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




      Court of Appeals of Indiana | Memorandum Decision 45A03-1707-SC-1701 | December 29, 2017   Page 2 of 4
      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


      Court of Appeals of Indiana | Memorandum Decision 45A03-1707-SC-1701 | December 29, 2017   Page 3 of 4
      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.




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