Mosteller v. Duke Energy Corp. (Lawyers Weekly No. 10-07-0867, 51 pp.) (Donna S. Stroud, J.) Appealed from Gaston County Superior Court. (Nathaniel J. Poovey, J.) N.C. App.
Holding: Plaintiff was a passenger in a vehicle that ran off the road and struck a utility pole inside the highway right-of-way, leaving plaintiff a quadriplegic. The defendant-power company allegedly violated N.C. Department of Transportation regulations by failing to apply for a permit for its placement of the pole; however, plaintiff’s complaint fails because she does not allege that the DOT would have denied such an application had it been filed.
We affirm the trial court’s order granting defendant Duke Energy Corp.’s motion to dismiss.
Three prior auto accidents, in 1997, 2001 and 2003, involved the subject utility pole or its predecessor poles.
DOT’s 1975 manual states, “Poles and related facilities on and along conventional highways in rural areas shall be located at or as near as practical to the right-of-way line.” Utility companies are required to obtain written permission of the DOT before placing a utility in the right-of-way of any road on the state system. The defendant-power company had no written permission for the placement of the subject pole, nor had it applied for one.
DOT’s design drawings for the road at issue, Belmont-Mount Holly Road (SR-2093), did not indicate the existence of a utility pole in the right-of-way along the western edge of Belmont-Mount Holly Road in the vicinity of the subject pole.
The power company contends that plaintiff’s allegations “do not establish that the cited DOT regulations apply to control the power company’s conduct with respect to the installation of the overhead electrical line at issue because there is no allegation that the electrical line was installed after the effective dates of those regulations. Thus, the power company’s first argument is that the regulations as alleged by plaintiff do not apply to the subject utility pole.
However, plaintiff has alleged that the subject utility pole was damaged in 1997, 2001 and 2003, requiring its replacement. Plaintiff has also alleged “upon information and belief” that the pole was installed after 1999.
The complaint alleges that the subject utility pole was installed after 1999 and was therefore governed by all of the statutes, guidelines, and regulations alleged by plaintiff. As we must accept the allegations of the complaint as true, the power company’s argument as to the applicable dates of the regulations fails. For purposes of the motion to dismiss, we must therefore consider all of the DOT guidelines and regulations alleged by plaintiff as applicable to the subject utility pole’s installation and maintenance.
Not every statute or regulation purporting to have generalized safety implications may be interpreted to automatically result in tort liability for its violation. For a safety regulation to be adopted as a standard of care, the purpose of the regulation must be intended at least in part (a) to protect a class of persons which includes the plaintiff, (b) to protect the particular interest which is invaded, (c) to protect that interest against the kind of harm which has resulted, and (d) to protect that interest against the particular hazard from which the harm results.
The 1975 DOT manual provides, “Poles and related facilities on and along conventional highways in rural areas shall be located at or as near as practical to the right-of-way line. The poles should be located outside the clear recovery area for the highway sections involved. …”
The manual defines “clear recovery area” as the area adjacent to the roadside that is safely traversable by vehicles and that is to be kept as free as practical from above-ground physical obstructions that would be a hazard. “The width of an area varies according to the type of highway involved and may vary on different sections of the same type of highway.”
19A NCAC § 02B.0502(b) states, “No utility which has been placed on the right-of-way of any road on the State Highway System shall be changed or removed without written permission from the Department of Transportation.”
Based on our review of the manual and regulations, we conclude that the purpose of the DOT regulations is to provide a safer environment for motorists, including those in “errant vehicles” which leave the paved roadway.
Plaintiff was a passenger in an “errant vehicle” which left “the traveled portion of the roadway” and collided with a utility structure, in this case the subject utility pole, located in the public right-of-way. Plaintiff is clearly within the class of persons which the regulations are intended to protect. Likewise, the regulations were intended to protect the particular interest which is invaded and to protect that interest against the kind of harm which has resulted.
The regulations protect plaintiff’s specific interest as they promote highway safety by requiring a “clear recovery zone” in the public right-of-way for motorists to stop or recover control if they leave the roadway, by DOT regulation of the placement of utility structures in the public right-of-way.
Plaintiff has alleged that she was injured because the car in which she was a passenger hit the subject utility pole, for which the power company had not obtained DOT approval in accordance with the applicable safety regulations.
In addition, the regulations are specifically intended to protect plaintiff’s interest against the particular hazard from which the harm results. Also, a violation of these safety regulations enacted pursuant to G.S. § 136-18(10) for safety purposes is a Class 1 misdemeanor.
We have established that the N.C. DOT regulations are applicable to the subject utility pole and that a violation of these regulations may be the basis of a claim of negligence per se. Plaintiff has alleged that the power company failed to obtain from the DOT a permit or encroachment agreement as required by law and that the pole was located and maintained in violation of the applicable regulations. Accepting the allegations of plaintiff’s complaint as true, the power company has breached its duty to comply with the regulations. Therefore, plaintiff has pled a breach of the power company’s duty of care.
The N.C. Supreme Court’s prior cases addressing the proximate causation and foreseeability of injury in cases dealing with errant vehicles which collide with a structure in the right-of-way may appear to be inconsistent. On one hand, since Wood v. Carolina Telephone & Telegraph Co., 228 N.C. 605, 46 S.E.2d 717 (1948), as a general rule, a plaintiff may not recover from a utility company which maintains a structure in the right-of-way for injuries sustained from collision with the structure by a motor vehicle which has run off of the roadway. On the other hand, our Supreme Court in Baldwin v. GTE S., Inc., 335 N.C. 544, 439 S.E.2d 108 (1994), affirmed the plaintiff’s recovery in exactly this situation, and, even though proximate causation was not directly addressed, Baldwin suggests that the power company should have reasonably foreseen the risk of injury caused by the subject utility pole based upon the DOT regulations which address this very risk.
Baldwin is the only N.C. case we have been able to locate which finds the owner of a utility structure located in a highway right-of-way liable for injury to a person injured because a motor vehicle left the roadway and hit the utility structure. All other cases addressing this factual situation have held that the owner of the utility structure is not liable, either based upon a lack of proximate causation or by intervening proximate cause.
The power company essentially argues that the defendant-driver’s negligence in running off the road was the intervening proximate cause of plaintiff’s injuries.
In Wood, the plaintiff’s car went into a skid, he accidentally stepped on the accelerator instead of the brake, and momentum pulled the plaintiff’s arm out the window, where it struck a telephone pole, causing injuries to plaintiff’s arm. Our Supreme Court upheld the trial court’s dismissal of the claim against the telephone company, relying entirely upon foreseeability considerations and “intervening proximate cause” of the injury based on the plaintiff’s actions.
In Shapiro, this court relied on Wood to hold, “The maintenance of a utility pole along a public highway does not constitute an act of negligence unless the pole constitutes a hazard to motorists using the portion of the highway designated and intended for vehicular travel in a proper manner.”
Wood and other cases have held that even if the utility company was negligent in its location of the pole, the pole would have produced no damage to the plaintiff if either the plaintiff or a responsible third party had not caused a vehicle to leave the traveled roadway and hit the pole.
We are therefore left with the dilemma of reconciling Baldwin with Wood and the line of cases following Wood, as the Baldwin court did not overrule Wood.
The Baldwin court held that the same 1975 DOT manual which applies in this case establishes a standard of care for a defendant utility company. In addition, Baldwin extended this duty to protect a person who was in the right-of-way, but not in the traveled roadway, who was injured by an “errant vehicle” which ran off of the roadway due to the negligent act of a third party.
Based upon the DOT manual, which includes regulations intended to protect motorists in “errant vehicles,” and Baldwin, we cannot say that the mere fact that a vehicle drove outside the travel lane is beyond the realm of probability, unusual, extraordinary, or exceptional.
However, Baldwin and Wood and its progeny may be distinguished by the fact that the utility poles as in Wood, Shapiro and Alford were permitted within the right of way, albeit subject to certain restrictions, while the telephone booth in Baldwin was in an area where it was entirely prohibited.
It is both legal and necessary for utility poles to be located within rights-of-way of roads and highways. DOT regulations recognize that utility poles and other structures must be within the right-of-way.
There is no apparent reason for a telephone booth to be within the right-of-way of a public highway. Although the Baldwin court did not explain how it distinguished the situation of a telephone booth within the right-of-way from the precedents dealing with utility poles within the right-of-way, Baldwin and Wood can be logically reconciled in this manner.
Certain utility structures are necessary within the public rights-of-way for provision of electric, telephone and other services, while telephone booths are a convenience which can just as easily be located on property which is not within a right-of-way.
Unlike the determination of whether the phone booth in Baldwin was in violation of the safety regulation, here the applicable statute, regulations and the 1975 DOT manual provide that the DOT has the exclusive authority to determine the proper placement of a utility pole within the right-of-way.
There is no standard “clear recovery area” for a particular type of roadway, as the “clear recovery area” must be determined based upon the characteristics of each particular roadway. Documents included by plaintiff with her complaint demonstrate the complexity of making a determination as to the “clear recovery area.”
Plaintiff alleges that the power company was negligent in its failure to install and/or replace the subject utility pole “in a location consistent with [DOT] regulations. …” However, the DOT guidelines themselves do not permit a determination by plaintiff as to whether the placement was proper; as the guideline factors and required calculations for determining the “clear recovery area” demonstrate, the application of the guidelines is complex and requires the expertise of the DOT.
The DOT has the legal authority and discretion to evaluate each application and to determine the proper location of a particular utility pole in accordance with the regulations and guidelines. Plaintiff makes no allegation that the placement of the subject utility pole was determined by DOT to be in violation of DOT regulations and guidelines.
This is the break in the plaintiff’s chain of proximate cause under Baldwin. Plaintiff did not allege that DOT has ever evaluated the location of the subject utility pole and determined that its location was in violation of the applicable regulations and guidelines.
Certainly, as plaintiff has alleged, she was injured because the utility pole was in the path of the car in which she was riding when it left the roadway, but the complaint fails to allege that the DOT would not have approved the subject utility pole’s location. We therefore have no way of knowing if it would have made any difference whatsoever to plaintiff if the power company had obtained a permit or encroachment agreement for the subject utility pole. It is entirely possible that the DOT would have actually approved the location of the subject utility pole if the power company had properly applied for permission.
The affidavits from various DOT officials do not say that DOT would have denied a permit if one had been requested. For plaintiff to have properly pled the power company’s location or maintenance of the subject utility pole as a proximate cause of her injuries, she must have alleged that if the pole had been in its proper location, as determined by the DOT, she would have avoided injury from collision with the pole when the defendant-driver ran off of the road.
Any holding that the DOT regulations adopted pursuant to G.S. § 136-18(10) supersede Wood must come from our Supreme Court, as we are bound by Wood, Shapiro, Alston and Baldwin. Our holding that plaintiff must allege that the proper location for the subject utility pole as determined by the DOT in order to properly plead proximate causation is consistent with the legislature’s grant of regulatory power to the DOT as well as the holdings of Wood, Shapiro, Alston and Baldwin.
Without the allegation of a determination by the DOT that the subject pole was in a location which would not have been approved by the DOT, plaintiff’s complaint has not adequately pled proximate cause of her injuries by defendant’s negligence per se.
The same reasoning applies to plaintiff’s ordinary negligence claim.