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Court: Utility companies CEI and FirstEnergy not liable in 2010 Bainbridge Township accident

by MARC KOVAC | CAPITAL BUREAU CHIEF Published: August 3, 2016 1:00 AM

Columbus -- Utility companies cannot be held liable for injuries sustained when a motorcyclist in Northeast Ohio hit a utility pole, the state's high court ruled July 26.

In a split decision, the Ohio Supreme Court reversed an appeals court ruling and remanded the case for further consideration, deciding that FirstEnergy and Cleveland Electric Illuminating Co. were not required under state law to relocate the pole in question as part of a road improvement project.

"We also conclude the pole did not incommode or interfere with the usual and ordinary course of travel" on the Geauga County road where the accident occurred, Justice Judith French wrote in the majority opinion.

The accident occurred in October 2010, when a man struck a deer and then a pole on Savage Road in Bainbridge Township.

The pole and others had been a point of contention between the utility company and the township trustees and county engineer, after the company declined to relocate them as part of a road improvement project, according to documents.

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The man involved in the accident subsequently filed suit against FirstEnergy, alleging the "impact with the pole was the direct and proximate cause of his injuries."

The utilities countered they could not be held liable because the company had permission to install the pole and it did not interfere with "the usual and ordinary course of travel."

In its ruling, the Supreme Court cited a previous decision that held that utility firms are not liable when vehicles hit poles placed, with requisite permission, in right-of-way areas along roads.

In the majority decision, French wrote, "We conclude based on the record before us that CEI and FirstEnergy complied with all 'applicable law' governing the placement of the utility pole involved in / [the] accident and that they were not required to obtain a permit or approval from the township board of trustees or county engineer to leave the pole in its existing location.

"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."

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French later added that the individual involved in the accident "did not provide any evidence that a motorist driving on the improved portion of Savage Road would have come in contact with the pole, which was located 6 feet, 3.6 inches from the pavement edge and 8 feet, 2.4 inches from the outside edge of the white line.

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."

Chief Justice Maureen O'Connor and Justices Judith Ann Lanzinger and Sharon Kennedy concurred in the decision.

Justices William O'Neill, Paul Pfeifer and Terrence O'Donnell dissented.

In a separate opinion, O'Neill wrote that the Bainbridge Township trustees "had demanded that defendants move the eight poles in question / This roadway had been widened -- at the time of the accident, the poles were significantly closer to the edge of Savage Road than they had been when installed back in 1952."

He added, "Properly understood, the majority opinion holds that the township could have more clearly rescinded permission by an official declaration of public nuisance instead of a letter sent pursuant to the 'general agreement' of the board reflected in the minutes of its meeting.

"This court does not and should not throw out jury verdicts based on our own determination of what evidence would have been better proof.

"It is simply irrelevant whether a majority of this court would come to the same conclusion as the jury did."

Kovac is the Dix Capital Bureau chief. Email him at mkovac@dixcom.com or on Twitter at OhioCapitalBlog.


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