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2007-0035 and 2007-0112. Turner v. Ohio Bell Tel. Co., Slip Opinion No. 2008-Ohio-2010.
Cuyahoga App. No. 87541, 2006-Ohio-6168. Judgment affirmed in part and reversed in part.
Moyer, C.J., and Lundberg Stratton, O'Connor, Lanzinger, and Cupp, JJ., concur.
Pfeifer and O'Donnell, JJ., dissent.
Opinion: http://www.supremecourtofohio.gov/rod/docs/pdf/0/2008/2008-Ohio-2010.pdf
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(May 7, 2008) The Supreme Court of Ohio ruled today that, when a vehicle collides with a utility pole located off the improved portion of a roadway but within the right-of-way, a public utility is not liable as a matter of law if the utility has obtained any necessary permission to install the pole and the pole does not interfere with the usual and ordinary course of travel.
The Court’s 5-2 majority opinion, authored by Justice Judith Ann Lanzinger, partially reversed a decision of the 8th District Court of Appeals.
Robert Turner was killed in an early morning traffic accident in a rural area of Fairfield County while riding in a vehicle driven by a co-worker, Bryan Hittle. Hittle told police that because of thick fog that impaired visibility, he could not clearly see the center and edge lines of the two-lane road and was following the tail lights of a pickup truck immediately in front of him. When he attempted to follow the pickup into a curve, the passenger side of Hittle’s car went off the paved portion of the road and struck a utility pole located three feet, nine inches outside of the white edge line and two feet, five inches from the edge of the berm. Hittle, whose speed was estimated to be 10 to 15 miles per hour above the posted 45 mph limit at the time of the crash, was convicted of vehicular manslaughter.
Turner’s mother, Lorri Turner, filed suit seeking wrongful death damages not only from Hittle but also from the Ohio Bell Telephone Company and South Central Power Company for negligent placement and maintenance of the utility pole. In her complaint, Ms. Turner alleged that the utility companies were negligent and thus liable for damages because they had located the pole so close to the paved portion of the roadway that it posed a foreseeable danger to motorists in the normal course of using the road. The Cuyahoga County Court of Common Pleas granted motions by Ohio Bell and South Central Power for summary judgment dismissing all claims against them. The trial court held that, because the pole was not located on the paved area of the roadway or in an improved roadside berm, it did not present a foreseeable danger to motorists making normal use of the roadway.
On review, the 8th District Court of Appeals partially reversed the trial court’s award of summary judgment and remanded several of Turner’s claims against the utility companies to the trial court for further proceedings. The appellate panel held that, because the utility pole was located so close to the roadway’s paved area and a portion of Hittle’s vehicle was still located on an improved portion of the roadway, whether the pole was negligently placed was a material issue of fact that should be decided by a jury. Ohio Bell and South Central Power sought and were granted Supreme Court review of the 8th District’s ruling.
Writing for the majority in today’s decision, Justice Lanzinger cited several prior appellate and Supreme Court decisions dealing with roadside hazards that were near but not within the improved portion of a roadway. She wrote: “In Strunk v. Dayton Power & Light Co. (1983) we addressed whether a municipality’s duty to keep highways free from nuisance, as required by R.C. 723.01, extends to a driver who collided with a light pole off the traveled portion of the roadway. We determined that the light pole was not a nuisance, in that it was not a condition that would ‘render the highway unsafe for its usual and ordinary mode of travel.’ ... Nine years later, we modified Strunk to the extent that it barred any liability for conditions within the right-of-way and held that ‘[a] permanent obstruction to visibility, within the highway right-of-way, which renders the regularly travelled portions of the highway unsafe for the usual and ordinary course of travel, can be a nuisance for which a political subdivision may be liable ...’ Manufacturer’s Natl. Bank of Detroit v. Erie Cty. Rd. Comm. (1992).”
Noting that the focus in both Strunk and Manufacturer’s “is whether an object that is not on the improved portion of the road but within the right-of-way is a condition that makes the roadway unsafe for the usual and ordinary course of travel,” ... Justice Lanzinger cited a 1994 appellate decision in which that court declined to extend the holding in Manufacturer’s to objects struck by a vehicle after it was driven off the improved portion of a roadway.
She wrote: “In Ramby v. Ping (Apr. 13, 1994), the Second District Court of Appeals declined to extend Manufacturer’s to impose a duty on adjacent landowners and municipalities to keep a right-of-way free of objects that pose a danger to vehicles that may foreseeably leave the traveled portion of the roadway. It noted, ‘No precedent exists for imposing a duty on public or private landowners to remove an off-road hazard that renders only off-road travel unsafe, unless the off-road travel is shown to be an aspect of the usual and ordinary course of travel on the roadway. Otherwise, every tree and solid fixed object on roadsides and road-shoulders would impose potential liability on public and private landowners for collisions occurring whenever a vehicle was driven off-road and into the object.’ ... We see no reason why utility poles located beyond the improved portion of the highway should be treated any differently.”
Applying the cited case law to Mrs. Turner’s wrongful death claim against Ohio Bell and South Central Power, Justice Lanzinger concluded: “In this case, there is no evidence that the utility pole, which was located in a grassy area two feet five inches from the berm and three feet nine inches from the white edge line of the road, interfered with the ordinarily and usually traversed portion of State Route 188. Had Hittle stayed within the marked lanes as required by R.C. 4511.33, or even on the improved portion of the roadway, his vehicle would not have come into contact with the utility pole. The evidence in this case indicates that the utility pole was erected pursuant to a permit issued by the Ohio Department of Transportation. Because the utility pole is located in the right-of-way but off the improved portion of the road and because a motorist properly using the usual and ordinary course of travel would not come into contact with the utility pole, we conclude that the utility pole did not incommode or interfere with the public’s use of the highway, and therefore appellants are not liable as a matter of law.”
Justice Lanzinger’s opinion was joined by Chief Justice Thomas J. Moyer and Justices Evelyn Lundberg Stratton, Maureen O’Connor and Robert R. Cupp.
Justice Terrence O’Donnell entered a dissent, joined by Justice Paul E. Pfeifer, stating that in his view the 8th District acted correctly in remanding several of Mrs. Turner’s claims to the trial court for determination by a jury. Justice O’Donnell cited Supreme Court decisions other than those cited by the majority, including Cambridge Home Telephone Co. v. Harrington (1933) and Ohio Bell Telephone Co. v. Lung (1935) in which the Court held that motorists’ right to use public roadways is “superior” to the rights of utilities and others who place poles or other obstructions in a highway right-of-way.
“According to the majority, no utility company – even one that obtains permission to place a pole just to the side, as in Harrington – can be held liable if it ‘has obtained any necessary permission for installing the pole from the owner of the right-of-way’ and it does not interfere with the ordinary course of travel,” wrote Justice O’Donnell. “This holding seems to contradict our decisions in Harrington and Lung by removing the question from jury consideration. ... In this instance, based on the placement of the pole, the evidence of prior accidents involving this pole, and the other attendant circumstances, including the speed of the vehicle, road conditions, and visibility, a jury issue is presented – whether or not the placement of the pole has incommoded the public in the use of the roads or highways. Accordingly, I would affirm the judgment of the court of appeals.”
Contacts
Thomas I. Michals, 216.622.8200, for
Ohio Bell Telephone Company.
Sean P. Allan, 216.377.0598, for Lorri Turner, Administratrix for Estate of Robert Turner.