ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
PAUL A. RAKE DAVID W. HOLUB
MICHEL E. ONEILL DAVID M. HAMACHER
Eichhorn & Eichhorn Ruman, Clements, Tobin & Holub, P.C.
Hammond, Indiana Hammond, Indiana
SUPREME COURT OF INDIANA
NORTHERN INDIANA PUBLIC )
SERVICE COMPANY, )
) Supreme Court Cause Number
Appellant (Defendant), ) 64S03-0306-CV-284
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
An employee of a trucking company was electrocuted when the bed of his
dump truck contacted an electric power line. The employees 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 estates 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
The present appeal is the second arising from this case. In the
first, the Court of Appeals reviewed the trial courts 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,
See footnote Highland and NIPSCO were immune from
liability for ordinary negligence contributing to Sharps 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
estates 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 Sharps 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 Courts previous judgment;
and (2) whether the trial court erred in denying NIPSCOs 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 estates petition to transfer and affirm the
judgment of the trial court.
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. Dept 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
schools 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
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 Sharps claims against NIPSCO. Gross negligence is generally defined as
[a] conscious, voluntary act or omission in reckless disregard of . . .
the consequences to another party. Blacks 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 Blacks 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 NIPSCOs 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 NIPSCOs
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 Sharps death because it was
required to follow Piptas order. However the record shows that contrary to
NIPSCOs 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]lls [sic] I know is
he said they [NIPSCO] could isolate the station. What exactly that meant,
I didnt 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 Towns directive that it turn off the
power to the entire flood area in reckless disregard of the consequences to
Sharp. Appellees 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 courts 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 NIPSCOs conduct rose to the level of gross negligence, the trial court
properly denied NIPSCOs motion for judgment on the evidence.
We affirm the jury verdict and the trial courts 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 NIPSCOs 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.
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.