Utilities and Roadside Safety (2004)

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APPENDIX C Examples of Lawsuits Involving Utility Pole Crashes C. Paul Scott, Editor Lawsuits involving utility pole crashes have been separated into the following categories: • Judgments in favor of transportation departments, • Judgments against transportation departments, • Judgments in favor of utility companies, • Judgments against utility companies, and • Miscellaneous. JUDGMENTS IN FAVOR OF TRANSPORTATION DEPARTMENTS Case 1: Vigreaux v. Department of Transportation and Development, 535 So.2d 518 (La.App. 4 Cir. 1988) The driver was injured when he swerved his vehicle to avoid a head-on collision, lost control of his car, and struck a utility pole located 8 in. from the street. He had not been drinking and the road conditions were dry at the time of the accident. The driver sued the city of New Orleans, the Louisiana Department of Transportation and Development (DOTD), and the New Orleans Public Service Incorporated, the owner of the utility pole. Both DOTD and the utility company moved for a summary judgment. The Civil District Court, Parish of Orleans, granted the utility company a summary judgment and dismissed DOTD because DOTD did not own or maintain the street where the utility pole was located. Case 2: Anderson v. Macomb County Road Commission (143 Mich.App. 735, 372 N.W.2d 651) A passenger was permanently paralyzed below her neck when the automobile in which she was riding skipped a curb and struck a utility pole located 24 in. from the curb. The passenger brought action against the county road commission and others, alleging negligence in placement and maintenance of the utility pole. The Macomb Circuit Court entered summary judgment in favor of the commission and the passenger appealed. 61 C. Paul Scott, Federal Highway Administration, 400 7th Street, SW, Washington, DC 20590. Current affiliation: TBE Group, Inc., 16216 Edgewood Drive, Dumfries, VA 22026.

The Court of Appeals held that the county road commission was not liable to the pas- senger who sustained injuries because statutory waiver of the state’s sovereign immu- nity with regard to the improved portion of the highway did not extend to the utility pole located 2 ft behind the curb. Case 3: Boteler v. Rivera, 96-1507 (La.App. 4 Cir. 1997), 700 So.2d 913 The children of a passenger who was killed when the automobile in which she was riding ran off the road and struck a utility pole sued the driver, the Louisiana DOTD, and the util- ity company. Following bench trial, the 34th Judicial District Court, St. Bernard Parish, entered judg- ment for the children. The DOTD and the utility company appealed. The Court of Appeal held that: • The condition of the road was not cause-in-fact of the accident. • DOTD could not be held liable because the pole, although located only 3 ft off the road, was located outside DOTD’s right-of-way. Even though DOTD had cut grass along the road, they did not place the utility pole or give anyone else permission to place poles along the road, and they did not own the land adjacent to the road. JUDGMENTS AGAINST TRANSPORTATION DEPARTMENTS Case 1: Smith v. City of New Orleans, Louisiana Department of Highways, and New Orleans Public Service Incorporated, 616 So.2d 1262 (La.App. 4 Cir. 1993) An automobile rounded a curve, ran off the road, and struck a utility pole located 18 in. behind the curb. Suit was brought on behalf of the driver and passengers who were injured or killed against the utility company, the city of New Orleans, and the Louisiana DOTD. The Civil District Court, Parish of Orleans, entered judgment against the city and DOTD and entered judgment on jury verdict against the utility company. Appeals were taken. The Court of Appeal held that: • There was no basis for a suit against the company because placement of the pole was in accordance with applicable standards, the road in question was a state highway under state control, and the utility company had no traffic engineers and made no studies as to traffic conditions, depending on the public entities to do that. • There was no basis for suit against the city because the Louisiana DOTD had designed and built the road and alone was responsible for the configuration of the curve and the location of the pole. • DOTD could be found liable for allowing the pole to be located so as to present a haz- ard and for not adequately protecting against the hazard. In summary: • Although DOTD is not a guarantor of the safety of travelers, it does have a duty to keep state highways and shoulders reasonably safe for nonnegligent motorists. • Evidence of prior accidents involving collisions with the utility pole in years leading up to the incident was sufficient to establish constructive knowledge of a defective con- dition so that DOTD had an obligation to discover the defect and take measures to pro- tect the public from injury. • DOTD was at fault by failing to move the pole 5 or 10 ft away from its location 18 in. behind the curb and installing an attenuating device, or by placing a solid line, chevrons along the curve leading up to the pole, and/or a flashing signal to warn approaching vehicles of a dangerous curve. 62 Utilities and Roadside Safety

• The driver of the car was found to be 75% negligent in the accident. The area had been posted for a 35-mph speed, two signs warned of a sharp curve, and there was no evi- dence the driver made an effort to avoid hitting the pole. Even so, the driver was awarded $600,000 to cover general damages, including medical expenses, pain and suffering, and future loss of earnings. An injured passenger was awarded $375,000 to cover general damages. General damage awards of $250,000 and $125,000, respec- tively, were warranted for the death of two passengers. JUDGMENTS IN FAVOR OF UTILITY COMPANIES Case 1: Federation of Insurance & Corporate Counsel, FICC Hot Tips, 6/16/99s A utility company may be liable for collision with a pole located off a traveled portion of highway—but not usually. The Maryland Court of Appeals affirmed dismissal of a case against a utility company, as follows: • A utility company clearly has a duty not to endanger or “incommode” persons and vehicles traveling on the portion of the roadway set aside for lawful travel. • If the placement of the pole was either directed or expressly or tacitly approved by the government body responsible for the construction or maintenance of the road, the util- ity company has, at least presumptively, complied with any duty it has to persons on the road arising from that placement of the pole. A utility company is ordinarily enti- tled to rely on the expertise and superior interest of that authority on matters of high- way safety. • In placing or maintaining a pole near a public roadway, a utility company may ordi- narily anticipate that travelers will use the road in a lawful and reasonable manner. If the utility company has a choice about placement, however, it must take account of any particular road or site conditions, such as sharp curves, narrowness of the road, lack of a shoulder, or a potentially dangerous intersection, that may make a deviation more likely and therefore foreseeable and not place or maintain the pole so as to create an unreasonable risk of harm to travelers. • Utility companies are under no tort duty to make any massive engineering inspection of all their poles now existing along the streets and roads of the state. They may rea- sonably assume that poles that have remained standing for any significant length of time without serious incident do not incommode or unreasonably imperil traffic on the road. If made aware, however, that particular poles have been involved either in fre- quent accidents or in any accident that is not freakish and that reasonably indicates a likelihood of future collisions, a question of fact is created whether the pole incom- modes or unreasonably imperils traffic on the road. Case 2: Gouge v. Central Illinois Public Service Co., 144 Ill. 2d 535,544 (1991) The Illinois Supreme Court held that: • The electric utility owed no common law duty of reasonable care to ensure that if an automobile leaves the traveled portion of a roadway and strikes a utility pole, the pole will fall away from the roadway. • Generally, the liability of a utility company for injuries to a motorist resulting from a collision with a utility pole depends on whether the pole is located in or so close to the traveled portion of the highway as to constitute an obstruction dangerous to anyone properly using the highway. • Utility companies owe no duty to motorists who collide with utility poles unless it is reasonably foreseeable that the vehicles would leave the roadway in the ordinary course of travel and strike the utility poles. Examples of Lawsuits Involving Utility Pole Crashes 63

Case 3: Armand v. Louisiana Power and Light Company, 482 So.2d 802 (La.App. 4 Cir. 1986) The father of the driver injured in an automobile accident when the automobile slammed into a utility pole brought action, individually and on the driver’s behalf, against the power company. The driver suffered severe permanent injuries when the car she was operating jumped a curb and slammed sideways into a utility pole located 29 to 30 in. behind the curb. The Civil District Court for the Parish of Orleans following a jury trial entered judg- ment against the utility company for $1.2 million. The utility company appealed. The Court of Appeal held that: • The location and design of the utility pole was not cause-in-fact of the accident, and therefore the utility company could not be held liable for the damages caused. • The driver’s negligence breached her duty to control the automobile and maintain a proper outlook and was the sole cause of the accident. In summary: • The driver had a duty to control her vehicle and to maintain a proper outlook. • For negligence to be the legal cause of the driver’s injuries, the utility company’s neg- ligence must be a cause-in-fact of injuries, and risk and harm encountered by the driver must fall within the scope of protection afforded by the utility company’s duty, which was breached by its negligence. • An inestimable number of poles and trees line our streets. • The utility company’s pole was no more a cause of the plaintiff’s injuries than if the plaintiff had hit an object in the road, lost control, and then struck the pole. • The driver’s negligence in driving with a blood alcohol content of between 0.23% and 0.30% and in failing to maintain control of the automobile was the sole cause of the accident. (She is now a quadriplegic.) • A utility company has no obligation to guard against rare exigencies such as an out- of-control vehicle leaving a traveled roadway. Case 4: Roux v. Louisiana Power and Light Company, Inc., 597 So.2d 118 (La.App. 5 Cir. 1992) Driver and passenger were injured when their vehicle skidded into a utility pole after the vehicle hydroplaned during a heavy rainstorm. They brought suit against the utility com- pany, alleging that the placement of the pole within 12 in. of the roadway was negligent. The 24th Judicial District Court, Parish of Jefferson, granted summary judgment in favor of the utility company. The plaintiffs appealed. The Court of Appeal affirmed the District Court’s decision and held that: • The plaintiff did not show that placement of the pole was in fact the cause of the acci- dent or that its placement created an unreasonable risk of harm to passing motorists. • Without prior knowledge of previous accidents involving the pole, the utility company owed no duty to passing motorists regarding the location of the pole. The following precedents were cited: • Paige v. Commercial Union Insurance Company, 512 So.2d 507 (La.App. 3 Cir. 1987), writ denied, 523 So.2d 823 (La. 1987). It is well established that motorists are under a duty to drive prudently and that this includes the duty to keep control of their vehi- cles and to keep a proper lookout for hazards. • Lang v. Prince, 447 So.2d 1112 (La.App. 1 Cir. 1984), writ denied, 450 So.2d 1309-1311 (La.1984). South Central Bell was negligent for failing to remedy a hazard created by one of its utility poles. The pole was placed in the improved shoulder of the road. If drivers left the roadway even partially, they would contact the pole. South Central Bell knew of the danger yet failed to correct it. 64 Utilities and Roadside Safety

Case 5: Smith v. City of New Orleans, Louisiana Department of Highways, and New Orleans Public Service Incorporated, 616 So.2d 1262 (La. App. 4 Cir. 1993) An automobile rounded a curve, ran off the road, and struck a utility pole located 18 in. behind the curb. Suit was brought on behalf of driver and passengers, injured or killed, against the utility company, the city of New Orleans, and the Louisiana DOTD. The Civil District Court, Parish of Orleans, entered judgment against the city and the department and entered judgment on jury verdict against the utility company. Appeals were taken. The Court of Appeal held there was no basis for suit against the utility company because placement of the pole was in accordance with applicable standards, the road in question was a state highway under state control, and the utility company had no traffic engineers and made no studies as to traffic conditions, depending on public entities to do that. JUDGMENTS AGAINST UTILITY COMPANIES Case 1: Professional Techniques Library, P.O. Box 527, Cohasset, MA 02025-0527, www.ziplink.net/∼bbarton/cata.htm Descriptive summaries of million-dollar arguments: No. 106: John Messina, Tacoma, Washington: utilities/leg amputation, burns; Mortimer v. Puget Sound Power & Light. Two brothers driving home after a night of drinking struck a utility pole too close to the winding road. Messina’s jury decided the passenger was entitled to a forgiving highway and awarded him $3,141,000. Case 2: Nicks v. Teche Electric Co-Op, Inc., 93-1418 (La.App. 3 Cir. 1994), 640 So.2d 723 Driver and passenger were injured when they were forced off the road by an oncoming motorist and their vehicle left the traveled way and struck a replacement utility pole lying in a grassy area just beyond the graveled shoulder of the roadway. They sued the utility company. The Sixteenth Judicial Court, Parish of Iberia, entered judgment against the utility com- pany, which appealed. The Court of Appeal affirmed the decision and held that: • Evidence supported determination that the utility company’s utility pole located within 10 ft of the roadway was cause-in-fact of harm to the driver and passenger. • The trial court did not err in imposing duty on the utility company to keep its equip- ment outside the clear recovery area. Case 3: McMillan v. Detroit Edison Company (426 Mich. 46, 393 N.W.2d 332) A passenger in an automobile that left the traveled portion of a highway when struck by a hit-and-run driver and collided with a utility pole brought action against the owner of the pole and others. The utility pole was located in the grassy median, about 3 ft from the traveled portion of the highway. The Oakland Circuit Court granted the utility’s motion for summary judgment and the passenger appealed. The Court of Appeals affirmed. The Supreme Court reversed lower court decisions and overruled some previous deci- sions by determining that placement of the poles could be so significant and important as to be regarded a proximate cause of the passenger’s injury and that the utility could be found to owe a duty to motorists but that this determination should be made by a jury. Other courts have concluded that similar situations present questions that should be submitted to a jury. For example, in Scheel v. Tremblay (226 Pa.Super.45, 312 A.2d 45), the car swerved to avoid an oncoming car and struck a utility pole placed 10 in. from the pavement by the Philadelphia Electric Company. The court reversed a summary judg- ment granted in the utility’s favor. Examples of Lawsuits Involving Utility Pole Crashes 65

Case 4: Boteler v. Rivera, 96-1507 (La.App. 4 Cir. 1997), 700 So.2d 913 The children of a passenger who was killed when the automobile in which she was riding ran off the road and struck a utility pole sued the driver, the Louisiana DOTD, and the utility company. Following bench trial, the 34th Judicial District Court, St. Bernard Parish, entered judg- ment for the children. DOTD and the utility company appealed. The Court of Appeal held that: • The condition of the road was not cause-in-fact of the accident. • DOTD could not be held liable based on the location of the utility pole. • The utility pole, based on its location, 3 ft off the edge of the road, posed an unreason- able risk of harm that substantially contributed to the passenger’s death. • The utility company bore responsibility for the unreasonable risk posed by the utility pole on both negligence and strict liability theories. • Although the majority of the fault was that of the driver, his inadvertence was not the sole cause of the accident. (Fault was apportioned 60% to the driver, 25% to the utility company, and 15% to the passenger.) In summary: • The condition of the rural highway, which had two 10-ft lanes and which lacked edge striping or a curb, was not the cause-in-fact of the accident. The driver’s inadvertence caused the vehicle to leave the road. • DOTD was not liable because the pole, although located only 3 ft off the road, was located outside DOTD’s right-of-way. Even though DOTD had cut grass along the road, it did not place the utility pole or give anyone else permission to place poles along the road, and it did not own the land adjacent to the road. • The utility company was liable for the unreasonable risk posed by the utility pole located 3 ft off the road: it owned and had custody of the pole, it was responsible for the pole’s location, it had at least constructive knowledge that the pole caused risk of harm, the pole was not located within the state’s right-of-way, and DOTD did not grant permission to locate the pole. Case 5: Mayoral v. Middle South Utilities, 618 So.2d 436, La.App. 5 Cir. 1993 A driver and passenger were injured when the driver took evasive action to avoid an oncoming car, ran off the road, and hit a utility pole located close to the roadway. They sued the utility company. The 24th Judicial District Court, Parish of Jefferson, granted summary judgment for the utility company. An appeal was taken. The Court of Appeal held that genuine issues of material fact existed, precluding sum- mary judgment for the utility company. Issues included the following: • Whether failure to place a barrier near the pole was cause-in-fact of the collision or the passenger’s injuries; • Whether a barrier would have prevented the collision; • Whether previous accidents involving the utility pole had occurred; • Whether the utility company had a duty to protect automobile drivers and passengers from collisions arising from a driver’s response to a sudden emergency; and • If that duty existed, whether the utility company breached its duty. Case 6: Owens v. Concordia Electric Cooperative, Inc., 95-1255 (La.App. 3 Cir 1997), 699 So.2d 434 The parents of a 16-year-old motorist brought wrongful death action against the parish and the utility company arising from an automobile accident in which the motorist lost 66 Utilities and Roadside Safety

control of his vehicle while rounding a 90° dog-leg-left curve and struck a utility pole, dislodging the transformer rack that was affixed to the pole and causing it to crash down atop and crush the vehicle. The Seventh Judicial District Court, Parish of Catahoula, after polling the jury, rendered final judgment apportioning 65% of the fault to the motorist, 25% to the utility company, and 10% to the parish and granted each parent $1 million in general damages before any comparative fault reduction. All parties appealed. The Court of Appeal held that: • The trial court committed reversible error by modifying judgment after its improper polling of the jury revealed jurors’ misunderstanding of the court’s instructions. • The motorist was 65% at fault given blood alcohol level in excess of legal intoxication and his loss of control of the vehicle. • The parish’s breach of its duty to sign the 90° curve warranted 10% assessment of fault. • The utility company’s placement of the pole within 7 ft of the curve and failure to prop- erly affix the transformer rack to the pole warranted 25% assessment of fault. • Wrongful death damage awards of $350,000 to each parent were reasonable. In summary: • Under the comparative fault system, the motorist’s fault in causing the accident does not necessarily relieve the defendants of liability for causing harm. • The parish’s breach of its statutory duty to place warning signs warranted a 10% assessment of fault. Even though the motorist was intoxicated, the risk he might lose control in a 90° curve of unsigned, rutted, dirt road was within the scope of the parish’s duty to sign the curve. • The utility company’s breach of its duty not to create obstructions for motorists who stray from the traveled portion of the roadway and of its duty to assemble and main- tain its utility pole fixtures warranted a 25% assessment of fault. The utility company placed the pole within 7 ft of a 90° dog-leg-left curve and used 5/8-in. bolts to fasten the transformer rack to the utility pole, even though the manufacturer expressly instructed use of 3/4-in. bolts and experts testified 3/4-in. bolts were customarily used. MISCELLANEOUS Case 1: West’s Encyclopedia of American Law, www.wld.com/conbus/weal/ wneglig2.htm Perhaps no issue in negligence law has caused more confusion than the issue of proxi- mate cause. The concept of proximate cause limits a defendant’s liability for his or her negligence to consequences reasonably related to the negligent conduct. Although it might seem obvious whether a defendant’s negligence has caused injury to the plaintiff, issues of causation are often very difficult. Suppose, for example, that a defendant negligently causes an automobile accident, injuring another driver. The colliding cars also knock down a utility pole, resulting in a power outage. Clearly the defendant’s negligence has in fact caused both the accident and the power outage. Most people would agree that the negligent defendant should be liable for the other driver’s injuries, but should he also be liable to an employee who, because of the failure of her electric alarm clock, arrives late for work and is fired? This question raises the issue of proximate cause. Actually, the term proximate cause is somewhat misleading because as a legal concept it has little to do with proximity (in time or space) or causation. Instead, proximate cause is related to fairness and justice in the sense that at some point it becomes unfair to hold a defendant responsible for the results of his or her negligence. For example, Mrs. O’Leary’s negligent placement of her lantern may have started the Great Chicago Fire, but it’s unjust to hold her responsible for all the damage done by the fire. Examples of Lawsuits Involving Utility Pole Crashes 67

In determining whether a defendant’s negligence is the proximate cause of a plaintiff’s injury, most courts focus on the foreseeability of the harm that resulted from the defen- dant’s negligence. For example, if a driver negligently drives an automobile, it is fore- seeable that the driver might cause an accident with another vehicle, hit a pedestrian, or crash into a storefront. Thus, the driver would be liable for those damages. But suppose the negligent driver collides with a truck carrying dynamite, causing an explosion that injures a person two blocks away. Assuming the driver had no idea the truck was carry- ing dynamite, it is not foreseeable that this negligent driving could injure a person two blocks away. Therefore, the driver would not be liable for that person’s injury under this approach. When applying this approach, courts frequently instruct juries to consider whether the harm or injury was the “natural or probable” consequence of the defendant’s negligence. A minority of courts hold the view that the defendant’s negligence is the proximate cause of the plaintiff’s injury if the injury is the “direct result” of the negligence. Usually a plaintiff’s injury is considered to be the direct result of the defendant’s negligence if it follows an unbroken, natural sequence from the defendant’s act and no intervening, external force acts to cause the injury. Case 2: Hoffman v. Vernon Township, 97 Ill. App. 3d 721,726 (1981) and Boylan v. Martindale, 103 Ill. App. 3d 335 (1982) Plaintiff’s automobile went out of control, left the roadway, and struck a utility pole that was located 27 ft from the centerline of the roadway and 12 to 16 ft from the easterly boundary line of the roadway. The court found that it was not reasonably foreseeable by the defendant that the plain- tiff would deviate from the road as he did as a normal incident of travel. Case 3: Letter of the Law, A Quarterly Publication from the Law Offices of Ernest H. Hyde, Vol. 7, No. 3, July 1998, www.erniehyde.com/Newsletter-7-98.html The Mississippi Supreme Court ordered a new trial in a case in which a passenger was injured while riding with a drunk driver who swerved off the road and hit a utility pole. • The court stated that the utility company had a duty of care for the safety of those mak- ing common use of the right-of-way. • The court ruled that the trial court should consider factors such as the structure’s prox- imity to the roadway, the configuration of the roadway, whether the utility company had notice of previous accidents, and whether there are feasible alternative locations for the structure that are less dangerous. 68 Utilities and Roadside Safety