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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.

Article Excerpt
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...

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