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

MEMORANDUM DECISION

Pursuant to Ind. Appellate Rule 65(D), 

this Memorandum Decision shall not be 

regarded as precedent or cited before any 

court except for the purpose of establishing 

the defense of res judicata, collateral 

estoppel, or the law of the case.

ATTORNEYS FOR APPELLANT

Edward P. Grimmer

Daniel A. Gohdes

Edward P. Grimmer, P.C.

Crown Point, Indiana

ATTORNEYS FOR APPELLEE

Shawn C. Swope

Joseph I. Miyake

Swope Law Offices LLC

Schererville, Indiana

I N T H E

COURT OF APPEALS OF INDIANA

Northern Indiana Public

Service Company,

Appellant-Plaintiff,

v.

John J. Krause,

Appellee-Defendant

December 29, 2017

Court of Appeals Case No.

45A03-1707-SC-1701

Appeal from the Lake Superior

Court

The Honorable Michael N. 

Pagano, Magistrate

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 2 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 3 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 
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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.