FOR PUBLICATION
ATTORNEYS FOR APPELLANT: ATTORNEYS FOR APPELLEE:
ROBERT J. LASALVIA CARMEN M. PIASECKI
Grainger, Indiana THOMAS H. SINGER
Nickle & Piasecki
STANLEY WHITE South Bend, Indiana
White & White
Indianapolis, Indiana
IN THE
COURT OF APPEALS OF INDIANA
ROBERT GOODRICH, )
)
Appellant-Plaintiff, )
)
vs. ) No. 71A03-0205-CV-167
)
INDIANA MICHIGAN POWER COMPANY )
dba AMERICAN ELECTRIC POWER, )
)
Appellee-Defendant. )
APPEAL FROM THE ST. JOSEPH CIRCUIT COURT
The Honorable Terry A. Crone, Judge
Cause No. 71C01-9711-CT-63
February 25, 2003
OPINION - FOR PUBLICATION
KIRSCH, Judge
Robert Goodrich appeals the trial court’s grant of partial summary
judgment on his negligence claim against American Electric Power (“AEP”)
and the jury’s verdict in favor of AEP, raising the following issues for
review:
I. Whether the trial court erred in ruling as a matter of law that
AEP did not owe a duty to the general public to insulate its
power lines that were twenty-three feet above the ground and ran
over an abandoned, grassy alleyway.
II. Whether the trial court committed reversible error when it
granted the jury’s request during its deliberations to view a
specific exhibit in the jury room.
We affirm.
FACTS AND PROCEDURAL HISTORY
On October 7, 1997, Goodrich was working for North Central Roofing as
a foreman of a roofing crew. He and a fellow worker were installing a drip
edge on a two-story home. Goodrich was standing on a platform several feet
above the ground. Goodrich’s fellow worker handed him a ten-foot section
of aluminum drip edge. While Goodrich was holding the drip edge, it came
into contact with a 7200 volt electric distribution line owned by AEP.
Goodrich fell from the platform, hitting a window air conditioner and then
the ground. From this fall, he suffered injuries that rendered him
paraplegic.
Goodrich brought suit against AEP for negligence, arguing that AEP
breached its duty of care in a number of ways. AEP moved for summary
judgment, and the trial court granted the motion with regard to the claims
that alleged that Goodrich was a member of the general public to whom a
duty is owed. The trial court denied summary judgment on Goodrich’s claims
to the extent that he alleged “that he is a member of a particular segment
of the population who Defendant knows or has reason to know will be
regularly exposed to the subject power line.” Appellant’s Appendix at 10.
The case was tried to a jury on the remaining theories. During
deliberations, the jury sent a note to the judge requesting to see Exhibit
7. Without informing the parties, the court complied and sent the exhibit
to the jury room. The jury continued deliberations, took a break for
lunch, and returned to its deliberations. It returned a verdict that
Goodrich was ten percent at fault, North Central Roofing was ninety percent
at fault, and AEP was not at fault.
Goodrich now appeals.
DISCUSSION AND DECISION
Goodrich contends that the trial court erred in ruling as a matter of
law that AEP did not owe a duty to the general public with regard to its
power lines that were twenty-three feet above the ground and ran over an
abandoned, grassy alleyway.
When reviewing the grant or denial of a summary judgment motion, this
court applies the same legal standard as the trial court, i.e., summary
judgment is appropriate when no designated genuine issues of material fact
exist and the moving party is entitled to judgment as a matter of law.
Indiana Ins. Co. v. Am. Cmty. Servs., Inc., 718 N.E.2d 1147, 1152 (Ind. Ct.
App. 1999); May v. Frauhiger, 716 N.E.2d 591, 594 (Ind. Ct. App. 1999)
(citing Ind. Trial Rule 56(C)); Birrell v. Indiana Auto Sales & Repair, 698
N.E.2d 6, 7 (Ind. Ct. App. 1998), trans. denied. This court may not search
the entire record but may only consider the evidence that has been
specifically designated. Indiana Ins. Co., 718 N.E.2d at 1152; Birrell,
698 N.E.2d at 7. All pleadings, affidavits, and testimony are construed
liberally and in the light most favorable to the nonmoving party. May, 716
N.E.2d at 594. We need not rely on the theory espoused by the trial court,
and we will affirm a grant of summary judgment if it is sustainable on any
basis found in the record. Brazauskas v. Fort Wayne-South Bend Diocese,
Inc., 714 N.E.2d 253, 259 (Ind. Ct. App. 1999), trans. denied.
Previous opinions of this court have explained that companies
engaging 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. Rogers v. Grunden, 589 N.E.2d 248, 256 (Ind. Ct. App. 1992), trans.
denied; Brown v. N. Indiana Pub. Serv. Co., 496 N.E.2d 794, 797 (Ind. Ct.
App. 1986), trans. denied (1987); Pilkington v. Hendricks County Rural
Elec. Membership Corp., 460 N.E.2d 1000, 1007 (Ind. Ct. App. 1984).
Conversely, insulation is not required when lines are sufficiently isolated
so that the general public could not reasonably be anticipated to be
dangerously close to the lines. Rogers, 589 N.E.2d at 256; Brown, 496
N.E.2d at 797; Jones v. City of Logansport, 436 N.E.2d 1138, 1150 (Ind. Ct.
App. 1982); S. Indiana Gas & Elec. Co. v. Steinmetz, 177 Ind. App. 96, 99-
100, 377 N.E.2d 1381, 1383 (1977). “General public” has been defined by
this court as a person of that “‘great multitude of persons’ who would, in
the course of daily events, be exposed to danger by the presence of an
uninsulated wire carrying a dangerous voltage of electricity.” Rogers, 589
N.E.2d at 256 (quoting Brown, 496 N.E.2d at 797). Moreover, an electric
utility will not generally be required to insulate its wires with a
covering or coating to protect only those persons who might come into
contact with power lines in the course of their employment. Spudich v. N.
Indiana Pub. Serv. Co., 745 N.E.2d 281, 291 (Ind. Ct. App. 2001), trans.
denied; Brown, 496 N.E.2d at 797-98; Jones, 436 N.E.2d at 1150. An
exception is made to this rule, however, when the utility knows or has
knowledge of such facts from which it should know that a particular segment
of the population will be regularly exposed to uninsulated wires for one
reason or another, particularly when children are involved. Brown, 496
N.E.2d at 797-98; Jones, 436 N.E.2d at 1150; Steinmetz, 177 Ind. App. at
100, 377 N.E.2d at 1383. As our supreme court summarized:
“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. 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.”
Butler v. City of Peru, 733 N.E.2d 912, 916-17 (Ind. 2000) (citations
omitted).
However, a duty, when found to exist, is the duty to exercise
reasonable care under the circumstances. Correll v. Indiana Dept. of
Transp., No. 84A04-0112-CV-549, 2002 WL 31104898, *5 (Ind. Ct. App. Sept.
23, 2002), trans. pending. The duty never changes, although the standard
of conduct required to measure up to that duty varies depending upon the
particular circumstances. Id.
Accordingly, although the cases discussing liability for injuries
from electric lines refer to a duty to insulate the lines, our review of
the opinions leads us to conclude that what these courts have intended by
such language is that an electric company does not breach its duty to
exercise reasonable care by failing to take protective measures with regard
to power electric transmission lines with which the general public is
unlikely to come into contact.
In Steinmetz, 177 Ind. App. at 100, 377 N.E.2d at 1383-84, the
plaintiff was injured by the defendant’s electric lines. The defendant
argued that it could not be liable for the injury even though it failed to
insulate its lines. In holding in favor of the defendant, we noted that
the lines were elevated to a height of over thirty feet, and there was
little evidence of any facts which reasonably should have put the defendant
on notice that the general public might come into contact with the lines at
the place of the accident with any regularity.
In this case, the power lines were located twenty-three feet above
the ground between two residences and over an abandoned, grassy alleyway
that the two property owners mowed. Goodrich’s contact with the lines
resulted from his standing on an elevated platform and extending a long,
conductive object over his shoulder. Under these circumstances, the
general public is not likely to come into contact with the lines in
question. Thus, AEP did not breach its duty to exercise reasonable care,
and the trial court did not err in granting partial summary judgment on
Goodrich’s claims that relied on AEP’s duty to the general public. See
also Spudich, 745 N.E.2d at 291-92 (electric utility owed no duty to
plaintiff, not a member of general public, who contacted lines forty feet
above the ground while elevated to place Christmas decorations on trees);
Rogers, 589 N.E.2d at 256 (no duty to insulate lines on private property
leased by plaintiff’s employer, an area to which the general public had no
access, where plaintiff’s exposure to power lines occurred as a result of
his use of sixty foot auger in proximity to lines); Brown, 496 N.E.2d at
797-98 (plaintiff was not member of general public where he was on totally
fenced, private property of employer, to which general public had no
access, and exposure to electric lines occurred as a result of his working
with crane in proximity to lines).[1]
Goodrich next argues that the trial court committed reversible error
when it granted the jury’s request during its deliberations to have Exhibit
7 sent to the jury room. IC 34-36-1-6 states:
“If, after the jury retires for deliberation:
(1) there is a disagreement among the jurors as to any part of
the testimony; or
(2) the jury desires to be informed as to any point of law
arising in the case;
the jury may request the officer to conduct them into court, where the
information required shall be given in the presence of, or after
notice to, the parties or the attorneys representing the parties.”
However, our supreme court has held that a jury’s mere request to review
evidence, without more, does not implicitly show disagreement. Thacker v.
State, 709 N.E.2d 3, 6 (Ind. 1999); Gibson v. State, 702 N.E.2d 707, 709
(Ind. 1998); Robinson v. State, 699 N.E.2d 1146, 1149 (Ind. 1998). Thus,
in such cases, the statute is not implicated.
Here, the jury’s note merely stated that the jurors wished to view an
exhibit. Accordingly, it expressed no disagreement, and the statute does
not govern the trial court’s response.
When, as here, the statute is inapplicable, the trial court should
consider three factors in deciding whether to permit the jury to take a
copy of the exhibits into the jury room. Thacker, 709 N.E.2d at 6. Those
factors are: (1) whether the material will aid the jury in a proper
consideration of the case; (2) whether any party will be unduly prejudiced
by submission of the material; and (3) whether the material may be
subjected to improper use by the jury. Id.; Robinson, 699 N.E.2d at 1149.
The same standard applies regardless of whether the exhibits are sent
before or during deliberations. Thacker, 709 N.E.2d at 6; Robinson, 699
N.E.2d at 1149. But see Powell v. State, 644 N.E.2d 855, 857-58 (Ind.
1994) (reversing criminal conviction because trial court permitted jury to
review testimony or specific pieces of evidence alone and unguided by
court).
In Thacker, 709 N.E.2d at 6, the trial court allowed the jury to
review tapes of the defendant’s statements to police alone after
deliberations had begun and after it specifically requested to see them.
The supreme court employed the three factor test and concluded that all
three factors supported the trial court’s decision. It explained, “If the
jury requests particular pieces of information, presumptively that
information will aid the jury in proper consideration of the case. In the
absence of any showing as to why that is not the case, the first factor is
satisfied.” Id. Next, the court found no evidence of prejudice because
the trial court gave the jury all of the admitted exhibits, not only those
it requested, in order to avoid any emphasis, real or perceived, on a
particular exhibit. Finally, the court observed that the trial court did
not give the unadmitted transcripts of the tapes to the jury, but sent only
admitted exhibits. Accordingly, the court concluded that the trial court
did not abuse its discretion in sending all of the admitted exhibits to the
jury. Id.
Here, as in Thacker, we presume that the first factor, that Exhibit 7
aided the jury in its proper consideration of the case, is satisfied
because there is no evidence to the contrary. However, the trial court
sent only the requested exhibit to the jury room, rather than all of the
exhibits. This may have allowed the jury to place emphasis on this exhibit
and thereby unduly prejudiced Goodrich. Thus, the second factor weighs in
favor of finding an abuse of discretion. Finally, we conclude that the
exhibit in question was not subject to improper use and note that Goodrich
offers no argument to the contrary.
Even if we were to find that the trial court abused its discretion,
any error would be harmless. Ind. Trial Rule 61 states that: “No error . .
. in any ruling or order in anything done or omitted by the court or by any
of the parties is ground for . . . reversal on appeal, unless refusal to
take such action appears to the court inconsistent with substantial
justice. The court at every stage of the proceeding must disregard any
error or defect in the proceeding which does not affect the substantial
rights of the parties.”
We have reviewed the exhibit at issue, a sketch of the accident site
containing various measurements, including a measurement of the distance
between the electric line and the closest point on the home Goodrich was
roofing at the time of his accident. In the absence of any demonstration
to the contrary, we find that the jury’s review of this exhibit did not
affect Goodrich’s substantial rights and constitutes, at most, harmless
error.
Affirmed.
SHARPNACK, J., concurs.
SULLIVAN, J., concurs with separate opinion.
IN THE
COURT OF APPEALS OF INDIANA
ROBERT GOODRICH, )
)
Appellant-Plaintiff, )
)
vs. ) No. 71A03-0205-CV-167
)
INDIANA MICHIGAN POWER COMPANY )
d/b/a AMERICAN ELECTRIC POWER, )
)
Appellee-Defendant. )
SULLIVAN, Judge, concurring.
Here, I believe AEC owed a duty of reasonable care to Goodrich
because of the relationship between the two. AEC was well aware of the
necessity of making maintenance repairs and replacements to residential
roofs in the area and that roofing contractors and their employees would be
in proximity to power lines. Certainly, foreseeability of injury to such
workmen existed here. Therefore, although members of the general public,
i.e., those traveling upon the land, were not at risk because the lines
were located twenty-three feet above the ground, persons such as Goodrich,
by reason of his employment, could be expected to be at risk by uninsulated
lines located less than eight feet from where Goodrich, or others like him,
would be expected to be working.
Be that as it may, this issue was not decided as a matter of law by
the partial summary judgment. Rather this very issue was submitted to the
jury. See Brown v. N. Indiana Pub. Serv. Co., 496 N.E.2d 794 (Ind. Ct.
App. 1986) (summary judgment reversed), trans. denied.
Presumably, the jury had in mind a duty on the part of AEP to
exercise reasonable care as to the workmen like Goodrich. The fact remains
that the jury found no fault on the part of AEP.
It is difficult to conceive that under the circumstances here present
any reasonable jury would fail to find that there was a breach of the duty
of reasonable care. Placing uninsulated power lines within eight feet of a
roof upon which the residence owner or workmen would foreseeably and not
rarely engage in such activities as gutter cleaning and maintenance, window
washing, chimney cleaning, and, as here, roof drip-edge replacement or
repair would clearly seem to breach the duty. This is particularly so in
light of the acknowledged fact that the lines were located closer to the
house than the ten-foot distance within which such workmen were, by OSHA
regulation, precluded from operating. To the extent that Spudich v. N.
Indiana Pub. Serv. Co., 745 N.E.2d 281 (Ind. Ct. App. 2001), trans. denied,
may be read as contrary to my position, I would decline to follow it.
It is perhaps this very fact, i.e. violation by North Central Roofing
of the ten-foot regulation, which led the jury to conclude that North
Central was ninety percent at fault, Goodrich himself as an employee of
North Central was ten percent at fault, and that AEP was not at fault – at
least to the extent that any such fault was a proximate cause of Goodrich’s
injury.
Accordingly, although I cannot help but conclude that AEP owed a duty
of reasonable care to Goodrich and that AEP breached that duty by the
manner and location of its uninsulated power lines, I nevertheless also
conclude that the jury was within its discretion in concluding that AEP was
not liable for Goodrich’s injuries. For this reason I concur in affirmance
of the grant of partial summary judgment and in the judgment entered upon
the jury verdict.
-----------------------
[1] Although the trial court granted AEP’s motion for summary
judgment on Goodrich’s claims based on AEP’s alleged duty to the general
public, it denied the motion with regard to whether AEP owed a duty to
Goodrich as a member of a particular class to whom a duty extends under the
circumstances. On this basis, Goodrich was permitted to present to the
jury several ways in which AEP breached that duty.
