Link v. Firstenergy Corp.

• Decision Date: 26 July 2016
• Docket Number: No. 2015–0132.,2015–0132.
• Citation: 64 N.E.3d 965,147 Ohio St.3d 285
• Parties: LINK et al., Appellees, v. FIRSTENERGY CORPORATION; Cleveland Electric Illuminating Company et al., Appellants.
• Court: Ohio Supreme Court

147 Ohio St.3d 285

64 N.E.3d 965

LINK et al., Appellees,

v.FIRSTENERGY CORPORATION; Cleveland Electric Illuminating Company et al., Appellants.

No. 2015–0132.

Supreme Court of Ohio.

Submitted Feb. 23, 2016.

Decided July 26, 2016.

DeMarco & Triscaro, Ltd., and Joseph J. Triscaro, Solon, for appellees.

Calfee, Halter & Griswold, L.L.P., Thomas I. Michals, John J. Eklund, William E. Coughlin, and Eric S. Zell, Cleveland, for appellants.

Frost Brown Todd, L.L.C., Frank J. Reed Jr., Columbus, and Alexander L. Ewing, West Chester, urging affirmance for amici curiae the County Commissioners Association of Ohio and the Ohio Township Association.

Melissa R. Lipchak, Columbus, urging affirmance for amicus curiae Ohio Association for Justice.

Edward L. Bettendorf, Cleveland, urging reversal for amicus curiae the Ohio Bell Telephone Company.

FRENCH, J.

{¶ 1} In this appeal, we address whether defendants-appellants, the Cleveland Electric Illuminating Company ("CEI") and FirstEnergy Service Company ("FirstEnergy"), may be held liable for injuries sustained by plaintiff-appellee Douglas V. Link resulting from a motorcycle accident involving a CEI utility pole. For the reasons below, we reverse the judgment of the Eighth District Court of Appeals, which affirmed a jury award in favor of Douglas Link and his wife, plaintiff-appellee Diane Link, and we remand the matter to the trial court to enter judgment for defendants-appellants.

FACTS AND PROCEDURAL HISTORY

The Savage Road project

{¶ 2} On May 8, 2006, the Bainbridge Township Board of Trustees passed a resolution to improve and widen Savage Road in Bainbridge Township, Geauga County, Ohio. In accordance with R.C. 5573.01, the resolution authorized the Geauga County Engineer's Office to prepare engineering plans as well as any required surveys, estimates, and specifications. By statute, the county engineer supervises the construction, reconstruction, and improvement of public roads undertaken by boards of township trustees under R.C. 5573.01. R.C. 5543.09(A). On June 23, 2008, the board passed another resolution, adopting the county engineer's plans and authorizing the township to begin the contractor-bidding process. Work on the Savage Road project began sometime in the fall of 2008.

{¶ 3} In September 2008, the county engineer transmitted the Savage Road construction plans to CEI. Later that month, CEI confirmed receipt of the construction plans and acknowledged the presence of utility poles along Savage Road that required relocation. In October 2008, CEI submitted to the county engineer its plan to relocate approximately 37 utility poles. The county engineer did not send any formal approval of CEI's October 2008 plan but presumed that CEI would proceed with pole relocation in accordance with the plan.

{¶ 4} On March 2, 2009, the county engineer received a revised plan from CEI. CEI's revised plan reduced the number of pole relocations and divided the work into two phases. The first phase prioritized the removal of 15 poles. The second phase called for the later removal of 9 poles on the west side of Savage Road. By June 2009, however, CEI had decided not to move 8 of the 9 poles designated for the second phase.

{¶ 5} In a letter dated March 26, 2009, the county engineer wrote to FirstEnergy's external affairs division, which served as the liaison between CEI and governmental entities. In his letter, the county engineer expressed concerns that CEI's revised plan "[did] not address the clear zone of the roadway," exposed some poles in the ditch line, and left other poles "in front of the ditch * * * only four to six feet off the edge of the pavement." The letter further stated:

I would think this is a liability FirstEnergy does not want to absorb and I know this is a liability the township will not allow to exist on a public road.

As Project Manager for the township road reconstruction project, I am requesting your review of this project with the hope you will agree that it is in the best interest of everyone that First Energy completes the October 2008 plan in a timely fashion and provide[s] a safe, clear zone for the roadway.

FirstEnergy did not respond to the letter.

{¶ 6} By June 2009, the roadwork contractor had completed its work on the Savage Road project and submitted final invoices to the township. After consulting with the offices of the county prosecutor and the county engineer, the Bainbridge Township Board of Trustees decided on June 22, 2009, to reopen Savage Road, even though the disputed poles had not been moved.

{¶ 7} One year later, the chairman of the Bainbridge Township Board of Trustees sent a letter dated June 24, 2010, to FirstEnergy, again requesting relocation of the eight disputed poles. In September 2010, FirstEnergy's director of external affairs responded with a letter explaining that CEI had decided not to relocate the remaining eight poles after determining that "there was no potential conflict with drainage ditches or other governmental functions." FirstEnergy's letter also stated that CEI "does not relocate poles for clear zone, except at the customer's expense." The township did not respond to the letter or initiate any formal proceedings requiring CEI to remove the poles.

The Link accident and lawsuit against CEI and FirstEnergy

{¶ 8} On the night of October 8, 2010, Douglas Link ("Link") was driving his motorcycle on Savage Road when a deer struck Link on his left side. Diane Link, who was driving behind her husband in her car, saw the deer leap up from the left side of the road but did not see the moment of impact. When she no longer saw the lights of Link's motorcycle in front of her, she pulled over, found Link lying on the side of the road, and called 9–1–1. Link sustained extensive, long-term injuries to his right leg and pelvis.

{¶ 9} The Links sued CEI, FirstEnergy, and their parent company, FirstEnergy Corporation (collectively, "defendants"), alleging that Link struck one of the eight utility poles that defendants had failed to relocate and that Link's impact with the pole was the direct and proximate cause of his injuries. The Links asserted claims for negligence, negligence per se, absolute and/or qualified nuisance, loss of consortium, and punitive damages.

{¶ 10} Defendants filed two motions for summary judgment, arguing that under Turner v. Ohio Bell Tel. Co., 118 Ohio St.3d 215, 2008-Ohio-2010, 887 N.E.2d 1158, a utility company cannot be held liable when a vehicle collides with one of its poles located off the improved roadway if the utility company had obtained the required permission to install the pole and the pole does not interfere with the usual and ordinary course of travel. The CEI pole involved in Link's accident was originally erected in 1952 and replaced in 1975. CEI argued that no further permission was necessary when the pole had been in the same position for decades. The court denied both motions, and the case proceeded to a jury trial.

{¶ 11} The parties do not dispute that Link's motorcycle hit a CEI utility pole at some point after the deer struck Link. The parties offered conflicting evidence, however, as to whether Link was still on his motorcycle when it hit the pole. An accident reconstructionist who testified for the Links opined that Link was still driving his motorcycle and attempting to return to the road when he collided with the pole. The Links argued that if CEI had moved the pole in accordance with its original plan, Link would have been able to avoid the pole. Defendants' accident reconstructionist opined that Link more likely fell off his motorcycle before it struck the pole and that the pole therefore did not cause Link's injuries.

{¶ 12} CEI's original, October 2008 plan called for relocation of the pole 43 feet to the south and 9 feet to the west, providing a 17–foot clear zone. A "clear zone" is an unobstructed area of the right-of-way¹ beyond the pavement edge where an errant vehicle leaving the paved road can come to a stop or return safely to the pavement. For an uncurbed township or county road like Savage Road with a speed limit of 45 m.p.h. and average daily traffic of 2,200 vehicles, the Ohio Department of Transportation's ("ODOT") Location and Design Manual recommends a clear zone of 17 feet. CEI's design-and-construction manual incorporates ODOT's clear-zone standards. After completion of the road-improvement project, the pole was 6 feet, 3.6 inches from the pavement edge, 8 feet, 2.4 inches from the outside edge of the white line, and 8 feet, 7.2 inches from the inside edge of the white line.

{¶ 13} CEI acknowledged that the pole did not meet the recommended 17–foot clear-zone standard. However, CEI's original plan left four poles in the clear zone, and the county engineer did not object to that plan. The county engineer's office did not require the removal of other obstructions, such as mailboxes and driveway drainage pipes, located four to six feet from the pavement. It requires utilities to obtain a permit only for pipelines and other underground structures but does not require a permit for utility-pole installation or relocation.

{¶ 14} Defendants presented evidence that the relevant manuals setting out clear-zone standards leave room for engineering discretion. ODOT states that its Location and Design Manual "should be used as a guide for establishing clear zones for various types of highways and operating conditions" and that "full consideration[ ] shall be given to sound engineering principles and economic factors." The Geauga County Commissioners Highway Use Manual states that its "guidelines for accommodation of power and communication lines on highway rights-of-way will vary with the site conditions" and that they should be "considered a flexible policy which may be modified where special conditions exist."

{¶ 15} Defendants also presented testimony explaining that CEI designates a pole for mandatory relocation on road-widening projects if the pole will end up in the improved drainage ditch...