Kenyon Tyus, Jr., Kyrie Tyus, Keyon Tyus, Amber Tyus, and Kenyon Tyus, Appellants/Cross-Appellees-Plaintiffs,
Indianapolis Power & Light Company, The City of Indianapolis, Indianapolis Department of Public Works, and Wright Tree Service Inc. d/b/a Wright Tree Service,  Appellee/Cross-Appellant-Defendant.
from the Marion Superior Court The Honorable Patrick J.
Dietrick, Judge Trial Court Cause No. 49D12-1612-CT-43871
Attorneys for Appellants William E. Winingham Jonathon B.
Noyes Wilson Kehoe Winingham, LLC Indianapolis, Indiana.
Miltenberg Washington, D.C. Attorneys for Amicus Curiae
Indiana Trial Lawyers Association
J. Zipes Nicholas C. Deets Hovde Dassow & Deets, LLC
Attorneys for Appellee Indianapolis Power & Light Joshua
B. Fleming Lucy R. Dollens Quarles & Brady LLP
Joseph Wendt Alejandra Reichard Barnes & Thornburg LLP
Attorneys for Appellee Wright Tree Service Inc. Kevin C.
Schiferl Amy Stewart Johnson Darren A. Craig Frost Brown Todd
LLC Indianapolis, Indiana
Attorneys for Amicus Curiae Indiana Energy Association Wayne
C. Turner Patrick A. Ziepolt Hoover Hull Turner LLP
Attorneys for Amicus Curiae Indiana Legal Foundation Jane
Dall Wilson Emily Kile-Maxwell Faegre Baker Daniels LLP
In the underlying action, Amber Tyus ("Amber"), her
husband, Kenyon Tyus ("Kenyon"), and their three
children, Kenyon Tyus, Jr. ("Kenyon, Jr."), Keyon
Tyus ("Keyon"), and Kyrie Tyus ("Kyrie")
(collectively, "the Tyuses") sued Indianapolis
Power & Light Company ("IPL"), among others,
for various acts of common law negligence and gross
negligence. The Tyuses, who were not IPL customers, sought
recovery for injuries sustained when Amber and her three
children were involved in an automobile accident at a busy
Indianapolis intersection where IPL-operated traffic signals
remained dark for more than eight hours after they were
disabled by a storm. IPL moved for judgment on the pleadings
based largely on the defense that IPL's schedule of
rates, rules, and regulations for supplying electricity to
customers ("the 2016 Tariff"), which had been filed
with and approved by the Indiana Utility Regulatory
Commission ("IURC") on March 16, 2016, provided a
release from liability. Specifically, IPL argued that Rule
24.2, in part, released IPL from liability for injuries to
third persons resulting from an interruption of service or
supply of electricity, "unless due to willful default or
neglect on the part of [IPL]" ("the Release
Clause"). Appellee's App. Vol. 4 at 91. The
trial court granted IPL's motion for judgment on the
pleadings as to the Tyuses' negligence claim but allowed
their claim of gross negligence to proceed to trial.
The Tyuses bring this discretionary interlocutory appeal
raising five constitutional issues,  of which we find the
following issue to be dispositive:
I. Whether the trial court erred in granting IPL's motion
for judgment on the pleadings, after finding that the Release
Clause precluded IPL from being liable to the Tyuses for
damages resulting from IPL's negligent interruption in
the supply of electricity, when, the Tyuses argue, the
IURC's act of approving the Release Clause exceeded the
IURC's delegated powers.
cross appeals raising three issues,  which we restate as:
II. Whether the Tyuses are barred from raising a
constitutional issue for the first time on appeal;
III. Whether the trial court and our court lack subject
matter jurisdiction because the Tyuses' suit is an
improper collateral attack on the 2016 Tariff; and the
Release Clause is inextricably connected to rate making and,
thus falls within the IURC's expertise and jurisdiction;
IV. Whether, even without the Release Clause, judgment on the
pleadings for the Tyuses' negligence claim is appropriate
because IPL owes the Tyuses no duty of care.
We affirm in part, reverse in part, and remand for further
and Procedural History 
During a storm on the afternoon of April 2, 2016, a tree
branch fell, downing power lines near the intersection of
Binford Boulevard and Kessler Boulevard ("the
Intersection") in the City of Indianapolis, Indiana
("the City"). The resulting power outage caused
IPL-operated traffic signals at the Intersection to go dark
at 3:14 p.m. that day. Appellants' App. Vol. 2
at 66. An hour later, at 4:14 p.m., IPL "was notified
that the entire electrical circuit" at the Intersection
had lost power. Id. at 67. About twenty-five minutes
later, at 4:39 p.m., IPL was notified that the traffic
signals and surrounding lights at the Intersection were out
in every direction. Id. At 8:26 p.m., about five
hours after the traffic signals had lost power, IPL "was
again notified in an emergency call" that the traffic
signals and lighting at and surrounding the Intersection had
no power. Id. By 11:00 p.m., IPL "had received
at least thirteen separate notifications that the
[I]ntersection's circuit had lost power."
Id. At 11:17 p.m., about eight hours after the
traffic signals initially went black, the Intersection and
its surrounding street lights were still completely without
power and there was no traffic control at the Intersection.
That night, around 11:20 p.m., Amber was driving westbound on
Kessler Boulevard with her three sons-ten-year-old Kenyon,
Jr., seven-year-old Keyon, and two-year-old Kyrie.
Id. at 68. As Amber entered the Intersection, her
vehicle was t-boned by a vehicle operated by Brian Ruark who,
with passenger Jonell Carrier, was traveling northbound on
Binford Boulevard. The crash caused catastrophic injuries to
members of the Tyus family. Id. Amber suffered
severe fractures and other orthopedic injuries. Id.
Kenyon, Jr. suffered a severe traumatic brain injury and is
now confined to a hospital bed without the ability to walk,
talk, or feed himself. Id. Kyrie suffered a severe
traumatic brain injury, rendering him unable to form
sentences or have normal control over the left side of his
body. Id. Keyon suffered bodily injuries and severe
emotional damage after witnessing the crash and his
family's condition. Id.
IPL is a domestic, investor-owned, electric
utility. In 2016, pursuant to a "Public
Lighting Contract" between the City, as customer, and
IPL ("the IPL Contract"), IPL supplied equipment
and electricity to the City's traffic signals, including
those at the Intersection. The IURC is an administrative agency of
the State and "has legislative authority to set rates or
charges for regulated public utilities, including electric
utilities." Ind. Energy Ass'n Amicus Br. at
9. IPL is subject to regulation by the IURC.
On December 9, 2016, the Tyuses filed their initial complaint
against IPL seeking damages for injuries
sustained. Thereafter, the Tyuses filed an amended
complaint and, thereafter, a second amended complaint on May
17, 2017 ("the Amended Complaint").
Appellants' App. Vol. 2 at 43-53, 54-64, 65-77.
In the Amended Complaint, the Tyuses alleged that IPL
"knew or should have known of the power outage at the
intersection of Binford Boulevard and Kessler Boulevard in
Indianapolis, Indiana for over eight hours prior to the
Tyus[es]' collision." Id. at 69. The Tyuses
further alleged that IPL uses a system to locate outages that
became outdated decades ago. Specifically, the Tyuses
[IPL] was negligent and careless in one or more of the
a. Failing to properly monitor and maintain the power to the
b. Failing to timely and properly restore power to the
[I]ntersection after power to the [I]ntersection was lost.
c. Failing to properly maintain power lines and trees in
order to prevent power outages.
d. Failing to use a reasonable system for diagnosing and
correcting power outages in [the City].
e. Failing to act as a reasonable utility in regard to
maintenance, monitoring, and upkeep of traffic signals in
Id. at 69-70. The Tyuses further alleged that
IPL's "conduct constitute[d] gross negligence and
reckless misconduct in view of its failure to restore power
to the traffic [signals] and street lights at a high[-]volume
intersection for a period in excess of [thirteen]
hours." Id. at 70. IPL filed its answer on June
On September 12, 2017, IPL moved for judgment on the
pleadings because the IURC-approved 2016 Tariff
"preclude[d] IPL's liability for damages resulting
from interruptions in the supply of electricity," and
the matter should be referred to the IURC for its
interpretation of the meaning of the 2016 Tariff.
Id. at 81. IPL also moved to dismiss the Tyuses'
claims, arguing that IPL did not owe the Tyuses a duty of
care and, as such, the Tyuses' "[Amended C]omplaint
fail[ed] to state a claim upon which relief can be granted
against IPL as a matter of law." Id. In its
motion for judgment on the pleadings, IPL relied in large
part on its belief that the IURC-approved 2016 Tariff
provided a complete defense to the Tyuses' claims.
Specifically, IPL focused on the following italicized
language of the Release Clause:
24 Release of Company from Liability.
. . . .
24.2 [IPL] shall not be liable for damages resulting
to the Customer, or to third persons, from the use of
electricity, interruption of service or supply,
or the presence of the [IPL]'s property on the
Customer's premises, unless ...