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Coates v. Southern Maryland Electric Cooperative Inc.6/16/1999
ractice, it has not served as the basis for a major shift in thinking. The focus remains on foreseeability. Comment h to ยง 368 declares that "the essential question is whether [the pole] is so placed that travelers may be expected to come in contact with it in the course of a deviation reasonably to be anticipated in the ordinary course of travel." Though noting the obvious relevance of the distance between the condition and the roadway, the comment points out that distance is important "only as it affects the recognizable risk" and that "other factors, such as the nature of the condition itself, its accessibility, and the extent and character of the use of the highway, must be taken into account. Comment e says essentially the same thing, that " he public right to use the highway carries with it the right to protection by reasonable care against harm suffered in the course of deviations which may be regarded as the normal incidents of travel."
The split in the decisions reflects differing views of what a utility should reasonably anticipate and over the countervailing consequences and benefits of extending a utility's liability. Some courts continue to adhere to the view that a utility cannot reasonably be expected to anticipate and protect against out-of-control vehicles leaving the traveled part of the road, although, increasingly, they are looking at a variety of factors in reaching that Conclusion and not drawing it solely from the fact that the accident occurred off the roadway. See, for example, Rothwell v. West Cent. Elec. Co-op, Inc., 845 S.W.2d 42 (Mo. App. 1992), where, as here, the driver lost control of the vehicle, crossed the center line and oncoming lane, and struck a pole some eight to eleven feet off the other side of the road. The court denied liability, noting, at 44:
"In general, this type of accident involving the pole is not reasonably foreseeable. This court finds nothing to show that the pole was located so close to the roadway that it would have been a dangerous obstruction to anyone properly using the roadway. There was no evidence of a vehicle ever colliding with a pole in this location in the three decades of this line."
It would be unreasonable, the court added, to find that the utility owed a duty "to a motorist who unforeseeably deviated from the roadway and hit a pole at least eight feet from the road." Id. That court thus looked at the extraordinary nature of the deviation, the distance between the pole and the road, and the lack of earlier collisions.
Boylan v. Martindale, 431 N.E.2d 62 (Ill. App. 1982) and Gouge v. Central Illinois Public Service, 582 N.E.2d 108 (Ill. 1991) are additional examples of this approach. In Boylan, the plaintiff's car was struck in an intersection collision and knocked into a pole located six to twelve inches from the traveled portion of the roadway. Finding no liability on the part of the utility, the court concluded that the mere placement of the pole at that distance "does not, in and of itself, create an unreasonable risk to others traveling with reasonable care" and that it could not determine from the pleading "what, if any particular dangerous roadway condition may have caused automobiles to leave the roadway and collide with the utility poles." Id. at 70. In Gouge, the driver lost control of the car while rounding a curve, left the road, and struck a pole 15 feet from the paved surface. Holding that the action by him and his passenger was properly dismissed, the court determined that the utility "does not owe a duty to motorists who unforeseeably deviate from the traveled portion of the roadway and strike a utility pole located 15 feet from the roadway." Id. at 114.
Indiana has rendered
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