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Contey v. New Jersey Bell Telephone Co.

Decided: July 20, 1994.

ALTHEA CONTEY, PLAINTIFF-APPELLANT,
v.
NEW JERSEY BELL TELEPHONE COMPANY AND ROCKLAND ELECTRIC COMPANY, DEFENDANTS-RESPONDENTS, AND JOHN DOE (OWNER OF UTILITY POLE AND SURROUNDING PROPERTY); BOROUGH OF FRANKLIN LAKES, COUNTY OF BERGEN; AND STATE OF NEW JERSEY, DEFENDANTS.



On appeal from the Superior Court, Appellate Division.

O'hern, Clifford, Pollock, Handler, Stein

O'hern

The opinion of the Court was delivered by O'HERN, J.

This case requires us to consider again the limits of proximate cause and the limits of legal duty as defined by the foreseeability of harm to others. The case arises from an automobile accident in the Borough of Franklin Lakes. Plaintiff, Althea Contey, while driving on an unfamiliar street in the early morning hours, missed an unmarked turn in the road and struck a utility pole. The pole stands approximately ten inches from the curb line at the beginning of an S-curve in the road. To drivers traveling on the roadway, the position of the pole appeared to be in the middle of the roadway. Injured in the accident, Ms. Contey sued the New Jersey Bell Telephone Company, the Rockland Electric Company, the Borough of Franklin Lakes, the County of Bergen, and the State of New Jersey. (The telephone company owned the pole,

and the electric company had permission to locate its wires on the pole.)

Ms. Contey settled or voluntarily dismissed her claims against the public bodies. However, she pursued her claims against the telephone company and the electric company. The trial court granted summary judgment in favor of the utilities. In an unreported opinion, the Appellate Division affirmed on the basis of its earlier holding in Oram v. New Jersey Bell Telephone Co., 132 N.J. Super. 491, 334 A.2d 343 (1975), that a utility assumes no liability for the placement of its pole adjacent to the roadway when a collision occurs because a vehicle departs from the traveled section of the road. One Judge Dissented, reasoning that plaintiff had presented an ordinary negligence case and that the majority allowed unwarranted immunity to the utility companies. Plaintiff appealed as of right, R. 2:2-1(a)(2).

I

In essence the case at bar creates a classic case of intervening causation. "This presents the question whether the asserted negligence in the placement of the pole is to be considered as the proximate cause, or whether the operation or movement of the colliding vehicle may be said to be the real cause, the collision with the pole being merely incidental."

[Padgett v. West Fla. Elec. Coop., Inc., 417 So. 2d 764, 766 (Fla. Dist. Ct. App. 1982) (quoting T.C. Williams, Annotation, Injury to Traveler From Collision With Privately Owned Pole Standing Within Boundaries of Highway, 3 A.L.R.2d 6, 56 (1949)).]

We can answer the question in either of two ways. Then-Judge Cardozo provided a familiar legal test in Stern v. International Railway Co., 220 N.Y. 284, 115 N.E. 759, 761 (N.Y. 1917):

The poles, if placed and maintained with due regard for the public safety, are not unlawful obstructions. * * * They must be so located as to avoid unreasonable and unnecessary danger to travelers upon the highway. * * *

The question is whether the place chosen is so dangerous and the danger so needless that the choice becomes unreasonable. If danger in that degree is present, [the company is] charged with liability.

Courts in Florida and Pennsylvania have held that utility companies may be liable to motorists who stray from the traveled portion of a highway for harm caused by the negligent placement

and maintenance of utility poles. Padgett, supra, 417 So. 2d 764; Nelson v. Duquesne Light Co., 338 Pa. 37, 12 A.2d 299 (Pa. 1940); Scheel v. Tremblay, 226 Pa. Super. 45, 312 A.2d 45 (Pa. Super. Ct. 1973).

In a relatively recent case, McMillan v. Michigan State Highway Commission, 426 Mich. 46, 393 N.W.2d 332 (1986), the Michigan Supreme Court rejected the concept that a utility owes no duty to an occupant of a vehicle leaving the traveled portion of the highway. That concept rests on the premise that errant motorists are not properly using the highway. Id. at 337. The Michigan court reasoned that because drivers will foreseeably leave the traveled portion of the highway, a poorly-placed utility pole might pose an unreasonable danger to such a traveler. Id. at 338-39. The test that court adopted is whether reasonable minds could differ about a utility's negligence in placement of the pole, considering factors such as location of the pole, the pole's proximity to the highway, the configuration of the roadway, the notice to the utility company of previous accidents at that location, and alternative, less-dangerous locations for the pole. Id. at 340. If reasonable minds could so differ, the issue of negligence is for the jury. Ibid.

Early common law recognized the foreseeability of a vehicle veering from a paved way and colliding with a utility pole. In Lambert v. Westchester Electric Railroad Co., 191 N.Y. 248, 83 N.E. 977 (N.Y. 1908), a firefighter aboard a moving fire wagon sustained injuries when he hit a trolley pole on the edge of a roadway. The court held that the trolley company should have foreseen that a wagon might, when rapidly departing from a firehouse, lose control and leave the paved surface of the driveway when entering the street. Id. at 978. New Jersey law had acknowledged the duty to foresee that vehicles may leave the roadway and collide with an adjacent utility pole. See Hoyt v. Public Service Electric & Gas Co., 117 N.J.L. 106, 187 A. 43 (E. & A. 1936), in which the improper fastening of a transformer to a utility pole that leaned over the traveled portion of the roadway injured a driver in a collision. The court held that a utility should exercise

"reasonably careful judgment" when designing and maintaining poles because errant motor vehicles are ...


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