Tipton County judge denies motion to dismiss wrongful death lawsuit

Aug. 25—TIPTON — Tipton County Circuit Court Judge Thomas Lett denied a motion to dismiss a wrongful death lawsuit filed against Tipton Municipal Utilities (TMU).

The denial means the lawsuit filed in April of last year by Teresa Arnett, the widow and head of the estate of David Arnett, will move forward against TMU.

"We are thankful the Court upheld the longstanding principle that allows injured workers to pursue justice and compensation for injuries caused by the negligence of companies other than their employer," Jeffrey Hammond, attorney for the estate of David Arnett said in an email when contacted by the Tribune for comment. "David Arnett was not an employee of Tipton Municipal Utilities, and any monetary judgment or settlement in this case will be paid wholly out of Tipton Municipal Utilities operating revenues and will not be paid out of any City of Tipton tax revenue or operating funds. We look forward to being able to continue on with pursuing the liability case against Tipton Municipal Utilities and pursuing justice for the death of David Arnett. "

TMU's hired attorney, Alan Townsend, did not respond to a request for comment.

The lawsuit alleges negligence in the July 2021 death of city of Tipton employee David Arnett.

Arnett, a laborer for Tipton's Fairview Cemetery at the time, was tasked with clearing and burning fallen trees and other debris in the wooded area located at 2200 W. 200 South, more commonly known as the "Boy Scout Woods," to pave way for the city's new disc golf course.

To do so, Arnett was given a skid steer with an attached grapple bucket to grab the logs and move them to a nearby burn pit.

The problem, according to the lawsuit, was the grapple attachment had a limited reach, forcing Arnett to "maneuver the Bobcat to the edge of the burn pit to drop the logs into the pit." The grapple attachment, according to the lawsuit, was owned by TMU.

In one instance, according to the lawsuit, the skid steer tipped forward and fell into the burning pit with Arnett inside. He suffered "severe burns over most of his body" and died later that day due to his injuries.

The lawsuit is seeking an unspecified amount in damages through a jury trial.

Lett, in a one-page filing Monday, did not expound on the reasoning behind his denial of TMU's motion to dismiss.

Shortly after the filing, TMU filed a motion for extension to file a formal response to the estate's original complaint. That motion was approved by Lett.

The judge's decision comes a few weeks after attorneys from both sides conducted oral arguments in Tipton County Circuit Court where they presented their arguments either for or against the motion to dismiss.

In its brief arguing for the motion to dismiss and at the oral argument earlier this month, TMU argued the estate is not eligible for any damages because of Indiana's Workers Compensation Act's exclusive remedy provision, which states if someone accepts and is receiving worker's compensation, they can't bring a civil tort lawsuit against their employer or any fellow employees.

Townsend argued during oral arguments it is very "clear" TMU is part of the city of Tipton since it is in municipality-owned utility, was created by the city and its board — the Utility Service Board — was created through an ordinance in the 1950s and is made up entirely of members appointed by either the City Council or the mayor.

Additionally, Townsend argued, TMU and the city of Tipton have the same liability insurance under the same policy, share a bank account, the city clerk-treasurer handles payroll and other financial duties for both the city and TMU, and any change to TMU's rates for electricity, wastewater and water all have to be approved by the City Council.

In his oral arguments, Hammond argued the court should look at where the money would come from if TMU were to pay any settlement or damages related to the lawsuit.

Specifically, Hammond pointed to the fact that any settlement or damages payout not covered by insurance would come out of TMU's operating balance and not from taxpayer's dollars from the city of Tipton's general fund.

Hammond also pushed back against the defense's other claims, arguing that while TMU's Utility Service Board is appointed by the City Council and mayor, that doesn't mean TMU isn't a separate entity.

"Appointing does not equal control," Hammond said, adding that TMU's general manager can only be fired by the Utility Service Board and not the City Council or mayor.

Tyler Juranovich can be reached at 765-454-8577, by email at tyler.juranovich@kokomotribune.com or on Twitter at @tylerjuranovich.