When poles in the right-of-way are wrong: some utility poles present an unreasonably dangerous condition to drivers. Lawyers can raise the problem's visibility, moving the government and utility companies to take corrective actions.

Plaintiff lawyers represent those injured by entities that fail to change with the times. Government agencies and utilities that authorize, place, and maintain utility poles along roadsides are among the offenders.

Over five times more people were killed by collisions with utility poles than by Firestone tire-tread separations in the year 2000, and over 60,000 people were injured in collisions with these poles. (1) Utility poles account for over 76 percent of all pole collisions in the country. (2) Most state transportation departments and utility companies have taken little action to eliminate the risk of these collisions, despite cost-effective means of reducing associated dangers that have been available for years.

Since the 1960s, transportation industry officials have stressed the importance of creating and maintaining a "forgiving roadside." (3) The concept recognizes that vehicles will, for various reasons, leave the traveled way.

Because this is a known fact--a foreseeable event--it is highway officials' responsibility to provide drivers with a "recovery area" or "clear zone" free of obstacles, so that occupants are not injured or killed when a vehicle leaves the road. Much has been written about improving drainage structures and removing vegetation to provide forgiving roadsides, as well as ways to help prevent vehicles from leaving the road. (4) Less attention has been devoted to reducing the frequency and severity of collisions with utility poles.

Recently, officials have begun to address the issue. At the 2001 Transportation Research Board (TRB) meeting, speakers condemned transportation officials for ignoring "the influence of utility poles, the most unforgiving man-made obstacle on the roadside we strive to make forgiving." (5) The increased attention led to a report on utilities and roadside safety (6) and should encourage better technology and more definite standards. (7)

Defendants

The primary defendants in utility pole collisions are typically the government agency responsible for the right-of-way at the pole's location and/or the utility responsible for placing and maintaining the pole. Whether counsel should bring suit against one or both of these defendants depends on the case facts and the jurisdiction's law.

The more influence the government agency has over a utility's pole design, installation, and maintenance, the better the chance that counsel can support a case against both the agency and the utility. Often, government entities must authorize utilities to install new poles or maintain existing ones in the right-of-way. While this may keep the government agency in the case, counsel should prepare for the utility's argument that such government control exonerates the utility of any responsibility for the collision. (8) Government permits often include "hold harmless" clauses to address this argument, so counsel should obtain all permit documentation during discovery.

Significant issues of sovereign immunity arise when dealing with government defendants. Some states have statutes expressly immunizing any government act involving functions such as the design of a right-of-way or road-sign placement. Even if a state tort claims act grants a limited waiver of the defendant's sovereign immunity, there are usually broad exceptions to the waiver.

The "discretionary function" exception is widely used by government agency defendants to protect themselves from their employees' negligent acts or omissions while performing "discretionary" activities or making decisions involving public-policy considerations. The Federal Tort Claims Act's "discretionary function" clause excepts two categories of claims from the limited waiver of sovereign immunity:

* claims based on acts or omissions by government employees exercising due care in the execution of a statute or regulation--regardless of whether the statute or regulation is valid.

* claims based on the exercise or performance, or the lack of it, regarding a discretionary function or duty, even though the discretion may have been abused. (9)

In roadside hazard cases, the defense team will typically argue that the plaintiff's claim falls within the second category. Many state tort claims acts creating a limited waiver of sovereign immunity contain similar exceptions. (10)

To defeat this defense, plaintiff's counsel can argue that the defendant's duty was not discretionary but was required by a statute, regulation, or industry standard. Even if the act or omission was discretionary, counsel can argue that it did not involve any public-policy considerations.

Many states also have "recreational use" statutes protecting public and private entities that open their property for public recreational use. (11) Under some statutes, even "pleasure riding" in a vehicle is considered recreational use. (12) These statutes could bar a claim unless the plaintiff can show that the defendant acted with malice or intent to harm. (13) Counsel should check their jurisdiction's statute when evaluating a potential case.

Many states have passed legislation capping damages recoverable in tort cases against government defendants, which may discourage plaintiff attorneys from accepting utility pole cases because of their substantial expense. However, because these immunity issues and caps on damages do not apply to private utility companies, utility pole cases can be less risky than other roadside hazard cases involving solely government defendants.

Unreasonably dangerous conditions

Usually, the issue is not whether a defendant had a duty, but what that duty was. The question of duty usually depends on the condition of the pole at the time of the collision. With a dangerous or vulnerable pole, the defendant will have to exert more effort to prove it was acting with ordinary care.

To determine how dangerous or vulnerable a particular pole was, previous and subsequent crash data are persuasive evidence. If the pole had been hit by someone before the plaintiff did so, counsel has powerful proof that it was unreasonably dangerous.

Both prior and subsequent crash data are admissible as proof to the existence of a dangerous condition or causation. (14) If prior collision data are used to show knowledge of the generally dangerous nature of the pole, less similarity between collisions is required. Subsequent crash data are not admissible regarding the defendant's knowledge (15) but are admissible to attack the credibility of defense witnesses if they claim there were no prior collisions. (16)

When using prior collision data to prove only notice, details of the crash--except number, frequency, and location--are not relevant. (17) When using collision data to show that a particular hazard is unreasonably dangerous or caused the collision, the facts of the other collisions must be very similar to the collision at issue. (18)

Even if the pole was never hit before, counsel should consider other sources to show that it posed an unreasonably dangerous condition and to define what an ordinarily prudent defendant would have done under the same or similar circumstances. Such sources include:

* Utility industry standards. Industry codes, guidelines, and standards can be valuable for determining what an ordinarily prudent utility should have done in a given situation. (19)

* Highway- and freeway-design industry standards. Organizations concerned with the safe design, construction, and maintenance of roadways produce guidelines and standards for the location and maintenance of utility assets within the right-of-way--including the TRB, Federal Highway Administration, and the American Association of State Highway Transportation Officials. (20)

* Internal utility guidelines, policies, and procedures. Utilities usually have internal policies and manuals setting forth the proper way to place and maintain utility poles. A utility's violation of its own guidelines can be a powerful fact in showing that it acted unreasonably, although internal directives are sometimes inadmissible.

* Guidelines, policies, and procedures of the government agency controlling the right-of-way. The government agency that authorized the utility often will have requirements for how and where the utility places and maintains poles. Courts have used violations of these requirements to hold utilities responsible for collisions. (21)

* Defendant's previous actions at other locations. If the defendant previously moved or upgraded facilities where circumstances were similar to those of the pole in question, the plaintiff can argue that it would have been reasonable to take the same action at the collision location.

* Other defendants' policies and programs. A few utilities and state departments of transportation have programs to study and address the problem of utility pole collisions. (22) Plaintiffs can argue that these entities are acting with ordinary prudence, and that those without such programs are not exercising reasonable care.

* Complaints by other travelers. These can be valuable sources of evidence for notice and can show that the pole was unreasonably dangerous and should have been corrected. If an ordinary, untrained traveler can recognize that the pole is unreasonably dangerous, the plaintiff can argue that the experienced defendant should have done the same.

* The defendant's internal recommendations. Information that employees of the defendant recommended the removal or protection of the pole in question or of poles in similar positions can show that the pole was unreasonably dangerous. However, if a government defendant possesses this information, it may not be discoverable or admissible. (23)

Foreseeability

Counsel should carefully examine foreseeability when determining which utility pole cases to pursue. Depending on the jurisdiction, foreseeability can be an element of duty, causation, or both. All the sources above are also useful when determining whether the defendant knew or should have known of the risk.

For example, when introducing prior crash data, the plaintiff will want data from a broad range of locations. The plaintiff might argue, for example, that the defendant's practice of locating utility poles on traffic islands resulted in many collisions and, therefore, that it should have known of the risk of harm.

The defense will attempt to limit the evidence of prior collisions to only those involving the pole in question. Counsel should point out that the defense argument does not focus on the real issue: whether a general risk of harm was reasonably foreseeable under the circumstances. (24)

Defendants have successfully used 23 U.S.C. [section] 409 to prevent the discovery and use of information collected by government entities for identifying, analyzing, and remedying dangerous conditions. (25) Some courts have allowed plaintiffs access to some or all of the requested information, depending on case circumstances. (26) No one expects the defendant to predict the exact manner in which the plaintiff was injured. The law requires only that the risk of harm be reasonably foreseeable. Therefore, if a defendant locates a pole line extremely close to the road along the outside of a curve, against industry standards and in spite of safer alternate locations, the defendant should reasonably foresee the risk of harm, even if the actual pole was never hit. The law does not entitle the defendant to do nothing about a dangerous pole until someone is killed or injured by it.

If there is evidence that the pole was never struck before, the defense will argue that the plaintiff's collision was not reasonably foreseeable--an effective argument if the road has heavy daily traffic. For example, the defendant may argue that hundreds of thousands of cars successfully traveled the road and passed the utility pole without incident before the plaintiff's collision and that, therefore, it was not reasonably foreseeable that plaintiff would lose control of the vehicle, leave the road, and strike the pole.

Plaintiff's counsel should attempt to exclude this argument unless the defendant can show that the circumstances when the other vehicles passed the pole were identical to those when the plaintiff struck the pole. (27) It is usually difficult and risky for the defendant to do this. For example, if a road hazard created by the defendant caused the plaintiffs loss of control, then the defendant would have to argue that the hazard existed when the other vehicles passed the pole, conceding that it knew for some time that the road hazard existed, but did nothing about it.

Plaintiff's counsel may explain that industry standards are crafted to prevent collisions, not merely react to them. The standards require that defendants have programs to identify and prioritize dangerous utility poles and make reasonable efforts to correct the danger--without waiting until the poles are hit.

Ordinary care

Plaintiffs counsel should identify specifically how the defendant should have acted with ordinary care. Neither industry standards nor laws require a defendant to remedy every dangerous condition immediately, but it does have to establish priorities and make reasonable efforts to remedy the danger.

Defendants have many affordable options to correct dangerous situations, such as:

* Relocating a pole farther from the road or to a less dangerous position. Examining the collision scene will often reveal alternate locations where a pole would be safe and still provide effective utility service. For example, a pole could be on the inside rather than the outside of a curve, away from a traffic island, or shielded by existing barriers.

* Reducing the number of poles and/or sharing poles with other utility providers to increase the space between them. This solution depends on the circumstances. Some utilities may need different spacing, and increased spacing may require larger poles, which may cost too much or risk greater harm to drivers.

* Installing barriers, such as guardrails and crash cushions. Besides traditional guardrails and sand-filled barrels, new types of crash cushions and guardrail end-treatments are tremendously effective in reducing impact severity. These can be cost-effective, but there must be enough space around the pole to install them.

* Locating utility service underground. This expensive option is most often employed when installing new service. However, if an existing pole is sufficiently vulnerable, it is a viable option.

* Installing breakaway poles and guy wires. If a pole cannot be moved to a safer location, using poles and guy wires that break away when hit can reduce collision severity. Breakaway poles can withstand severe storms and high winds. However, if their fall upon impact would endanger pedestrians or other vehicles, they may not be an appropriate option.

* Installing crash-resistant poles. New, energy-absorbing, fiberglass utility poles work well where there is no space to install barriers or create a clear zone. These crash-resistant poles are relatively affordable compared with traditional timber poles.

* Marking the pole. Installing reflective signs or paint alerting travelers to the pole is a low-cost option.

* Increasing road safety features. Improved pavement markings, wider lanes, paved shoulders, fewer and more subtle curves, improved drainage, better lighting, sufficient warning signs, and rumble strips can reduce the likelihood that vehicles will leave the road.

Although some remedial measures are more affordable than others, even the most expensive is feasible.

Defendants usually argue that it is not feasible to use the plaintiff-suggested remedy for all of its poles, and therefore, failing to correct the pole in the case was not unreasonable. But the plaintiff is not suggesting that the defendant remove all its utility poles or install guardrails in front of every one. Counsel should emphasize that the plaintiff is arguing that the defendant must exercise reasonable care in correcting the dangerous poles within its control. Using the feasibility criteria in industry standards, counsel should be able to state why the pole in question should have been remedied despite the defendant's finite resources.

Establishing causation

Assuming the plaintiff can show that a pole was unreasonably dangerous, that the defendant had a duty to correct the situation, and that it breached its duty, plaintiff counsel must still prove causation. This can be difficult because in typical utility pole cases, something caused the plaintiff's vehicle to leave the road initially. If the defendant caused the event that made the plaintiff leave the road--for example, through construction, maintenance, or defective road design--this fact dovetails with other allegations of negligence regarding the utility pole. But if it was someone else's act or omission, or an act of God, the defense can argue intervening or independent cause.

In that event, the plaintiff can argue that, according to the forgiving-roadside concept, vehicles will leave the road. Because a vehicle's leaving the road is foreseeable, the defendant has a duty to design, install, and maintain utility poles so that when it happens, the least possible personal and property damage occurs. The cause of the vehicle's leaving the road is not an intervening cause because it is foreseeable; therefore, the defendant's negligence remains the proximate cause of the plaintiffs damages.

A defendant may also argue that even had it not breached its duty, the plaintiff would have sustained injuries just as severe as those that resulted from the utility pole collision. The plaintiff needs to carefully select arguments about what the defendant should have done. For example, if the plaintiff claims that the defendant should have installed a guardrail to protect a dangerous utility pole, make sure the guardrail would have been a safer alternative. Sometimes, a barrier like a guardrail can pose a greater threat because it covers a larger surface area. Also, it may not sufficiently redirect the plaintiff's vehicle without inflicting equally severe injuries.

Counsel should also consider what was likely to happen even if the dangerous utility pole had been removed or protected. For example, a utility pole may be near other fixed objects, such as trees or embankments. If the plaintiff had not struck a dangerous pole, but would probably have hit an embankment located behind it, the fact finder may determine that the defendant's negligence was not the proximate cause of the plaintiff's damages.

Recent increased publicity and calls for action by industry officials have notified defendants of what is expected. Those that respond with legitimate programs and substantial investment will often be shielded from liability. Their conduct can be contrasted to that of negligent defendants who continue to sit idle. By thoroughly preparing and expertly presenting the cases of clients who have collided with dangerous utility poles, plaintiff lawyers can make the problem more visible.

Notes

(1.) The National Highway Traffic Safety Administration (NHTSA) reported about 1,100 deaths in 2000 from utility pole collisions and about 203 fatalities from Firestone tire-tread separations (as of Aug. 13, 2001). See Nat'l Highway Traffic Safety Admin., Fatality Analysis Reporting System (FARS).

(2.) K.K. MAK & R.L. MASON, FED. HIGHWAY ADMIN., ACCIDENT ANALYSIS--BREAKAWAY AND NON-BREAKAWAY POLES INCLUDING SIGN AND LIGHT STANDARDS ALONG HIGHWAYS, DOT-HS-805-605 (Aug. 1980).

(3.) AM. ASS'N OF ST. HIGHWAY & TRANSP. OFFICIALS [HERINAFTER AASHTO], A POLICY ON GEOMETRIC DESIGN OF RURAL HIGHWAYS 126 (1965): AASHTO, HIGHWAY DESIGN AND OPERATIONAL PRACTICES RELATED TO HIGHWAY SAFETY (1967).

(4.) For a general discussion of negligent design, construction, and maintenance of roads, see Dan Christensen, Paving the Way for a Road Hazard Case. TRIAL, Jan. 2002, at 47, and other sources on file with author.

(5.) Paul Scott & Don Ivey, Utility Poles and Roadside Safety, The Road to Responsibility, TRANS. RES. BD. 80TH ANNUAL MEETING (Jan. 2001).

(6.) UTIL. SAFETY TASK GROUP, TRANSP. RES. BD., THE INFLUENCE OF UTILITIES ON ROADSIDE SAFETY (Jan. 1, 2002) (under review).

(7.) The term "standard" in this article is used interchangeably with "policy" and "guideline". While experts and industry officials may argue that publications (other than the Manual on Uniform Traffic Control Devices) released by AASHTO, other industry associations, and government agencies are merely policies or guidelines and not standards, the publications are all valuable evidence indicating the industry standard of care.

(8.) See Annot., Placement, Maintenance, or Design of Standing Utility Pole as Affecting Private Utility's Liability for Personal Injury Resulting from Vehicles Collision with Pole Within or Beside Highway, 51 A.L.R.4th 602 (1987).

(9.) 28 U.S.C. [section] 2680(a) (2002).

(10.) See, e.g., TEX. CIV. PRAC. & REM. CODE [section] 101.056 (2002).

(11.) See, e.g., Kurtis A. Kemper, Annot., Liability of United States under Federal Tort Claims Act (28 U.S.C.A. [subsections] 1346(b), 2671-2680) for Death or Injury Sustained by Visitor to Area Administered by National Park Service, 177 A.L.R. FED 261 (2002); Robin Cheryl Miller, Annot., Effect of Statute Limiting Landowner's Liability for Personal Injury to Recreational User, 47 A.L.R.4th 262 (1986).

(12.) See, e.g., TEX. CIV. PRAC. & REM. CODE ANN. [section] 75.001(3)(1997)(defining the term "recreation" as hunting; fishing; swimming; boating; camping; picnicking; hiking; pleasure driving; nature study, including bird-watching; cave exploration; waterskiing and other water sports; or any other activity associated with enjoying nature or the outdoors).

(13.) Walker v. Daniels, 407 S.E.2d 70 (Ga. Ct. App. 1991).

(14.) See Annot., Modern Status of Rules as to Admissibility of Evidence of Prior Accidents or Injuries at Same Place, 21 A.L.R.4th 472 (2002); Springer v. Jefferson County, 595 So. 2d 1381 (Ala. 1992); Coyle v. Veryl's Motor Hotel, 171 N.E.2d 355 (Ohio 1961); Sweeney v. State, 763 S.W.2d 253 (Tenn. 1989); Winklemann v. Battle Island Ranch, 650 S.W.2d 543 (Tex. App. 1983). See also Annot., Admissibility of Evidence of Absence of Other Accidents or Injuries at Place Where Injury or Damage Occurred, 10 A.L.R.5th 371 (2002).

(15.) Eisenbraun v. City of N.Y., 159 N.Y.S.2d 73 (1955); Viet v. St., 78 N.Y.S.2d 336 (Ct. Cl. 1948); Hoyt v. N.Y., L.E. & W.R. Co., 23 N.E. 565 (N.Y. 1890); Henwood v. Chaney, 156 F.2d 392 (8th Cir. 1946); Laitenberger v. St., 57 N.Y.S.2d 418 (Ct. Cl. 1945).

(16.) Newcomb v. Frink, 105 N.Y.S.2d 704 (App. Div. 1951): Singer v. Walker, 331 N.Y.S.2d 823 (App. Div. 1972); St. Louis S.W. Ry. v. Jackson, 416 S.W.2d 273 (Ark. 1967).

(17.) Henderson v. Ill. Cent. Gulf R.R., 449 N.E.2d 942 (Ill. App. 1983).

(18.) See Eisenbraun, 159 N.Y.S.2d 73; Viet, 78 N.Y.S.2d 336; Hoyt, 23 N.E. 565; Henwood, 156 F.2d 392; Laitenberger, 57 N.Y.S.2d 418; RICHARDSON ON EVIDENCE [section] 166, 140 (7th ed.); Galieta v. Young Men's Christian Ass'n, 300 N.Y. 2d 170 (App. Div. 1969).

(19.) See INST. OF ELEC. & ELEC. ENG'R, INC., NAT'L ELEC. SAFTEY CODE (2002); AMERICAN NATIONAL STANDARD ELECTRIC SAFETY CODE, [section] 21,211 (1973 ed.) ("all electric supply communication lines and equipment shall be installed and maintained so as to reduce hazards to life as far as practicable").

(20.) See, e.g., UTIL. SAFETY TASK GROUP, supra note 6; 23 C.F.R. Part 645, Subpart B, FHWA, (2002); AASHTO, A POLICY ON THE ACCOMMODATION OF UTILITIES WITHIN FREEWAY RIGHT-OF-WAY (1989); AASHTO, A GUIDE FOR ACCOMMODATING UTILITIES WITHIN HIGHWAY RIGHT-OF-WAY (1994); AASHTO, ROADSIDE DESIGN GUIDE (2002); AASHTO, GUIDE FOR SELECTING, LOCATING, AND DESIGNING TRAFFIC BARRIERS (1977).

(21.) Wyatt v. Chesapeake & Potomac Tel. Co., 163 S.E. 370 (Va. 1932); Ballengee v. Bluefield Tel. Co., 140 S.E. 333 (W. Va. 1927).

(22.) UTIL. SAFETY TASK GROUP, supra note 6 (listing the programs involved in studying and solving the problems of utility pole collisions).

(23.) Sometimes courts refuse the discovery of these documents under state open records acts' exclusions or pursuant to 23 U.S.C. [section] 409 (1990). But see Guillen v. Pierce County, 31 P.3d 628 (Wash. 2001).

(24.) Wal-mart Stores, Inc. v. Rangel, 966 S.W.2d 199,202 (Tex. Ct. App. 1998); Corbin v. Safeway Stores, Inc. 648 S.W.2d 292 (Tex. 1983); Duke v. Dep't of Agric., 131 F.3d 1407 (10th Cir. 1997).

(25.) See Harrison v. Burlington N.R. Co., 965 F.2d 155 (7th Cir. 1992); Rodenbeck v. Norfolk & W. Ry. Co., 982 E Supp. 620 (N.D. Ind. 1997); Shots v. CSX Transp., 887 E Supp. 204 (S.D. Ind. 1995); Taylor v. St. Louis S.W. Ry. Co., 746 F. Supp. 50 (D. Kan. 1990).

(26.) Powers v. CSX Transp., Inc., 164 F. Supp. 2d 1299 (S.D. Ala. 2001); Dep't of Transp. v. Super. Ct., 55 Cal. Rptr. 2d 2 (Ct. App. 1996): Kitts v. Norfolk & W. Ry. Co., 152 F.R.D. 78 (S.D.W. Va. 1993).

(27.) See Jay M. Zitter, Annot., Admissibility of Evidence of Absence of Other Accidents or Injuries at Place Where Injury or Damage Occurred, 10 A.L.R.5th 371 (1993); Rathbun v. Humphrey Co., 113 N.E.2d 877 (Ohio Ct. App. 1953).

Dan Christensen is a shareholder with the law firm Smith & Carlson in Austin, Texas. He can be reached by e-mail at [e-mail].