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DAVID CALDWELL AND MARILYN CALDWELL v. COMMONWEALTH PENNSYLVANIA ET AL. (08/04/88)

decided: August 4, 1988.

DAVID CALDWELL AND MARILYN CALDWELL, HIS WIFE, APPELLANTS
v.
COMMONWEALTH OF PENNSYLVANIA ET AL., APPELLEES



Appeal from the Order of the Court of Common Pleas of Warren County in the case of David Caldwell and Marilyn Caldwell, his wife v. Commonwealth of Pennsylvania, PennDOT and Bell Telephone Company of Pennsylvania v. Thomas Miller, No. 72 of 1985.

COUNSEL

Michael E. Dunlavey, for appellants.

John H. Bingler, Jr., with him, Deborah P. Powell, Thorp, Reed & Armstrong, and John P. Marti, Harper & Marti, for appellee, Bell Telephone Company of Pennsylvania.

Brian H. Baxter, Senior Deputy Attorney General, with him, Mark E. Garber, Chief, Tort Litigation Unit, John G. Knorr, III, Senior Deputy Attorney General, and LeRoy S. Zimmerman, Attorney General, for appellee, Commonwealth of Pennsylvania.

Judges Barry and Smith, and Senior Judge Narick, sitting as a panel of three. Opinion by Judge Smith.

Author: Smith

[ 120 Pa. Commw. Page 360]

David and Marilyn Caldwell (Appellants), husband and wife, appeal from an order of the Court of Common Pleas of Warren County which granted summary judgment in favor of Bell Telephone Company of Pennsylvania (Bell). The question presented is whether the trial court erred in granting summary judgment on the ground that it was not reasonably foreseeable by Bell that placement of its telephone pole within proximity of a highway berm would result in injuries to Mr. Caldwell. The trial court's decision is affirmed.

Appellants filed their action against Bell and the Commonwealth of Pennsylvania, Department of Transportation (DOT) seeking monetary damages for injuries suffered by Mr. Caldwell in an automobile accident on February 20, 1983. Bell thereafter joined Thomas Miller as additional defendant.

It is undisputed that Caldwell was a passenger in a vehicle operated by Miller which strayed from the paved portion of Route 957, a two-lane highway in Lottsville, Warren County; entered an earthen drainage ditch which ran parallel to the highway after steering to the right to avoid a deer; struck and jumped a drainage culvert; crossed a driveway; and then side-swiped a Bell telephone pole, located 8 feet from the paved portion of the highway and 5.3 feet from the berm, before coming to rest in a field. Bell filed a motion for summary judgment which the trial court granted. Appellants then petitioned this Court for review*fn1 arguing that the issue of

[ 120 Pa. Commw. Page 361]

    foreseeability was a matter for the jury and that the trial court confused the issues of foreseeability and proximate cause.

Bell's authority to erect telephone poles derives from Section 33 of the Corporation Act of 1874 (Act), Act of April 29, 1874, P.L. 73, 15 P.S. ยง 3302 which authorizes, inter alia, the construction of lines of telegraph and telephone and the necessary fixtures, including posts, along, under and upon public roads, streets, lanes or highways. The construction thereof, however, shall not incommode public use of roads, streets, lanes or highways. The question thus becomes whether the place chosen to locate the telephone pole is so dangerous and the danger so needless that the choice becomes unreasonable. Nelson v. Duquesne Light Company, 338 Pa. 37, 12 A.2d 299 (1940). Moreover, Bell could be properly liable only as to those injuries sustained by Caldwell which resulted from a risk or hazard, the foreseeability of which rendered Bell's conduct negligent. Metts v. Griglak, 438 Pa. 392, 264 A.2d 684 (1970).

Elements necessary to state a cause of action in negligence are a duty on the defendant's part to conform to a certain standard of conduct relative to the plaintiff; defendant's failure to so conform; and a reasonably close causal connection between the defendant's conduct and some resulting injury to the plaintiff. Cummins v. Firestone Tire & Rubber Co., 344 Pa. Superior Ct. 9, 495 A.2d 963 (1985). Bell clearly has a duty under Section 33 of the Act not to unreasonably interfere ...


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