Coates v. SOUTHERN MD ELECTRIC

• Decision Date: 16 June 1999
• Docket Number: No. 100,100
• Parties: Irene COATES et al. v. SOUTHERN MARYLAND ELECTRIC COOPERATIVE, INC. et al.
• Court: Maryland Court of Appeals

731 A.2d 931

354 Md. 499

Irene COATES et al. v. SOUTHERN MARYLAND ELECTRIC COOPERATIVE, INC. et al.

No. 100, Sept. Term, 1998.

Court of Appeals of Maryland.

June 16, 1999.

C. Christopher Brown (Brown, Goldstein & Levy, LLP, Baltimore; James F. Farmer, Andrew D. Alpert, Farmer, Welch & Alpert, Waldorf, all on brief), for Appellants.

Phillip R. Zuber (Sasscer, Clagett & Bucher, Upper Marlboro, on brief), for Appellees.

Paul D. Bekman, Michael P. Smith, Israelson, Salsbury, Clements & Bekman, Baltimore, for Amicus Curiae, the Maryland Trial Lawyers' Ass'n.

Argued before BELL, C.J., and ELDRIDGE, RODOWSKY, CHASANOW, RAKER, WILNER and CATHELL, JJ WILNER, Judge.

This appeal arises out of a tragic one-car accident that occurred just after midnight on August 19, 1991. The vehicle, driven by George Thompson, went out of control, left the road, and struck a utility pole, killing one passenger, Mary Ann Coates, and injuring another, Mary Ann's minor daughter, Lavita Coates. Lavita Coates was pregnant at the time and lost the baby as a result of the accident.

BACKGROUND

A number of lawsuits were filed by appellant, Irene Coates, Mary Ann's mother. The one that concerns us is against Southern Maryland Electric Cooperative, Inc. (SMECO), the owner of the pole that was struck. Ms. Coates, suing for herself individually and in a representative capacity for Mary Ann, Lavita, Lavita's sister, and Lavita's unborn child, claimed that SMECO was negligent in placing the pole, as constructed, only three feet, three inches from the traveled portion of the roadway. The Circuit Court for Charles County, finding that SMECO owed the plaintiffs no duty of care, granted the utility's motion for summary judgment. We accepted appellate jurisdiction prior to argument in the Court of Special Appeals and shall affirm the judgment of the circuit court.¹

Thompson was driving his employer's pickup truck north on Olivers Shop Road in Bryantown. He, Mary Ann, and Lavita were seated abreast in the front seat, Mary Ann in the middle and Lavita next to the passenger's door. Olivers Shop Road is a rural county highway, described as "hilly and twisty," with one lane in each direction. In the area where the accident occurred, it has no shoulder. The width of the roadway at that point was stated to be 21 feet, three inches. The northbound lane was 10 feet, two inches, and the southbound lane was 11 feet, one inch. The road had a double yellow center line, white edge lines, and a posted speed limit of 35 miles per hour. The roadside consists of grass and vegetation.

Thompson, who had lived in the area for a long time, traveled the road frequently and was familiar with it. On the night of the accident, it was drizzling, and the road was wet. The rear tires on the truck were "kind of bald," and the back end of the truck slid "a little bit" when Thompson applied the brakes. After successfully negotiating a number of turns, Thompson went over a bridge and then entered a turn to the left, slowing, he said, to between 25 and 30 miles per hour. When he hit a "dip" in the road, the truck began to slide, eventually spinning out of control, counter-clockwise, across both the center line and the southbound lane and coming to rest when it hit the southern face of the pole broadside. The entire truck was then off the road. As indicated, although the issue of damages has not been resolved, and thus no judgment has been entered against Thompson, through the granting of Coates's partial motion for summary judgment as to liability, the court found, as a matter of law, that Thompson was negligent and that his negligence was a cause of the accident. That negligence was based on his failure to control the speed of the truck, both generally and when approaching and going around curves.

The pole had been installed by SMECO in 1954, pursuant to both permission from the county and a private easement. The county's assent was initially given, in 1928, to a predecessor in title and was assigned to SMECO in 1945. That assent authorized the utility to construct electric lines along, upon, or above the streets and roads in Charles County provided that "the same shall not be so constructed as to incommode the public use of the said" streets and roads. There is no indication that the county ever instructed SMECO or its predecessors precisely where to locate the pole, or any of its poles. The actual easement does not appear to be in the record. A SMECO witness testified that the utility had a right of way 15 feet from the poles for the purpose of access and maintenance.²

The pole that was originally erected in 1954 was a wooden one. In 1970, the State Highway Administration acquired the road, along with a 30 foot right of way. In answer to an interrogatory, SMECO averred that "[i]mprovements were made [by the State] in and around the area where the utility pole exists which may have involved some widening of the roadway," although the record does not reveal what improvements were made, whether and to what extent the road was widened, and whether and to what extent any widening would have placed the pole in greater proximity to the traveled portion of the road. In 1981, the pole was damaged in an automobile accident, the nature and details of which are presently unknown, and, as a result, it was reinforced. The existing pole was cut at ground level, the stump was removed and replaced with a concrete stub, a metal sleeve was placed over the new stub, and the pole was reset in the sleeve. No thought was given at the time to moving the pole. Company policy was not to move a pole during a repair operation. SMECO personnel gave two reasons for that policy: one, that there was an established right of way at the existing location; and two, that changing the location of a pole involves an alteration of the forces on the pole and may require a complete reconstruction of the line. One employee noted that if a pole were moved, there would not be enough slack in the line and that some splicing and cutting, which was dangerous work, would have to be done. In 1988, the road was returned by the State to county jurisdiction. At no time since the initial installation of the pole in 1954 was SMECO asked or directed by the State or the county to move the pole.

Appellant produced deposition testimony from two experts in support of her position that SMECO was negligent in leaving the reinforced pole in the same location. Dr. Paul Wright, a retired engineering professor, was deposed twice—once in February, 1995, and again in June, 1997. On the first occasion, he expressed the opinion that the pole was "too close to the road" and stated that it was "accepted orthodoxy" among highway engineering designers that it was "not a very smart thing to do ... to put poles that close to the road especially in the vicinity of curves." He did not have a "magic number" as to how far away a pole should be but noted that a study of roadside crashes in Georgia conducted by him demonstrated that "about 85 percent of fatal crashes result from striking something 30 feet or less from the edge of the pavement." He made the obvious point that the farther away the pole, the less likely that it would be hit, but repeated that "I can't give you a number and say this is the ideal place for this pole." Based on his measurements, Dr. Wright determined that the "critical speed" in the vicinity of the accident— i.e., "the maximum speed that a vehicle can traverse the curve without leaving the roadway on the outside of the curve"—was 52 to 56 miles per hour.

In his second deposition, Dr. Wright, based on highway design manuals, stated that it was desirable that there be a clear path on each side of the road of at least 10 feet, free of fixed objects other than guardrails. He opined that a failure to comply with that standard would be a deviation from accepted engineering practice. Dr. Wright made clear, however, that his opinion did not go to what was usual and customary in electric utility practice, because he was unaware of that practice, but only whether the road itself was safe. He acknowledged that the design manuals he consulted were for use by highway officials and did not know if they were customarily used by electric utilities in the design of distribution lines.

Appellant's second expert was John St. Clair, who expressed particular concern about concrete-reinforced poles, noting that the concrete block, if struck, would do substantial damage to the vehicle and likely cause injury. St. Clair had worked for four utility companies. Although he acknowledged that there were no formal policies relating to pole placement, the informal policy, he said, was to keep them off the shoulders. He also agreed that, when poles are replaced following an accident, in most cases they are put back in the same place. With particular relevance to this case, Mr. St. Clair noted that, when a road contains a left curve, the best and safest place for a pole is on the inside of the curve, which is where it was with respect to Mr. Thompson. He also stated that if the pole had been moved six feet, rather than three feet, off the road, it would have met the standards of practice in 1981 with respect to vehicles traveling southbound, on the inside of the curve.

DISCUSSION

The circuit court entered summary judgment for SMECO upon a finding that the utility owed no duty to the plaintiff—to Mary Ann, Lavita, Lavita's sister, or Lavita's unborn child. That finding, in turn, proceeded from the court's conclusion that the duty of care on the part of the utility in placing its poles was not to interfere with the "proper use and reasonable use of the highway by vehicles," and that, as a result, it did not extend to situations in which the driver of the vehicle was negligent. The court concluded that it would be an impossible burden to expect a utility to anticipate and prepare for incidents arising from a driver's unreasonable and negligent...