An electric company is not liable for injuries suffered by a motorcyclist who collided with a deer and then struck a utility pole, the Ohio Supreme Court ruled today.

In a 4-3 decision, the Supreme Court reversed two lower court judgments ordering Cleveland Illuminating Company (CEI) and FirstEnergy Services Company to pay about $367,000 to Douglas and Diane Link. Douglas Link suffered serious leg and pelvis injuries in 2010 when traveling on Savage Road in Geauga County’s Bainbridge Township.

Writing for the Court majority, Justice Judith L. French pointed out that the county engineer and township trustees suggested that the pole be moved, but did not formally order CEI to do so, and the pole was not interfering with ordinary travel by motorists. The Court reversed the Eighth District Court of Appeals decision and instructed a Cuyahoga County Common Pleas Court to overturn the jury verdict.

In a dissenting opinion, Justice William M. O’Neill asserted that the township and the county engineer made it clear to the companies they no longer had permission to keep the pole and seven other poles at their current locations. The officials’ informal letters to CEI and FirstEnergy insisting the companies follow through with earlier plans to move the pole was sufficient to make them liable for Link’s injuries.

Pole Relocation Plans Changed
Bainbridge Township trustees moved to widen Savage Road in 2006 and authorized the county engineer to begin the planning. The engineer notified CEI and its affiliate, FirstEnergy, about the project. As construction began in 2008, CEI submitted a plan to relocate about 37 poles. In 2009, CEI revised the plan, reduced the number of poles involved, and divided it into phases, first removing 15 poles and later moving nine poles.

By mid-year, CEI changed plans again and decided not to move eight of the nine poles in the second phase. The county engineer responded in writing to the company expressing his concerns that some of the poles would be 4 to 6 feet from the edge of the pavement. CEI did not change plans and the township, after consulting with the county prosecutor’s office and the county engineer, reopened Savage Road even though the poles were not moved.

A year later, the president of the Bainbridge Township board of trustees sent FirstEnergy a letter urging relocation of the poles. The companies responded announcing they determined the poles did not conflict with any government functions and will not be relocated. The companies suggested they would move the poles at the township’s expense. The township did not respond to the letter or initiate any formal proceedings requiring CEI move the poles.

Deer Knocks Link from Road
Link was driving his motorcycle on Savage Road while his wife was following him in a car. A deer leaped from the left side of the road, striking the motorcycle and knocking him off the roadway.

The Links sued CEI, FirstEnergy, and their parent company FirstEnergy Corporation, alleging the motorcyclist struck one of the poles the power companies failed to relocate, and the pole caused his injuries. At trial, an expert witness for the companies reconstructed the accident and opined that the pole did not cause Link’s injuries because he fell off the motorcycle before the vehicle hit the pole.

Jury Partially Faults Power Companies
CEI’s original plan called for moving the pole back several feet in order to create a 17-foot “clear zone,” which means an unobstructed area beyond the pavement’s edge where a vehicle leaving the road could stop or return safely to the pavement. The unmoved pole, which had been originally placed at its location in 1952, was now a little more than 6 feet from the edge of the widened road and a little more than 8 feet from the outside edge of the road’s white line.

CEI acknowledged at trial the pole did not meet the recommended 17-foot clear zone, but noted four other poles along the road had been left in the clear zone and the county engineer did not object to their location. The company also noted the engineer did not require removal of other obstructions, such as mailboxes and driveway drainage pipes located 4 to 6 feet from the pavement.

The jury found CEI and FirstEnergy to be 46 percent responsible for the accident, the township and the county engineer 37 percent responsible, and Link 17 percent responsible. The jury awarded the Links $798,000 in damages, and the trial court ruled that CEI and FirstEnergy were responsible for $367,000 of that amount.

The Links and the power companies appealed to the Eighth District, which affirmed the verdict. The original verdict did not include any punitive damages, though the Eighth District ordered the trial court to rehear and consider making the power companies pay punitive damages. The power companies appealed to the Supreme Court, which agreed to hear the case.

Companies Passed the Turner Test
Justice French noted the companies at trial claimed immunity based on the Ohio Supreme Court’s 2010 Turner v. Ohio Bell Tel. Co. decision. In Turner, the Supreme Court deemed a utility company cannot be held liable when a vehicle collides with a utility pole located off the improved roadway if the company had obtained the required permission to install the pole and the pole does not interfere with the usual and ordinary course of travel.

To determine if a company can claim immunity based on the Turner decision, the Court examined whether CEI had permission to leave the pole at its present location. Justice French explained that since 1847 public utility companies have had a right to place poles within the rights-of-way of public roads, but they do not “enjoy unfettered discretion in the placement of the poles.”

She noted that R.C. 4931.03 governs use of public rights-of-way in unincorporated areas of a township. The statute allows the utilities to erect poles as long as they do not interfere with the public use of the road and the companies abide by any other “applicable law” required by local authorities.

While state law requires utilities to get a permit to locate a pole along any municipally or state-owned road, they do not have to obtain a permit or approval from a county engineer or a township to place poles along township roads, Justice French wrote. She also noted the county engineer by law supervises road-improvement projects undertaken by townships, but no law requires utilities to receive the engineer’s approval to locate a pole.

“Absent a resolution or affirmative legal action from the Bainbridge Township Board of Trustees seeking to revoke permission, no ‘applicable law’ required CEI and FirstEnergy to move the pole from its current location,” Justice French wrote.

The Links would have had a better argument that CEI was at fault if the township trustees or township highway superintendent would have invoked their power under R.C. 5571.14 to declare an object a public nuisance if it “obstructs or endangers the public travel” and ordered the pole’s removal, Justice French observed. Because the trustees re-opened the road with the poles unmoved, the Court concluded that action indicated the township did not find the poles to be a nuisance that interfered with use of the road.

By local government not taking formal action, CEI had permission to keep the pole where it was, meeting the first part of the Court’s Turner test, Justice French wrote. However, to meet the second part of the Turner test, the power companies needed to show the pole Link struck did not interfere with the usual and ordinary course of travel on Savage Road. Assuming Link was still on the motorcycle when he struck the pole, there was no evidence the pole placement created an unsafe condition for normal travel, she concluded.

“Had Link stayed within the marked lanes or even on the improved portion of the roadway, his motorcycle would not have come into contact with the pole,” Justice French wrote. “Absent evidence of interference with the usual and ordinary course of travel on the roadway, CEI and FirstEnergy did not have a duty to remove off-road objects within the public right-of-way that might come in contact with wayward vehicles.”

Having found the companies met both parts of the test, the Court remanded the case to the trial court to rule for the power companies.

Chief Justice Maureen O’Connor and Justices Judith Ann Lanzinger and Sharon L. Kennedy joined the opinion.

Dissent Argues Pole Placement Permission Rescinded
In his dissent, Justice O’Neill noted the record shows Bainbridge Township trustees demanded the poles be moved and the letter sent to the power companies rescinded any permission to leave the poles in the existing position.

He explained the utility drafted the pole removal plan after receiving construction plans from the county engineer, but then “motivated by budgetary constraints” decided not to move them. In May 2010, a car swerved off the road to avoid a deer and hit one of the eight poles CEI did not move. The accident reiterated the trustees’ concern about the pole placement and the issue was raised at their monthly meeting in June. Board minutes indicate they reached a “general agreement” to write a letter to CEI asking it to move the poles.

“Upon receipt of the letter, CEI was on notice that its permission to leave the eight poles in place had been unequivocally rescinded,” Justice O’Neill wrote.

Justice O’Neill objected to the Court’s evaluation of the case and noted the trustees, who serve part-time, applied a “softer touch” when working with CEI rather than having the power companies declared a nuisance. He argued the Court should not override the jury, which heard the evidence and found the utility responsible.

“We are not jurors, and the jurors apparently found that defendants had been placed on notice that (1) the poles were a hazard and (2) the board of trustees rescinded permission for CEI to leave the eight poles in their hazardous location,” he wrote.

Justice Paul E. Pfeifer joined Justice O’Neill’s dissent.

Justice Terrence O’Donnell dissented without an opinion.

2015-0132. Link v. FirstEnergy Corp., Slip Opinion No. 2016-Ohio-5083.

View oral argument video of this case.

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