Turner v. Ohio Bell Tel. Co., 2006 Ohio 6168 (Ohio App. 11/22/2006), 87541.

CourtUnited States Court of Appeals (Ohio)
Citation2006 Ohio 6168
Docket NumberNo. 87541.,87541.
PartiesLorri Turner, Administratrix, etc., Plaintiff-Appellant v. Ohio Bell Telephone Company, et al., Defendants-Appellees.
Decision Date22 November 2006

Sean Allan, Allan & Gallagher, LLP, 1300 The Rockefeller Building, 614 West Superior Avenue, Cleveland, Ohio 44113, Attorneys for Appellant.

Anthony F. Stringer, Thomas I. Michals, Calfee, Halter & Griswold, 800 Superior Avenue, 1400 McDonald Investment Center, Cleveland, Ohio 44114-2688, Attorneys for Appellee Ohio Bell Telephone Co.

Scott A. Campbell, William R. Case, Jennifer E. Short, Thompson Hine, LLP, 10 West Broad Street, #700, Columbus, Ohio 43215, Attorneys for Appellee South Central Power Company

Before: Gallagher, J., Sweeney, P.J., and McMonagle, J.



{¶ 1} Plaintiff-appellant, Lorri Turner, appeals from the decision of the Cuyahoga County Court of Common Pleas that granted summary judgment in favor of defendants-appellees, Ohio Bell Telephone Company and South Central Power Company. For the reasons stated below, we affirm in part, reverse in part and remand the matter for further proceedings.

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{¶ 2} The facts of this case are undisputed and were succinctly set forth by the trial court as follows:

{¶ 3} "In the early morning of September 10, 2003, while traveling southbound on State Route 188 in Pleasant Township, Ohio, a Ford Mustang driven by Mr. Bryan Hittle was involved in an automobile accident. Mr. Robert Turner was a passenger inside Mr. Hittle's vehicle, as the two were commuting to work together that morning. At the time of the accident, because of fog and poor visibility, Mr. Hittle could not see clearly the center and edge lines of the road. Instead, he followed the taillights of the pick-up truck immediately in front of his vehicle. While trailing the truck around a curve in the road, Mr. Hittle drove his Mustang off the highway, striking a utility pole. The utility pole was located in a grassy area three feet, nine inches from the highway's edge line and two feet, five inches from the road's berm. Mr. Turner died as a result of the accident. Mr. Hittle was later convicted of vehicular manslaughter.

{¶ 4} "On February 22, 2005, Plaintiff Lorri Turner, individually and as administrator of the estate of Robert Turner, instituted this action against Defendants The Ohio Bell Telephone Company, d/b/a SBC Ohio, and South Central Power Company. Plaintiff's Complaint alleges that Defendants were negligent in placing, maintaining and utilizing the utility pole `in such close proximity to the traveled portion of State Route 188.' The Complaint further asserts a claim of negligence per

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se, stating that `the presence of the utility pole in such close proximity to the traveled portion of State Route 188' violated Ohio Revised Code § 4931.01. Lastly, Plaintiff's Complaint alleges, `the presence of the utility pole in such close proximity to the traveled portion of State Route 188 constituted an absolute and/or qualified nuisance.' Both Defendants have moved for summary judgment on all claims."

{¶ 5} In ruling on the motions for summary judgment, the trial court declined to apply the doctrine of negligence per se without further specifics in R.C. 4931.01, such as where a utility pole should be positioned. With respect to the negligence claim, the trial court found that the placement of the pole in this case did not incommode the public in its proper use of the traveled portion of State Route 188. Additionally, the trial court stated that "the record demonstrates that the pole was neither placed on the traveled and improved portion of the road nor in such close proximity as to constitute an obstruction dangerous to anyone properly using the highway." Consequently, the trial court concluded that Turner could not demonstrate a breach of the duty of care. Finally, the trial court found that the qualified and/or absolute immunity claim failed. The trial court granted the motions for summary judgment.

{¶ 6} Turner has appealed the trial court's decision and has raised one assignment of error for our review that provides:

{¶ 7} "I. The trial court erred in granting defendant-appellees' motions for

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summary judgment."

{¶ 8} This court reviews a trial court's grant of summary judgment de novo. Ekstrom v. Cuyahoga County Comm. College, 150 Ohio App.3d 169, 2002-Ohio6-228. Before summary judgment may be granted, a court must determine that "(1) no genuine issue as to any material fact remains to be litigated, (2) the moving party is entitled to judgment as a matter of law, and (3) it appears from the evidence that reasonable minds can come to but one conclusion, and viewing the evidence most strongly in favor of the nonmoving party, that conclusion is adverse to the nonmoving party." State ex rel. Dussell v. Lakewood Police Depart., 99 Ohio St.3d 299, 300-301, 2003-Ohio-3652, citing State ex rel. Duganitz v. Ohio Adult Parole Auth., 77 Ohio St.3d 190, 191, 1996-Ohio-326.

{¶ 9} Turner argues that the issue of whether the utility pole in question "incommodes" the public's use of the roadway and/or constitutes a nuisance presents an issue of fact that cannot be resolved on summary judgment. Turner also claims that the question as to whether the utility pole was a proximate cause of Robert Turner's death is a factual issue for the jury to determine. Under the circumstances of this case, we agree with Turner.

{¶ 10} Public utility companies enjoy the right to place and maintain utility lines and poles within the right of way for public roads; however, in doing so they must not unnecessarily or unreasonably interfere with or obstruct the public in the reasonable

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and ordinary use of the road for the purpose of public travel. Curry v. The Ohio Power Co. (Feb. 14, 1980), Licking App. No. CA-2671. As explained in Curry, a utility company that decides to maintain a pole within the right of way has "`the duty of seeing that its poles are so placed that they will not unreasonably or unnecessarily interfere with, obstruct or endanger the public travel upon such road. * * * In placing a particular pole within the limits of a public road, the company is bound to consider the condition of the road at that point, its direction, its curvature, if any, its width, its grade, its slope, the position of its side drains or ditches, if any, and in view of all the facts to so locate the pole as not to unnecessarily or unreasonably interfere with or obstruct the public in the reasonable and ordinary use of the road for the purpose of public travel.'" Id., quoting Martin Monahan v. The Miami Telephone Co. (1899), 7 Ohio N.P. 95, 96.

{¶ 11} Likewise, the Ohio Supreme Court has recognized that the superior right of the traveling public must not be prejudiced by the placement of utility poles within the right of way. In The Cambridge Home Telephone Co. v. Harrington (1933), 127 Ohio St. 1, 5, the court stated as follows:

"The traveling public has the right to the use of the highway to the entire width of the right of way as against all other persons using such highway for purposes other than travel, except those upon whom devolves the legal duty to maintain and repair such highway.

"The highway is primarily constructed for purposes of travel, and not as a site for monuments, billboards, telephone or telegraph poles, or any other device that may create an obstruction within the limits of the right

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of way. * * * The last clause [of the applicable law], `but shall not incommode the public in the use thereof,' is a danger signal to public utilities using the highways for their own private purposes. They are placed upon notice, to the effect that if they erect `posts, piers, and/or abutments' within the right of way of the highway, they must not prejudice the superior rights of the traveling public in so doing."

{¶ 12} In considering whether a utility pole located within the right of way unnecessarily or unreasonably interferes with or obstructs the traveling public in the reasonable and ordinary use of the road, it is generally accepted that "a company lawfully maintaining poles near a public highway will not be held liable for the damages resulting from a vehicle striking such a pole unless it is located in the traveled portion of the highway or in such close proximity thereto as to constitute an obstruction dangerous to anyone properly using the highway." Id. (emphasis added). There is no requirement, as appellees suggest, that a pole must be located on the traveled and improved portion of the highway in order for liability to be imposed. As long as the pole is within the right of way and in such close proximity to the road as to create an unreasonable danger to the traveling public, liability may exist.

{¶ 13} In reaching its decision in this case, the trial court relied on a number of cases that involved a pole located at least ten feet from the edge of the roadway. See Niederbach v. Dayton Power & Light Co. (1994), 94 Ohio App.3d 334 (utility pole was sixteen feet off the traveled portion of the roadway); Jocek v. GTE North (Sep. 27, 1995), Summit App. No. 17097 (pole located no less than eleven feet from

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the improved portion of the roadway); Curry v. Ohio Power Co. (Feb. 14, 1980), Licking App. No. CA-2671 (pole located more than twelve feet from the berm). These cases are distinguishable from the present case, where the pole was located only three feet nine inches from the edge line of the road, and two feet five inches from the berm.

{¶ 14} In Harrington, 127 Ohio St. 1, the accident victim, who was a passenger, was injured when her sister was driving around a...

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