Bidar v. Cleveland Elec. Illum. Co.
2012 Ohio 3686
Ohio Ct. App.2012Background
- In May 2010, Bidar was in an accident on Savage Road when a deer caused him to swerve and strike a CEI utility pole.
- Bidar and his wife sued CEI and FirstEnergy for injuries and loss of consortium respectively; CEI and FirstEnergy moved for summary judgment.
- The trial court granted summary judgment to both CEI and FirstEnergy, finding statutory permission and no interference with travel for CEI, and non-ownership for FirstEnergy.
- Turner v. Ohio Bell Tel. Co. (Ohio Supreme Court) held a public utility is not liable if it obtained necessary permission and the pole does not interfere with travel.
- The record showed CEI’s pole was on Savage Road in an unincorporated area; no explicit permission from a public authority for the pole’s location was proven.
- The appellate court reversed, concluding CEI had no additional permission requirement, but issues of fact remained regarding interference with travel and ownership/authority.
Issues
| Issue | Plaintiff's Argument | Defendant's Argument | Held |
|---|---|---|---|
| Did CEI have permission to place the pole under law? | Bidar: CEI lacked required permission from proper authorities. | CEI: Statutes grant permission to place poles in unincorporated right-of-way; Turner allows implied permission if statutory. | No additional permission required; CEI had statutory permission. |
| Is FirstEnergy immune under Turner when no public authority permission is shown? | Bidar: FirstEnergy is liable if improper placement or lack of permission. | FirstEnergy: Turner grants immunity if permission exists and travel is not impeded. | Immunity applies where permission exists and no interference is shown; material facts disputed about ownership/assignment though. |
| Do genuine issues of material fact exist regarding interference with the usual and ordinary course of travel? | Bidar argues pole placement interfered with travel and safety considerations. | CEI/FirstEnergy contend the pole was outside the traveled portion and did not impede traffic. | Issues of fact exist and summary judgment inappropriate on interference. |
Key Cases Cited
- Turner v. Ohio Bell Tel. Co., 118 Ohio St.3d 215 (2008-Ohio-2010) (utility not liable if permission exists and no interference with travel)
- Lung v. Ohio Bell Tel. Co., 129 Ohio St. 505 (1935) (jury question for reasonableness of pole placement (overruled by Turner on this point))
- Dresher v. Burt, 75 Ohio St.3d 280 (1996) (summary judgment requires more than conclusory assertions; burden on movant)
- Koos v. Cent. Ohio Cellular, Inc., 94 Ohio App.3d 579 (8th Dist.1994) (de novo appellate review of summary judgment findings)