FOR PUBLICATION
ATTORNEY FOR APPELLANT: ATTORNEY FOR APPELLEE
LIBERTY MUTUAL GROUP:
DONALD K. McCLELLAN
McClellan, McClellan & Arnold CAROLYN SMALL GRANT
Muncie, Indiana Grant & Grant
Indianapolis, Indiana
ATTORNEYS FOR APPELLEE
RED GOLD, INC.:
CRAIG R. PATTERSON
MATTHEW J. ELLIOTT
Beckman Lawson, LLP
Fort Wayne, Indiana
IN THE
COURT OF APPEALS OF INDIANA
GERALD HAMMOCK, )
)
Appellant-Defendant, )
)
vs. ) No. 48A02-0201-CV-46
)
RED GOLD, INC. and )
LIBERTY MUTUAL GROUP, )
As Subrogee of Red Gold, Inc., )
)
Appellees-Plaintiffs. )
APPEAL FROM THE MADISON SUPERIOR COURT
DIVISION III
The Honorable Thomas Newman, Jr., Judge
George G. Pancol, Master Commissioner
Cause No. 48D03-9912-CT-1103
February 28, 2003
OPINION - FOR PUBLICATION
SULLIVAN, Judge
On August 31, 1998, Gerald Hammock was involved in an automobile
accident in Alexandria, Indiana. Hammock’s 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,[1] to go
out for nearly five hours.[2] As a result of the power outage, Red Gold’s
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”),
[3] 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 Hammock’s answer to Red Gold’s 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.[4]
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 Hammock’s affirmative defenses asserted as to Red Gold’s
complaint by stating that it had no duty to anticipate the negligent act of
Hammock.[5] 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 Gold’s motion
to strike Hammock’s 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 Liberty’s arguments and the trial
court’s granting Red Gold’s motion to strike Hammock’s 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 Liberty’s motion
for summary judgment.
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 court’s 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 Comm’rs 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.
Duty
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. Barnum’s 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. 2001).
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 the circumstances.[6] 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 immunity.” Id.
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 patient’s 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
defendant’s negligence be a proximate cause of plaintiff’s 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.[7] But see 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.[8]
As stated above, Hammock’s 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 of duty.
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.[9]
Although the principle focus of our analysis involves the
foreseeability aspect of the case, we are not at liberty to ignore our
Supreme Court’s holding in Webb. Accordingly, we will address, in some
degree, the relationship of the parties and matters of public policy.
1. Relationship
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 Gold’s 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 states:
“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 driver’s 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.[10]
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.[11] 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.”[12] 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.”[13] 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 defendant’s 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 actor’s 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 food item.
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 Hammock’s 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.[14] 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 driver’s 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 individual’s property. Also, it would
seem extremely unfair for a business to bear the costs of the damage caused
by a negligent driver’s 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. P.T. Barnum’s
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 business’s
products and equipment. Because public policy does not provide us with a
clear answer of who should bear the costs of a motorist’s actions, we do
not believe it proper to always preclude a business, upon public policy
considerations regarding a motorist’s duty, from recovering for harm it
suffers as a result of a motorist’s 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
Gold.
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.[15] 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 court’s 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 Gold’s 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.
IN THE
COURT OF APPEALS OF INDIANA
GERALD HAMMOCK, )
)
Appellant-Defendant, )
)
vs. ) No. 48A02-0201-CV-46
)
RED GOLD, INC. and )
LIBERTY MUTUAL GROUP, )
As Subrogee of Red Gold, Inc., )
)
Appellees-Plaintiffs. )
)
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 majority’s conclusion that summary judgment
was improperly denied.
As the majority notes, the main focus of the Court’s 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 plaintiff’s 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 Webb’s duty analysis with the common
law of negligence. While I fully agree with the majority’s understanding
of the distinction between the different foreseeability analyses for duty
and proximate cause, I disagree with the majority’s 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 Hammock’s 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 Goldsberry’s
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 majority’s
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 one’s 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 Hammock’s alleged negligence was the
proximate cause of Red Gold’s 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 majority’s foreseeability
analysis here, while addressed to the duty component, amounts to a
persuasive case that Red Gold’s damages were not the proximate result of
Hammock’s 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 majority’s conclusion that Hammock
was entitled to summary judgment on the ground that he owed no duty to Red
Gold.
-----------------------
[1] 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 substation.
[2] 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 delay.
[3] 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.
[4] Hammock did not assert the affirmative defense of non-party
liability in the answer to Liberty’s complaint. At oral argument,
Hammock’s 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.
[5] Red Gold sought to strike the affirmative defenses of comparative
fault and incurred risk. No challenge was made to the non-party defense.
[6] But see South Eastern Indiana Natural Gas Co., Inc. v. Ingram,
supra, decided two years after Webb v. Jarvis.
[7] 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.
[8] 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.
[9] 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.
[10] We recognize that enumeration of such factors might well
transgress upon the 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.
[11] 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
Dunlop Tire & 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.
1965).
[12] 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.
[13] Once again, the facts of the case do not reveal how far from the
accident scene the business was located.
[14] It was also presented upon appeal that the trial court erred in
striking Hammock’s affirmative defenses of comparative fault and incurred
risk. Hammock asserts that he should be allowed to argue that Red Gold’s
failure to have a second power source was Red Gold’s 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 Gold’s 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.
[15] 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.
