Goodrich v. Indiana Michigan Power Co.

remand with instructions to hold such a

hearing. GOODRICH, See id. Robert Appellant- Plaintiff,

Here, appointment of trial counsel appellate imply counsel that the trial court knew of indigency. Briscoe's In ad- INDIANA MICHIGAN POWER COM dition, presentence investigation report PANY dba American Electric Pow provided the trial court with some informa- er, Appellee-Defendant. tion regarding Briscoe's financial position. No. 71A03-0205-CV-167. these facts are not conclusive as fees, to Briscoe's ability pay Court of Appeals of Indiana. trial court erred when it failed to conduct a Feb. 2003. hearing on this issue. We therefore re- mand with instructions to hold a hearing indigency Briscoe's because his sen-

tence included the imposition of a fee.

The State directs us to Whedon in which our supreme court remarked that "a de- fendant's financial resources ap- are more

propriately determined not at the time of ‍​​​​‌‌‌​​​‌‌​‌​‌‌‌​​‌​‌‌​‌​​‌​​​‌​​​‌‌‌​​‌​‌​‌‌‌‍initial sentencing but at the conclusion of

incarceration, allowing thus

of whether the defendant may have accu- mulated through assets inheritance or oth-

erwise." 765 N.E.2d at 1279. While this may interpreted suggest that hear- ings subsequent sentencing should be

held to determine a defendant's indigency,

Whedon suggest did not procedure

doing so. We need not reach that issue here, 85-838-1-18(a) because IC and IC 83-

19-2-3(a) clearly mandate a hearing at the ‍​​​​‌‌‌​​​‌‌​‌​‌‌‌​​‌​‌‌​‌​​‌​​​‌​​​‌‌‌​​‌​‌​‌‌‌‍time of sentencing, which was not done in

this case. We therefore save the issue of

subsequent indigeney hearings for another

day. in part

Vacated and remanded. SULLIVAN, J., SHARPNACK, J., concur. 7Q4 IN, Lasalvia, Grainger, Stan-

Robert J. White, Indianapolis, White, & ley White IN, Appellant. Attorneys for Piasecki, Singer, H. Thomas M.

Carmen IN, Bend, Attor- Piasecki, South Nickle & neys Appellee.

OPINION

KIRSCH, Judge. court's the trial appeals

Rоbert Goodrich on his summary judgment partial Electric American against negligence claim ("AEP") jury's verdiet Power following issues AEP, raising favor for review: court erred the trial

I. Whether that AEP of law as a matter ruling not owe did feet above twenty-three an aban- ran over doned, alleyway. grassy committed the trial II. Whether error rеversible ‍​​​​‌‌‌​​​‌‌​‌​‌‌‌​​‌​‌‌​‌​​‌​​​‌​​​‌‌‌​​‌​‌​‌‌‌‍its delib- during jury's request erations to a specific view exhibit ninety percent and AEP was not at fault. We affirm. Goodrich appeals. now FACTS AND PROCEDURAL DISCUSSION AND DECISION HISTORY Goodrich contends that the trial court 7, 1997, On October Goodrich was work- erred in ruling as a matter of law that ing for North Central Roofing as a fore- AEP did not owe duty a general man roоfing of a crew. He and a fellow public with regard to lines that worker installing a drip edge on a were twenty-three feet above the two-story home. Goodrich was standing ran abandoned, over an grassy alley- platform on a several feet above the way. ground. Goodrich's fellow worker handed When reviewing him a denial ten-foot of a section of aluminum drip summary judgment motion, edge. While Goodrich this court ap was holding the plies the legal same drip edge, it came into standard as the contact with a court, ie., summary judgment volt electric distribution is appropri line owned ate when no AEP. genuine Goodrich fell from platform, designated issues of hit- material fact ting a exist and moving window air party conditioner and then the judgment entitled to ground. fall, From a matter inju- he of law. suffered Indiana Servs., Ins. Co. v. Am. Inc., ries that him paraplegic. Cmty. rendered 1147, 718 N.E.2d 1152 (Ind.Ct.App.1999); Goodrich brought suit against AEP for May v. Frauhiger, 591, 716 N.E.2d negligence, arguing that AEP breached its (Ind.Ct.App.1999) (citing Ind. Trial Rule duty of a number ways. AEP 56(C)); Birrell v. Indiana Auto Sales & moved for summary judgment, and the Repair, 6, 7 (Ind.Ct.App.1998), trial court the motion with regard trams. denied. This court may not search to the claims alleged that Goodrich the entire record but may only consider was a member general public to the evidence that has been specificаlly des whom duty a is owed. The trial court ignated. Co., Indiana Ins. 718 N.E.2d at denied summary judgment on Goodrich's 1152; Birrell, 698 N.E.2d plead at 7. All claims to the extent that alleged he "that affidavits, ings, and testimony are con he ais member of a segment liberally strued and in light most fa population who Defendant knows or vorable to the nonmoving party. May, 716 hаs reason to know will be regularly ex- N.E.2d at 594. We need not rely on the posed to subject power line." Appel- theory espoused court, by the trial and we Appendix lamt's will affirm grant a of summary judgment if The case was tried to a on the it is sustainable basis found in the remaining deliberations, theories. During record. Brazauskas v. Wayne-South Fort sent a note to the judge request- Diocese, Inc., Bend 253, ing to see Exhibit 7. Without informing the (Ind.Ct.App.1999), trans. denied. parties, complied court and sent the exhibit to the jury contin- opinions Previous of this deliberations, ued explained lunch, have that companies engaging in took a break for and returned to its deliberatiоns. It re- generation and distribution of electrici turned a verdict that Goodrich ty was ten duty have a to exercise reasonable care percent North Central Roofing keep distribution and transmission lines duty no utilities "Generally, electric gener where places safely insulated they lines those even them. with contact into may come al public exposed is not public general if the own Grunden, v. Rogers knowl- no utility has denied; Brown v. trans. (Ind.Ct.App.1992), pop- segment a edge Pub. Serv. N. exposed regularly ulation denied way, another lines. Stated uninsulated County Hendricks (1987); Pilkington to insu- has utility company Corp., Membership Elec. Rural where plaсes its lines late (Ind.Ct.App.1984). them, but into contact comes required is not insulation Conversely, into who come only people so sufficiently isolated lines are employees utility them are with contact reasonably be could public general the knowledge of charged with others or close dangerously tо be anticipated safety precautions." necessary Brown, 256; at 589 N.E.2d Rogers, lines. Lo 797; City v. Jones at 496 N.E.2d of 912, Peru, 733 N.E.2d City v. Butler (Ind.Ct. 1138, 1150 N.E.2d 436 gansport, omitted). (citations (Ind.2000) 916-17 v.Co. & Elec. Gas Indiana App.1982); S. when found duty, a 99-100, 96, 377 Steinmetz, Ind.App. 177 reasonable exercise exist, duty to the is (1977). pub "General 1383 N.E.2d v. Correll the cireumstances. under care as a by this defined liс" has been 706 783 N.E.2d Transp., Dept. Indiana per multitude of "'great person 2002), pending. trams. (Ind.Ct.App. daily would, course of in the who sons' the standard although changes, never pres the danger by events, exposed be up to that measure required to of conduct carrying a wire an uninsulated ence the upon depending duty varies Rogers, electricity." voltage dangerous Id. cireumstances. Brown, 496 (quoting at 797). Moreover, util an electric at N.E.2d discuss- although the cases Accordingly, insu required generally ity will not lines from electric injuries liability for ing coating to covering or awith late its wires lines, our duty to insulate to a refer might who persons only those protect us to conclude leads opinions review of in the lines power with contact into come by have intended courts these that what Spudich employment. of their course company that an electric language such N.E.2d Serv. Pub. N. rea- duty to exercise breach its does denied; protective to tаke by failing sonable Jones, 797-98; Brown, at electric power regard with measures made to exception is An at 1150. N.E.2d general which with transmission utility knows however, rule, when contact. into to come unlikely which from of such facts knowledge has or 100, 377 Steinmetz, at Ind.App. ‍​​​​‌‌‌​​​‌‌​‌​‌‌‌​​‌​‌‌​‌​​‌​​​‌​​​‌‌‌​​‌​‌​‌‌‌‍segment of In that a know it should in- 1883-84, plaintiff exposed at regularly will be population lines. electric anoth the defendant's jured or one reason uninsulated wires not be that it could argued involved. The defendant children are er, particularly it failed though injury even liable for Jones, 797-98; Brown, at holding in favor In lines. Steinmetz, Ind.App. 1150; N.E.2d at the lines defendant, we noted su As our thirty of over height elevаted court summarized: preme feet, and there was little evidence of any Goodrich next argues that the trial court facts which reasonably should put committed reversible error when it grant- defendant on notice that the general public ed the jury's request during its delibera- might come into contact with the lines tions to hаve Exhibit 7 sent to the jury place of the accident regulari- IC 34-86-1-6 states: ty. "If, after the jury retires for delibera- tion: case, In this lines were (1) there is a disagreement among the located twenty-three feet above the jurors as to any part of the testimony; between two residences and over an aban or doned, grassy alleyway that the prop two (2) desires to be informed erty owners mowed. Goodrich's contact point of law arising case; in the with the lines resulted from his standing may request the officer to con- on an elevated platform and extending a duct them court, into where the informa- long, object conductive ovеr his shoulder. tion required shall given in the pres- cireumstances, Under these of, ence or to, after notice parties public is not likely to come into contact the attorneys representing the parties." with the question. Thus, lines in AEP did However, our supreme court has held that not breach duty its to exercise reasonable a jury's mere request evidence, to review care, and the trial court did not err in more, without does not implicitly show dis- granting partial summary judgment on agreement. State, Thacker v. Goodrich's claims that relied on AEP's (Ind.1999); State, Gibson v. duty to public. See Spu also (Ind.1998); State, Robinson v. dich, (electric 745 N.E.2d at 291-92 utility (Ind.1998). N.E.2d Thus, in owed no duty plaintiff, to not a member of cases, such the statute is not implicated. general public, who contacted lines forty Here, the jury's merely note stated that feet above the ground while elevated to jurors wished to view an exhibit. Ac- place Christmas trees); decorations on cordingly, it expressed no disagreement, Rogеrs, (no 589 N.E.2d at 256 duty to and the statute govern does not the trial insulate lines on private property leased response. court's by plaintiff's employer, an area to which the general public access, had no When, here, the statute inap plaintiff's exposure to lines occurred plicable, the trial court should consider as a result of his use of sixty auger foot in three in factors deciding whether to permit proximity lines); Brown, 496 N.E.2d at jury to take a copy of the exhibits into (plaintiff 797-98 was not member gener jury Thacker, 709 N.E.2d at 6. al public where he was on totally fenced, (1) Those factors are: whether the materi private property of employer, to which al will aid jury in a proper consider general public access, had no exposure and case; (2) ation of the any whether party to electric lines occurred as a result of his will unduly prejudiced by submission of working with lines).1 crane in proximity to material; (8) and whether the material Although 1. the trial court AEP's mo- rich aas member of a class to tion for summary judgment on Goodrich's duty whom a extends under the circum- claims based alleged on duty AEP's to the basis, stances. On this permit- Goodrich was general public, it denied the motion with re- present ted to jury ways several in gard to whether AEP owed a to Good- which AEP duty. breachеd that Thus, Goodrich. unduly prejudiced by the use improper subjected may be finding an in favor of weighs factor second Robinson, 699 N.E.2d Id.; jury. conclude Finally, we discretion. abuse of regardless applies standard The same subject question in or the exhibit before are sent the exhibits whether that Goodrich note Thacker, and N.E.2d use improper during deliberations. contrary. argument no offers But 1149. ‍​​​​‌‌‌​​​‌‌​‌​‌‌‌​​‌​‌‌​‌​​‌​​​‌​​​‌‌‌​​‌​‌​‌‌‌‍at Robinson, 6; at 855, 857-58 State, Powell see to find if we Even conviction eriminal (Ind.1994) (reversing discretion, error any abused court trial re- jury permitted court trial because Rule Trial Ind. harmless. would evi- pieces specific testimony or view ruling or ... error "No that: states court). by unguided and alone dence by the or omitted done anything order 6, the trial Thacker, at In parties of the court or tapes to review allowed court refusal unless appeal, . reversal alone police statements defendant's in court appears action take such after begun had deliberations after The justice. substantial consistent them. to see requested specifically proceeding stage of every court factor the three employed supreme in the defect any error disregard must three factors all concluded test the sub affect which does proceeding It decision. сourt's supported parties." of the rights stantial requests "If the explained, issue, a the exhibit reviewed We information, presumptively pieces vari- containing accident site sketch proper aid will information measurements, including a measure- ous absence In the case. of the the electric betweеn distance ment the is not why that as to showing any of home the point the closest line and Id. satisfied." case, factor first the of his the time roofing at was Goodrich preju- of no evidence Next, found the court demon- of In the absence accident. jury the gave trial court the because dice the that find contrаry, we the to stration exhibits, those only not admitted all of the not affect did exhibit of this review jury's any empha- avoid to in order requested, and consti- rights substantial Goodrich's ex- aon sis, perceived, real most, error. tutes, harmless that the observed Finally, the court hibit. unadmitted give the Affirmed. did trial court but jury, tapes transcripts SHARPNACK, J., concurs. Accordingly, exhibits. only admitted sent did trial court that the concluded the court SULLIVAN, J., separate concurs all of sending discretion abuse its opinion. jury. Id. the exhibits the admitted SULLIVAN, concurring. Judge, Thacker, presume we Here, duty of owed Here, AEC I believe factor, 7 aided Exhibit that first the the because to Goodrich reasonable the proper in its jury the two. AEC the between relationship evi is no there case, because is satisfied making necessity the well aware contrary. dence replacements and repairs maintenance exhibit requested only sent that roof- and the area roofs in residential of the exhib room, than аll rather jury would employees their contractors ing jury to allowed may have This its. Certainly, lines. power proximity thereby exhibit on this emphasis place foreseeability injury to such workmen ed closer to the house than the ten-foot Therefore, existed here. although mem- distance within which such were, workmen bers of ie., public, those trav- by OSHA regulation, precluded from oper- eling upon land, were not at risk be- ating. To the extent that Spudich v. N. cause the lines were twenty-three located Co., Pub. Serv. 745 N.E.2d 281 feet above the ground, persons such as denied, may be Goodrich, by reason of his employment, read as contrary my positiоn, I would could be expected to be at risk by uninsu- decline to follow it. lated lines located less than eight feet from It is perhaps fact, this very i.e. violation Goodrich, him, or others like would by North Central Roofing of expected to ten-foot be working. regulation, which led jury to conclude Be that may, as it this issue was not that North Central was ninety percent at decided as a matter of law by partial fault, Goodrich himself as an employee of summary judgment. Rather very this is- North Central was ten percent sue was submitted jury. See Brown and that AEP was not at fault-at least to v. N. Indiana Pub. Serv. the extent such fault proxi- was a 794 (Ind.Ct.App.1986) (summary judgment mate cаuse of injury. Goodrich's reversed), trans. denied. Presumably, had in mind a duty Accordingly, I although help cannot but part on the of AEP to exercise reasonable conclude that AEP owed a duty of reason- care as to the workmen like Goodrich. able care to Goodrich and that AEP The fact remains that the jury found no brеached that duty by the manner and fault on part of AEP. location of its power lines, uninsulated I nevertheless

It is also difficult conclude conceive that under the was within its circumstances here discretion in present any concluding that reasonable AEP was not would fail liable for to find injuries. Goodrich's there was a breаch of For I duty of reason concur in reasonable care. affirmance of Placing uninsulated partial summary within judgment eight feet of a roof and in upon the judgment which the resi- entered upon the jury dence owner or workmen would verdict. foresee-

ably and not rarely engage in such activi- ties gutter as cleaning maintenance, window washing, chimney and, cleaning, here, roof drip-edge replacement or repair would clearly seem to breach the duty.

This is particularly so in light of the ac-

knowledged fact that the lines were locat-

Case Details

Case Name: Goodrich v. Indiana Michigan Power Co.

Court Name: Indiana Court of Appeals

Date Published: Feb 25, 2003

Citation: 783 N.E.2d 793

Docket Number: 71A03-0205-CV-167

Court Abbreviation: Ind. Ct. App.