FSF Presidential Estates v. Grounds

997 N.E.2d 372, 2013 WL 6083429, 2013 Ind. App. LEXIS 576
CourtIndiana Court of Appeals
DecidedOctober 17, 2013
DocketNo. 49A05-1305-CT-209
StatusPublished

This text of 997 N.E.2d 372 (FSF Presidential Estates v. Grounds) 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
FSF Presidential Estates v. Grounds, 997 N.E.2d 372, 2013 WL 6083429, 2013 Ind. App. LEXIS 576 (Ind. Ct. App. 2013).

Opinion

OPINION

BAKER, Judge.

In this case, this Court has been fortunate that counsel from both sides have shown such able advocacy and, when appropriate, vehemently argued or defended their respected positions and highlighted the designated facts in support of those positions. But such vehement advocacy also demonstrates why the trial court was correct in denying summary judgment in this case — there are genuine issues of material fact that need to be determined by the fact-finder, namely, whether a duty existed.

What is undisputed is that appellee-plaintiff Joshua Grounds, an outdoor main[373]*373tenance worker, was replacing the gutters on two apartment buildings in Indianapolis. Grounds finished working on the first building without incident, but while working on the second apartment building, Grounds’s ladder came into contact with some power lines, resulting in serious electrical injury. Grounds filed a complaint alleging negligence against appellants-defendants Presidential Estates Apartments and Indianapolis Power and Light (IPL) (collectively, “the Appellants”). Grounds and the Appellants filed motions for summary judgment which were subsequently denied. This interlocutory appeal now ensues.

FACTS

Presidential Estates operates an apartment complex in Indianapolis. In May 2009, Fleener Roofing, who employed Grounds, was hired to do replacement work on the gutters of two of the buildings located in the complex, including replacing the soffit, gutter boards, and gutters. Besides Shane Fleener, the owner, and Grounds, there was one other employee.

On May 4, 2009, Fleener and his crew completed the work on the first building during the morning and before breaking for lunch, Fleener and his employees evaluated the second building to gauge the amount of work that needed to be done. Fleener stated in a deposition that his crew knew that fiberglass ladders had to be used because they were aware that there were power lines in close proximity as shown below.

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After lunch, Fleener and his employees started working on the second building. After repairing the soffit, they prepared to hang the new gutters. Grounds began moving a twenty-four foot aluminum ladder approximately four feet so that they could begin hanging gutters. As Grounds was moving the ladder, it came into contact with an overhead power line, and he was injured. Grounds had no memory of the incident. The line with which Grounds’s ladder came into contact with was the primary line servicing the apartment complex and it carried 13.8 kilovolts (phase to phase) and 7.97 (phase to ground) of electricity before being lowered at a transformer to a consumption voltage.

The power line in question was owned and operated by IPL to provide electrical service to the Presidential Estates Apartment Complex. IPL was neither informed that Fleener Roofing was going to be working near the power lines that day nor did anyone request that IPL de-energize its power lines that day.

On September 15, 2009, Grounds filed suit against Presidential Estates and IPL [374]*374to recover the damages that he incurred from being electrocuted. On September 12, 2012, Presidential Estates and IPL filed motions for summary judgment. On December 14, 2012, Grounds filed a cross-motion for partial summary judgment on the issue of duty.

On March 13, 2013, the trial court entered an order granting the motion for summary judgment filed by Presidential Estates but denying the motion for summary judgment filed by IPL and the cross-motion for partial summary judgment filed by Grounds. On March 25, 2013, IPL filed a motion to certify for interlocutory appeal the trial court’s order denying summary judgment. On April 17, 2013, the trial court granted IPL’s motion and certified its order for interlocutory appeal.

On May 8, 2013, IPL filed its amended motion requesting this Court to accept jurisdiction over the permissive interlocutory appeal. On June 7, 2013, this Court granted IPL’s amended motion and accepted jurisdiction over this appeal pursuant to Appellate Rule 14(B). This interlocutory appeal now ensues.

DISCUSSION AND DECISION 1

IPL argues that the trial court erred by holding that there was a question of fact regarding whether IPL owed a duty to Grounds because, according to IPL, its designated evidence established that its power lines were not accessible to the general public and that Grounds was not regularly exposed to the power lines because he was part of a work crew performing repairs.

Summary judgment is appropriate when there are no genuine issues of material fact and the moving party is entitled to judgment as a matter of law. Ind. Ins. Co. v. Am. Cmty. Servs. Inc., 718 N.E.2d 1147, 1152 (Ind.Ct.App.1999). We review a trial court’s grant or denial of a motion for summary judgment de novo. Williams v. Tharp, 914 N.E.2d 756, 761 (Ind.2009).

Grounds’s claim sounds in negligence. To prevail on a negligence claim, a plaintiff must show (1) a duty owed by the defendant to the plaintiff; (2) a breach of that duty; and (3) injury to the plaintiff that was proximately caused by the defendant’s breach of the duty. Williams v. Cingular Wireless, 809 N.E.2d 473, 476 (Ind.Ct.App.2004). Because Grounds’s claim is for negligence, summary judgment must be carefully considered because such cases are particularly fact sensitive and are governed by the objective reasonable person standard, which is best applied by the jury after hearing all the evidence. Cox v. N. Ind. Pub. Serv. Co. Inc., 848 N.E.2d 690, 696 (Ind.Ct.App.2006).

Duty exists according to the relationship of the parties, reasonable foreseeability of harm, and public policy. Webb v. Jarvis, 575 N.E.2d 992, 995 (1991). While the issue of duty is generally a question of law, factual determinations such as whether a relationship existed between the parties may be interwoven, making the ultimate determination of whether a duty existed a mixed question of law and fact. Helmchen v. White Hen Pantry, 685 N.E.2d 180, 181 (Ind.Ct.App.1997).

In Brown v. Northern Indiana Public Service Co., (NIPSCO), a construction laborer was injured when, while working in a construction yard, the crane that he was operating came in contact with an uninsu[375]*375lated high voltage wire running over the construction yard. 496 N.E.2d 794, 795 (Ind.Ct.App.1986). Brown filed a complaint alleging that NIPSCO was negligent for placing the power lines at an unsafe height, which did not allow for the safe operation of the crane. Id.

On the issue of duty, the Brown,

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Related

Williams v. Tharp
914 N.E.2d 756 (Indiana Supreme Court, 2009)
Indiana Ins. Co. v. AMERICAN COMMUNITY SVCS., INC.
718 N.E.2d 1147 (Indiana Court of Appeals, 1999)
Brown v. Northern Indiana Public Service Co.
496 N.E.2d 794 (Indiana Court of Appeals, 1986)
Williams v. Cingular Wireless
809 N.E.2d 473 (Indiana Court of Appeals, 2004)
Webb v. Jarvis
575 N.E.2d 992 (Indiana Supreme Court, 1991)
Spudich v. Northern Indiana Public Service Co.
745 N.E.2d 281 (Indiana Court of Appeals, 2001)
Cox v. Northern Indiana Public Service Co.
848 N.E.2d 690 (Indiana Court of Appeals, 2006)
Helmchen v. White Hen Pantry, Inc.
685 N.E.2d 180 (Indiana Court of Appeals, 1997)

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Bluebook (online)
997 N.E.2d 372, 2013 WL 6083429, 2013 Ind. App. LEXIS 576, Counsel Stack Legal Research, https://law.counselstack.com/opinion/fsf-presidential-estates-v-grounds-indctapp-2013.