Utility Company Must Keep Stored Poles Outside Roadside "Clear Recovery Area"

The Crash

In the early morning darkness of March 28, 1990, Nicks and Myles were traveling on Louisiana Highway 83 to their jobs as oyster fishermen. On a level, straight, two-lane section of highway, a vehicle with its high-beam headlights on came toward them in the opposite lane. As a warning, Nicks twice flicked his brights. Suddenly the driver of the other vehicle veered into Nicks' lane, forcing Nicks to apply his brakes and move to the right. His vehicle left the road. Skidding across the grassy, sloped area at the side of the roadway, the vehicle struck a 50-foot utility pole belonging to Teche Electric Co-op. Both men received injuries requiring medical treatment and were unable to work for some time because of their injuries. Shortly after the crash, Nicks measured the pole's distance from the roadway and took pictures of the site. His measurements and photographs showed that tall grass concealed the pole which was lying nine to ten feet from the traveled roadway. No signs or reflectors marked the pole.

Testimony

Senior Trooper Richard Fleming said he arrived at the crash scene about 5:50 a.m. He testified that he estimated the pole was 20 feet from the roadway, but he did not take measurements and, by the time of the trial, he had no independent recollection of the crash. Therefore, the trial judge discounted the trooper's testimony in making a decision.

The plaintiffs' safety expert referred to American Association of State Highway Transportation Officials (AASHTO) guidelines. He testified those guidelines specify maintenance of a recommended 30 feet of "clear recovery area" at the side of the type roadway where the crash happened. In addition, the guidelines state that, in the event of compelling reasons for leaving something within this "clear recovery area," responsible parties must equip the object with warning lights or markers. The witness' opinion was that Teche should have moved the pole farther from the roadway, marked it with adequate warning devices, or taken it back to the pole yard.

Teche's Director of Engineering and Operations testified it was common practice for Teche employees to store uninstalled poles at the side of the roadway for use the next day. He said crews moved the poles "as far from the highway as possible"; however, in this instance, the pole was only 15 to 20 feet from the highway because of the marshy condition of the roadside. The witness agreed that the crew could have used a "pole hook" to move the pole farther from the road where wet conditions prevented a truck from going. He also confirmed that workers normally place markers on poles stored close to the roadway, but they did not mark the pole which the plaintiffs hit. Teche's line foreman, who was in charge of the project on the day before the crash, confirmed the director's testimony.

A traffic engineer testified for Teche, claiming AASHTO guidelines call for an 18-foot "clear recovery area" on this type of highway. Thus, the 20-foot setback to which Trooper Fleming attested would have met AASHTO guidelines. He also expressed the opinion that warning signs or markings on the pole might serve to alert motorists to a danger, but they would not have prevented an out-of-control vehicle from hitting the pole.

Nicks and Myles described the particulars of the crash; their testimony was not contradicted. They presented photographs showing the pole's location as approximately ten feet from the edge of the traveled roadway. In addition, they said that the area where Nicks' vehicle came to rest was relatively dry and grassy. This contradicted testimony from Teche workers describing the area as too wet and marshy to use the utility company's truck to move the pole farther from the roadway.

Opinions

The district court considered this testimony, found against Teche, and made awards to the plaintiffs. In pursuing the case to the Court of Appeals, Teche argued the lower court made errors: 1) in finding that the company owed a duty to the plaintiffs under the circumstances and 2) in concluding that the location of the stored utility pole was a cause-in-fact of the crash.

The Supreme Court confirmed that issues of legal duty and risk of harm are matters for the court to resolve. To perform this duty-risk analysis, the court must decide "first . . . whether the defendant's action was a cause-in-fact of the accident; second, whether the defendant owed a duty to the plaintiff which was breached; and, whether the risk of harm encountered by plaintiff is within the scope of the duty" (Shafer v. State, DOTD, 590 So.2d 639 (La.App. 3rd Cir.1991)).

As to the question of proximate cause, the court concluded that if the pole had not been in Nicks' path he would have had a much better chance of regaining control of his vehicle. Therefore, the fact that Teche left the pole in the "clear recovery area" was a cause-in-fact of injuries to Nicks and Myles.

Concerning the question of duty, the appellate court cited Oster v. State (DOTD, 582 So.2d 1285 (La.1991)) to establish that the state has a duty to maintain the area within the right-of-way surrounding its roadways in a manner that does not present an unreasonable risk for motorists and pedestrians using the roadway and right-of-way in a reasonable and prudent manner. The court felt a utility company would have the same duty under law, and it was not unreasonably burdensome to impose that duty on the company. The court also concluded the risk of harm was within that duty. In affirming the lower court's judgments, the Court of Appeal stipulated that Teche Electric would pay the costs of the appeal. They also attached a copy of the district court's "Reasons for Judgment," saying the trial judge rendered excellent reasons to support the decision.