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Lawsuit filed over poles on Savage Road
(by Joan Demirjian - October 05, 2011)
Lawsuit filed over poles on Savage Road
By JOAN DEMIRJIAN
For more than two years, Bainbridge Township Trustees and the Geauga County engineer pushed to have the Cleveland Electric Illuminating Co. move utility poles back from the roadway on Savage Road in the township.
Savage Road was widened, relocated in one area and resurfaced in a project that started in 2008. The township and county cited dangers in the poles being close to the road, but CEI did not move them.
Now, two people who have been injured after striking utility poles in the same area of Savage Road have both filed lawsuits against CEI and First Energy, its parent company.
In May 2010, Bentleyville resident David Bidar was driving on Savage Road and swerved to miss a deer. He struck a utility pole located about 30 inches from the roadway.
In October 2010, Douglas Link was operating a motorcycle on the same stretch of road when he struck a deer and then hit another CEI pole, in what was described as the "clear zone."
Mr. Bidar and his wife, Teresa, filed their suit Jan. 18 in Cuyahoga County Court of Common Pleas, claiming CEI and First Energy impermissibly maintained the pole in the clear zone, an area adjacent to the roadway which is supposed to remain free of fixed objects.
Attorney David Pomerantz, representing the Bidars, said, Mr. Bidar was seriously injured. "It's an outrageous situation," he said.
CEI's internal documents demonstrate that its original plans called for removal of the pole in question, Mr. Pomerantz said.
However, internal emails obtained by the Bidars show that CEI, without informing the Geauga County engineer, who was in charge of the project, decided not to move the poles out of the clear zone, to save money, Mr. Pomerantz said.
When Geauga County Engineer Robert Phillips learned of the change, he wrote CEI in 2009, warning that the poles needed to be removed from the clear zone, as the original plans had directed to protect not only the driving public but also First Energy's tort liability, Mr. Pomerantz said.
He said subsequent internal memos show that CEI was aware that there could be fatalities or major injuries as a result of not relocating the poles. "But they decided to leave the poles in the clear zone anyway," Mr. Pomerantz said.
The Ohio Department of Transportation requires a clear zone for the roadway, based on the road's speed limit, lack of curbs and other features, of at least 11 feet. Under those standards, all fixed objects within the clear zone must be removed or adequately guarded, he said.
CEI has filed motions for summary judgment in both cases and is asking that the cases be thrown out without a trial, Mr. Pomerantz said. CEI is alleging it is immune from liability based on a recent Ohio Supreme Court decision.
In that case, the court held that, if a utility company had the permission of the government or a permit to place the pole in its location, it could not be sued if the pole caused injury or property damage. However, CEI never obtained a permit for the pole which Mr. Bidar hit, Mr. Pomerantz said.
CEI is arguing it did not need permits, because they were located in an unincorporated area of the township. Mr. Pomerantz said, even if no permit was required, the Supreme Court ruling does not afford immunity in such cases. "They would be subject to normal rules of negligence, just like everyone else," he said.
Cuyahoga County Common Pleas Court Judge Daniel Gaul is expected to rule shortly. If he denies CEI's motion, the trial is expected to begin Oct. 24, Mr. Pomerantz said.
Bainbridge Township Trustee Jeffrey Markley said the township and Road Superintendent Walter Rudyk had followed up on the issue of moving the poles with the county engineer. "Some were moved and some were not. For some reason, they chose not to," Mr. Markley said.
Trustee Lorrie Benza said, "The poles are close to the roadway, and we feel it's an ongoing safety hazard for drivers."
Geauga County Engineer Robert Phillips said plans for the Savage Road project had been sent to CEI, and the company had agreed to move poles. The poles in question are in front of the ditch. However, they moved about half of what needed to be relocated, he said. "They said they would come back in 2009 to do the rest, and that never happened. They said they weren't going to do it and didn't say why."
When the road project was completed, the road remained closed. "Our thought was the poles were too close," Mr. Phillips said. In spring 2009, when the county realized CEI would not move the poles, the Geauga County prosecutor said the township would not be liable, so the road was opened.
"They never did it and never explained why not," Mr. Phillips said. "There is evidence the local government made a strong argument why the poles should be moved," he said. "We pushed for 18 to 24 months."
Mark Durbin, a spokesman for CEI, said Tuesday, in 2008, the Ohio Supreme Court granted immunity to utility pole owners from any lawsuits filed by a motorist who loses control of a vehicle. CEI representatives believe it applies in this case, he said.
Poles are lawfully located and have been there for decades, Mr. Durbin said. "That's why we believe the judge should favor CEI."
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