Blackmer v. COOKSON HILLS ELEC. CO-OP, INC.

• Citation: 18 P.3d 381,2000 OK CIV APP 135
• Decision Date: 14 November 2000
• Docket Number: No. 92451.,92451.
• Parties: Chris L. BLACKMER, Plaintiff/Appellee, v. COOKSON HILLS ELECTRIC COOP., INC., Defendant/Appellant.
• Court: United States State Court of Criminal Appeals of Oklahoma. Court of Civil Appeals of Oklahoma

18 P.3d 381

2000 OK CIV APP 135

Chris L. BLACKMER, Plaintiff/Appellee, v. COOKSON HILLS ELECTRIC COOP., INC., Defendant/Appellant.

No. 92451.

Court of Civil Appeals of Oklahoma, Division No. 2.

November 14, 2000.

Michael J. Edwards, Tulsa, OK, for Appellant.

Released for Publication by Order of the Court of Civil Appeals of Oklahoma, Division No. 2.

OPINION

TAYLOR, J.

¶ 1 Defendant, Cookson Hills Electric Cooperative, appeals a judgment of the trial court in favor of Plaintiff, Chris L. Blackmer. The issue in this appeal from a small claims judgment is whether the judgment is supported by competent evidence. Having reviewed the record and applicable law, we find that it is and affirm.

¶ 2 Plaintiff brought this action to recover for damage to his vehicle resulting from a collision with a utility pole owned and maintained by Defendant. On January 5, 1998, Plaintiff was traveling north on a dirt road maintained by Sequoyah County. As part of its maintenance, the county grades the road approximately once a month. Above the road is an electrical line, owned by Defendant and supported by utility poles on each side of the road. The poles have been in the same location for at least 25 years. As he was driving, Plaintiff moved his vehicle to the right to allow an oncoming vehicle to pass. In doing so, he collided with the utility pole located on the right side of the road. Plaintiff brought this action to recover for damage to his vehicle. Defendant counterclaimed for damage to its pole.

¶ 3 At a nonjury trial held on October 23, 1998, and continued on November 6, 1998, Plaintiff presented photographs, taken soon after the day of the collision, showing the right boundary of the road was approximately one to three feet¹ beyond the pole. In other words, the photographs showed that the pole was located on the roadway. Defendant, on the other hand, presented photographs taken approximately two weeks before the hearing, showing that the right edge of the roadway was located one to three feet inside the location of the pole. In other words, at the time of Defendant's photographs, the pole was outside the roadway.

¶ 4 The trial judge inspected the roadway on November 6, 1998. He determined that, at the point of the accident, the roadway was 27 feet wide, not 33 feet wide as required by law. He further determined that the pole was within 16½ feet of the center of the road bed—in other words, it was within an area that would have included the roadway had the roadway been the required 33 feet.

¶ 5 The photographs, the court's conclusions from its inspection of the road, and other evidence presented at trial show that the width of the road and location of the road's edge changed depending on the county's grading. Thus, as determined by the court, "the electrical pole may be within the road or it may be outside the road depending on the particular day that it is inspected." The trial court granted judgment to Plaintiff and awarded damages of $3,678.22.

¶ 6 Defendant appeals. In reviewing a judgment from a non-jury trial in a small claims action, we will not disturb the trial court's findings if there is any competent evidence to support them. Soldan v. Stone Video, 1999 OK 66, ¶ 6, 988 P.2d 1268, 1269.

¶ 7 Public service corporations owe a duty to the traveling public to erect, place, construct, and maintain utility poles "so as not to incommode or endanger the public in the use of its roads, highways and thoroughfares, and ... shall not exercise the rights granted so as to interfere with the free and ordinary use of public highways." Jafek v. Public Serv. Co. of Okla., 1938 OK 360, ¶ 13, 79 P.2d 813, 814. A utility company may be held liable if it "`erected and maintained'" its utility pole "`upon or so near the highway as to interfere with or obstruct the ordinary use thereof by the traveling public.'" Id. at ¶ 18, 79 P.2d at 815 (quoting Southern Bell Tel. & Tel. Co. v. Edwards, 253 Ky. 727, 70 S.W.2d 1 (1934)). A utility company that maintains "wires in or over public streets ... must use commensurate care in their erection, inspection, and repair to the end that no injury shall be done to travelers and that the way shall be substantially as safe as it was before such occupation." Caddo Elec. Coop. v. Bollinger, 1955 OK 170, ¶ 17, 285 P.2d 200, 204 (quoting 18 Am.Jur. § 94). "The company is bound to erect and maintain them in a safe condition so they will not become nuisances or endanger the safety of the traveling public." Id. Whether a utility company has exercised reasonable care in this regard generally presents a question of fact to be determined by the trier of fact. Id. at ¶ 19, 285 P.2d at 204. See also Oklahoma Natural Gas Co. v. Smith, 1941 OK 387, 119 P.2d 844 (defendant gas company was liable for injuries that plaintiff suffered when the vehicle in which he was riding struck a gate stem that was exposed on the roadway).²

¶ 8 In the instant case, Plaintiff was merely moving to the right hand side to let a car pass when he struck the utility pole. He presented evidence, including testimony and photographs, from which it may be inferred that the utility pole was on the roadway at the time that he hit it. Furthermore, Defendant presented evidence showing that, several months after the collision, the pole was very close to the roadway. The trial court's inspection during trial also revealed that the pole was very close to the roadway and was located where the roadway would have been had the road been as wide as required. This evidence creates a question of fact as to whether Defendant erected or maintained its utility pole "upon or so near the highway as to interfere with or obstruct" Plaintiff's use of the roadway. It was within the trial court's province to weigh the evidence and decide in favor of Plaintiff. Because the trial court's decision is supported by competent evidence, we will not reverse it. ¶ 9 Defendant argues that it was not foreseeable "that the roads in Sequoyah County would move around, even to the extent of encompassing and encroaching upon the power line easement." We disagree. In Oklahoma Natural Gas Co. v. Smith, 1941 OK 387, 119 P.2d 844, the defendant maintained a gas line under the roadway. A gate stem on the line was exposed on the roadway. The plaintiff was injured when the vehicle in which he was riding struck the gate stem. The defendant argued that it could not be held liable for the plaintiff's injuries because it had only owned the line for two years, and was not aware of the existence of the gate stem until after the accident. The supreme court rejected the defendant's argument, finding that the defendant had a duty to see that its property was constructed and maintained so as not to constitute a hazard to travelers. The court further held, "It was the duty of the defendant during [the period of its ownership] to acquaint itself with the property which it had acquired and to discover and eliminate any hazard which a complete inspection of the property would have disclosed." Id. at ¶ 8, 119 P.2d at 846. See also Ross v. Otis Elevator Co., 1975 OK 105, ¶ 8, 539 P.2d 731, 733

(a landowner may be liable for a condition it did not create where "the condition had existed for such length of time that in exercise of ordinary care he should have known of it").

¶ 10 In the instant case, the location of the edge of the roadway varied often due to the grading of the road. The county had been maintaining the road for at least 15 years, including grading it on a monthly basis. Between the time of the collision and the trial, approximately nine months, the edge of the road in relation to the pole was in at least three different locations (as evidenced by Plaintiff and Defendant's photographs and the court's inspection). The edge of the road changed frequently enough and for a long enough period of time that Defendant had a duty to see to it that the utility pole was maintained so as not to constitute a hazard to travelers on the road. Furthermore, it was foreseeable, considering the length of time that the condition was maintained, that the location of the pole on or very close to the roadway would constitute a hazard to people driving on the narrow country road.

¶ 11 Defendant also argues that it cannot be held liable because it did not have "dominion" or "control" over the road. We agree that Defendant did not maintain the roadway and did not control its width. However, Defendant did have a duty to keep its utility pole from presenting a hazard to the traveling public. Even though it did not control the grading of the road, it did control the location of the pole, which was very close to the road. Defendant does not argue that it could not have moved the pole so that it would not be so close to the road that it constituted a hazard.

¶ 12 We also disagree with Defendant's argument that "any alleged actions or inactions of [Defendant] merely created a condition rather than a cause." Defendant, in effect, argues that the accident was caused by one of two intervening acts: (1) by Plaintiff's own negligence or (2) by the county's negligence in failing to properly "prepare and grade the road."

¶ 13 "For an intervenor's act to become a `supervening cause' and cut off possible liability for the original negligence, it must (1) be independent of the primary negligence, (2) be adequate of itself to bring about the injury complained of and (3) not be a reasonably foreseeable event." Lockhart v. Loosen, 1997 OK 103, ¶ 10, 943 P.2d 1074, 1079 (footnote omitted). If the intervening act is a reasonably foreseeable consequence of the primary negligence, the original wrongdoer is not relieved of liability. Id. Furthermore, if the primary act of negligence operates concurrently with the secondary act of negligence, "so that damage is the result of both causes acting in concert—each act may be regarded as the proximate cause and the wrongdoers will be jointly and severally liable for the...