ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE
LIBERTY MUTUAL GROUP:
DONALD K. McCLELLAN
McClellan, McClellan & Arnold CAROLYN SMALL GRANT
Muncie, Indiana Grant & Grant
ATTORNEYS FOR APPELLEE
RED GOLD, INC.:
CRAIG R. PATTERSON
COURT OF APPEALS OF INDIANA
MATTHEW J. ELLIOTT
Beckman Lawson, LLP
Fort Wayne, Indiana
GERALD HAMMOCK, )
vs. ) No. 48A02-0201-CV-46
RED GOLD, INC. and )
LIBERTY MUTUAL GROUP, )
As Subrogee of Red Gold, Inc., )
APPEAL FROM THE MADISON SUPERIOR COURT
The Honorable Thomas Newman, Jr., Judge
George G. Pancol, Master Commissioner
Cause No. 48D03-9912-CT-1103
February 28, 2003
OPINION - FOR PUBLICATION
On August 31, 1998, Gerald Hammock was involved in an automobile accident in
Alexandria, Indiana. Hammocks car struck an electric utility pole owned by American
Electric Power, which caused the power at a Red Gold plant (Plant), located
approximately 2 miles from Alexandria,
See footnote to go out for nearly five hours.See footnote
As a result of the power outage, Red Golds operations ceased, resulting in
a loss of tomatoes in various stages of processing, loss of ingredients added
to the tomatoes, loss of finished product, extra labor costs, additional cleaning costs,
and loss of profits. Red Gold submitted an insurance claim to Liberty
Mutual Group (Liberty), See footnote which paid a total of $44,212.00 to Red Gold.
However, this payment by Liberty did not cover the entire loss incurred
by Red Gold as a result of the power outage.
Red Gold filed a complaint for damages against Hammock asserting that he was
negligent in the operation of his vehicle, and as a result, Red Gold
suffered substantial losses. In his answer, Hammock denied that he was negligent
and asserted as affirmative defenses that Red Gold was either wholly or partially
at fault (comparative fault), that it incurred the risks of its actions, and
that the damages were caused in whole or in part by the acts
of non-parties Ralph Sayre and American Electric Power. Following Hammocks answer to
Red Golds complaint, Liberty moved to join as a party plaintiff. After
that motion was granted, Liberty then filed a complaint against Hammock asserting the
rights of Red Gold. Hammock answered the complaint by asserting the affirmative
defenses of comparative fault and incurred risk on the part of Red Gold.See footnote
Liberty filed a motion for summary judgment, which Hammock challenged through his designated
evidence by specifically asserting that Red Gold should have had a second power
source at the Plant in the event that there was a loss of
power. His assertion was based upon the view of his expert, Oliver
Max Myers of Wolf Technical Service, who stated that in his professional engineering
opinion it would be standard practice for a plant of that size to
have had a second source of power. Hammock claimed that this
failure on behalf of Red Gold was an issue of comparative fault, which
was a question to be decided by the jury. Red Gold subsequently
filed a motion to strike Hammocks affirmative defenses asserted as to Red Golds
complaint by stating that it had no duty to anticipate the negligent act
of Hammock.See footnote Red Gold further noted that the evidence designated by Hammock
stated that the second source of power is not required by any codes
in the State of Indiana. Appendix at 72-73. Based upon this
evidence, Red Gold asserted that Hammock conceded that no duty existed upon Red
Gold to have a second source of power. The trial court granted
Red Golds motion to strike Hammocks affirmative defenses.
At the summary judgment hearing, Hammock presented the issue whether the damage suffered
by Red Gold was foreseeable. He also asserted that a paradox had
been created by Red Gold and Libertys arguments and the trial courts granting
Red Golds motion to strike Hammocks affirmative defenses. Hammock specifically argued that
a situation was created in which Liberty relied upon the damage not being
foreseeable, thereby negating any duty Red Gold may have had to have a
second power source, but that Liberty also argued that the damage was foreseeable
for the purpose of establishing the proximate cause element of a negligence claim
against Hammock. Following the hearing, the trial court granted Libertys motion for
Hammock appeals from the grant of summary judgment in favor of Liberty.
He presents several issues for our review. However, we find one issue
to be dispositive, whether Hammock owed a duty to Red Gold. It
is upon this ground that we reverse the trial courts entry of summary
judgment in favor of Liberty.
Summary judgment is appropriate when the designated evidentiary matter reveals that there is
no genuine issue of material fact and that the moving party is entitled
to judgment as a matter of law.
Spudich v. Northern Indiana Pub.
Serv. Co., 745 N.E.2d 281, 289 (Ind. Ct. App. 2001), trans. denied.
The moving party bears the burden of making a prima facie showing that
there are no genuine issues of material fact and that there is an
entitlement to judgment as a matter of law. Id. If the
moving party meets these requirements, the burden then shifts to the nonmovant to
establish genuine issues of material fact for trial. Id. at 290.
We are bound by the same standard as the trial court in considering
an appeal from the grant or denial of summary judgment. Id.
We consider only those facts which were designated to the trial court at
the summary judgment stage. Id. We do not reweigh the evidence,
but rather, liberally construe all designated evidentiary material in the light most favorable
to the nonmoving party to determine whether there is a genuine issue of
material fact. Id. Even if the facts are undisputed, summary judgment
is inappropriate where the record reveals an incorrect application of the law to
the facts. Id. Summary judgment is rarely appropriate in negligence cases
because issues of contributory negligence, causation, and reasonable care are more appropriately left
for determination by the trier of fact. Ousley v. Board of Commrs
of Fulton County, 734 N.E.2d 290, 293 (Ind. Ct. App. 2000), trans. denied.
To recover under a theory of negligence, a party must establish: (1) a
duty on the part of the defendant owed to the plaintiff; (2) a
breach of that duty; and (3) an injury to the plaintiff proximately caused
by the breach. Lawson v. Lafayette Home Hosp., Inc., 760 N.E.2d 1126,
1129 (Ind. Ct. App. 2002), trans. denied.
Generally, the existence of a legal duty owed by one party to another
in a negligence action is a pure question of law. P.T. Barnums
Nightclub v. Duhamell, 766 N.E.2d 729, 737 (Ind. Ct. App. 2002), trans. denied.
However, factual questions may be interwoven, rendering the existence of a duty
a mixed question of law and fact to be determined by the fact-finder.
Baxter v. I.S.T.A. Ins. Trust, 749 N.E.2d 47, 55 (Ind. Ct. App.
Justice Dickson, speaking for our Supreme Court in Gariup Const. Co., Inc. v.
Foster, 519 N.E.2d 1224, 1227 (Ind. 1988), noted that the duty determination
is made not without difficulty, and, in quoting from Prosser & Keeton on
Torts § 53 at 359 (5th Ed. 1984), concluded that [n]o better general
statement can be made than that the courts will find a duty where,
in general, reasonable persons would recognize it and agree that it exists.
It is for this reason, perhaps, that we have in the past articulated
the principle that, The Law imposes but one common law duty and that
duty is to use due care. South Eastern Indiana Natural Gas Co.,
Inc. v. Ingram, 617 N.E.2d 943, 953 (Ind. Ct. App. 1993) (citations omitted).
As a corollary to this premise we have said:
[T]he substantive law establishes the standard of care which must be met, i.e.,
reasonable care. The standard is a fixed one and is indpendent of
the conduct of others but the conduct required of the individual to measure
up to the fixed standard varies depending upon the nature of the duty
owed and the surrounding circumstances. Walters v. Kellam & Foley, 172 Ind.App.
207, 231, 360 N.E.2d 199, 214 (1977), trans. denied.
In short, the duty is that of reasonable care under the circumstances.
That duty never changes. It always exists although the circumstances may differ
from case to case.
In 1991, however, our Supreme Court decided Webb v. Jarvis, 575 N.E.2d 992
(Ind. 1991), setting forth several varying factors to be balanced in determining whether
a duty exists. This pronouncement could be read to undercut the principle
that there is but one common law duty, that of reasonable care under
See footnote On the other hand, it might be read to validate
the never changing duty of reasonable care but proposing that the enumerated factors
should be examined in order to determine the breadth of that duty.
Perhaps a degree of uncertainty in this regard is what led, at least
in part, to the criticism of
Webb v. Jarvis in a lengthy article
by Professor Jay Tidmarsh, Tort Law: The Languages of Duty, 25 Ind. L.
Rev. 1419 (1992), in which the author observed that despite the Webb test,
Indiana does not in fact have a single, coherent theory of duty.
He reached this conclusion by analysis of Indiana cases decided during the
previous year, which failed to follow the balancing test, or, even more striking,
failed to even cite Webb. He concluded that at that time, and
even post-Webb, Indiana tort law is presently a confused patchwork of obligation and
Be that as it may, in Webb, the enumerated factors to be balanced
were stated to be: (1) the relationship between the parties; (2) the
reasonable foreseeability of harm to the person injured; and (3) public policy concerns.
575 N.E.2d at 995. In its discussion of the foreseeability component
of duty, the court in Webb used certain language and phrasing which appear
to be relevant to a discussion of proximate cause. The phrase reasonable
foreseeability of harm to the person injured is itself suggestive of a proximate
cause analysis. But even more to the point, the Court analyzed the
duty owed by the physician defendant in the context of the causal connection
between the medication prescribed and the patients violent behavior. Webb, 575
N.E.2d at 997. This lack of guidance, at least in part, prompted
the court in Goldsberry v. Grubbs, 672 N.E.2d 475, 478 (Ind. Ct. App.
1996), trans. denied, to differentiate between duty-foreseeability and proximate cause-foreseeability. The concept
of foreseeability is germane to the duty owed by any one defendant to
any one plaintiff just as it is germane to the requirement that a
defendants negligence be a proximate cause of plaintiffs injury or damage. Foreseeability,
therefore, is a component of both aspects of a successful negligence action.
The analysis of the element of foreseeability with regard to negligence lawsuits requires
the making of subtle distinctions between the application of the concept as to
duty and the application as to proximate cause. Goldsberry, 672 N.E.2d at 478-79.
Bush v. Northern Indiana Pub. Serv. Co., 685 N.E.2d 174
(Ind. Ct. App. 1997), trans. denied, in which the majority sought to apply
the three-pronged Webb test, but did not distinguish between duty and proximate cause
as to foreseeability.
Hammock asserts that the trial court erred in granting summary judgment because the
harm to Red Gold was not reasonably foreseeable. In doing so, however,
he does not delineate between duty-foreseeability and proximate cause-foreseeability. This failure is
clearly understandable in light of the fact that the Indiana appellate courts have
also failed to do so. With Goldsberry the line of demarcation was
drawn. That case held that foreseeability for the purposes of duty involves
a general and broad analysis of the plaintiff and the harm involved without
regard to the facts of the occurrence. 672 N.E.2d at 479.
As stated above, Hammocks counsel argued that a paradox had been created in
which, on one hand, Liberty argued that the harm was not foreseeable with
respect to establishing a duty on behalf of Red Gold to have
a second power source, but on the other hand, the outcome was foreseeable
in order to show that the harm was proximately caused by Hammock.
A review of the transcript and the briefs reveal that some confusion exists
between the parties as to how foreseeability should be analyzed in this case.
In his brief, Hammock relies upon authority which discusses the issue of
foreseeability as a component of proximate cause. However, intermingled in those citations
to authority, Hammock also relies upon cases which discuss foreseeability as a component
The transcript of the summary judgment hearing, makes clear that the parties discussion
of foreseeability included the issue of whether Red Gold was a reasonably foreseeable
victim who was injured by a reasonably foreseeable harm. Because the
parties arguments and designated evidence included foreseeability as a component of duty, we
will address it in that context.See footnote
Although the principle focus of our analysis involves the foreseeability aspect of the
case, we are not at liberty to ignore our Supreme Courts holding in
Webb. Accordingly, we will address, in some degree, the relationship of the
parties and matters of public policy.
We first address the relationship between the parties. In this case, there
is no direct physical link between Hammock and Red Gold. The accident
did not occur on Red Golds property. There is no statute which
places any special duty upon Hammock toward Red Gold. We can ascertain
no factual circumstance which would establish a relationship between these two parties except
the general relationship which exists between the motorist and the public at large
to prevent the motorist from harming them. This general relationship is discussed
in Comment e to the Restatement (Second) of Torts § 281 (1965), which
Thus the duty to exercise reasonable care in driving an automobile down the
highway is established for the protection of the persons or property of others
against all of the unreasonable possibilities of harm which may be expected to
result from collisions with other vehicles, or with pedestrians, or from the drivers
own automobile leaving the highway, or from narrowly averted collisions or other accidents.
In a case such as we have before us, the concern would be
for the motorist to commit no act which would interrupt electrical service to
any individual or business serviced by the electric utility poles along the road
upon which the motorist is traveling. Whether this is sufficient to establish
a duty depends upon the weight given to this factor in combination with
the issues of foreseeability and public policy.2. Foreseeability
Many factors come into play when discussing the foreseeability that a particular business
or residence may be injured as the result of an automobile accident.
While not an exhaustive listing, some of the relevant factors which immediately come
to mind are the distance between the accident scene and the business; whether
the accident occurred in a residential neighborhood, an industrial park, near a series
of retail stores, out in an unpopulated rural area, in a small town,
or in a highly populated and dense area of a major city; how
electrical service is run to a particular location; whether the pole which was
struck was part of the final series of lines carrying electricity to several
houses or whether it was the source of power for several substations; whether
the line leads directly onto a specific property; or even by how many
lines are carried upon a particular pole.
In determining whether Red Gold is a foreseeable victim which suffered a foreseeable
type of harm, we begin by noting a basic proposition concerning electric service,
that is, when an electric utility pole is struck, anyone who receives service
from that line may have his service interrupted. Regardless of any of
the above factors which are relevant to a discussion of foreseeability, it is
indisputable that service could be interrupted to those residences or businesses which receive
their electricity as part of the route which was damaged through the accident.
However, whether such a basic proposition results in the determination that Red Gold
is a foreseeable victim is subject to serious dispute. As Hammock asserts,
the foreseeability of harm seems to diminish as one proceeds further from the
accident site. There is support for this contention in case law from
other jurisdictions.See footnote In
Palm Beach-Broward Med. Imaging Ctr., Inc. v. Continental Grain
Co., 715 So.2d 343, 345 (Fla. 4th Dist. Ct. App. 1998), the Florida
District Court of Appeal determined that the foreseeable zone of risk created by
the negligent operation of an automobile did not include an electricity consumer some
distance from the scene of an accident.
See footnote In
George A. Hormel &
Co. v. Maez, 155 Cal. Rptr. 337, 340 (Cal. Ct. App. 1979), the
California Court of Appeal determined that a natural, logical, and foreseeable consequence of
striking and destroying a power pole is the disruption of power service to
those in the neighboring vicinity.
See footnote While the two courts in these cases
differed in their decision whether there was a duty upon the motorist toward
the injured business, both courts focused upon the distance from the accident scene
to the business in determining whether the injury to the business was foreseeable.
In Indiana, there is precedent for relying upon what may be referred to
as the zone of risk or danger in determining whether a duty exists.
See Indiana Limestone Co. v. Staggs, 672 N.E.2d 1377, 1383-84 (Ind. Ct.
App. 1996) (relying upon whether in determining foreseeability one lawfully using a highway
would come within the zone of danger posed by a quarry located twenty-five
feet from the road), trans. denied. The zone of danger which one
considers in relation to an automobile accident encompasses the area immediately surrounding the
accident scene. This includes those areas which are unsafe because of downed
power lines or the property which may have been directly damaged by an
electric utility pole falling upon it. Red Gold was not located within
that immediate zone of danger. Rather, the Plant was located over 2
miles from the accident scene. While not a direct indication that a
duty should or should not exist, it hardly seems that being located over
2 miles from the accident scene would place one within the neighboring vicinity
or the zone of danger.
Considering whether the injury suffered by Red Gold was a reasonably foreseeable type
of harm, we look to the types of harms that may befall any
business which has its electric service interrupted for an extended period of time.
As the quote from Comment e to the Restatement (Second) of Torts
§ 281 (1965) continues, When harm of a kind normally to be expected
as a consequence of the negligent driving results from the realization of any
one of these hazards, it is within the scope of the defendants duty
of protection. (emphasis supplied).
While the most obvious types of harm with which a motorist would be
appropriately concerned include the risk of electrical shock or physical damage to a
pole or a structure upon which a pole falls, it is possible that
other harms may also be normally expected. This could include such damages
as the costs of lost production time, lost product, or even damage to
sophisticated equipment. See Restatement (Second) of Torts § 281 cmt. g (1965)
(providing that in determining whether the particular harm is within the scope of
the risk created by the actors conduct, risk is not limited to those
hazards which a reasonable man would have in contemplation and take into account
when planning his activity). But see Palm Beach-Broward Med. Imaging Ctr., Inc.,
715 So.2d at 345, supra, (holding that damage to equipment of a business
was not the type of loss that has so frequently resulted from an
automobile accident to make it likely to be expected again).
There is no dispute that upon some level it is foreseeable that a
business which received electric service from a line which suffered damage after an
electric utility pole was struck would lose electric service and its processing operation
would shut down. It also holds true that if the processing were
of a perishable food item, the loss of power would result in spoilage
and loss of product. However, just as determined by the court in
Palm Breach-Broward Med. Imaging Ctr., Inc., the scant amount of cases from across
the United States which have dealt with such issue make it extremely unlikely
that the damage suffered by Red Gold was the kind of harm which
would normally be expected as the result of an automobile accident.
3. Public Policy
Finally, we must address the public policy concerns involved in holding a motorist
liable for the injury suffered by a business following an interruption in electric
service. On one hand, we have a business involved in a processing
operation. On the other, we have an individual motorist who was involved
in an accident. In looking at a processing operation, there is generally
a risk that product could be damaged or destroyed whenever there is a
power failure. This is especially true when the plant processes a perishable
It is questionable who is, or should be, in the best position to
prevent such injury and how society should allocate the costs of such injury.
According to the affidavit of Hammocks expert, Oliver Max Myers, Red Gold
faced large potential losses from the loss of electric service. He also
stated that while there was no statutory duty upon Red Gold to utilize
a second power source in the case of loss of electric service, in
his opinion, sound engineering judgment would require that a second power source be
considered at the Plant.
See footnote While it is true that there is no
statutory duty upon Red Gold to have a second power source in the
event of loss of electric service, it is difficult to justify the imposition
of the costs of a harm caused by the acceptance of a general
risk of power failure by a business upon an individual motorist who was
unfortunate enough to cause a widespread power failure. Should there have been
a power failure caused by a storm or a widespread blackout, the business
would have had to bear the costs. While a motorist may be
ultimately responsible for causing a power failure through his negligent acts, that individual
motorist is not in the best position to prevent or minimize the economic
harm which results.
In this regard, public policy seems to militate against imposing the costs of
the negligent drivers actions upon the driver, and instead, might well pass those
costs onto the business which is better able to prevent the harm.
This is especially true when considering the far-reaching consequences of holding a motorist
liable for his negligent acts. Does the public believe that a motorist
should be held liable to every homeowner and business if he interrupts electric
service to several thousand electric consumers? What if electric service was interrupted
to a hospital and several patients died as a result? Would society
demand that the motorist pay? The answer to these questions is likely
no because it seems unfair to place such extreme and indeterminate costs upon
the negligent driver.
However, looking at the entire picture of negligent acts and the harms which
could result from an automobile accident, it seems that there are some situations
in which public policy would demand that the motorist bear the costs of
his negligent act. Such situation could include damages caused to a single
residence by the loss of electric service for several hours in the winter,
thereby causing the water pipes to freeze and burst after a motorist struck
a pole on an individuals property. Also, it would seem extremely unfair
for a business to bear the costs of the damage caused by a
negligent drivers act when no steps could be taken to prevent the harm
to the business. Such might include when a business has two sources
of electric power, one a primary source and the other a backup source,
which are both damaged through the same negligent act of an individual.
It is also possible that even though a backup system is in place
and properly maintained, the backup system may fail to function in the event
that the primary source of electric power is interrupted. In such circumstances,
the injury will be the same as if the business did not have
a backup power source, but one cannot reasonably expect a business to have
backups to the backup power source. Once again, the question then becomes
who should bear the costs of the negligent acts.
On one end of the spectrum, one may look at the facts present
before this court and immediately conclude that the driver should not suffer the
extreme consequences caused by his negligent actions. Whether one makes such determination
because the harm does not seem foreseeable because it is too remote or
too severe is not important, neither is it important whether one would believe
that the motorist had no duty or that his negligence was not the
proximate cause. What is important to the general public is that some
results simply seem inappropriate. On the other end of the spectrum, we
are faced with situations in which most individuals will look to a factual
situation and immediately feel that the harmed individual or business should receive compensation
from a negligent motorist. Once again, public policy is not best based
upon the immediate reaction to who has a duty or was the proximate
cause of the harm, but rather to what seems fair. However, as
an appellate court, we may not tie our determination to what feels right
but must make our decision within the parameters of the law. As
we view the desires of public policy through the lens of duty, we
must remember that we are making a determination based upon only the first
factor of a negligence issue. As previously stated, duty is a factor
which as a general proposition is a pure question of law.
Barnums Nightclub, 766 N.E.2d at 737.
In determining whether a duty exists, at least for the purposes of deciding
whether there is a foreseeable victim who has suffered a foreseeable harm, we
look only to the most general facts. This proposition of looking to
the most general facts also is relevant to our review of public policy.
While we could look to every specific fact which encompasses the act
and the end result of harm, we would in effect be making a
determination of duty, proximate cause, breach, and comparative fault under the guise of
public policy. Based upon such consideration, we cannot say that public policy
always or never weighs in favor of holding a motorist responsible for his
negligent acts which result in the interruption of electric service and damage to
a particular businesss products and equipment. Because public policy does not provide
us with a clear answer of who should bear the costs of a
motorists actions, we do not believe it proper to always preclude a business,
upon public policy considerations regarding a motorists duty, from recovering for harm it
suffers as a result of a motorists negligent act. That being said,
in this case, public policy considerations do seem to weigh most heavily against
placing Hammock in a position in which he owed a duty toward Red
4. Balance of Factors
In reaching our decision, it is necessary to discuss the difficulty a court
faces when applying the legal concepts to be used in review of a
case based upon a tort claim of negligence. This is most evident
when we must attempt to apply the facts available upon review of a
summary judgment to the appropriate legal concepts. While our decision must necessarily
be broad, in reality, the ultimate decision must be made based upon minor
nuances in the law and how we apply those nuances to the facts.
This is not totally satisfactory given the subtle shadings between the concept
of foreseeability as a factor for both duty and proximate cause. This
dissatisfaction is heightened when one considers the question of whether the ultimate decision
should be for a jury as the trier of fact or for the
court, as public policy issues seem to weigh most heavily upon finding that
what would otherwise be negligent conduct will be forgiven in certain situations.
This is most evident in the courts responsibility to determine duty as a
matter of law. However, given the status of the law, as a
court we must do the best we can in applying the facts to
the applicable law and hope that our decision meets squarely with what society
deems correct and directs the law in such a way to assist in
the prevention of negligent conduct rather than to invoke liability in an area
in which it should not exist.
Relying upon the guidance of decisions from other jurisdictions and balancing the three
Webb factors, we conclude that Hammock did not owe a duty to Red
Gold. While the accident in which Hammock was involved did ultimately result
in a loss of electric service to Red Gold, this only establishes that
Hammock was the cause-in-fact of the harm suffered by Red Gold. In
order for Hammock to be liable for that harm, he first must owe
a duty to Red Gold. In this case, the consequences of the
accident were not reasonably foreseeable because the Plant was located some distance from
the scene of the accident, outside of the zone of danger. Also,
the scarcity of cases from across the United States which have dealt with
the issue of whether a motorist owes a duty to a business following
the disruption of electric service as a result of an accident leads to
the conclusion that the harm is not so common as to normally be
expected. Finally, in viewing public policy, a combination of factors, including the
size of the operation at the Plant, Red Golds failure to have a
second power source, and the fact that Red Gold was in a better
position to prevent the significant amount of harm which resulted as a consequence
of the accident, lead us to conclude that public policy weighs against the
existence of a duty. Balancing these considerations together, we can only conclude
that Hammock did not owe a duty to Red Gold. The trial
court erred in granting summary judgment in favor of Liberty. Rather, as
no duty existed, summary judgment should have been entered in favor of Hammock.
The judgment of the trial court is reversed. The cause is remanded
for the trial court to enter summary judgment in favor of Hammock.
BARNES, J., concurs.
BAILEY, J., dissents with opinion.
COURT OF APPEALS OF INDIANA
GERALD HAMMOCK, )
vs. ) No. 48A02-0201-CV-46
RED GOLD, INC. and )
LIBERTY MUTUAL GROUP, )
As Subrogee of Red Gold, Inc., )
BAILEY, Judge, dissenting
I think Hammock had a legal duty to use due care to avoid
accidents and to keep his vehicle under reasonable control, and I therefore respectfully
dissent from the majoritys conclusion that summary judgment was improperly denied.
As the majority notes, the main focus of the Courts analysis is the
foreseeability of the harm to Red Gold as it relates to the existence
of a legal duty on the part of Hammock. This, as the
majority correctly explains, is because the Indiana Supreme court explained in Webb v.
Jarvis, 575 N.E.2d 992, 995 (Ind. 1991) that the existence of a legal
duty depends upon the analysis and balancing of the relationship between the parties,
the foreseeability of harm to the injured person, and concerns of public policy.
In its comprehensive and thoughtful discussion of the topic, the majority notes
that this Court attempted to remedy some of the confusion created by the
Webb decision in Goldsberry v. Grubbs, 672 N.E.2d 475 (Ind. Ct. App. 1996).
Specifically, Goldsberry recognized that by addressing the foreseeability of harm both as
a component of the duty analysis and as a part of the determination
of proximate cause, the Webb analysis had the potential of rendering separate analyses
of the two concepts superfluous. Id. at 479.
The Goldsberry decision resolved this problem by recognizing that if foreseeabilty were to
be a component of both duty and proximate cause, the analysis of foreseeable
harm would have to be different at each respective stage. In particular,
Goldsberry concluded that while the foreseeability component of proximate cause involved an after-the-fact
analysis of circumstances that actually occurred, the foreseeability component of the duty analysis
necessarily entailed a lesser inquiry into the broad type of plaintiff and harm
involved, without regard to the facts of the actual occurrence. 672 N.E.2d
at 479. This Court explained that
while the facts of a particular occurrence are relevant when considering whether a
breach of a duty occurred and whether that breach was the proximate cause
of the plaintiffs injuries, such facts are simply not relevant to the determination
of whether a duty existed. To look to the facts of a
particular occurrence when deciding the duty question would subsume the entire law of
negligence, i.e., duty, breach, and proximate cause, into the duty question.
Id. The majority properly highlights this aspect of the Goldsberry decision, and
the approach to the foreseeability question set out in that case remains the
key to harmonizing Webbs duty analysis with the common law of negligence.
While I fully agree with the majoritys understanding of the distinction between the
different foreseeability analyses for duty and proximate cause, I disagree with the majoritys
application of the foreseeability component in this case.
The majority says that Red Gold was not a sufficiently foreseeable plaintiff that
had suffered reasonably foreseeable harm, reasoning that Red Gold was well outside of
the zone of danger created by Hammocks alleged negligence, and that the kind
of harm suffered by Red Gold was not the kind of harm normally
expected to result from a motor vehicle accident. In Goldsberry, however, this
Court observed that it is foreseeable that motorists (or their occupants) will leave
the traveled portion of a road and strike utility poles set and maintained
along that road. 672 N.E.2d at 480. It is true that
we made this statement in connection with determining whether a telephone utility company
owed a duty in connection with its placement of a telephone pole to
a driver injured after colliding with the pole. See, id. at 477.
Nevertheless, the fact remains that such collisions are foreseeable. And if
it is foreseeable that motorists may crash their vehicles into utility poles, it
is certainly foreseeable that such accidents may damage the utility poles as well
as attached electrical wires and associated hardware. It is further rational to
predict that such damage might likely lead to the interruption of electrical power
service to those receiving electricity through wires attached to the damaged utility pole.
Given the nature of electrical power and its supply along extended lines of
variable lengths, I do not think that the distance from the accident site
to the electrical power customer is dispositive of the foreseeability question. Rather,
all who are directly connected to the supply of electrical power through a
utility pole constitute the broad type of plaintiff reasonably expected to be damaged
in such accidents. Similarly, the kind of damage allegedly sustained by Red
Gold amounted to the broad type of harm reasonably anticipated as a result
of this kind of an accident. The majority states that the absence
of reported cases involving similar damage indicates that the damage was not what
would normally be expected in such accidents. The majority recognizes, however, that
upon some level it is foreseeable that a business which received electric service
from a line which suffered damage after an electric utility pole was struck
would lose electric service and its processing operation would shut down. Slip
op. at 15. In light of Goldsberrys instruction to analyze foreseeability from
a more general level of abstraction and without regard to the facts
of the actual occurrence, 672 N.E.2d at 479, I think that the level
described by the majority is precisely that at which we must judge foreseeabilty
as part of the duty analysis in this case. Accordingly, under the
general and low-threshold foreseeability analysis applicable to the duty inquiry, Red Gold was
a reasonably foreseeable victim sustaining alleged damages that were to be reasonably anticipated
as a result of the kind of reasonably foreseeable accident involved here.
The foreseeability factor therefore supports the imposition of a duty in this case.
I also think that the relationship and public policy factors weigh more heavily
in favor of the existence of a legal duty than the majoritys analysis
suggests. The duties owed by operators of motor vehicles in this state
are well-established, and include the obligation to use due care to avoid collisions
and to maintain ones automobile under reasonable control. E.g., Cole v. Gohmann,
727 N.E.2d 1111, 1115 (Ind. Ct. App. 2000). This basic common-sense conception
reflects these Webb factors.
First, while persons injured as a result of motor vehicle accidents rarely have
a pre-existing relationship with the operator of the motor vehicle involved in an
accident, the general relationship between and among those driving motor vehicles on public
roads, as well as the relationship between motor vehicle operators and those who
might be injured by their negligent operation, is plainly sufficient to support the
existence of the duty on behalf of the operator to use due care
to avoid accidents that might injure such persons. As a business that
could be expected to sustain damage as a result of a reasonably foreseeable
accident caused by a negligent motorist, Red Gold had enough of a relationship
with a driver like Hammock to support the imposition of a duty.
Moreover, the imposition of such a duty is entirely consistent with the sound
policies of encouraging careful driving and compensating those injured by negligent motorists.
None of this is to say that Hammocks alleged negligence was the proximate
cause of Red Golds damages. As we noted in Goldsberry, [a] negligent
act or omission is the proximate cause of an injury if the injury
is a natural and probable consequence which, in light of the circumstances, should
reasonably have been foreseen or anticipated. 672 N.E.2d at 479 (quoting City
of Portage v. Lindbloom, 655 N.E.2d 84, 86 (Ind. Ct. App. 1995) (emphasis
supplied)). For the reasons discussed above, this foreseeability inquiry is necessarily more
stringent than that conducted for purposes of determining whether a duty exists, and
requires an after-the-fact analysis of the circumstances that actually occurred. See id.
at 479. While the question of proximate cause is often an issue
for the trier of fact, the determination may be made as a matter
of law where it is clear that the injury actually sustained was not
foreseeable under the circumstances and that the imposition of liability upon the original
negligent actor would not be justified. Arnold v. F.J. Hab, Inc., 745
N.E.2d 912, 917 (Ind. Ct. App. 2001). The majoritys foreseeability analysis here,
while addressed to the duty component, amounts to a persuasive case that Red
Golds damages were not the proximate result of Hammocks alleged negligence. Hammock
did not, however, seek summary judgment on this basis, and has not presented
this argument upon appeal. I therefore respectfully dissent from the majoritys conclusion
that Hammock was entitled to summary judgment on the ground that he owed
no duty to Red Gold.
Hammock asserts in his brief that the Plant is approximately 2½ miles
from the accident scene. An investigation report which was submitted by Hammock
to the court states that the Plant is two miles from the substation
and that the accident occurred at a location approximately ½ mile from the
Footnote: The power did not go out until approximately 2½ hours after the
pole was struck. An expert retained by Hammock requested comment from American
Electric Power as to why there was such a delay from the time
of the accident to the time of the power outage. We have
found no response from American Electric Power as to the cause of the
Footnote: Liberty is the subrogee of Red Gold, Inc., who is also involved
in this litigation. However, the summary judgment motion ruled upon by the trial
court only involved the financial claim for damages which Liberty was required to
reimburse Red Gold according to its insurance contract with Red Gold.
Footnote: Hammock did not assert the affirmative defense of non-party liability in the
answer to Libertys complaint. At oral argument, Hammocks counsel stated that the
non-party defense was not being pursued and that American Electric Power was not
involved in this litigation in any manner.
Footnote: Red Gold sought to strike the affirmative defenses of comparative fault and
incurred risk. No challenge was made to the non-party defense.
But see South Eastern Indiana Natural Gas Co., Inc. v. Ingram, supra,
decided two years after Webb v. Jarvis.
In stating that the duty to exercise reasonable care is that which
is owed under the circumstances, the
Webb decision tended to inject the matter
of foreseeability. But in so stating, the danger was to blur the
foreseeability component of duty with the foreseeability component of proximate cause. Goldsberry,
672 N.E.2d at 478-79.
This analysis is to be distinguished from the foreseeability analysis for the
purpose of establishing proximate cause. In the context of proximate cause, foreseeability
involves evaluating the particular circumstances after the incident occurs. Goldsberry, 672 N.E.2d
at 479. A negligent act or omission is the proximate cause of
an injury if the injury is a natural and probable consequence which, in
light of the circumstances, should reasonably have been foreseen or anticipated. Id.
Thus, when determining proximate cause, foreseeability is determined based on hindsight, and
accounts for the circumstances that actually occurred. Id. Foreseeability as a
component of duty requires a lesser inquiry. Id. See also Straley
v. Kimberly, 687 N.E.2d 360 (Ind. Ct. App. 1997), trans. denied.
Liberty asserts that Hammock did not designate to the trial court the
issue of foreseeability in his designated materials or a brief, and therefore, he
was foreclosed from arguing issues of law regarding foreseeability at the summary judgment
hearing. In its brief, Liberty cites to several cases which stand for
the proposition that an opposing party must designate to the court evidentiary materials
and material issues of fact within the thirty-day limit established by Indiana Trial
Rule 56, following service of the motion.
See Seufert v. RWB Medical
Income Properties I Ltd. Partnership, 649 N.E.2d 1070 (Ind. Ct. App. 1995); Cloverleaf
Apartments, Inc. v. Town of Eaton, 641 N.E.2d 665 (Ind. Ct. App. 1994);
Nelson v. Denkins, 598 N.E.2d 558 (Ind. Ct. App. 1992). But see Pierce
v. Bank One-Franklin, NA, 618 N.E.2d 16, 19 (Ind. Ct. App. 1993) (stating
that a brief or memorandum may be submitted in support of the summary
judgment motion and that a brief or memorandum would then be helpful to
further enlighten the court as to the law supporting their position), trans. denied.
Liberty has not provided any authority which states that a party must designate
its legal argument to the court when filing a response to a summary
judgment motion. In any event, summary judgment is only appropriate when there
are no genuine issues of material fact and the moving party is entitled
to judgment as a matter of law. We see no reason to
preclude an individual from arguing issues of law, which were not presented to
the trial court in a brief or memorandum before a summary judgment hearing
when such issues of law are relevant and will aid in the proper
ruling on a summary judgment motion.
We recognize that enumeration of such factors might well transgress
Goldsberry duty analysis without regard to the facts of the actual
occurrence. 672 N.E.2d at 479. Be that as it may, we
are not at liberty to rewrite the holding of Webb so as to
alter the duty-foreseeability portion thereof.
Our search for cases from other jurisdictions has revealed only a few
cases addressing the issue of whether a motorist is liable to a business
for damage resulting from a power failure following an accident in which an
electric utility pole was struck. In addition to the two cases relied
upon for support in this decision, we also direct attention to
& Rubber Corp. v. FMC Corp., 385 N.Y.S.2d 971 (N.Y. App. Div. 1976)
and Geo. D. Barnaro Co. v. Lane, 392 S.W.2d 769 (Tex. Civ. App.
The facts given by the District Court of Appeal do not reveal
how far from the scene of the accident the business which suffered the
injury was located.
Footnote: Once again, the facts of the case do not reveal how far
from the accident scene the business was located.
Footnote: It was also presented upon appeal that the trial court erred in
striking Hammocks affirmative defenses of comparative fault and incurred risk. Hammock asserts
that he should be allowed to argue that Red Golds failure to have
a second power source was Red Golds acceptance of the risk of power
failure. Liberty and Red Gold argued at the hearing on the motion
to strike that there was no duty for Red Gold to have a
second power source. The motion to strike was apparently granted upon that
ground. While we agree that no statutory duty existed, the plain language
of the Indiana Comparative Fault Act, Ind. Code § 34-51-2-5 (Burns Code Ed.
Repl. 1998), contemplates that Hammock would be allowed to present evidence of Red
Golds fault. Fault is defined to include the unreasonable assumption of risk
not constituting an enforceable express consent, incurred risk, and unreasonable failure to avoid
an injury or to mitigate damages. Ind. Code § 34-6-2-45(b) (Burns Code
Ed. Repl. 1998). For purposes of this appeal, we also must include
the failure of Red Gold to have a second source of power as
a consideration of public policy issues in that the ability of Red Gold
to prevent the harm weighs heavily upon whether society demands that Hammock bear
the financial burden of his actions.
Footnote: We have found ourselves unable to avoid walking a torturous
path in attempting to resolve the issues presented in this appeal. Very
possibly, we have not clarified the messages of
Webb and Goldsberry. To
the contrary, we may have merely muddied the waters further. Be that
as it may, perhaps our Supreme Court will find it appropriate to undertake
a re-evaluation of the existing law in such cases.