROBERT SHARP, ) 64A03-9807-CV-320
)
Appellee (Plaintiff). )

APPEAL FROM THE PORTER SUPERIOR COURT
The Honorable Thomas W. Webber, Sr., Judge
Cause No. 64D02-9110-CT-2973

ON PETITION TO TRANSFER

June 27, 2003

RUCKER, Justice,
Case Summary

An employee of a trucking company was electrocuted when the bed of his
dump truck contacted an electric power line. The employee’s estate sued
the electric utility company responsible for the line alleging among other
things that the company was grossly negligent. The case ultimately
proceeded to trial and the jury returned a verdict in the estate’s favor.
On review the Court of Appeals reversed on grounds that the company owed no
duty to the employee and thus was entitled to judgment as a matter of law.
Facts and Procedural History

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 the Town of Highland. The
Town hired Krooswyk Trucking & Excavating, Inc., to build a makeshift dike
in a parking lot to help prevent further flooding. Robert Sharp, an
employee of Krooswyk Trucking, was responsible for driving a truck loaded
with gravel to the site. When Sharp backed his truck and raised its bed to
dump the gravel, electricity from overhead wires arced and energized the
truck. Sharp was electrocuted when he stepped down from the truck onto the
wet surface below. His estate sued both the Town of Highland and Northern
Indiana Public Service Company (“NIPSCO”), the company responsible for
turning off the electrical power.
The present appeal is the second arising from this case. In the
first, the Court of Appeals reviewed the trial court’s grant of summary
judgment in favor of the Town of Highland and NIPSCO. Sharp v. Town of
Highland, 665 N.E.2d 610 (Ind. Ct. App. 1996), trans. denied (“Sharp I”).
In that appeal, the Court of Appeals held that under the Indiana Civil
Defense and Disaster Law of 1975,[1] Highland and NIPSCO were immune from
liability for ordinary negligence contributing to Sharp’s death. Id. at
618. However, unlike Highland, NIPSCO did not move for summary judgment on
the issue of whether its alleged misconduct rose to the level of “willful
misconduct, gross negligence, or bad faith,” an exception to the immunity
provided by Indiana Code section 10-4-1-8. Id. at 617. The Court of
Appeals remanded the cause for trial on that issue. Id. at 618. At trial,
NIPSCO moved for a judgment on the evidence at the end of the estate’s case
in chief and renewed the motion at the close of all the evidence. The
trial court denied both motions. Finding that Sharp and NIPSCO were each
fifty percent at fault for Sharp’s death, the jury returned a verdict in
favor of the estate in the amount of $750,000.
NIPSCO appealed and the Court of Appeals addressed two issues: (1)
whether the trial court admitted evidence that was precluded by the Court’s
previous judgment; and (2) whether the trial court erred in denying
NIPSCO’s Motion for Judgment on the Evidence. NIPSCO v. Sharp, 732 N.E.2d
848, 851 (Ind. Ct. App. 2000) (“Sharp II”). As to issue one, the Court of
Appeals found no error. However concerning issue two, the Court reversed
concluding that the estate failed to prove that NIPSCO owed Sharp a duty
and thus failed to satisfy the requisite duty element for its negligence
claim. Id. at 859. We grant the estate’s petition to transfer and affirm
the judgment of the trial court.

Discussion

In reaching the conclusion that the estate failed to prove NIPSCO owed
Sharp a duty, the Court of Appeals applied the three-part balancing test
set forth in Webb v. Jarvis, 575 N.E.2d 992 (Ind. 1991). We disagree with
this analytical approach. In our view, the three-part balancing test
articulated in Webb, is a useful tool in determining whether a duty exists,
but only in those instances where the element of duty has not already been
declared or otherwise articulated. For example, there is no need to apply
Webb to determine what duty a business owner owes to its invitees. The law
in this area is well settled: “[p]roprietors owe a duty to their business
invitees to use reasonable care to protect them from injury caused by other
patrons and guests on their premises, including providing adequate staff to
police and control disorderly conduct.” Muex v. Hindel Bowling Lanes,
Inc., 596 N.E.2d 263, 266 (Ind. Ct. App. 1992). In like fashion for
example, there is no need to apply Webb to determine the duty school
authorities owe their students. This Court has long held they owe a duty
to “exercise reasonable care and supervision for the safety of the children
under their control.” Miller v. Griesel, 261 Ind. 604, 308 N.E.2d 701, 706
(1974); see also Mangold v. Ind. Dep’t of Natural Res., 756 N.E.2d 970, 974-
75 n.1 (Ind. 2001) (specifically declining to apply the three-part Webb
test to determine school’s duty to its students).
As applied to this case our courts have long held, “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.” NIPSCO v. E. Chicago Sanitary Dist., 590 N.E.2d 1067, 1072 (Ind.
Ct. App. 1992) (quoting Brown v. NIPSCO, 496 N.E.2d 794, 797 (Ind. Ct. App.
1986), trans. denied); accord Petroski v. NIPSCO, 354 N.E.2d 736, 741 (Ind.
Ct. App. 1976); see also Rogers v. Grunden, 589 N.E.2d 248, 256 (Ind. Ct.
App. 1992), trans. denied, (declaring “electric utilities have a duty to
exercise such care as a person of reasonable prudence would use under like
conditions and circumstances”). Because the duty that NIPSCO owes to
members of the general public already has been declared, it is unnecessary
to apply the three-part balancing test announced in Webb to determine the
duty NIPSCO owed Sharp, a member of the general public. We already know.
It has “a duty to exercise reasonable care to keep [its] distribution and
transmission lines safely insulated in places where the general public may
come into contact with them.” NIPSCO, 590 N.E.2d at 1072 (citation
omitted).
Although the foregoing articulation of duty is commonly discussed in
the context of ordinary negligence, it is important also in the discussion
of gross negligence – one of Sharp’s claims against NIPSCO. Gross
negligence is generally defined as “[a] conscious, voluntary act or
omission in reckless disregard of . . . the consequences to another party.”
Black’s Law Dictionary 1057 (7th ed. 1999); see also Stump v. Commercial
Union, 601 N.E.2d 327, 332 n.5 (Ind. 1992) (accepting for purposes of a
certified question the definition of gross negligence as “‘the intentional
failure’ to perform a duty ‘in reckless disregard of the consequences as
affecting the life or property of another’” (quoting Black’s Law Dictionary
931 (5th ed. 1979))).
If this were a case of ordinary negligence, then the estate would have
the burden of demonstrating that NIPSCO merely failed to exercise its duty
of care. But the claim here is gross negligence, not ordinary negligence.
And although the duty NIPSCO owed Sharp did not change, the level of
conduct amounting to a breach of that duty is quite different. More
precisely, to prove gross negligence the estate had the burden of
demonstrating that NIPSCO breached its duty to exercise reasonable care to
keep its transmission lines safely insulated in places where the general
public may come into contact with them by engaging in a conscious,
voluntary act or omission in reckless disregard of the consequences to
Sharp.
Whether a defendant owes a duty of care to a plaintiff is a question
of law for the court to decide. Stephenson v. Ledbetter, 596 N.E.2d 1369,
1371 (Ind. 1992). Whether a particular act or omission is a breach of duty
is generally a question of fact for the jury. Id. at 1372. It can be a
question of law where the facts are undisputed and only a single inference
can be drawn from those facts. Id.
Pointing to evidence that Highland Fire Chief Bill Haas instructed
NIPSCO to shut off all power to the flooded area, the estate contends that
NIPSCO’s failure to comply with this directive evinced a reckless disregard
of the consequences to the general public, including Sharp. At trial,
Chief Haas testified, “I wanted everything shut off,” to protect the people
in the housing subdivision, the rescue workers, firemen and those in the
trucks. R. at 922, 924-25. The Chief also testified that he expected the
power to be shut off by noon, and that his subsequent actions and decisions
were based upon NIPSCO’s assurances that the power would be shut off. R.
at 874-76, 922. NIPSCO counters that the final orders it received were not
from Chief Haas, but from Mike Pipta, a Highland pump station manager.
Thus, according to NIPSCO, it cannot be held liable for Sharp’s death
because it was required to follow Pipta’s order. However the record shows
that contrary to NIPSCO’s assertion that Pipta “ordered” them to leave the
power on, Pipta testified that NIPSCO approached him and “informed” him
that they would be shutting off the power in the flooded area, but added
that it could “isolate” or leave the power on at the pump station, if Pipta
so desired. R. at 1588, 1609-10. Pipta responded affirmatively. Id. In
other words, NIPSCO made it clear that it would be shutting off all power
to the flooded area, excluding the pumping station. Also, as pump station
manager, Pipta was clear that his only concern was leaving the power on to
the pump station. R. at 1588, 1612, 1620-21. Accordingly, he never
“ordered” NIPSCO not to cut the power off in the flooded area. R. at 1621.
In his words, “[a]ll’s [sic] I know is he said they [NIPSCO] could isolate
the station. What exactly that meant, I didn’t know, other than the pump
station would be running.” R. at 1621-22. In light of the testimony
cited above, the estate contends that NIPSCO “directly contravened the
Town’s directive that it turn off the power to the entire flood area” in
reckless disregard of the consequences to Sharp. Appellee’s Br. at 16-19,
39.
The record is clear that this trial was contentious and highly
contested. It involved scores of witnesses and exhibits and produced a
transcript of seven volumes. However, the evidence was not without
conflict. And precisely because more than a single inference can be drawn
from the disputed facts, the question of whether NIPSCO breached its duty
to Sharp was a matter for the jury to decide. Just as important, NIPSCO is
appealing from the trial court’s denial of its motion for judgment on the
evidence. In reviewing a challenge to a ruling on a motion for judgment on
the evidence our standard of review is the same as it is for the trial
court. Kirchoff v. Selby, 703 N.E.2d 644, 648 (Ind. 1998). Judgment on
the evidence is proper only “where all or some of the issues . . . are not
supported by sufficient evidence.” Ind. Trial Rule 50(A). When the
evidence, together with the reasonable inferences to be drawn therefrom,
would allow reasonable people to come to differing conclusions, then
judgment on the evidence is improper. Bonnes v. Feldner, 642 N.E.2d 217,
220 (Ind. 1994). Because reasonable people could come to different
conclusions as to whether NIPSCO’s conduct rose to the level of gross
negligence, the trial court properly denied NIPSCO’s motion for judgment on
the evidence.

Conclusion

We affirm the jury verdict and the trial court’s judgment.

SHEPARD, C.J., and DICKSON and SULLIVAN, JJ., concur.

BOEHM, J., dissents with separate opinion.
BOEHM, Justice, dissenting
I respectfully dissent. I do not find any evidence supporting a
finding of gross negligence on NIPSCO’s part. Taking the evidence most
favorable to the verdict as recited by the majority, the most that can be
said is that NIPSCO maintained the power to the pumping station after its
operator requested that and began steps to turn off the power to the rest
of the area. The power line to the pumping station was twenty feet in the
air. I cannot see any basis to conclude that NIPSCO intentionally
disregarded any duty to anyone. At the very most it was negligent, and
even that seems a stretch, given the obvious value under these stressed
circumstances of keeping the power to the pumps.

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[1] The Act provides emergency management measures “to protect the
public peace, health, and safety, and to preserve the . . . property of the
people of the state,” Ind. Code § 10-4-1-2(a), in the event of emergencies
resulting from manmade or natural disasters. See I.C. §§ 10-4-1-1-29.