Mosteller v. Duke Energy Corp., COA09-277.
| Citation | 698 S.E.2d 424 |
| Decision Date | 07 September 2010 |
| Docket Number | No. COA09-277.,COA09-277. |
| Parties | Alicia Danielle MOSTELLER, Plaintiff,v.DUKE ENERGY CORPORATION, a North Carolina Corporation; Duke Energy Carolinas, LLC, a North Carolina Limited Liability Company; and William Ray Walker, Defendants. |
| Court | Court of Appeal of North Carolina (US) |
698 S.E.2d 424
Alicia Danielle MOSTELLER, Plaintiff,
v.
DUKE ENERGY CORPORATION, a North Carolina Corporation; Duke Energy Carolinas, LLC, a North Carolina Limited Liability Company; and William Ray Walker, Defendants.
No. COA09-277.
Court of Appeals of North Carolina.
Sept. 7, 2010.
COPYRIGHT MATERIAL OMITTED
Brown, Moore & Associates, PLLC, Charlotte, by Jon R. Moore, for plaintiff-appellant.
Parker Poe Adams & Bernstein LLP, Charlotte, by John W. Francisco, for defendant-appellee Duke Energy Carolinas, LLC.
STROUD, Judge.
Alicia Danielle Mosteller (“plaintiff”) was seriously injured when the car in which she was a passenger ran off of the roadway to avoid an oncoming vehicle and hit a utility pole located within the right of way. She filed a complaint alleging negligence against both defendant William Ray Walker, the driver, and defendant Duke Energy and negligence per se against defendant Duke Energy. The trial court dismissed her complaint with prejudice pursuant to Rule 12(b)(6) for failure to state a claim upon which relief may be granted. The issue on appeal is whether plaintiff's complaint sufficiently pled a claim for negligence or negligence per se as to defendant Duke Energy regarding the location and maintenance of the utility pole within the highway right of way. Even if the location of the utility pole was in violation of safety regulations administered by NC DOT, plaintiff has not alleged that NC DOT ever made any determination as to the proper location for the utility pole under the applicable regulations, so plaintiff's negligence per se claim fails. Because the negligence of defendant Walker was the intervening proximate cause of plaintiff's injuries, plaintiff's claims of ordinary negligence against Defendant
Plaintiff's complaint, which must be “taken as true” on a motion to dismiss for failure to state a claim, Embree Constr. Group, Inc. v. Rafcor, Inc., 330 N.C. 487, 490, 411 S.E.2d 916, 919-20 (1992), alleged that at approximately 7:07 p.m. on 13 February 2005, plaintiff was riding as a passenger in a vehicle operated by defendant William Ray Walker (“defendant Walker 1”) traveling southbound on Belmont-Mount Holly Road, between Interstate 85 and Woodlawn Road, in Belmont, North Carolina. Defendant Walker overreacted to an oncoming vehicle which came into his lane of travel, and he drove the vehicle off the right side of the road in a left curve, striking a utility pole (“the subject utility pole”) located in the right-of-way, approximately twelve-and-a-half feet off the right side of the paved roadway. Among other injuries, plaintiff sustained a fracture of her cervical spine resulting in quadriplegia.
Defendant Duke Energy Corporation and its subsidiary Duke Energy Carolinas, LLC (“defendant Duke Energy” 2) owned, installed, and maintained the subject utility pole which defendant Walker's vehicle hit. Other vehicles had also hit the subject utility poles or its predecessor poles, including guide wires, during the eight years prior to 13 February 2005. Plaintiff's complaint incorporates accident reports from three prior automobile accidents involving the subject utility pole or predecessor poles, in 1997, 2001, and 2003. The subject utility pole was a replacement utility pole installed at the same location as the original pole within the same utility line running on the western side of Belmont-Mount Holly Road.
Plaintiff's complaint incorporated portions of various publications which address design standards for roadways, particularly as to the placement of utility structures within the right of way. For example, “A Guide for Accommodating Utilities on Highway Rights-of-Way,” published in 1970 by the American Association of State Highway Officials (“AASHO”) states that:
On and along conventional highways in rural areas poles and related facilities should be located at or as near as practical to the right-of-way line. As a minimum, the poles should be located outside the clear roadside area for the highway section involved. There is no single minimum dimension for the width of a clear roadside area but, where there is sufficient border space, 30 feet is commonly used as a design safety guide.
Language similar to the above guideline as recommended by AASHO in 1970 was used in “Policies and Procedures for Accommodating Utilities on Highway Rights of Way[,]” adopted by the North Carolina Department of Transportation (“NC DOT”) Division of Highways in 1975 (“the 1975 NC DOT manual”). The 1975 NC DOT manual states that, “Poles and related facilities on and along conventional highways in rural areas shall be located at or as near as practical to the right-of-way line.”
Also incorporated into plaintiff's complaint is the affidavit of Gary Spangler, NC DOT District Engineer for the district which includes Gaston County, North Carolina. Mr. Spangler's affidavit states in pertinent part:
3. Since the 1975 publication of the Department of Transportation's “Policies and Procedures for Accommodating Utilities on Highway Rights of Way,” utility companies are required to obtain written permission of the Department of Transportation before placing a utility in the right-of-way of any road on the North Carolina State System. Utility companies typically seek this written permission by applying for an encroachment on a standardized form known as an Encroachment Agreement.... Upon approval of the encroachment by the
Department of Transportation, a copy of the Encroachment Agreement is maintained in the appropriate District office and Division office for the particular location where a utility company seeks to install a utility structure.
4. In the event a formal Encroachment Agreement is not utilized by the utility company and the Department of Transportation, the utility company must still obtain written permission to place a utility structure within the right-of-way of any road on the North Carolina State System. This is required pursuant to the Department of Transportation's “Policies and Procedures for Accommodating Utilities on Highway Rights of Way.” ... Copies of this written permission would be retained in the appropriate District office and Division office of the Department of Transportation for the particular location where a utility company seeks to install a utility structure.
5. If a utility line is upgraded, it is not necessary for the utility company to file an Encroachment Agreement. Nevertheless, the Department of Transportation's “Policies and Procedures for Accommodating Utilities on Highway Rights of Way” still requires that written permission be obtained by the Department of Transportation for work done on a utility structure within the right-of-way of any road on the North Carolina State System. This documentation would be retained in the appropriate District office and Division office of the Department of Transportation for the particular location where a utility company seeks to upgrade or perform work on a utility structure.
6. Belmont-Mt. Holly Road in Gaston County, North Carolina, also know as SR-2093, is a roadway on the North Carolina State System ....
7. Upon a diligent and thorough search of records in the District office and Division office, there is no Encroachment Agreement, other application for encroachment, or documentation on file in the District office or Division office of the Department of Transportation that relates to the placement of utilities in the right-of-way alongside SR-2093 between Interstate 85 and Woodlawn Road in Gaston County, North Carolina. Similarly, upon a diligent and thorough search of records in the District office and Division office there is no documentation that can be found indicating permission given by the Department of Transportation for work to be done, including upgrading, on a utility line owned or operated by [defendant Duke Energy] in the right-of-way alongside SR-2093 between Interstate 85 and Woodlawn Road in Gaston County, North Carolina.
8. The right-of-way encompassing SR-2093 between Interstate 85 and Woodlawn Road is one hundred feet (100') extending for fifty feet (50') on either side of the centerline of SR-2093. There is a utility line running alongside the western edge of SR-2093 between Interstate 85 and Woodlawn Road in Gaston County, which is located within the right-of-way.
Mr. Spangler's affidavit goes on to state that Belmont-Mount Holly Road (SR-2093) in its current configuration was constructed pursuant to design drawing plans dated 2 May 1975 and the road was completed prior to 29 December 1977. The design drawing plans did not indicate the existence of a utility pole in the right-of-way along the western edge of Belmont-Mount Holly Road in the vicinity of the subject utility pole.
Plaintiff's complaint also incorporated the affidavit of J. O'Hara Parker, Assistant State Utility Agent for the NC DOT, which states in pertinent part:
6. Upon a diligent and thorough search by myself and a member of the Right-of-Way Department, there is no Encroachment Agreement or other application for encroachment on file in the Right-of-Way office at the [NC DOT] that relates to the placement of utilities by [defendant Duke Energy] in the right-of-way alongside SR-2093 between Interstate 85 and Woodlawn Road in Gaston County, North Carolina.
Plaintiff's complaint also incorporated the affidavit of Aydren Flowers, a former State Utility Agent for the NC DOT, which states in pertinent part:
2. One of the responsibilities of the State Utility Agent is to coordinate the placement of roadside utility structures-such
as utility poles-which are to be located inside highway rights-of-way in...
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