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City of Muncie v. Weidner7/22/2005
FOR PUBLICATION
In this interlocutory appeal, the City of Muncie ("Muncie"), by and through the Muncie Fire Department, appeals the trial court's denial of its motion for summary judgment in a wrongful death of child action, which was brought by Thomas and Lauren Weidner (the "Weidners") as the surviving parents of A.B.W. ("A.W."). On appeal, Muncie raises various issues, of which we find the following to be dispositive: Whether the trial court erred in denying Muncie's motion for summary judgment because Muncie and its fire department neither had nor assumed a duty to protect A.W. from a downed, live, power line.
We reverse and remand.
FACTS AND PROCEDURAL HISTORY
On July 29, 2002, a storm caused more than 5,300 Muncie residents to lose electric power. That afternoon, Tony Gothard went home early from work in response to his wife's call reporting that their home's circuit breaker box was sparking. After arriving home, Gothard, who lived at 1308 North Mann Avenue, discovered no loss of electricity and found no sparks at the breaker box, but noted that the outside power line to his home was sagging. Gothard reported the problem to the electric company that owned the line, Indiana Michigan Power Company, a unit of American Electric Power ("AEP"), and returned outside to inspect the line. While outside, Gothard heard cracking and popping noises emanating from his next-door neighbor's backyard at 1300 North Mann Avenue. Upon further investigation, Gothard noticed a power line hanging down into the middle of the bushes between the two homes and reported it to the Muncie Fire Department.
The fire department dispatched a truck with fireman Mark Hill in charge. By the time the truck arrived, Gothard no longer heard any cracking or popping, but showed Hill the area where he had heard the sounds and where the line could still be seen hanging into the bushes. Hill told Gothard to keep his family out of the backyard because electricity can travel both through bushes and through the ground. Earlier, AEP had instructed the fire department to assume that all downed lines were live and to stay away from them. Hill called E-911 dispatch, which immediately faxed a report to AEP, notifying them of the address and stating, "wires down in yard, burning." Appellant's Appendix at 99-100. The fire department completed its business at the Gothards' home in about five minutes and left before AEP arrived on the scene.
Around noon the next day, Gothard's wife called him at work to report that someone from AEP had been to their home, looked at the sagging wire in the backyard, and left without attempting to speak with her. Appellant's Appendix at 72-73. Gothard returned home and called AEP to report that, although someone had been out to check on the power line, the downed power line had still not been taken care of. After some questioning by AEP as to how Gothard could have both a downed line and still have power, the company agreed to send someone out as soon as possible. Id. at 74-75.
That same day, around 2:00 p.m., while D.B and A.W. were mowing a backyard that abutted the Gothard's backyard, D.B. discovered A.W. unconscious and lying on his back. In response to D.B.'s telephone call, the E-911 center dispatched an ambulance at 2:04 p.m. Once at the scene, emergency medical technician Gary Gardner assessed the situation for dangers, including a possible downed power line, but did not see or hear anything unusual.
He then began administering first aid to A.W. Police Officer Linda Cook, who was assisting Gardner, stepped back, received an electric shock and, in turn, fell on and shocked Gardner. A.W. died as a result of his injuries.<
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