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Estate of Pfafman v. Lancaster

Court of Appeals of Indiana

January 18, 2017

The Estate of Gary Pfafman, Appellant-Defendant,
v.
Lori Lancaster, Individually, and as Guardian of the Estate of Kole Craig, Appellee-Plaintiff.

         Appeal from the Noble Circuit Court The Honorable G. David Laur, Judge Trial Court Cause No. 57C01-1306-CC-30

          ATTORNEY FOR APPELLANT Jeffrey C. Gerish Plunkett Cooney Bloomfield Hills, Michigan

          ATTORNEYS FOR APPELLEE Douglas D. Small Edmond W. Foley Foley & Small South Bend, Indiana

          Najam, Judge.

         Statement of the Case

         [¶1] The Estate of Gary Pfafman ("Pfafman's Estate") appeals the trial court's grant of a new trial following a jury verdict in favor of the Estate on a complaint filed by Lori Lancaster, Individually and as Guardian of the Estate of Kole Craig ("Craig's Estate"). Pfafman's Estate presents two issues for our review, one of which is dispositive, namely, whether the trial court complied with the requirements of Indiana Trial Rule 59(J) when it ordered a new trial on the grounds that the verdict was against the weight of the evidence and that the evidence was insufficient to support the jury's verdict. We reverse.[1]

         Facts and Procedural History

         [¶2] In 2004, Roger Diehm had a feed barn[2] ("the barn") built on his farm in Noble County. Diehm asked his brother-in-law Pfafman, an electrician and sole proprietor of a small business doing electrical work, for help with the electrical work in the barn. Through a bartering arrangement, Pfafman agreed to help Diehm. Diehm, who had previously worked as a general contractor and developer, assisted Pfafman with some aspects of the electrical work in the barn. Diehm began the work by himself when he "ran the trenching and got all the electrical to the barn." Tr. at 702. Diehm did "80 to 90 percent" of the electrical work in the new barn by himself. Id. at 954. Pfafman then "set the panel" and installed the lights. Id. at 702.

         [¶3] In particular, Pfafman: purchased and installed a service panel box and circuit breakers for the barn; connected the panel box to the power line running to the barn from an old barn; installed junction boxes in the barn; installed a ground wire and ground rod[3]; installed electrical switches, including ground fault circuit interrupter ("GFCI" or "GFI") plugs; and installed all of the electrical connections. At that time, in 2004, Diehm did not need electricity to run to two water troughs located in the barn, but "he wanted wires run back" to the troughs in the event that he would install de-icing units ("de-icers") for the troughs at some time in the future. Id. at 485. Accordingly, Pfafman installed "a ten-foot piece of pigtail that [he] rolled up and taped and fastened" in a junction box.[4] Id. at 488. Pfafman told Diehm that the pigtail "wasn't GFI[-]protected and it should [be] GFCI protected before [doing] anything down in there." Id. at 485.

         [¶4] In 2007, Diehm, without consulting Pfafman or requesting help, purchased and installed de-icers for the water troughs in the barn. The instruction booklets for the de-icers stated in relevant part that, when installing the de-icers, "a qualified electrician [shall] install a properly grounded receptacle outlet" to the heater. Id. at 249. Despite that instruction, and despite Pfafman's instructions in 2004 that Diehm would have to install GFCI protection if he ever installed de-icers, Diehm did not install GFCI protection for the de-icers. Diehm also reversed the positive and negative wiring to one of the connectors to the de-icers. And Diehm left the de-icers in the troughs and plugged in year-round, contrary to the instruction on the de-icers' labels, which stated that they should be "store[d] indoors after [the] winter season, " and the written instructions for the de-icers, which stated that the units should be unplugged "when not in use or before removal from the tank." Id. at 248, 250.

         [¶5] During the evening of July 28, 2010, then sixteen-year-old Kole Craig was socializing with Diehm's children at the Diehm home on the farm. A severe thunderstorm had passed through the area earlier that day, including "a really big strike" of lightning nearby. Id. at 137. In fact, at approximately 4:00 that afternoon, lightning struck a tree on the farm, and Diehm had noticed that the lightning strike "had burnt up an outlet or two in the kitchen." Id. at 942. And at some point during the evening, Diehm's daughter Lynn was in the house when her little brother Samuel told her that there was a dead heifer near the barn. Lynn decided to go check on the heifer, and Craig volunteered to go with her.

         [¶6] Lynn and Craig made their way to the barn and went inside. They could see the heifer lying on the ground outside the "head gates" to the barn. Id. at 121. Lynn started to move towards the heifer, but Craig stopped her and told her that he would check on it. So Lynn backed up, and Craig "grabbed onto the head gate and was like leaning and he stopped." Id. After a short time, Lynn noticed that Craig was not moving, and she asked him if he was okay. Craig did not respond, so Lynn touched him and felt a "vibration." Id. at 122. Lynn soon realized that Craig was "getting shocked" and she "pulled him off" and "laid him down" on the ground. Id. Lynn saw blood coming out of Craig's mouth, and Craig did not have a pulse. Lynn had "accidentally called" her mom on her cell phone during that time, so Lynn's mom heard everything and called 9-1-1. Id.

         [¶7] Emergency medical technicians arrived and transported Craig to a hospital in Fort Wayne, and Craig was ultimately transported to Riley Hospital for Children in Indianapolis. Craig had sustained an electric shock, which caused him to go into "full cardiac arrest" and ventricular fibrillation.[5] Id. at 149. As a result, Craig suffered a severe, permanent anoxic brain injury, and he was comatose for several days. Craig underwent months of therapy for cognitive, memory, executive functioning, and processing deficits.

         [¶8] An investigation into what caused the electric shock revealed several factors that contributed to the short-circuiting of the de-icer and electrification of the head gates. A summary of the results of that investigation is as follows:

During the midafternoon of July 28, 2010, thunderstorms passed through Noble County, including over the Diehm farm. The Diehm farm experienced several lightning strikes, including one by a tree near the Diehm's home. It was near that tree that the underground electrical service from the main service disconnect ran back to the old barn and from there branching out to other locations, including the feed barn. With the lightning strike, an electrical surge from the lightning passed through that electrical service and onto the feed barn. That power surge led to the de-icer in the north waterer short[-]circuiting. The electrical surge caused the fine nichrome wire coil in the interior ring of the de-icer to break apart with the electrical surge fusing the insulating magnesium oxide around the coil and that fused material provided a connection from the energized nichrome coil wire to the steel shroud of the heater. The shroud was connected to the ground wire within the de-icer's power cord and, as Mr. Diehm had cross-wired the plug, the electrical current flowed back to the service panel box. Because Mr. Pfafman had not installed a bonding jumper at the service panel box, the electrical current did not flow to the breaker. Consequently, the breaker did not trip to de-energize the circuit. Instead, electrical current flowed to the panel box and ground wire and energized the metal feed barn, including the metal stanchion, which Kole Craig would eventually come to touch. In addition, because GFCI protection had not been installed on the deicer circuit, there was no GFCI plug or breaker in place that would have tripped with the short circuit and thereby de-energized the line. As a result, when Kole Craig accompanied Lynn Diehm to check on the dead steer, the feed barn and the metal stanchion were hot with electricity.

         Appellees' Br. at 20-21 (emphases added).

         [¶9] Craig's Estate filed a complaint against Pfafman, Farm Innovators, [6] and Cooper Industries[7] alleging negligence and product liability, respectively.[8] Craig's Estate dismissed Cooper Industries prior to trial "due to a lack of evidence establishing liability." Appellees' Br. at 7. Craig's Estate's "claims against Farm Innovators were settled before trial." Id. And, "[p]rior to suit being filed, a settlement was reached" with Diehm. Id.

         [¶10] On November 2, 2015, a five-day jury trial began on Craig's Estate's claims against Pfafman. Craig's Estate argued that Pfafman was negligent in the following ways: he failed to install a "bonding jumper"[9] when he installed the service panel box in the barn, in violation of the National Electrical Code ("NEC"); he used "type NM wire"[10] without placing it inside conduit, in violation of the NEC; and he failed to install GFCI protection to the lines placed for future use in the de-icers, in violation of the NEC. Pfafman's Estate[11]argued that Pfafman did not breach his duty of care to Craig and, in the alternative, that his alleged breach of duty was not a proximate cause of Craig's injuries. In particular, Pfafman's Estate named Diehm and Farm Innovators as non-parties and argued that the jury could find that any one of the breaches of duty by Diehm and Farm Innovators proximately caused Craig's injuries, including: Diehm's decision to install de-icers in 2007 without consulting Pfafman at that time; Diehm's incorrect wiring of the de-icer that ultimately contributed to cause the short-circuit and the electric shock incident; Diehm's failure to install GFCI protection to the de-icers despite the installation instructions and Pfafman's previous instruction; Diehm's failure to unplug and store the de-icers during the summer months; and a possible defect in the de-icer manufactured by Farm Innovators. The trial court instructed the jury in relevant part as follows:

Negligence is the failure to use reasonable care. A person may be negligent by acting or by failing to act. A person is negligent if he or she does something a reasonably careful person would not do in the same situation, or fails to do something a reasonably careful person would do in the same situation. A person's conduct is legally responsible for causing an injury if: (1) the injury would not have occurred without the conduct, and (2) the injury was a natural, probable, and foreseeable result of the conduct. This is called a "responsible cause." Sometimes an unrelated event breaks the connection between a defendant's negligent action and the injury a plaintiff claims to have suffered. If this event was not reasonably foreseeable, it is called an "intervening cause." When an intervening cause breaks the connection between a defendant's negligent act and a plaintiff's injury, a defendant's negligent act is no longer a "responsible cause" of that plaintiff's injury. A contractor is liable for injuries of third persons after acceptance by the property owner where the work is reasonably foreseeable to endanger third parties if an[d] only if negligently completed by the contractor. An injury is foreseeable when a person should realize that his act or failure to act might cause that injury. A party who violates a building, electrical or other code is not automatically liable. . . . A defendant may identify as a "nonparty" any person the defendant claims was at fault and caused any or all of the plaintiff's claimed damages. In this case, the Estate of Gary Pfafman (Pfafman) has named Roger Diehm as a non-party. Pfafman has the burden of proving by the greater weight of the evidence that Roger Diehm was at fault. Pfafman has also named Farm Innovators, Inc., as a non-party. . . . To decide if Kole Craig is entitled to recover damages from the Estate of Gary Pfafman, and, if so, the amount of those damages, [you must] apportion the fault of Gary Pfafman, Roger Diehm and Farm Innovators, Inc. on a percentage basis. Do this as follows: First, if Gary Pfafman is not at fault, return your verdict for the Estate of Gary Pfafman and against Kole Craig, and deliberate no further. . . .

         Tr. at 1114-24 (emphasis added).

         [¶11] The jury entered a general verdict in favor of Pfafman's Estate. Craig's Estate then filed a motion to correct error and for a new trial alleging that the verdict was against the weight of the evidence. Following a hearing, the trial court adopted, verbatim, Craig's Estate's proposed findings of fact and conclusions of law and granted the motion to correct error and ordered a new trial.[12] The trial court found and concluded in part as follows:

         II. Facts and Testimony Favorable to the Defense

A. In 2004, Mr. Diehm had informed Mr. Pfafman that Mr. Diehm might install deicers in the future if problems occurred with freezing water in the water troughs. Mr. Pfafman testified that he told Mr. Diehm that if Mr. Diehm did install deicers that Mr. Diehm would need to install [a] Ground-Fault Circuit Interrupter [on] for the deicers.
B. Three years after building the hay barn, Mr. Diehm installed deicers in the two water troughs in the hay barn. Farm Innovators, Inc., manufactured the deicers. When installing the deicer to the north water trough, Mr. Diehm incorrectly wired the Cooper manufactured electrical connector. The energized conductor was placed on the neutral terminal and the neutral conductor was placed on the energized terminal. This violated the National Electric Code.
C. Mr. Diehm did not install a Ground-Fault Circuit Interrupter for the circuit to the deicers.
D. Mr. Diehm did not properly maintain and store the deicers, contrary to Farm Innovators' instructions, including leaving the deicers in the waterers year-round and not cleaning the deicers.
E. Farm Innovators, Inc., like Roger Diehm, was named as a non-party defendant under the Indiana Comparative Fault Act by Pfafman. Farm Innovators, Inc., is a corporation organized and existing under the laws of Indiana and has its principal place of business in Plymouth, Indiana. Pfafman asserted the Farm Innovators' deicers contained defects in manufacture, design, and warnings. Pfafman asserted the Farm Innovators' deicer involved in the incident had an internal fault which contributed to the barn becoming energized. Pfafman offered the testimony of Elizabeth Buc and James Finneran to support this defect contention.
F. The defense contended at trial that Mr. Pfafman performed his electrical installation work at the Feed Barn as a favor for his brother-in-law, Roger Diehm, and that Pfafman's work was only to supply lights at the Feed Barn.
G. Pfafman was not aware of Roger Diehm's installation of the deicers at the Feed Barn in approximate[ly] 2007.
H. Roger Diehm form[er]ly operated a residential and commercial construction business.
I. The lightning strikes at the Diehm farm were a cause of the deicer to malfunction. A lightning strike triggered the short-circuiting of the deicer in question.
III. Facts and Testimony Supporting the Grant of a New Trial - That Gary Pfafman Was Negligent and Liable.
A. Michael Franks. Mr. Franks has been a licensed electrician since 1972. Mr. Franks was called to the farm by Roger Diehm after Kole Craig's electrical shock. Mr. Franks discovered the absence of a bonding jumper in the panel box at the Feed Barn and he was the one who installed the copper wire to serve as a bonding jumper connecting the ground bar to the neutral bar.
1. He testified that the electrical work at the Feed Barn should have been completed by Pfafman in compliance with the NEC. He testified that a main bonding jumper is required by the National Electrical Code and that connecting the bonding jumper is the most important connection any electrician can make to the service panel.
2. Mr. Franks indicated that had the bonding jumper been in place the circuit breaker would have blown as soon as the deicer shorted. The Feed Barn structure would have deenergized immediately with the circuit being broken and Kole would not have been shocked. He indicated that without the bonding jumper the hay barn was not properly grounded. He stated that without the bonding jumper the electrical service panel was an accident waiting to happen - the building would become "hot" with any short circuit event.
3. Mr. Franks testified that had Mr. Pfafman installed a GFCI circuit breaker that too would have prevented Kole's electric shock incident. The NEC requires the installing electrician, here Mr. Pfafman, to place either a GFCI circuit breaker or GFCI plug on the circuit going out to the waterers. With the short circuit in the deicer, such GFCI protection would have immediately tripped, deenergizing the building and preventing the electric shock event to Kole.
4. He testified that even though Mr. Diehm had mis-wired the outlet plug, the presence of the bonding jumper would have prevented the incident as the short circuit would have blown the breaker. He testified that the ultimate safety guard in an electrical panel box is the bonding jumper.[13]
* * *
V. Conclusions of Law and Ruling That a New Trial Should ...

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