ATTORNEY FOR APPELLANTS
Donald J. Tribbett
Logansport, Indiana
ATTORNEY FOR APPELLEES
Thomas J. Trauring
Kokomo, Indiana
__________________________________________________________________
IN THE
SUPREME COURT OF INDIANA
__________________________________________________________________
MIRIAM BUTLER, Individually and )
as personal representative of the Estate )
of JAMES E. BUTLER, )
) Indiana Supreme Court
Appellants (Plaintiffs Below), ) Cause No. 52S02-0002-CV-117
)
v. )
) Indiana Court of Appeals
CITY OF PERU and ) Cause No. 52A02-9803-CV-269
PERU MUNICIPAL UTILITIES, )
)
Appellees (Defendants Below). )
__________________________________________________________________
APPEAL FROM THE MIAMI CIRCUIT COURT
The Honorable Bruce D. Embrey, Judge
Cause No. 52C01-9501-CP-9
__________________________________________________________________
ON PETITION TO TRANSFER
__________________________________________________________________
August 14, 2000
BOEHM, Justice.
We grant transfer in this case to clarify the phrase “user or
consumer” in the Products Liability Act and to reiterate the correct
standard for summary judgment under Trial Rule 56.
Factual and Procedural Background
James E. Butler was employed as a maintenance worker for Peru
Community School Corporation. On September 23, 1993, Butler was
electrocuted trying to restore power to an electrical outlet near the Peru
High School baseball field. The power source to the outlet was an
electrical box located within a fenced-in area containing one of the
field’s lighting towers. The fenced-in area contained equipment carrying
several levels of electrical power ranging from 110 to 7200 volts. Butler
and a co-worker had been unable to identify the cause of the outlet’s power
outage, but had determined that the box that served the outlet had no
power. Butler used a pocket tester rated for 600 volts to check the power
supply to the other equipment in the fenced-in area. He was killed when he
came into contact with a 7200-volt line.
The school and environs are in the service area of Peru Municipal
Utilities, which is operated by the City of Peru. Butler’s wife and his
estate filed suit against the City and Peru Municipal Utilities
(collectively Peru)[1] alleging ten counts of negligence based on “the
close proximity of high power lines to low power lines and the lack of any
proper warning regarding, or insulation of, the high power lines.” The
Butlers alleged, and Peru denied, that Peru owned, operated, or maintained
the electrical transmission system at the baseball diamond. Peru filed a
motion for summary judgment on November 18, 1996. On February 10, 1998,
the trial court granted Peru’s motion for summary judgment on the ground
that Peru did not own, maintain, or control the allegedly defective
equipment. The Court of Appeals affirmed the trial court. See Butler v.
City of Peru, 714 N.E.2d 264 (Ind. Ct. App. 1999).
Standard of Review
On appeal the standard of review of a summary judgment motion is the
same as that used in the trial court: summary judgment is appropriate only
where the evidence shows there is no genuine issue of material fact and the
moving party is entitled to a judgment as a matter of law. See Ind. Trial
Rule 56(C); Shell Oil Co. v. Lovold Co., 705 N.E.2d 981, 983-84 (Ind.
1998). All facts and reasonable inferences drawn from those facts are
construed in favor of the nonmoving party. See Shell Oil, 705 N.E.2d at
983-84; Colonial Penn Ins. Co. v. Guzorek, 690 N.E.2d 664, 667 (Ind. 1997).
The review of a summary judgment motion is limited to those materials
designated to the trial court. See T.R. 56(H); see also Rosi v. Business
Furniture Corp., 615 N.E.2d 431, 434 (Ind. 1993). We must carefully
review decisions on summary judgment motions to ensure that the parties
were not improperly denied their day in court. Estate of Shebel ex rel.
Shebel v. Yaskawa Elec. Am., Inc., 713 N.E.2d 275, 277 (Ind. 1999).
I. Summary Judgment as to the Negligence Claim
A. Summary Judgment Standard
The Butlers first claim that the trial court and Court of Appeals
misapplied Indiana Trial Rule 56 and Indiana summary judgment law. Trial
Rule 56(C) provides that a summary judgment movant must show “that there is
no genuine issue as to any material fact and that the moving party is
entitled to a judgment as a matter of law.” The movant must designate
sufficient evidence to foreclose the nonmovant=s reasonable inferences and
eliminate any genuine factual issues. Once the movant has put forward
evidence to establish this, the burden shifts to the nonmovant to make a
showing sufficient to establish the existence of a genuine issue for trial
on each challenged element of the cause of action. See Mullin v. Municipal
City of South Bend, 639 N.E.2d 278, 281 (Ind. 1994); see also Ind. Trial
Rule 56(E); Shell Oil Co. v. Lovold Co., 705 N.E.2d 981, 984 (Ind. 1998).
It is well established that the designated evidence on a summary
judgment motion is to be evaluated in the light most favorable to the
nonmoving party. See, e.g., Shell Oil, 705 N.E.2d at 984; Tibbs v. Huber,
Hunt & Nichols, Inc., 668 N.E.2d 248, 249 (Ind. 1996); Cowe v. Forum Group,
Inc., 575 N.E.2d 630, 633 (Ind. 1991). Although both courts stated the
correct standard, the Butlers claim that they did not in fact apply that
standard in making their rulings.
B. Disputed and Undisputed Facts
Several facts are undisputed. Lighting for the field was installed
around 1970. Peru owns, maintains, and controls the electrical
transmission system up to a pole on the border of the School’s property.
The electricity travels underground from the pole to a transmission system
that serves the baseball field and the light towers. The School owns both
the electrical transmission system itself and the property containing the
wiring from the riser pole to the electrical transmission system.
The dispute focuses on the Butlers’ claim that Peru helped design the
electrical system and asserted control over it by maintaining, monitoring,
and repairing it. The trial court and Court of Appeals determined that
Peru had only a minor role in the construction of the electrical facilities
and that the School owned the electrical system that electrocuted Butler.
See Butler, 714 N.E.2d at 266-67, 269. Peru contends that the items the
Butlers identified do not establish that Peru maintained the facility in
question and the Butlers point to no direct evidence that this occurred.
However, at this summary judgment stage it is Peru’s burden to foreclose
the reasonable inferences raised by the Butlers’ designated evidence as to
the design, maintenance, or control of the system.
The Butlers point to evidence that tends to establish that Peru
designed and participated in the construction of the defective equipment.
This includes a construction drawing of the baseball field electrical
system prepared for Peru, not the School. It also includes evidence that
Peru determined the height and location of the equipment and necessary
clearances for the system, furnished and installed the connections where
Butler was injured, and conducted inspections and issued a letter refusing
to supply power if a safety problem was not corrected.
The Butlers also point to evidence that Peru generally maintained and
repaired equipment it installed if it retained ownership of the equipment.
It seems to be undisputed that Peru does not own the equipment involved in
the accident, but that fact does not establish that Peru had no role in
designing or monitoring the baseball field equipment it did not own.
We agree with the Butlers that this evidence is minimally sufficient
to preserve a genuine issue of material fact as to Peru’s design or
exercise of control over or maintenance of the equipment. This is not the
case, as in Northern Indiana Public Service Co. v. East Chicago Sanitary
District, 590 N.E.2d 1067, 1073 (Ind. Ct. App. 1992), where the plaintiff
failed to present any evidence to support its contention that the utility
designed, owned, or controlled the power lines on another’s property.
C. Duty
In its complaint, the Butlers alleged ten counts of negligence. The
trial court granted summary judgment for Peru on all counts, in part on the
basis that, as a matter of law, Peru owed Butler no duty and accordingly
none was breached. On appeal, the Butlers contend that the trial court
erred by: (1) finding that Peru had no duty because the power lines were
owned and operated by the School, (2) finding that Peru had no duty to
insulate the lines, (3) finding that Peru had no duty based on actual
knowledge of an imminent danger to Butler, and (4) finding no gratuitous
assumption of duty by Peru. The Court of Appeals affirmed the trial
court’s grant of summary judgment.
The Butlers claim that the trial court erred by finding that Peru owed
Butler no duty because the power lines in question were owned by the
School. It is true that a utility company generally owes no duty to those
injured by power lines owned by its customers. See NIPSCO, 590 N.E.2d at
1073; Caldwell v. Alley, 70 Ind. App. 313, 321, 123 N.E. 432, 434 (1919).
However, in this case, it is not entirely clear that Peru did not design or
maintain some supervision and control over these lines. Viewing the
evidence in the light most favorable to the Butlers, there is at least some
support for the argument that Peru designed the electrical system and
monitored it. This includes construction drawings, Peru’s inspections and
refusal to supply power until safety violations were fixed, and Peru’s
practice of repairing equipment it installed. This evidence could lead a
jury to conclude that Peru had either “the right or power of control[] and
the opportunity to exercise it,” Southern Ind. Gas & Elec. Co. v. Indiana
Ins. Co., 178 Ind. App. 505, 511, 383 N.E.2d 387, 391 (1978) (quoting W.
Prosser, Handbook of the Law of Torts § 39 (4th ed. 1971)), or negligently
designed the configuration that produced the injury.
The Butlers also claim that the trial court erred in determining that
Peru had no duty to insulate the power lines because they were not
accessible to the public. Generally, electric utilities have no duty to
insulate even those lines that they own if the general public is not
exposed to the lines and the utility has no knowledge of a particular
segment of the population that is regularly exposed to the uninsulated
lines. See NIPSCO, 590 N.E.2d at 1072. Stated another way, the utility
company has a duty to insulate its lines in places where the general public
comes into contact with them, but not where the only people who come into
contact with them are utility employees or others charged with knowledge of
necessary safety precautions. Id. In this case, there is evidence that
Peru knew the baseball field events required a range of individuals to
enter the fenced-in area to turn on the field lights and thus become
exposed to the lines. These included coaches and other members of the
public who were not utility workers and could not otherwise be expected to
be familiar with electrical lines. To the extent, if any, that Peru was
involved in the design or maintenance of the arrangement, it had a duty to
those persons not to negligently fail to take adequate safety precautions.
The Butlers also contend that Peru had a duty based on its actual
knowledge of imminent danger and that Peru gratuitously assumed a duty
towards Butler. We agree with trial court and Court of Appeals that
summary judgment is appropriate on these two theories. An electric utility
may be liable for “actual knowledge of the imminent danger caused by
defects in wiring.” Id. at 1073. In NIPSCO, the court held that knowledge
of construction activity in the area was not enough. Rather, NIPSCO needed
to know or be “on notice of crane activity near the power lines on
September 15, 1987.” Id. at 1074 n.2. We agree with the Court of Appeals
that because “the Butlers acknowledge that [Peru] was not notified about
the problem with the malfunctioning 110-volt outlet,” there is no question
of fact as to whether Peru had actual knowledge of the circumstances
leading to Butler’s accident and a corresponding duty to prevent it.
Butler, 714 N.E.2d at 270.
A duty may also be imposed:
upon one who by affirmative conduct . . . assumes to act, even
gratuitously, for another to exercise care and skill in what he has
undertaken. It is apparent that the actor must specifically undertake
to perform the task he is charged with having performed negligently,
for without actual assumption of the undertaking there can be no
correlative legal duty to perform the undertaking carefully.
NIPSCO, 590 N.E.2d at 1074 (quoting Lather v. Berg, 519 N.E.2d 755, 766
(Ind. Ct. App. 1988)). The Butlers argue that Peru actively undertook the
School’s duty of providing a safe workplace for Butler based on evidence
that Peru located underground lines upon request, repaired broken lines
upon request, and generally would not provide power to electrical systems
if the systems did not meet Peru’s specifications. We agree with the Court
of Appeals that “perform[ing] the indicated services only after the School
requested that [Peru] do so . . . is not sufficient to support the
conclusion that [Peru] gratuitously assumed a duty to provide a safe
workplace for James Butler” and that the evidence concerning Peru’s habits
was “too general in nature to impose a duty under the theory of gratuitous
assumption of duty.” Butler, 714 N.E.2d at 270.
Because Peru is a municipality, this case is governed by the Indiana
Tort Claims Act and contributory negligence is a defense. Peru claims that
even if it has a duty to Butler, Butler was contributorily negligent.
Contributory negligence is generally a question of fact, and, as such, is
not an appropriate matter for summary judgment if there are conflicting
factual inferences. See Jones v. Gleim, 468 N.E.2d 205, 207 (Ind. 1984);
see also Hapner v. State, 699 N.E.2d 1200, 1206 (Ind. Ct. App. 1998). In
this case, the trial court and the Court of Appeals determined that Butler
was climbing the tower when he was electrocuted. An eyewitness, however,
stated that Butler was on the ground when testing the lines. Here, given
the conflicting contentions regarding Butler’s position when electrocuted,
it appears that the issue of contributory negligence also turns on factual
issues for trial and is not appropriate for summary judgment.
III. Product Liability Act
The trial court and Court of Appeals decided as a matter of law that
Butler was not a “user or consumer” of a product as that phrase appears in
the Product Liability Act, and therefore, the Butlers could not present a
claim under the Act. We agree that the Butlers have no viable claim under
the Act, but not for that reason.
The Butlers’ complaint alleged ten counts, each asserting negligence
on the part of Peru. The complaint was filed on January 13, 1995. The law
in effect at that time provided that the Product Liability Act “governs all
actions in which the theory of liability is strict liability in tort.”
Ind. Code § 33-1-1.5-1 (1993).[2] None of the Butlers’ theories was based
upon strict liability, and the Butlers argued against the application of
the Product Liability Act in their lower court briefs.[3] Accordingly,
they presented no claim under the January 1995 version of the Act.
Finally, for reasons explained below, if a claim under the Act had been
presented on appeal, its dismissal would be required. However, because we
do not agree with the Court of Appeals view as to Butler’s status as a
“user or consumer,” we address that issue as well.
Both the trial court and the Court of Appeals held that the Product
Liability Act did not apply because Butler was not a “user or consumer”
under the Act. The Act reads:
a person who sells, leases, or otherwise puts into the stream of
commerce any product in a defective condition unreasonably dangerous
to any user or consumer or to the user’s or consumer’s property is
subject to liability for physical harm caused by that product to the
user or consumer or to the user’s or consumer’s property if:
(1) that user or consumer is in the class of persons that the seller
should reasonably foresee as being subject to the harm caused by the
defective condition;
(2) the seller is engaged in the business of selling the product; and
(3) the product is expected to and does reach the user or consumer
without substantial alteration in the condition in which it is sold by
the person sought to be held liable under this article.
Ind. Code § 34-20-2-1 (1998).[4] A user or consumer is defined as:
(1) a purchaser;
(2) any individual who uses or consumes the product;
(3) any other person who, while acting for or on behalf of the injured
party, was in possession and control of the product in question; or
(4) any bystander injured by the product who would reasonably be
expected to be in the vicinity of the product during its reasonably
expected use.
Id. §§ 34-6-2-29, -147.[5]
The Court of Appeals determined that Butler did not fit into any one
of these four categories. Specifically, he was held not to be a “user or
consumer.” We disagree, and conclude that as an employee of the School,
he may be an “individual who uses or consumes the product.” In Thiele v.
Faygo Beverage, Inc., 489 N.E.2d 562, 586 (Ind. Ct. App. 1986), the Court
of Appeals held that “the legislature intended ‘user or consumer’ to
characterize those who might foreseeably be harmed by a product at or after
the point of its retail sale or equivalent transaction with a member of the
consuming public.” This includes purchasers, “any member of the consuming
public who may be injured by [the product],” and “a member of the family of
the final purchaser, or his employee, or a guest at his table, or a mere
donee from the purchaser.” Id. at 587-88 (citations omitted).[6] In this
case, the School was the ultimate user of the electrical transmission
system and the electricity. As an employee of a “consuming entity,” Butler
falls under the definition of “user or consumer” established in Thiele.
We do not suggest that Peru had any exposure under the Act. Although
Peru obviously furnished the electricity within the Act’s period of
limitations, the same is not true of the electrical equipment regardless of
Peru’s role in its manufacture, design, or construction. Peru is correct
that the baseball field electrical equipment was installed in approximately
1970—well over the ten-year statute of repose for the Product Liability
Act. Accordingly, no claim may be brought under the Act on the basis of
defects in that equipment. See McIntosh v. Melroe, 729 N.E.2d 972 (Ind.
2000).
From time to time, the Butlers appear to contend that electricity, not
the electrical transmission equipment, is the “product” under the Products
Liability Act. The electricity may be a product under the Act. See Public
Serv. Ind., Inc. v. Nichols, 494 N.E.2d 349, 355 (Ind. Ct. App. 1986).
However, the Butlers give us no suggestion as to why the electricity—as
distinct from the configuration of the equipment—was defective or
unreasonably dangerous. There is no evidence that the electricity meets
the requirement of a “product in a defective condition unreasonably
dangerous to any user or consumer.” Ind. Code § 34-20-2-1 (1998).[7] In
sum, it is understandable why the Butlers elected not to present their case
under the Product Liability Act.
Conclusion
The judgment of the trial court is affirmed in part and reversed in
part. This case is remanded for proceedings consistent with this opinion.
SHEPARD, C.J., and DICKSON, SULLIVAN and RUCKER, JJ., concur.
-----------------------
[1] Peru Municipal Utilities is a separate agency of the City of Peru,
created by Indiana Code § 36-4-9-4. For purposes of this opinion, both the
City of Peru and Peru Municipal Utilities will be referred to simply as
“Peru.”
[2] This section was amended effective July 1, 1995, see Pub. L. No. 278-
1995, § 1, 1995 Ind. Acts 4051, to apply to “all actions brought by a user
or consumer against a manufacturer or seller for physical harm caused by a
product regardless of the substantive legal theory or theories upon which
the action is brought” and has since been recodified at Indiana Code § 34-
20-1-1 (1998), see Pub. L. No. 1-1998, § 5, 1998 Ind. Acts 125.
[3] Indeed, in the Butlers’ Brief to the Court of Appeals, they argued that
the Product Liability Act did not apply because there was no product under
the Act. In the Butlers’ Brief in Support of the Petition to Transfer,
they changed tactics and argued that the Act did apply because electricity
was a product although the wiring was not.
[4] At the time of the suit this provision was codified at Indiana Code §
33-1-1.5-3. The legislature has since recodified the Product Liability Act
at Indiana Code §§ 34-20-1-1 to -9-1 with only stylistic changes. See Pub.
L. No. 1-1998, § 15, 1998 Ind. Acts 125-30.
[5] Formerly codified at Indiana Code § 33-1-1.5-2.
[6] The Thiele Court went on to hold that the plaintiff in that case was
not a “user or consumer” because he was an employee of an intermediary.
See 489 N.E.2d at 588. A later Court of Appeals opinion, Crist v. K-mart
Corp., 653 N.E.2d 140, 143 (Ind. Ct. App. 1995), expressed doubt about the
status of intermediaries and employees of intermediaries. We need not
address the status of intermediaries or employees of intermediaries because
the School and its employees were not links in an incomplete distribution
chain.
[7] This section was formerly codified at Indiana Code § 33-1-1.5-3(a).