Northern Indiana Public Service Company v. John J. Krause (mem. dec.) ( 2017 )

MEMORANDUM DECISION
Pursuant to Ind. Appellate Rule 65(D),
this Memorandum Decision shall not be FILED
regarded as precedent or cited before any Dec 29 2017, 11:15 am
court except for the purpose of establishing CLERK
the defense of res judicata, collateral Indiana Supreme Court
Court of Appeals
and Tax Court
estoppel, or the law of the case.
ATTORNEYS FOR APPELLANT ATTORNEYS FOR APPELLEE
Edward P. Grimmer Shawn C. Swope
Daniel A. Gohdes Joseph I. Miyake
Edward P. Grimmer, P.C. Swope Law Offices LLC
Crown Point, Indiana Schererville, Indiana
IN THE
COURT OF APPEALS OF INDIANA
Northern Indiana Public December 29, 2017
Service Company, Court of Appeals Case No.
Appellant-Plaintiff, 45A03-1707-SC-1701
Appeal from the Lake Superior
v. Court
The Honorable Michael N.
John J. Krause, Pagano, Magistrate
Appellee-Defendant Trial Court Cause No.
45D09-1612-SC-2295
Baker, Judge.
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[1] Northern Indiana Public Service Company (NIPSCO) appeals the trial court’s
order entering judgment in favor of John Krause on NIPSCO’s negligence
complaint for damage to a utility pole after Krause’s vehicle collided with it.
NIPSCO argues that the evidence does not support the judgment. Finding the
evidence sufficient, we affirm.
[2] On June 12, 2016, at approximately 4:10 a.m., Krause was driving his
automobile in Lake County when a deer ran into the road in front of him.
Krause swerved to avoid striking the animal and collided with a NIPSCO
utility pole. At some point during his drive, Krause was traveling thirty miles
per hour in a zone with a speed limit of twenty miles per hour, but does not
know the speed at which he was traveling when the deer ran into the road. Tr.
p. 27-28, 29-30.
[3] On December 20, 2016, NIPSCO filed a negligence complaint against Krause
seeking compensation for the damage to the utility pole. The trial court held a
bench trial on June 12, 2017. The same day, the trial court entered judgment in
favor of Krause. NIPSCO now appeals.
[4] When reviewing a judgment entered following a bench trial in which no specific
findings of fact were made, we apply a general judgment standard and, without
reweighing evidence or considering witness credibility, may affirm on any legal
theory supported by the evidence. E.g., Baxendale v. Raich, 878 N.E.2d 1252,
1257 (Ind. 2008). In conducting our review, we consider only the evidence
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favorable to the judgment and all reasonable inferences that flow therefrom.
Estate of Henry v. Woods, 77 N.E.3d 1200, 1204 (Ind. Ct. App. 2017).
[5] Furthermore, NIPSCO is appealing from a negative judgment, which is a
judgment entered against a party who bore the burden of proof at trial. E.g.,
Smith v. Dermatology Assocs. of Fort Wayne, P.C., 977 N.E.2d 1, 4 (Ind. Ct. App.
2012). A party appealing from a negative judgment must show “that the
evidence points unerringly to a conclusion different than that reached by the
trial court.” Id. We will not reverse a negative judgment unless it is contrary to
law. Id.
[6] NIPSCO’s complaint alleges that Krause was negligent in the operation of his
vehicle and that his negligence caused damage to the utility pole. To prove
negligence, a plaintiff must establish three elements: (1) a duty owed to the
plaintiff by the defendant; (2) a breach of that duty by allowing conduct to fall
below the applicable standard of care; and (3) compensable injury proximately
caused by the breach of that duty. E.g., Ryan v. TCI
Architects/Eng’rs/Contractors, Inc., 72 N.E.3d 908, 913 (Ind. 2017).
[7] With respect to the element of breach, the sudden emergency doctrine, which
“was developed by the courts to recognize that a person confronted with
sudden or unexpected circumstances calling for immediate action,” Willis v.
Westerfield, 839 N.E.2d 1179, 1184 (Ind. 2006), may apply. To invoke this
doctrine, the defendant must establish, among other things, that he did not
create or bring about the emergency through his own negligence. Id. NIPSCO
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argues that the evidence is undisputed that Krause was speeding at the time the
deer entered the roadway, meaning that he brought about the emergency
through his own negligence. We disagree that the record is undisputed; instead,
Krause consistently testified that at some point during his drive, he was driving
at thirty miles per hour in an area with a speed limit of twenty miles per hour,
but he did not know the speed at which he was traveling at the time the deer
entered the roadway. Tr. p. 27-28, 29-30. It was for the trial court to resolve
this factual question, and if it resolved the issue in Krause’s favor, determining
that he was entitled to invoke the sudden emergency doctrine, we will not
second-guess that conclusion.
[8] Moreover, even if we were to assume that NIPSCO established a duty owed by
Krause and a breach of that duty, the evidence in the record easily supports a
conclusion that Krause’s conduct was not the proximate cause of NIPSCO’s
damages; instead, the deer’s was. But for the deer unexpectedly entering the
roadway, Krause would not have swerved and struck the utility pole. Given the
standard of review applied to general judgments and negative judgments, we
find the evidence sufficient to support the trial court’s order.
[9] The judgment of the trial court is affirmed.
Riley, J., and Brown, J., concur.
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