Bailey v. Spain

759 N.E.2d 1157, 2001 Ind. App. LEXIS 2187, 2001 WL 1653366
CourtIndiana Court of Appeals
DecidedDecember 26, 2001
DocketNo. 46A03-0102-CV-40
StatusPublished

This text of 759 N.E.2d 1157 (Bailey v. Spain) is published on Counsel Stack Legal Research, covering Indiana Court of Appeals primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Bailey v. Spain, 759 N.E.2d 1157, 2001 Ind. App. LEXIS 2187, 2001 WL 1653366 (Ind. Ct. App. 2001).

Opinion

OPINION

BAKER, Judge.

Appellant-plaintiff Brenda S. Bailey (Brenda) appeals the jury's verdict in favor of appellees-defendants Gary A. Spain, the Northern Indiana Public Service Company (NIPSCO), and Patricia Smolen. The verdict was entered on her claim for the wrongful death of her husband Billy Ray Bailey (Billy Ray). Specifically, Brenda contends that the jury's verdict in favor of the defendants was contrary to law. Brenda further argues that the trial court erred in instructing the jury on comparative fault and provided inappropriate verdict forms.

FACTS

The facts most favorable to the verdict are that on November 8, 1994, Smolen was driving south on U.S. 421. As she approached the intersection of U.S. 421 and County Road 2100 South, she suddenly lost control of her car. Smolen's car crossed the center lane of U.S. 421, hit a NIPSCO utility pole, flew in the air, flipped over, and landed in a watery ditch. The car landed on the driver's side in the ditch. Smolen does not know why her vehicle left the road, and she has no memory of the event.

The impact of Smolen's car broke the utility pole, moving the pole five or six feet [1159]*1159off its base. Two live wires, each carrying 7200 volts of electricity, hung down to the ground from the broken pole. The broken pole itself remained upright, suspended only by the tension of the remaining wires. Thomas Brindley, who saw the accident as he approached from the north bound lane of U.S. 421, pulled his semi-tractor to the side of the road. Brindley saw gas leaking from the car's gas tank into the ditch, and he witnessed sparks from the live wires igniting grass near the utility pole.

At approximately the same time, Terri Lukae, driving south on U.S. 421, arrived at the accident scene. She also noticed sparks from the wires and the grass nearby the wires burning. Shortly thereafter, John Sheely happened on the accident seene. Sheely got out of his vehicle and told Lukae to stand back from the intersection. He then pulled some gloves from the back of his truck, put them on, and grabbed the live wires. He was immediately electrocuted and collapsed to the ground where the live wires fell atop him. Sheely ultimately died as a result of the electrocution.

Within a few moments of Sheely's electrocution, Billy Ray and his brother arrived at the scene. The two had just ended their shifts at Ford Motor Company and were traveling to their homes in Billy Ray's truck. Billy Ray and his brother began directing traffic on U.S. 421. Billy Ray had experience directing traffic as a former member of the Starke County Sheriff's Posse.

By happenstance, two NIPSCO linemen, Gary Spain and Donald Gibson, approached the intersection from the south in two separate vehicles. Spain was driving a "bucket truck," while Gibson was driving a "digger truck."1 The two bad been replacing a broken utility pole in North Judson approximately seven miles south of the accident and were on their way to a NIPSCO garage. Two of their co-workers, Robert Homey and Steve Collins, had remained at the original North Judson site to finish other repairs.

Spain immediately notified NIPSCO's dispatcher over his truck radio that another pole was down and that someone was under the downed wires. Gibson, meanwhile, grabbed his hardhat and gloves and retrieved an insulated fiberglass "switch stick" from Spain's truck A "switch stick" is normally used to open and close electrical switches. Tr. at 386. Gibson used the switch stick, with the help of one other bystander, to pull Sheely out from beneath the live wires. After pulling out Sheely, Gibson warned other bystanders to keep clear of the wires and also checked on Smolen's condition. After ascertaining that Smolen was conscious, Gibson used the Switch stick to control the live wires. While Gibson was extricating Sheely and controlling the live wires, Spain began trying to de-energize the live wires. He used a long stick to open a fuse to the west to stop the electrical feed of current from that direction.

However, there was still electricity flowing along U.S. 421. Spain radioed NIP-SCO's dispatch to determine the location of the switch to the north. Spain's supervisor told him by radio that there was a feed just to the north of the intersection. After driving to that switch, Spain confirmed that both switches on the cireuit were open. This meant that, although the wires Gibson was controlling at the accident scene were still live, no power was [1160]*1160originating from north of the intersection of U.S. 421 and County Road 2100. Spain then returned to the seene and parked his truck in a nearby vacant lot on County Road 2100 to await further instructions from dispatch. Spain's co-workers-who were still at the North Judson site-overheard the radio communication between Spain and Spain's supervisor. Spain's supervisor instructed these co-workers to open a circuit on U.S. 421 south of the accident scene. Before proceeding, the coworkers had to leave their current job site in a safe condition.

By this time, paramedics and Officer Wilhelm of the Laporte County Sheriffs Department had arrived. Officer Wilhelm noted that all traffic through the intersection had stopped and Billy Ray was no longer directing traffic. 'I'r. at 155. Instead, Billy Ray had walked over to comfort Lukac, who had witnessed Sheely's electrocution. Tr. at 1185.

Meanwhile, watching the seene from his truck, Spain became increasingly anxious. He knew that gas was leaking, that Gibson was still trying to control the wires, and that people were near the downed wires. Tr. at 901-02. Hearing nothing from his co-workers, who were leaving the North Judson job site, Spain decided to de-ener-gize the wires at the scene. Though it would have been safer for the co-workers to de-energize the wires from a switch south of the scene, Spain concluded that physically cutting the "jumper"2 at the scene would prevent potential injury to Smolen and others near the downed wires.

Spain drove out of the lot where he had been parked, intending to position the "bucket truck" near the jumper, hoist himself to the jumper by means of the bucket, and then finally cut the jumper with bolt cutters. He looked south and north and saw no moving traffic in either direction. However, Spain did see Billy Ray, who was about fifteen feet away from Spain at the time, in the middle of the intersection. Spain pointed to the damaged utility pole and motioned to Billy Ray that he was going to back down U.S. 421 so that he could position his truck under the jumper. Billy Ray nodded his head, turned, and ran about thirty or forty yards south on U.S. 421.

Spain began backing his vehicle slowly down U.S. 421. At this time, Lukae noticed that Billy Ray was speaking with two or three men on the west side of the road. She then saw Billy Ray begin to cross the road, walking in a southeasterly direction. However, as Billy Ray began to cross the road, he briefly looked back and waved at the men with whom he had been speaking. When he turned back east, he noticed Spain's truck continuing to back down the road. Billy Ray then turned toward the truck and tried to walk backwards. Then, for some reason, Billy Ray tried to climb onto the back of the bucket truck. His foot slipped, he fell to the ground, and then Spain's truck ran over him, crushing his chest.

Spain, not seeing Billy Ray in either of his mirrors, felt the back end of the truck rise up and then down.

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Cite This Page — Counsel Stack

Bluebook (online)
759 N.E.2d 1157, 2001 Ind. App. LEXIS 2187, 2001 WL 1653366, Counsel Stack Legal Research, https://law.counselstack.com/opinion/bailey-v-spain-indctapp-2001.