Coffman v. PSI Energy, Inc.

815 N.E.2d 522, 2004 Ind. App. LEXIS 1904, 2004 WL 2189042

• Court: Indiana Court of Appeals
• Decided: September 30, 2004
• Docket: 67A01-0401-CV-35
• Status: Published

Opinions

OPINION

BAKER, Judge.

Appellants-plaintiffs Carl Coffman (Carl) and Deborah Coffman (Deborah), {collectively, the Coffmans) appeal the trial court's grant of summary judgment in favor of appellees-defendants PSI Energy, Inc. (PSI), Rumpke of Indiana, LLC (Rumpke), Refuse Handling Services, Inc. (Refuse Handling), and Mountain Tarp, Inc. (Mountain Tarp), with regard to the Coffmans' negligence and products liability claims. In this instance, Carl was injured when the tarp system he was using to cover a Rumpke trailer at Refuse Handling came into contact with a 69,000 volt power line that was owned by PSI.

In particular, the Coffmans contend that summary judgment was erroneously granted in favor of the four appellees because there were genuine issues of material fact regarding: (1) PSI's duty and breach of care with respect to their power lines; (2) Rumpke's failure to warn Carl of the characteristics of a dangerous chattel-the trailer-that it had provided for Carl's use, along the company's alleged failure to train Carl about the proper use of its equipment; (8) Refuse Handling's alleged breach of duty of care to Carl as a business invitee; and (4) the alleged defective design of Mountain Tarp's system, and whether that company's warnings to Carl were inadequate. The Coffmans further maintain that the trial court erroneously determined as a matter of law that their recovery is barred under Indiana's comparative fault scheme as to PSI, Rumpke ¹ and Refuse Handling. Concluding that summary judgment was properly entered for all of the appellees, we affirm the judgment of the trial court.

FACTS

The Coffmans reside in Dugger and, since 1988, Carl had been employed by Buchta Trucking (Buchta) as one of its drivers. Prior to working for Buchta, Carl had driven various types of trucks since 1981. In particular, Carl had experience driving thirty-nine and thirty-two foot dump haulers that involved tarps that rolled over the top of the dump trailer.

During the summer of 1999, Rumpke began subleasing Buchta trucks and drivers to do some hauling for them. At some point, Buchta leased Carl's services and truck cab to Ruimpke. On November 16, 1999, Carl was dispatched to Mountain Tarp in Cineinnati, Ohio to pick up a forty-eight-foot trailer purchased by Rumpke, with a tarp that had been designed, manufactured, and installed by Mountain Tarp. The designated evidence shows that when Mountain Tarp installed its tarpaulin system to the Rumpke trailer that Carl was using, it applied a label warning of dangers posed by overhead power lines. The label, which had been applied near the crank mechanism and adjacent to the tarp brake handle that was used to operate the tarpaulin, stated in large red letters on a white background as follows:

DANGER Watch For Electrical Lines Overhead

Appellants' App. p. 136. This label had been affixed to the trailer before Carl obtained the trailer from the Mountain Tarp facility in Cincinnati. The trailer that Carl used on November 16 was at least three feet longer than the trailers Carl had previously pulled, and the tarp was designed to lift overhead, unlike the side-to-side rolling tarp, which Carl had predominantly used in the past. However, a representative from Mountain Tarp taught Carl how to operate the mechanical tarp device, and Carl indicated that he understood the instructions.

After picking up the trailer, Carl received a call on his cellular telephone, directing him to pick up a load of trash at a Refuse Handling distribution facility near Greencastle for transport to a landfill. The designated evidence demonstrated that Carl was aware of PSI's electrical power lines that were located at Refuse Handling because of his prior experience driving to and from that company at least twenty-five times before November 16, 1999.

Carl's trailer was filled at a trash-loading chute located near one of PSI's power lines that carried 69,000 volts of electricity. PSI records indicated that its power line was inspected on October 27, 1999 and, previously, on June 22, 1999.² When Carl raised the tarp over the trash-filled trailer, the metal tarp frame made contact with PSI's power lines, and electricity passed through the frame into the tractor-trailer. Carl saw a flash of fire, heard an explosion, and was thrown approximately ten feet from his truck. As a result of the incident, Carl sustained serious injuries, including burning of his spinal cord and nerves in his legs. After the accident, Carl was confined to a wheelchair and suffered from a persistent burning sensation, which he described as being similar to "sitting in scalding water." Appellants' App. p. 458.

On October 11, 2001, the Coffmans filed their complaint for damages for Carl's personal injuries and Deborah's loss of consortium against PSI, Rumpke, Refuse Handling, Mountain Tarp, and Vecetren Corp.³ The complaint alleged that Carl was a business invitee of Refuse Handling when he received a severe electrical shock. The Coffmans also alleged that PSI negligently suspended the Power Line parallel to the graveled driving area of Refuse Handling, that Mountain Tarp failed to properly install the tarp system, and that Mountain Tarp and Rumpke failed to adequately warn Carl of the danger of operating the tarp in proximity to power lines.

By December 2, 2002, all of the appel-lees had filed motions for summary judgment. Following a hearing on those motions, the trial court granted the appellees' motion to strike the Coffmans' supplemental designation of evidence, granted each of the appellees' motions for summary judgment, and directed the entry of final judgment as to each of them on December 31, 2003. The Coffmans now appeal.

DISCUSSION AND DECISION

I. Summary Judgment Standard of Review

Pursuant to Rule 56(C) of the Indiana Rules of Trial Procedure, summary judgment is appropriate when there are no genuine issues of material fact and when the moving party is entitled to judgment as a matter of law. On review of a trial court's decision to grant or deny summary judgment, this Court applies the same standard as the trial court. Best Homes, Inc. v. Rainwater, 714 N.E.2d 702, 705 (Ind.Ct.App.1999). We must determine whether there is a genuine issue of material fact requiring trial, and whether the moving party is entitled to judgment as a matter of law. Id. Neither the trial court nor the reviewing court may look beyond the evidence specifically designated to the trial court. Id.; see also Ind. Trial Rules 56(C), (H).

A party seeking summary judgment bears the burden to make a prima facie showing that there are no genuine issues of material fact and that the party is entitled to judgment as a matter of law. Am. Mgmt., Inc. v. MIF Realty, L.P., 666 N.E.2d 424, 428 (Ind.Ct.App.1996). Once the moving party satisfies this burden through evidence designated to the trial court pursuant to Trial Rule 56, the non-moving party may not rest on its pleadings, but must designate specific facts demonstrating the existence of a genuine issue for trial. Id. The court must accept as true those facts alleged by the nonmov-ing party, construe the evidence in favor of the nonmovant, and resolve all doubts against the moving party. Shambaugh & Son, Inc. v. Carlisle, 768 N.E.2d 459, 461 (Ind.2002). For a defendant in a negli-genee action to prevail on a motion for summary judgment, the defendant must show that the undisputed material facts negate at least one of the elements essential to the negligence claim, or that the claim is barred by an affirmative defense. McClyde v. Archdiocese of Indianapolis, 752 N.E.2d 229, 232 (Ind.Ct.App.2001). On appeal, we will assess the trial court's decision to ensure that the parties were not improperly denied their day in court. Id. A genuine issue of material fact exists where facts concerning an issue that would dispose of the litigation are in dispute or where the undisputed material facts are capable of supporting conflicting inferences on such an issue. Cansler v. Mills, 765 N.E.2d 698, 701 (Ind.Ct.App.2002), trams. denied.

IL The Coffmans' Claims

The Coffmans contend that the trial court erroneously granted summary judgment as to all of the appellees. In essence, Coffmans' claims sound in products liability and the failure to warn. Appellants' App. p. 21-23. In particular, the Coffmans maintain that PSI owed a duty- and subsequently breached that duty-to Carl to insulate, mark, or otherwise warn of the uninsulated power line, that Rump-ke should have warned Carl of the potential dangers of the new trailer and tarp and provided training relative to its use, that Refuse Handling breached a duty to Carl as a business invitee, and that Mountain Tarp's warnings were inadequate and that the company had negligently designed its system. Hence, the Coffmans assert that the negligence of the appellees was the proximate cause of Carl's injuries.

We note that summary judgment is generally inappropriate in negligence cases because issues of contributory negli-genee, causation, and reasonable care are more appropriately left for the trier of fact. See Kennedy v. (Guess, 806 N.E.2d 776, 783 (Ind.2004). Ousley v. Bd. of Comm'rs of Fulton County, 734 N.E.2d 290, 293 (Ind.Ct.App.2000), trans. denied. By the same token, whether the evidence produced by a plaintiff is sufficient to establish a cause of action for negligence is a question of law to be decided by the court. Miller v. Griesel, 261 Ind. 604, 308 N.E.2d 701, 707 (1974).

It is well established that in order to recover under a theory of negligence, a plaintiff must establish: (1) a duty on the part of the defendant owed to the plaintiff; (2) a breach of that duty; and (8) 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. This court has held that the proximate cause of an injury is not merely the direct or close cause; rather, it is the negligent act that resulted in an injury that was the act's natural and probable consequence in light of the circumstances. City of Indianapolis Hous. Auth. v. Pippin, 726 N.E.2d 341, 346 (Ind.Ct.App.2000).

In a similar vein, with respect to strict liability actions, the plaintiff must prove that: (1) the product was defective and unreasonably dangerous; (2) the defective condition existed at the time the product left the defendant's control; and (3) the defective condition was the proximate cause of the plaintiff's injuries. Natural Gas Odorizing, Inc. v. Downs, 685 N.E.2d 155, 160 (Ind.Ct.App.1997), trams. denied. A product may be defective because of a failure to warn of the dangers inherent in the product's use, id. at 161, and a duty to warn consists of two duties: (1) to provide adequate instructions for safe use; and (2) to provide a warning as to dangers inherent in improper use. McClain v. Chem-Lube Corp., 759 N.E.2d 1096, 1103 (Ind.Ct.App.2001), trans. denied (citing Natural Gas, 685 N.E.2d at 161). However, as our supreme court observed in Burrell v. Meads, 569 N.E.2d 637, 639 (Ind.1991), a premises owner only has a duty to warn if it knows of the risk and realizes that it involves an unreasonable risk of harm to invitees. Eiven more to the point, this court has acknowledged that an individual is required to make reasonable use of his faculties and senses to discover dangers and conditions to which he is or might be exposed. Gwaltney Drilling, Inc. v. McKee, 148 Ind.App. 1, 259 N.E.2d 710, 717 (1970). If a danger is so great and so near that a prudent man knowing of its existence would not have encountered it, then it constitutes contributory negligence such as will defeat a recovery. Howard v. H.J. Ricks Const. Co., 509 N.E.2d 201, 206 (Ind.Ct.App.1987), trams. denied. Put another way, contributory negligence will result when the plaintiff fails to recognize an obvious risk or danger. Bridgewater v. Economy Eng'g Co., 486 N.E.2d 484, 489 (Ind.1985).

So, too, the doctrine of incurred risk will preclude recovery "if the evidence is without conflict and the sole inference to be drawn is that the plaintiff (a) had actual knowledge of the specific risk, and (b) understood and appreciated the risk." Schooley v. Ingersoll Rand, Inc., 631 N.E.2d 932, 939-40 (Ind.Ct.App.1994). Incurred risk bars a product strict liability claim when the evidence is undisputed and reasonable minds could draw only one inference. See Smock Materials Handling Co. v. Kerr, (19 N.E.2d 396, 402 (Ind.Ct.App.1999). While the allocation of each party's proportionate fault is generally a question for the trier of fact, such is not the case when there is no dispute in the evidence and the fact finder could reach only one conclusion. See Walters v. Dean, 497 N.E.2d 247, 254 (Ind.Ct.App.1986).

Turning to the cireumstances before us, the designated evidence before the trial court established that Carl had driven to the Refuse Handling facility approximately twenty-five times in the four or five months that preceded the November 16, 1999 accident. Appellants' App. p. 448. The following deposition testimony from Carl illustrates his knowledge of the risk of injury in these circumstances:

Q: You knew there was a risk if you were doing this tarping process under overhead power lines. There was a risk the tarp might go up and touch the power lines?

A: Yeah, it's possible, yes.

Q: You knew that was a risk?

A: Yes....

Q: You knew it was something you wanted to avoid whether it was you would be injured or property damage or whatever; you knew it was something you wanted to avoid happening?

A: Yes.

Appellants' App. p. 180. In his deposition, Carl described an earlier incident-where no injury resulted-that had occurred when he backed into and tore down a power line while working for a previous employer:

The trailer rose up and actually hit the power lines. The trailer was in the air. I was dumping my load off, and a lot of times, not every time, but a lot of time, when you're in a trailer like that, you go ahead, start moving while you're letting the trailer down. In other words, you're driving as the trailing [sic] is coming down, and that's what happened. I drove off, except I forgot about the line. I drove off, and my trailer caught the line and tore it down.

Appellee Refuse Handling's App. p. 13 (emphasis added). Carl was further questioned as follows:

Q: Did you start doing that, start being a little more careful after that?

A: Yes.

Q: And paying more attention for power lines and other overhead objects?

A: For a while. I eventually just took it for granted that I was doing okay. I guess I forgot about it. I think I did okay from there on.

Appellee Refuse Handling's App. p. 14.

Carl acknowledged that, although he was not injured in the accident described above, his superiors warned him to be more careful. Appellants' App. p. 484. This testimony certainly establishes that Carl knew he should not hit the power lines with the tarp or he might be injured. Carl also admitted that on November 16, 1999, while at Refuse Handling's facility, he "was aware they [the power lines] were there, but I didn't think about them." Appellants' App. p. 253, 254, 257. He also stated "they [the power lines] probably were [visible]. I just didn't pay any attention to them." Appellants' App. p. 253-54, 257. Carl went on to acknowledge that if he had simply looked up after parking the trailer, in all likelihood he would have noticed that he was directly beneath the power lines that were overhead. Appellants' App. p. 447. Nonetheless, because Carl "thought the area was clear," he "really wasn't paying attention to what was above." Appellants' App. p. 449.

In addition to the above discussion, the designated evidence also established that when Mountain Tarp installed its tarpaulin system to the Rumpke trailer, it had applied a label warning of the dangers posed by overhead power lines. There was no dispute that Carl could not have avoided seeing the warning label every time he looked at the handle that operated the tarp system. Carl acknowledged that the label must have been on his truck the day of the accident, because photographs taken immediately after the accident showed the label in its usual place.

It is apparent to us that Carl, while performing the job on November 16, 1999, was simply not paying attention, not looking and not thinking, despite his own knowledge concerning the overhead power lines. To be sure, the evidence established that Carl understood the risk and had actual knowledge of the presence and location of the power lines. As discussed above, he even had a prior experience with a mishap similar to what occurred on November 16, 1999. Simply put, Coffman was aware of the possibility of hitting electrical lines and the dangers associated therewith.

That said, the undisputed facts presented in this case are such that there was no unreasonable risk of harm that PSI, Refuse Handling and Mountain Tarp and Rumpke should have expected would not be discovered or realized by Carl in these cireumstances. Although Carl had actual knowledge of the presence and location of the power lines on the day that the injury occurred, he unfortunately ignored the lines. The end result was that Coffman parked under the power lines, raised the tarp arm and sustained the shock.

While we are certainly sympathetic to the Coffmans' plight, it is apparent that the injuries Carl sustained were brought about by his own negligence. In short, Carl's own testimony-in and of itself-negates the question of proximate cause that is indispensable to his negligence claim. Therefore, as a matter of law, the alleged inadequacy of the warnings provided to Carl could not have been a proximate cause of his injuries. Carl's testimony shows that he was fully aware of the risks of injury associated with his conduct, and he disregarded all warnings that were provided. Simply put, no warning could have prevented this accident because Carl essentially paid no attention to what he was doing or where he was doing it. Hence, Carl's negligence in proceeding to encounter and assume these known risks predominated any alleged negligence on the part of all of the defendants combined.

In our view, the evidence overwhelming ly demonstrates that Carl incurred the risk of his injuries, such that his contributory negligence was more than the total of any alleged negligence on the part of the appellees. As a result, no genuine issue of material fact existed in this case, and we can only conclude that summary judgment was properly entered for the appellees.

The judgment of the trial court is affirmed.

FRIEDLANDER, J., concurs. BAILEY, J., concurs in result in part and dissents in part.

1 . In its Appellee's Brief, Rumpke has addressed the Coffmans' allegation in their Complaint concerning Rumpke's "failure to warn" as if it were intended to state a claim against Rumpke under the Indiana Products Liability Act, Indiana Code Section 34-20-2-1, et seq. ("'the Act"). However, the Coffmans seek relief from Rumpke only under common law negligence theories In their brief in opposition to Rumpke's motion for summary judgment and on appeal, the Coffmans argued that there are material issues of fact as to whether Rumpke, acting as a supplier of "chattel dangerous for intended use" under Section 392 of the Restatement (Second) of Torts, and acting as Carl's contract employer, failed to exercise reasonable care. It is undisputed that Rumpke is neither a "manufacturer" nor a "seller" within the purview of the Act, and the Coffmans in their Reply Brief specifically state that they do not disagree with Rumpke's contention that it cannot be held liable under the Act.

2 . In an affidavit, Johnny B. Dagenhart, a professional engineer, testified with respect to the positioning of the power line as follows:

[PSI's] electrical line, between poles 818-4567 and 818-4568, which was contacted by the Mountain Tarp cover mechanism operated by [Carl,] exceeded the clearance requirements of ... each of the NESC in force from the date of construction in 1963 (Sixth Ed. NESC) through the current editions of NESC (1997) in effect at the time of the accident on November 16, 1999.

Appellants' App. p. 226.

3 . On January 4, 2002, the Coffmans filed a notice of dismissal regarding Vectren Corp., and the trial court dismissed Vectren Corp. as a defendant on January 22, 2002. Appellants' App. p. 46-48.