Ohio Supreme Court justices determined this week it is OK for a public utility to erect a pole used for transmission lines within a few feet of the paved edge of an Ohio roadway - as long as the company has secured permission to do so and the pole doesn't impede normal traffic.

The decision resulted from the court's review of an 8th District Court of Appeals decision that partially reversed the trial court ruling in favor of Lorri Turner, administratix of the estate of her son, Robert.

Robert Turner was killed in an early morning traffic accident in 2003 on a rural Fairfield County road.

The court's 5-2 decision, authored by Justice Judith Ann Lanzinger, partially reversed the appellate ruling, having reasoned the utility pole was not a nuisance.

“In Strunk v. Dayton Power & Light Co. (1983) we addressed whether a municipality's duty to keep highways free from nuisance, as required by R.C. 723.01, extends to a driver who collided with a light pole off the traveled portion of the roadway,” she began. “We determined that the light pole was not a nuisance, in that it was not a condition that would 'render the highway unsafe for its usual and ordinary mode of travel.'

“... Nine years later, we modified Strunk (in deciding Manufacturer's Natl. Bank of Detroit v. Erie Cty. Rd. Comm. [1992]) to the extent that it barred any liability for conditions within the right-of-way and held that 'a permanent obstruction to visibility, within the highway right-of-way, which renders the regularly traveled portions of the highway unsafe for the usual and ordinary course of travel, can be a nuisance for which a political subdivision may be liable. ...'“

In each of those cases, justices considered objects within the right-of-way, rather than on the improved road surface. Lanzinger further applied the more recent 2nd District Court of Appeals holding in Ramby v. Ping (1994).

In that instance, the court “declined to extend Manufacturer's to impose a duty on adjacent landowners and municipalities to keep a right-of-way free of objects that pose a danger to vehicles that may foreseeably leave the traveled portion of the roadway,” the justice continued. “It noted, 'no precedent exists for imposing a duty on public or private landowners to remove an off-road hazard that renders only off-road travel unsafe, unless the off-road travel is shown to be an aspect of the usual and ordinary course of travel on the roadway. Otherwise, every tree and solid fixed object on roadsides and road-shoulders would impose potential liability on public and private landowners for collisions occurring whenever a vehicle was driven off-road and into the object.'

“... We see no reason why utility poles located beyond the improved portion of the highway should be treated any differently.”

Robert Turner was the passenger of a vehicle driven by co-worker Bryan Hittle at the time of the accident. Thick fog reportedly impaired visibility, and when Hittle attempted to follow the tail lights of a pickup into a curve, the passenger side of Hittle's car ran off the paved portion of the road and struck the utility pole located two feet and five inches from the edge of the pavement.

Lorri Turner filed suit seeking wrongful death damages from Hittle and Ohio Bell Telephone Co., which she alleged was negligent in placing the pole there and liable for damages. A summary indicated the trial court granted a motion by Ohio Bell for summary judgment to dismiss the claims on the basis that because the pole was not located on the paved area of the roadway or in an improved roadside berm, it did not present a foreseeable danger to motorists making normal use of the roadway. South Central Power Co. was named a co-appellant in this case.

Cleveland attorney John Spellacy, who served as Lorri Turner's lawyer, said he was very disappointed with the court's decision, as the facts warranted a different decision.

“We don't see any difference in the facts of this case than the facts of the Swaisgood (v. Puder, [Ohio App. 6 Dist.], 2007-Ohio-30) case,” which employed the close proximity rule, despite the phone company's assertion the test was a departure from long-standing precedent, Spellacy said.

The pole has since been moved, as a result of Lorri Turner's urging, at “minimal cost,” alleviating further accidents, he added.

“Justice (Terrence) O'Donnell was right on point,” Spellacy continued. “We should have had the right to a jury trial.”

“According to the majority, no utility company - even one that obtains permission to place a pole just to the side, as in (Cambridge Home Telephone Co. v.) Harrington (1933) - can be held liable if it 'has obtained any necessary permission for installing the pole from the owner of the right-of-way' and it does not interfere with the ordinary course of travel,” O'Donnell reasoned. “This holding seems to contradict our decisions in Harrington and (Ohio Bell Telephone Co. v.) Lung (1935) by removing the question from jury consideration.

“... In this instance, based on the placement of the pole, the evidence of prior accidents involving this pole, and the other attendant circumstances, including the speed of the vehicle, road conditions, and visibility, a jury issue is presented - whether or not the placement of the pole has incommoded the public in the use of the roads or highways. ...”

Spellacy said he planned to file a motion for reconsideration on behalf of his client.

Ohio Bell's lawyer, Thomas Michals, a Cleveland attorney with the firm of Calfee, Halter & Griswold LLP, did not return a call seeking comment by press time.

The case is cited as Turner v. Ohio Bell Telephone Company, case nos. 2007-0035 & 2007-0112.