Talarico v. Bonham

• Decision Date: 22 November 1994
• Citation: 650 A.2d 1192,168 Pa.Cmwlth. 467
• Parties: Sandra TALARICO and Paul Talarico, her husband, Appellants v. John R. BONHAM, Individually and t/a John R. Bonham Contracting Company, Gerald R. Bunting and Betty Bunting, his wife, Gerald Bunting, Jr., Pennsylvania Power and Light Company, and Commonwealth of Pennsylvania/Department of Transportation.
• Court: Pennsylvania Commonwealth Court

Page 1192

650 A.2d 1192

168 Pa.Cmwlth. 467

Sandra TALARICO and Paul Talarico, her husband, Appellants v. John R. BONHAM, Individually and t/a John R. Bonham Contracting Company, Gerald R. Bunting and Betty Bunting his wife, Gerald Bunting, Jr., Pennsylvania Power and Light Company, and Commonwealth of Pennsylvania/Department of Transportation.

Commonwealth Court of Pennsylvania.

Argued Dec. 16, 1993.

Decided Nov. 22, 1994.

Nicholas S. Mattise, for appellants.

William M. Blaum, for appellee Pennsylvania Power and Light Co.

Before COLINS, and FRIEDMAN, JJ., and DELLA PORTA, Senior Judge.

DELLA PORTA, Senior Judge.

Sandra Talarico and Paul Talarico appeal from an order of the Court of Common Pleas of Wayne County denying their motion to remove a nonsuit granted in favor of the Pennsylvania Power and Light Company (PP & L). The issue raised on appeal is whether the trial court erred in concluding that the Talaricos failed to present sufficient evidence to establish the necessary elements for a cause of action against PP & L.

On May 1, 1982, at approximately 9:30 p.m., Sandra Talarico was driving her 1964 Buick in a westerly direction along Legislative Route No. 63034 in Cherry Ridge Township, Wayne County, when her car veered to the left, crossed the eastbound lane and struck an electric pole, resulting in injuries to her and her husband Paul Talarico, the passenger in the car. The paved portion of Legislative Route No. 63034 was twenty feet wide and there was fifteen feet unpaved right-of-way on each side. The pole which the car struck had been newly installed by PP & L in December 1981 and was located in the right-of-way, eight feet from the edge of the paved eastbound lane.

On April 4, 1984, the Talaricos commenced an action against PP & L, the Department of Transportation (DOT), the Buntings who owned the land abutting Legislative Route 63034 near the accident site, and John R. Bonham, the Buntings' contractor, who several months before the accident cleared trees, bushes and shrubs from the Buntings' property and covered the area with top soil. The Talaricos alleged, inter alia, that their injuries were caused by PP & L's negligence in placing the pole in a dangerously close proximity to the roadway, in failing to conform to DOT safety regulations and guidelines and in failing to warn the close proximity of the pole to the roadway. PP & L later joined Sandra Talarico as an additional defendant, alleging that Paul Talarico's injury was caused solely by her negligent operation of the vehicle.

At the close of the Talaricos' case during a jury trial which commenced in May 1985, the trial court granted a compulsory nonsuit in favor of all defendants and against the Talaricos. On June 4, 1985, the Talaricos filed a motion for removal of the nonsuit granted in favor of PP & L and DOT. In an order dated April 7, 1993, the trial court refused to remove the nonsuit granted in favor of PP &amp L. The Talaricos' appeal to this Court followed. ¹

The standard for reviewing a decision to grant a compulsory nonsuit is well established. A nonsuit may not be granted unless, viewing all the evidence and all reasonable inferences arising from it in the light most favorable to the plaintiff, the jury could not reasonably conclude that the elements of the cause of action have been established. Orner v. Mallick, 432 Pa.Superior Ct. 580, 639 A.2d 491 (1994). Further, a compulsory nonsuit is valid only in a clear case where the facts and circumstances lead to only one conclusion--the absence of liability. Harvilla v. Delcamp, 521 Pa. 21, 555 A.2d 763 (1989).

In order to establish a cause of action for negligence, a plaintiff must prove the following elements: (1) a defendant's duty or obligation recognized by law; (2) a breach of that duty; (3) a causal connection between the defendant's conduct and the resulting injury; and (4) actual damages. Morena v. South Hills Health System, 501 Pa. 634, 462 A.2d 680 (1983); Pittsburgh National Bank v. Perr, 431 Pa.Superior Ct. 580, 637 A.2d 334 (1994). The trial court concluded that PP & L did not breach its duty when it placed the pole in the middle of the right-of-way and that the location of the pole was not the proximate cause of the Talaricos' injuries.

It has long been the law of this Commonwealth that utility companies are liable for harm caused by the negligent placement and maintenance of utility poles. See Nelson v. Duquesne Light Co., 338 Pa. 37, 12 A.2d 299 (1940); Scalet v. Bell Telephone Co., 291 Pa. 451, 140 A. 141 (1928); Little v. Central District & Printing Telegraph Co. of PA, 213 Pa. 229, 62 A. 848 (1906). In Nelson, the Pennsylvania Supreme Court adopted the following test for determining whether a utility company is liable for negligent placement of a utility pole:

The poles, if placed and maintained with due regard for the public safety, are not unlawful obstructions. They are obstructions incidental to the exercise of a statutory right. The statute has not said, however, where the poles shall be located. The implied condition is therefore attached that they must be so located as to avoid unreasonable and unnecessary danger to travelers upon the highway. ... The question is whether the place chosen is so dangerous and the danger so needless that the choice becomes unreasonable. ... The question, therefore, is whether there is any evidence that ... when the accident occurred, the location of these poles was dangerous, and that the danger was unreasonable.... We think the jury had the right to find that ... the center poles have become a menace to travelers.... [T]he very location of the poles gives room for conflicting inferences. Plainly, there was at least some risk of accident; plainly, the risk was needless, whatever its degree; plainly, therefore, the inference of fault may be drawn unless the risk was so remote or trifling that reasonable men in the exercise of reasonable care would not have striven to avoid it.

Id. 338 Pa. at 45-46, 12 A.2d at 303-4 (quoting Stern v. International Ry. Co., 220 N.Y. 284, 115 N.E. 759 (1917)) (emphasis added in Nelson ). Thus, the question of whether a pole is so closely placed to the road as to cause a danger to the travelling public is generally a question of a fact to be determined by the jury after considering a variety of circumstances, including the narrowness and general contours of the road, the presence or absence of reflective mark, the proximity of the pole to the road, the availability of less dangerous locations. Nelson; Scheel v. Tremblay, 226 Pa.Superior Ct. 45, 312 A.2d 45 (1973).

At the trial, Sandra Talarico testified that just before the accident, when she applied the brake going down a small knoll at approximately thirty miles an hour, her car slid to the left, crossed the eastbound lane and went into the unpaved portion of the right-of-way; she attempted to steer the wheel back to the right, but was not able to do so due to the accumulated dirt on the right-of-way; and she travelled approximately twenty feet before hitting the pole after she felt her car sliding. The Buntings testified that before PP & L installed the pole in question, they told PP & L employees that many cars had previously gone off the road in the area; and an alternative location of the new poles suggested by them was rejected by PP & L for the reason of additional expenses involved.

The Talaricos also presented the testimony of John N. Finn, a former district construction engineer for DOT. He testified that the terrain features of the area did not justify the placement of the pole in the middle of the clear roadside area; the location of the pole posed a hazard to the travelling public; and less dangerous alternative locations of the poles were available, including placing the poles on the other side of the road where other existing poles, trees, a gully and an embankment were located. He further stated that from a highway engineering safety standpoint, the pole was not placed as close to the right-of-way line as practicable as required by DOT regulations and guidelines.

The DOT regulation provides at 64 Pa.Code § 459.9(b)(1)(i) as follows:

New poles and other aboveground facilities shall be installed outside the highway clear zone and near the right-of-way line as practicable, under the permit and applicable provisions of Design Manual, Parts 2 and 5.

Paragraph 34 of the Highway Occupancy Permit provides in pertinent part:

[U]tility poles, guys and other ground mounted utility appurtenances...