Link v. FirstEnergy Corp. (Slip Opinion)
64 N.E.3d 965
Ohio2016Background
- Savage Road in Bainbridge Township was widened (2008–2009); CEI had earlier plans to relocate multiple utility poles but ultimately did not move eight poles near the improved pavement.
- County engineer and township officials expressed concern in letters about poles being within the recommended clear zone; township reopened the road without pole relocation and later requested CEI relocate the eight poles by letter in 2010.
- On October 8, 2010, Douglas Link’s motorcycle left the road after striking a deer and subsequently collided with a CEI pole; Link suffered serious injuries and sued CEI, FirstEnergy, and related entities alleging negligence, nuisance, and other claims.
- At trial the jury found for the Links on a qualified-nuisance and loss-of-consortium claim, apportioned fault among CEI, county engineer’s office, township, FirstEnergy, and Link, and awarded damages; defendants moved for JNOV arguing Turner insulated them from liability.
- The Ohio Supreme Court accepted review of whether statutory permission under R.C. 4931.03 satisfied Turner’s “any necessary permission” requirement and whether the pole interfered with usual and ordinary travel.
- The Court reversed the appellate court and trial verdict, holding (1) no Ohio law required CEI to obtain further permission to leave the pole in township right-of-way under R.C. 4931.03 and (2) the evidence was legally insufficient to show the pole interfered with the usual and ordinary course of travel, so defendants were not liable as a matter of law.
Issues
| Issue | Plaintiff's Argument (Link) | Defendant's Argument (CEI/FirstEnergy) | Held |
|---|---|---|---|
| Whether utilities had the "necessary permission" under Turner after Savage Road widening | Township rescinded permission by protests and a June 24, 2010 letter asking relocation; defendants were on notice and thus lost any prior permission | R.C. 4931.03 grants utilities statutory permission to place/maintain poles in unincorporated township rights-of-way; absent formal revocation by public authority, Turner’s permission prong is met | Permission prong satisfied: no Ohio statute or required permit obligated CEI/FirstEnergy to get further approval to leave the pole in place under R.C. 4931.03 |
| Whether the pole "interfered with the usual and ordinary course of travel" (Turner second prong) | If CEI had moved the pole per its plan, Link could have avoided it; pole within ODOT clear-zone guidelines made road unsafe | Pole was off the improved portion of the road, comparable or farther from pavement edge than other lawful obstructions; ODOT clear-zone guidance is discretionary and noncompliance alone doesn’t show interference | Interference prong not met: evidence insufficient to show a motorist using the improved portion of Savage Road would ordinarily contact the pole; thus no duty to remove off-road objects |
Key Cases Cited
- Turner v. Ohio Bell Tel. Co., 118 Ohio St.3d 215 (Ohio 2008) (establishes that a utility is not liable as a matter of law for a vehicle collision with an off-improved-road pole if the utility had any necessary permission and the pole does not interfere with usual and ordinary travel)
- Mfr.'s Natl. Bank of Detroit v. Erie Cty. Rd. Comm., 63 Ohio St.3d 318 (Ohio 1992) (off-road placement may be actionable where it makes roadway unsafe for ordinary travel)
- Elster v. Springfield, 49 Ohio St. 82 (Ohio 1892) (licences to use public streets are temporary and revocable by the municipality)