DAVID C. BIDAR, ET AL. v. CLEVELAND ELECTRIC ILLUMINATING CO., ET AL.
No. 97490
Cоurt of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
August 16, 2012
[Cite as Bidar v. Cleveland Elec. Illum. Co., 2012-Ohio-3686.]
JOURNAL ENTRY AND OPINION; JUDGMENT: REVERSED AND REMANDED; Civil Appeal from the Cuyahoga County Court of Common Pleas, Case No. CV-746015
BEFORE: Jones, P.J., Cooney, J., and Kilbane, J.
David I. Pomerantz
Pomerantz & Crosby Co., L.P.A.
24700 Chagrin Boulevard
Suite 309
Beachwood, Ohio 44122
ATTORNEYS FOR APPELLEES
John J. Eklund
Thomas I. Michals
Eric S. Zell
Calfee, Halter & Griswold LLP
The Calfee Building
1405 East Sixth Street
Cleveland, Ohio 44114
{¶1} Plaintiffs-appellants, David and Teresa Bidar, appeal the trial court‘s judgment granting summary judgment in favor of defendants-appellees, the Cleveland Electric Illuminating Company (“CEI“) and First Energy Corporation (“First Energy“). We reverse and remand.
I.
{¶2} In May 2010, David Bidar (“Bidar“) was involved in a motor vehicle accident. Bidar was driving on Savage Road in Bainbridge Township when a deer darted in the roadway. Bidar swerved to avoid hitting it and struck a CEI utility pole. CEI is an Ohio corporation that provides electricity.
{¶3} Bidar sued for his personal injuries and other damages as a result of the accident, and his wife, Teresa Bidar, sued for loss of consortium. CEI and First Energy filed separate motions for summary judgment, and the trial court granted both motions. Relative to CEI, the trial court found that it was granted permission to install the pole under
{¶4} The Bidars now appeal, raising the following assignments of error:
[I.] The Trial Court erred in holding that, as a matter of law, Appellee The Cleveland Electric Illuminating Company (“CEI“) obtained the permission of the State of Ohio to maintain utility Pole #191924 in the clear zone of the right-of-way adjacent to Savage Road in Bainbridge Township, by virtue of
R.C. 4931.03(A) .[II.] The Trial Court erred in granting immunity to Appellees, based on the case of Turner v. Ohio Bell Telephone Co., 118 Ohio St.3d 215, 2008-Ohio-2010, 887 N.E.2d 1158, when Appellees never obtained the requisite permission of any governmental authority to maintain pole #191924 in the location where Appellant David C. Bidar struck it.
[III.] The Trial Court erred in granting summary judgment to Appellees CEI and FirstEnergy Corp., because genuine issues of material fact exist, and Appellees are not entitled to judgment as a matter of law.
II.
{¶5} Under Civ.R. 56(C), summary judgmеnt may be granted only when there remains no genuine issue of material fact, the moving party is entitled to judgment as a matter of law, and reasonable minds can come to but one conclusion, that conclusion being adverse to the party opposing the motion. Tokles & Son, Inc. v. Midwestern Indemn. Co., 65 Ohio St.3d 621, 629, 605 N.E.2d 936 (1992), citing Harless v. Willis Day Warehousing Co., 54 Ohio St.2d 64, 375 N.E.2d 46 (1978). A moving party cannot discharge its burden under Civ.R. 56 simply by making conclusory assertions that the nonmoving party has no evidence to prove its case. Dresher v. Burt, 75 Ohio St.3d 280, 293, 1996-Ohio-107, 662 N.E.2d 264. Rather, the moving party must point to some evidence that affirmatively demonstrates that the nonmoving party has no evidence to support his or her claims. Id.
{¶6} An appellate court‘s review of summary judgment is de novo. Koos v. Cent. Ohio Cellular, Inc., 94 Ohio App.3d 579, 588, 641 N.E.2d 265 (8th Dist.1994). Thus, we conduct an independent review of the record and stand in the shoes of the trial court. Jones v. Shelly Co., 106 Ohio App.3d 440, 445, 666 N.E.2d 316 (5th Dist.1995).
{¶7} As grounds for its summary judgment motion, CEI contended that the “undisputable facts and Ohio law” demonstrate that (1) CEI had all necessary permission to install the utility pole, (2) the pole did not interfere with the usual and ordinary course of travel оn Savage Road, and (3) under the Ohio Supreme Court‘s decision in Turner, supra, CEI cannot be held liable to the Bidars.
{¶8} All of CEI‘s contentions are derived from Turner. In Turner, a driver and his passenger were on their way to work in low visibility conditions. While negotiating a curve, the driver drove his car off the road, striking an Ohio Bell pole. The passenger died as a result of injuries he sustained in the crash. The utility pole was located in a grassy area 2 feet 5 inches from the berm and 3 feet 9 inches from the white edge line of the road.
{¶9} The administrator of the passenger‘s estate sued Ohio Bell and South Central Power Company. Both companies filed motions for summary judgment, which the trial court granted. On appeal, this court held that a jury should decide the reasonableness of the placement of the pole based on the facts of the case. Turner v. Ohio Bell Tel. Co., 8th Dist. No. 87541, 2006-Ohio-6168. The Ohio Supreme Court reversed this court‘s decision, finding that:
[w]hen a vehicle collides with a utility pole located off the improved portion of the roadway but within the right-of-way, a public utility is not liable, as a
matter оf law, if the utility has obtained any necessary permission to install the pole and the pole does not interfere with the usual and ordinary course of travel.
Turner, 118 Ohio St.3d 215, 2008-Ohio-2010, 887 N.E.2d 1158, at ¶ 21.
{¶10} The court reasoned that “utility companies do not enjoy unfettered discretion in the placement of their poles within the right-of-way, for they are required to obtain approval from the owner of the right-of-way.” Id. at ¶ 20. The court further stated that “[p]lacement that complies with the requirements of the рublic authority that owns the right of way is indicative that the object is not an obstacle to the traveling public.” Id. In Turner, the pole was placed pursuant to a permit issued by the Ohio Department of Transportation.
{¶11} Relying on Turner, CEI contends that the “any necessary permission” language in Turner means a utility company may install a pole without explicit permission if permission is conferred by statute; specifically, in this case
{¶12} Bainbridge Township is an unincorporated township and is governed by
(A) A telephone company1 may do either of the following in the unincorporated area of the township:
(1) Construct telecommunications lines or facilities upon and along any of the public roads and highways * * * by the erection of the necessary fixtures, including posts, piers, or abutments for sustaining the cords or wires of those lines or facilities. The lines and facilities shall be constructed so as not to incommode the public in the use of the roads or highways * * *.
* * *
(B)(2) Construction under this section is subject to section 5571.16 of the Revised Code, as applicable, and any other applicable law, including, but not limited to, any law requiring approval of the legislative authority, the cоunty engineer, or the director of transportation.
(Emphasis added.)
{¶13} The very language of the statute in subsection (B)(2) supports our conclusion that a utility‘s placement of its lines and facilities is not implied as a matter of law. That is, a utility does not have “unfettered discretion in the placement of their poles within the right-of-way * * *.” (Emphasis added.) Turner, 118 Ohio St.3d 215, 2008-Ohio-2010, 887 N.E.2d 1158, at ¶ 20.
{¶14} In Turner, this court stated that reasonableness of pole location should include consideration of (1) the narrowness and general contours of the road, (2) the presenсe of sharp curves in the road, (3) the illumination of the pole, (4) any warning signs
{¶15} In addressing the permission aspect of pole placement, the Ohio Supreme Court stated that making a determination of whether to grant a public utility permission to place a pole in a particular right of way place, the “appropriate public authority presumably will consider many of the factors in the Eight[h] District‘s reasonableness test * * *.” Turner at ¶ 20.
{¶16} Thus, in Turner the Ohio Supreme Court has rationalized that the public authority that owns the right-of-way will have evaluated the risks in the process of granting or denying a public utility permission to place a pole in а particular right-of-way. Therefore, a jury determination of the reasonableness of pole placement is unnecessary if (1) permission was granted, and (2) the pole does not interfere with the usual and ordinary course of travel. These are two separate requirements, but “[p]lacement that complies with the requirements of the public authority that owns the right of way is indicative that the object is not an obstacle to the traveling public.” Id.
{¶17} No permission was grаnted by any public authority in this case. If we were to find that permission was implied by statute, any assessment for the risk of the pole placement would be eliminated. We decline to so find and note that the risk of the pole placement was of central concern to the Geauga County Engineers Office.
{¶19} In support of its contention that it had statutory permission for the placement of its poles, CEI submitted (1) the poliсe report showing that Bidar was cited for failure to maintain his vehicle, (2) the affidavit of the county engineer averring that Bainbridge Township is unincorporated, and (3) the affidavit of Arthur Stitt, a First Energy representative, averring that the pole at issue was 2 feet, 6 inches from the edge of the pavement of the road, 4 feet, 4.8 inches from the outside of the white edge line of the road, and 4 feet, 8.4 inches from the inside of the white edge line of the road.
{¶20} In opposition to CEI‘s motion fоr summary judgment, the Bidars submitted various documentation from the parties involved. For example, in a March 2009 letter sent from the county engineer to a First Energy representative concerning CEI‘s revised plans, the county engineer stated that the township kept Savage Road closed since the start of the project to “protect not only the driving public, but also their and your tort liability.”
{¶21} The letter continued that the revised plans did not “address the clear zone of the roadway. In some cases the poles are in the ditch line and may not have enough cover, in other areas, poles are in front of the ditch and only four to six feet off the edge of
As Project Manager for the township road reconstruction project, I am requesting your review of this project with the hope you will agree that it is in the best interest of everyone that First Energy completes the [original] plan in a timely fashion and provide a safe, clear zone for the roadway.
{¶22} Further documentation submitted by the Bidars indicated, by a First Energy representative‘s own admission, that within the company the project “changed a number of hands over the last 2 years[, and there wеre] too many emails floating around and not enough clarity.” Of the company‘s efforts, another First Energy representative stated the “left hand doesn‘t know what the right hand is doing.”
{¶23} Nonetheless, the record reflects that First Energy was aware of the engineer‘s concerns. For example, in an internal memo, a representative stated that he believed the engineer‘s “concerns will only be resolved by relocating the poles in question consistent with clear-zone guidelines.” And another internal First Energy memo recognized that there is a difference between the right to use and the location of the use, stating:
By tradition and practice highway and utility facilities frequently coexist within a common, public right-of-way. Consent for utility use of public right-of-way is presumed in the Ohio Revised Code, however neither a compensable interest in the land nor franchise rights are conferred to utilities through their use of the public way. Ohio Revised Code also provides the mеans for the agencies having jurisdiction over a roadway to have utility facilities constituting obstructions or interference removed and the cost of removal assessed to the facility owner.
* * *
I believe there to be no disagreement over Company responsibility for utility relocations necessitated by improvements made to the public way for public benefit. * * *
[I]f utility facilities can be relocated to meet the clear-zone guidelines as one safety imрrovement in conjunction with other roadway improvements[,] that is the expectation.
{¶24} By statute, the “county engineer shall supervise the * * * construction, reconstruction, resurfacing, and improvement of public roads by boards of township trustees under * * * the Revised Code. * * *.” (Emphasis added.)
[i]n the maintenance and repair of roads, the board of township trustees * * * shall be subject to the general supervision and direction of the county engineer. Such board of township trustees shall follow the direction of the engineеr as to methods to be followed in making repairs.
{¶25} Under
{¶26} Finally, the trial court granted First Energy‘s motion for summary judgment on the ground that it was a “holding company and as such does not own, control, or maintain the property at issue in this matter.” The Bidars presented evidence that would, at least, cast doubt on that finding.
{¶27} In light of the above, the trial court‘s decision granting judgment to both CEI and First Energy is reversed and the case is remanded for further proceedings.
It is ordered that appellants recover of appellees costs herein taxed.
The court finds there were reasonable grounds for this appeal.
It is ordered that a special mandate issue out of this court directing the Cuyahoga County Court of Common Pleas to carry this judgment into execution.
A certified copy of this entry shall constitute the mandate pursuant to Rule 27 of thе Rules of Appellate Procedure.
LARRY A. JONES, SR., PRESIDING JUDGE
MARY EILEEN KILBANE, J., CONCURS;
COLLEEN CONWAY COONEY, J., DISSENTS
DAVID C. BIDAR, ET AL. v. CLEVELAND ELECTRIC ILLUMINATING CO., ET AL.
No. 97490
Court of Appeals of Ohio, EIGHTH APPELLATE DISTRICT, COUNTY OF CUYAHOGA
WITH SEPARATE OPINION
COLLEEN CONWAY COONEY, J., DISSENTING:
{¶28} I respectfully dissent. I would affirm the granting of summary judgment after addressing the Bidars’ assignments of error as required by App.R. 12(A)(1)(b).
{¶29} In their first assignment of error, the Bidars argue the trial court erred in holding that CEI had permission from the state of Ohio to maintain the utility pole. In their second assignment of error, they claim the trial court erred in finding appellees had immunity under Turner. In the third assignment of error, they argue there were genuine issues of materiаl fact that precluded the grant of summary judgment as a matter of law.
{¶30} In Turner, the Ohio Supreme Court held that when a vehicle collides with a utility pole located off the improved portion of the roadway but within the right-of-way, a public utility is not liable, as a matter of law, “if the utility has obtained any necessary permission to install the pole and the pole does not interfere with the usual and ordinary course of travel.” Id. at syllabus. The Turner court explained that
[t]oday, before erecting poles or other fixtures on а public right-of-way, a utility company is generally required to obtain the approval of the public entity that owns the right-of-way. See
R.C. 4939.03 (municipalities),5547.04 (counties), and5515.01 (the state). Id. at ¶ 7.
{¶31} The Bidars contend that, under Turner, CEI was required to obtain a permit from the county engineer or the county commissioners to maintain the pole along Savage Road. In support of this argument, they note that the Turner court stated that “utility
{¶32} In this case, the pole was located in an unincorporated area of Bainbridge Township in Geauga County.
(A) A telephone company may do either of the following in the unincorporated area of the township:
(1) Construct telecommunications lines or facilities upon and along any of the public roads and highways and across any waters within that area by the erection of the necessary fixtures, including posts, piers, or abutments for sustaining the cords or wires of those lines or facilities. The lines and facilities shall be constructed so as not to incommode the public in the use of the roads or highways, or endanger or injuriously interrupt the navigаtion of the waters.
{¶33} Although
{¶34} Furthermore, Turner recognizes that the statutes prohibit utilities from
{¶35} The Bidars do not provide any legal authority to demonstrate that CEI and First Energy were required to obtain permission from the Bainbridge Township Trustees, the Geauga County Commissioners, or the Geauga County Engineer. Rather they refer only to the Supreme Court‘s decision in Turner where the court explained that rather than require a jury to consider a list of factors to determine the reasonableness of the pole‘s location, it is safe to assume that “[t]he appropriate public authority” considered such factors when deciding whether to approve a pole‘s location. Id. at ¶ 20. Based on this language, they conclude that CEI and First Energy were required to obtain additional permission from “[t]he appropriate public authority.”
{¶36} However, the Turner court further explained that “any necessary permission” from “[t]he appropriate public authority” depends on whether the pole is located on land owned by a municipality, a county, or the state. Id. at ¶ 7. As quoted above, the statute governing construction in unincorporated areas of land within a county does not require utility companies to file applications or obtain permits to install or maintain poles. In contrast, the statute governing public rights-of-way within a municipality expressly requires permission from the city before the public way may be used.
{¶37} Similarly,
The director of transportation may upon formal application being made to the director, grant a permit to any individual, firm, or corporation to use or occupy such portion of a road or highway on the state highway system as will not incommode the traveling public.
{¶38} Obviously, the legislature could have included language requiring utilities and others to obtain permission before using township roads or highways in unincorporated areas of the State, if it intended to impose an additional permission requirement. Because
{¶39} The Bidars also argue that whether the pole‘s location incommoded the public‘s use of the road is a question of fact for a jury to decide. In support of this argument, they rely on Ohio Bell Tel. Co. v. Lung, 129 Ohio St. 505, 196 N.E. 371 (1935), in which the Ohio Supreme Court held that whether a telephone pole incommoded travelers on a road was a jury question. However, the Ohio Supreme Court implicitly overruled its holding in Lung when it reversed this court‘s decision in Turner v. Ohio Bell Tel. Co., 8th Dist. No. 87541, 2006-Ohio-6168. Citing Lung, this court held that a jury
{¶40} Having concluded that CEI and First Energy were not required to obtain additional permission to install or maintain the pole in Bainbridge Township, the next issue is whether the pole interfered with the usual and ordinary course of travel. The pole was 2 feet, 6 inches (30 inches) from the edge of the Savage Road pavement and 4 feet, 4.8 inches (52.8 inches) from the outer edge of the road‘s edge line. It was located outside the roadway. The pole in Turner was closer to the road and was only 2 feet, 5 inches from the edge of thе pavement and 3 feet, 9 inches from the edge line of the road. The Turner court held that the subject pole did not interfere with the “ordinarily and usually traversed portion” of the road because had the vehicle “stayed within the marked lines as required by
{¶42} Thus, because CEI had all necessary permission to install the pole and did not incommode the public travel on Savage Road, it is entitled to summary judgment as a matter of law. Therefore, I would affirm.