Caldwell v. Com., PENNDOT

• Decision Date: 11 October 1988
• Citation: 120 Pa.Cmwlth. 358,548 A.2d 1284
• Parties: David CALDWELL and Marilyn Caldwell, his wife, Appellants, v. COMMONWEALTH of Pennsylvania, PENNDOT, and Bell Telephone Company of Pennsylvania and Thomas Miller, Appellees.
• Court: Pennsylvania Commonwealth Court

Page 1284

548 A.2d 1284

120 Pa.Cmwlth. 358

David CALDWELL and Marilyn Caldwell, his wife, Appellants, v. COMMONWEALTH of Pennsylvania, PENNDOT, and Bell Telephone Company of Pennsylvania and Thomas Miller, Appellees.

Commonwealth Court of Pennsylvania.

Argued March 25, 1988.

Decided Aug. 4, 1988.

Publication Ordered Oct. 11, 1988.

Michael E. Dunlavey, Orton, Dunlavey & Jeffery, P.C., North East, for appellants.

Jon Marti, Warren, for appellees.

Brian Baxter, Tort Litigation Unit, Office of Atty. Gen., Pittsburgh, for Comm. of Pa.

John H. Bingler, Jr., Deborah P. Powell, Thorp, Reed & Armstrong, Pittsburgh, for Bell Telephone Co. of Pa.

Before BARRY and SMITH, JJ., and NARICK, Senior Judge.

SMITH, Judge.

David and Marilyn Caldwell (Appellants), husband and wife, appeal from an order of the Court of Common Pleas of Warren County which granted summary judgment in favor of Bell Telephone Company of Pennsylvania (Bell). The question presented is whether the trial court erred in granting summary judgment on the ground that it was not reasonably foreseeable by Bell that placement of its telephone pole within proximity of a highway berm would result in injuries to Mr. Caldwell. The trial court's decision is affirmed.

Appellants filed their action against Bell and the Commonwealth of Pennsylvania, Department of Transportation (DOT) seeking monetary damages for injuries suffered by Mr. Caldwell in an automobile accident on February 20, 1983. Bell thereafter joined Thomas Miller as additional defendant.

It is undisputed that Caldwell was a passenger in a vehicle operated by Miller which strayed from the paved portion of Route 957, a two-lane highway in Lottsville, Warren County; entered an earthen drainage ditch which ran parallel to the highway after steering to the right to avoid a deer; struck and jumped a drainage culvert; crossed a driveway; and then sideswiped a Bell telephone pole, located 8 feet from the paved portion of the highway and 5.3 feet from the berm, before coming to rest in a field. Bell filed a motion for summary judgment which the trial court granted. Appellants then petitioned this Court for review ¹ arguing that the issue of foreseeability was a matter for the jury and that the trial court confused the issues of foreseeability and proximate cause.

Bell's authority to erect telephone poles derives from Section 33 of the Corporation Act of 1874 (Act), Act of April 29, 1874, P.L. 73, 15 P.S. § 3302 which authorizes, inter alia, the construction of lines of telegraph and telephone and the necessary fixtures, including posts, along, under and upon public roads, streets, lanes or highways. The construction thereof, however, shall not incommode public use of roads, streets, lanes or highways. The question thus becomes whether the place chosen to locate the telephone pole is so dangerous and the danger so needless that the choice becomes unreasonable. Nelson v. Duquesne Light Company, 338 Pa. 37, 12 A.2d 299 (1940). Moreover, Bell could be properly liable only as to those injuries sustained by Caldwell which resulted from a risk or hazard, the foreseeability of which rendered Bell's conduct negligent. Metts v. Griglak, 438 Pa. 392, 264 A.2d 684 (1970).

Elements necessary to state a cause of action in negligence are a duty on the defendant's part to conform to a certain standard of conduct relative to the plaintiff; defendant's failure to so conform; and a reasonably close causal connection between the defendant's conduct and some resulting injury to the plaintiff. Cummins v. Firestone Tire & Rubber Co., 344 Pa.Superior Ct. 9, 495 A.2d 963 (1985). Bell clearly has a duty under Section 33 of the Act not to unreasonably interfere with the public's use of highways. The trial court, however, found that Bell's placement of its telephone pole conformed to the duty owed and that the causal connection between the pole's placement and Caldwell's injuries was too remote to attach liability to Bell.

Although questions of negligence and causation are generally for the jury, the question of the sufficiency of the evidence prior to presenting an issue to the jury is clearly within the trial judge's discretion. Where insufficient evidence exists to justify an inference of negligence and causation, the trial court may properly grant judgment in favor of the party against whom liability is sought. Farnese v. Southeastern Pennsylvania Transportation Authority, 338 Pa.Superior Ct. 130, 487 A.2d 887 (1985).

Bell's conduct could have been found not to have legally caused Caldwell's injuries if it appeared highly extraordinary to the trial court that the conduct should have brought about the harm. See Brown v. Tinneny, 280 Pa.Superior Ct. 512, 421 A.2d 839 (1980). The trial judge determined that the series of events responsible for Caldwell's injuries was not reasonably foreseeable and that the proximate cause of Caldwell's injuries was not the proximity of the telephone pole to the highway, but rather the ditch which directed Miller's vehicle into the pole. Proximate causation is applied by courts to limit liability where the causal chain resulting in a plaintiff's injuries is too remote. See Mazzagatti v. Everingham, 512 Pa. 266, 516 A.2d 672 (1986).

Summary judgment may be entered only when a case is free from doubt; the...