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Northern Indiana Public Service Co. v. Sharp7/31/2000
OPINION - FOR PUBLICATION
Case Summary
Appellee-Plaintiff Grace Sharp ("Sharp"), as Administratrix of the Estate of Robert Sharp ("Robert"), filed a complaint for wrongful death against the following: the Town of Highland, Indiana ("Highland"); Tri-State Coach Lines, Inc. ("Tri-State"); and, Appellant-Defendant Northern Indiana Public Service Company ("NIPSCO"). The trial court entered summary judgment in favor of all defendants. Sharp appealed the trial court's decision. On appeal, we affirmed the trial court's grant of summary judgment in favor of Highland and Tri-State. Sharp v. Town of Highland, 665 N.E.2d 610 (Ind. Ct. App. 1996) (hereinafter referred to as "Sharp I"). As to NIPSCO, we reversed that portion of the trial court's grant of summary judgment that dealt with the question of willful and wanton misconduct, gross negligence, and bad faith. The ensuing jury trial resulted in a verdict in favor of Sharp, and damages were assessed in the sum of $750,000.00. NIPSCO now appeals that verdict. We reverse.
Issues
NIPSCO raises three issues on appeal, of which we find the following two restated issues to be dispositive:
I. Whether the trial court admitted evidence that was precluded by this Court's previous judgment;
II. Whether the trial court erred in denying NIPSCO's Motion for Judgment on the Evidence.
Facts and Procedural History
The facts as set forth in Sharp I are as follows:
On November 27 and 28, 1990, an estimated seven inches of rain fell in an eight hour period in Northwest Indiana. As a result, the Little Calamut River began overflowing its banks in Highland. The water crossed Tri-State's parking lot, flowed across Indianapolis Boulevard, and entered into the Wicker Park Manor subdivision.
During the initial stage of the flooding on November 27, Krooswyk Trucking & Excavating, Inc. was engaged to provide sand for flood control. An initial attempt was made to establish a sand barrier across Indianapolis Boulevard, but the water continued to wash the sand away.
At approximately 8:00 a.m. on November 28, Gerald Krooswyk, president of Krooswyk trucking, suggested to Highland officials that a dike be built across Tri-State's parking lot to save the subdivision from further flooding. The dike would consist of gravel dumped across Tri-State's property from the river's edge along the edge of Indianapolis Boulevard to a high point at the end of the parking lot. The proposed location for the dike passed directly under NIPSCO's energized overhead power lines, which also crossed Indianapolis Boulevard.
At approximately 10:30 a.m. on November 28th, Highland officials approved the dike location and Krooswyk trucks began dumping gravel to form the dike on the Tri-State parking lot. At approximately 1:10 p.m., Robert Sharp, ["Robert"] a Krooswyk employee, began backing his truck onto the pile of gravel forming the dike. After [Robert] raised the truck bed, the truck became energized when electricity from the overhead wires arced. [Robert] was electrocuted.
On August 21, 1991, [Robert] filed suit against both Highland and NIPSCO. The complaint alleged that Highland's negligent acts and NIPSCO's negligent and/or reckless conduct caused [Robert]'s death.
Highland and NIPSCO filed separate motions for summary judgment, both asserting the immunity defense found in I.C. 10-4-1-8. After a hearing on the motions, the trial court granted summary judgment in favor of Highland and NIPSCO. . .
Sharp I, 665 N.E.2d at 613.
In Sharp I we held as follows:
The trial court correctly deter
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