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

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. Court of Appeals of Indiana | Memorandum Decision 45A03-1707-SC-1701 | December 29, 2017 Page 1 of 4 [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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