United States District Court, S.D. Indiana, Indianapolis Division
LANDMARK-INDIANA LIMITED PARTNERSHIP, LANDMARK-INDIANA LIMITED PARTNERSHIP ASO/TRUSTEE, Plaintiffs,
CITY OF INDIANAPOLIS, INDIANAPOLIS POWER & LIGHT COMPANY, Defendants.
ORDER DENYING MOTION FOR SUMMARY JUDGMENT
SARAH EVANS BARKER, District Judge.
This matter comes before us on Defendant Indianapolis Power & Light Company's Motion for Summary Judgment on the claims of Plaintiff Landmark-Indiana Limited Partnership ("Landmark"). [Dkt. No. 94.] IPL's Motion is DENIED because genuine issues of material fact preclude the entry of judgment as a matter of law.
Background and Facts
Plaintiff Landmark's subbasement premises located at 50 N. Illinois Street in Indianapolis suffered water damage from a leak in the ceiling. Directly above Landmark's subbasement is a transformer vault which is directly below a public sidewalk. On May 10, 2011, water entered into the subbasement, two of Landmark's transformers failed, and Landmark's property suffered a 30-hour power outage (the "Incident"). Landmark alleges that the transformer vault was owned and maintained by IPL and that IPL was negligent in maintaining the vault which caused the leak resulting in damage to Landmark's subbasement and equipment.
IPL moves for summary judgment on the basis that it owed no duty to Landmark, that Landmark caused the damage to its subbasement and equipment, and that Landmark voluntarily incurred the risk of the damage of which it now complains. Landmark contends that reasonable minds could differ as to whether IPL owned and/or controlled the vault, whether IPL assumed a duty to protect Landmark's equipment, and whether IPL's maintenance of the vault caused the damage.
The Blocks Building and the Vault.
Landmark is the owner of property located at 50 N Illinois Street, Indianapolis, Indiana 46204 (the "Blocks Building"). [Compl. ¶ 1]. A transformer vault (the "Vault") which houses transformers owned by IPL is located under the public sidewalk outside the Blocks Building. [ Id. at ¶¶ 1-3]. The Vault includes four bays with a floor drain in each bay. [Ex. H, Affidavit of Richard Schimizze ("Schimizze Aff.") ¶ 4 (expert report at Ex. H-2 at p. 7, 11, 14).] The area of the Vault at issue here was the western-most bay. [ Id. ] Situated directly underneath the Vault is Landmark's subbasement such that the subbasement's ceiling is the Vault's floor. [Ex. B, Deposition of Merlin Eugene King (referred to by the parties as "Gene King") ("King Dep.") at 33-34]. The subbasement includes an electrical equipment room (the "Electrical Room") in which switchgears providing electricity for the entire Blocks Building are stored. Id.
The Vault is completely open to the elements from above; it is located under a public sidewalk and "sealed" at the top by a locked metal gate. [Schimizze Aff. ¶ 4 (expert report at Ex. H-2).] IPL owns the Vault as a utility within the right-of-way of the City of Indianapolis. [Ex. 1, Affidavit of William M. Norman, P.E. ("Norman Aff.") (expert report at p. 4).] IPL's engineer and expert witness Richard Schimizze testified: "[m]y understanding is, and I haven't researched this, but my understanding is that IPL owns the vault." [Ex. 7 (permit identifying IPL as the vault owner at 121 W. Market); Deposition of Richard Schimizze ("Schimizze Dep.") at 113.]
Design and Maintenance of the Vault.
IPL designed and constructed the Vault at issue and detailed a drain replacement in the 1930s and 1950s. [Deposition of David Lufcy ("Lufcy Dep.") at 23-24; Exs. 7-10 (permit and construction drawings).] The drawings associated with IPL's 1956 remodeling of the transformer vaults at the Blocks include details for drainage and waterproofing. [Deposition of Thomas P. Frank ("Frank Dep.") at 21-22; Exs 10 (Construction Details for Remodeling Transformer Vault).] The IPL "waterproofing" details call for installation of a "6 × 6-10/10 Mesh" along with "Expansion joint waterproofing" between the Vault and building. [Frank Dep. at 5 at 22; Ex. 10.]
Landmark designed and installed the current drain system with the approval and input of IPL in a 2002 renovation. [Lufcy Dep. at 20-21.] In that renovation, Landmark installed conduits through which electrical wiring runs from the Vault into Landmark's subbasement. [Dkt. No. 95 at 8 (citing Lufcy Dep. at 27-28, 31, 51; Frank Dep. at 41-42).] Senior electrical engineer of IPL, Mr. Lufcy, suggested in his testimony that IPL mandated and approved the changes to the drainage of the Blocks in 2002. [Lufcy Dep. at 21-22.]
IPL understood that any failure to maintain the Vault would jeopardize adjacent property owners such as the Blocks. [Schimizze Dep. at 38-39; Ex. 10.] Mr. Schimizze testified that allowing water build up in the Vault would obviously pose a risk to the Blocks:
Q. Would you agree that IPL would know that if there's water accumulation in vault A, it would potentially jeopardize adjacent building owners such as the Blocks?
MR. CANTRELL: Objection. Lack of foundation. You can answer.
A. Well, I think that just from the physical situation there, IPL would know that a build-up of water in those vaults is a risk to not only their neighbors, but it would be a risk to their own equipment. But that's a pretty basic understanding, and I'm sure that IPL has that expertise.
[Schimizze Dep. at 38-39.]
IPL's Section Leader of Network Operations Mike Lee explained that, in reference to flooding, IPL inspected the Vault on a two-year cycle. [Deposition of Michael Lee ("Lee Dep.") at 20-21.] Mr. Lee explained that the inspection consists of an observation of the Vault floor and identifies "[i]f there was standing water or the vault was flooded at the time that they inspected it." [ Id. at 21] Mr. Lee also explained that IPL looked for deterioration of the concrete in the form of cracking and rusted I-beams, which would be reported to Tom Frank, IPL's senior engineer. [Dkt. No. 104 at 9-10 (citing Lee Dep.).]
Mr. Schimizze's file included IPL forms titled "Network Protector Maintenance" applicable to the subject vaults. [Schimizze Dep. at 19-20.] Within the network protector maintenance forms is a box identifying "last vault cleaning date." [ Id. at 21.] The Network Protector Maintenance form is the only documentation Mr. Schimizze discovered in his investigation of the IPL maintenance and is the only source of information regarding IPL's schedule on which he could rely. [ Id. at 26.] Mr. Schimizze testified that he knows of no other cleaning records other than those included in Exhibit 3 to his deposition. [ Id. at 25.]
Mr. Schimizze's collection of the IPL forms created to document all cleaning between February 16, 2005 and April 21, 2009 indicate that IPL had not cleaned the drain in the Vault adjacent Landmark's subbasement for more than two years prior to the Incident. [ Id. at 22, 27-28.] According to these records, the drain in the Vault was cleaned three times in four years. [ Id. at 41.]
Additional conflicting records evidence that prior to the May 10, 2011 failure, the Vault last underwent a cleaning, inspection, and repairs on September 28, 2010. [Ex. 11.] In September and October 2010, approximately 24 man-hours were expended by IPL to maintain and clean the Vault. [ Id. ] The Vault was not maintained or inspected again until the day after Landmark's loss on May 11, 2011 for "emergency-clear vault for customer." [ Id. ]
IPL's Control of Access to the Vault.
Mr. King, Landmark's Construction Manager, described access to the Vault as "out of Landmark's control" due to IPL's control of Vault access, as follows:
Q And was there ever any intention that you're aware of for Mr. Rain to fix the vault?
A That was out of our control.
Q When you say "our control, " are you talking about yours or are you talking about Landmark's?
Q Why do you think it was out of ...