Published August 23, 2016 · Ohio Supreme Court

A deer bolted out of the dark on a township road in Geauga County and slammed into the left side of Douglas Link's motorcycle. His wife, driving behind him, saw the deer leap but not the impact. By the time she found him he was on the ground beside a utility pole, with injuries to his leg and pelvis that the court later described as extensive and long-term. A jury heard the evidence, found that the utility had left that pole far too close to a freshly widened road, and awarded the Links roughly $800,000.

On July 26, 2016, the Supreme Court of Ohio took it all away. Link v. FirstEnergy Corp., 147 Ohio St.3d 285, 2016-Ohio-5083, is a loss for injured people, and I want to explain plainly what it means for anyone hurt in a crash involving a pole, a tree, a guardrail or anything else sitting just off the pavement.

What happened on Savage Road

In 2008 Bainbridge Township hired the county engineer to widen Savage Road. The engineer sent the plans to Cleveland Electric Illuminating, a FirstEnergy company, and CEI initially agreed to relocate about 37 poles. Then CEI revised its plan and, by mid-2009, decided to leave eight poles where they were. The county engineer wrote warning that the remaining poles sat "only four to six feet off the edge of the pavement." FirstEnergy did not answer.

The township reopened the road anyway. A year later, after another driver swerved from a deer and hit one of the same eight poles, the township trustees wrote again asking for a relocation schedule. FirstEnergy replied that it would move the poles only at the customer's expense. Three weeks after that reply, Mr. Link hit the pole.

The pole stood six feet, 3.6 inches from the pavement edge. The state's own design manual recommends a 17-foot clear zone on a road like Savage Road, and CEI's own construction manual adopts that standard. CEI admitted the pole did not meet it.

What the jury found, and what the Court did with it

A Cuyahoga County jury found CEI and FirstEnergy liable for qualified nuisance and awarded $237,200 in past economic loss, $180,982 in future economic loss, $234,100 in future pain and suffering, and $146,250 to Mrs. Link for loss of consortium. The jury apportioned fault among CEI, FirstEnergy, the county engineer, the township and Mr. Link himself. The Eighth District Court of Appeals affirmed.

The Supreme Court reversed and ordered judgment for the utilities. It applied the rule from Turner v. Ohio Bell Telephone Co., 118 Ohio St.3d 215, 2008-Ohio-2010: a utility is not liable for a vehicle's collision with a pole off the improved roadway if it had any necessary permission to install the pole and the pole does not interfere with the usual and ordinary course of travel.

On the first point, the Court held that no Ohio statute required CEI to get fresh permission from the township or county engineer to leave the pole where it had stood since 1952. The engineer's warning letter did not matter, because "a letter expressing disapproval does not carry the force of law." The township could have formally declared the pole a nuisance and ordered its removal under R.C. 5571.14; it never did.

On the second point, the Court held that a pole six feet off the pavement did not interfere with normal travel. A motorist who stayed on the improved roadway would never touch it. Falling short of the clear-zone manual was not enough: "Noncompliance with the manual's guidelines, without more, does not establish an unsafe condition."

Justice O'Neill, joined by Justice Pfeifer, dissented. In his view the township's letters rescinded whatever permission CEI had, the jury was entitled to find that the utility ignored a known hazard, and the majority had reweighed the evidence from the bench. "We are not jurors," he wrote.

Why this decision is bad for crash victims

Roadside objects are a leading reason single-vehicle crashes turn deadly. A rider or driver who leaves the pavement for a split second, whether because of a deer, a blown tire or another car crowding the lane, has a far better chance of surviving a run-off into grass than into a pole.

After Link, a utility that ignores those standards faces little civil consequence unless the injured person can prove one of two things: that the pole actually interfered with travel on the road itself, or that the public authority took formal legal action to require relocation. A warning letter, even one that predicts exactly the kind of crash that later happens, will not do.

It is the second Supreme Court decision this year to insulate the parties who control Ohio's roadsides. In June I wrote about Baker v. Wayne County, where the Court held a county immune for a five-inch pavement edge drop that killed a teenager because the berm is not a "public road." Taken together, the two decisions make the shoulder of an Ohio road a very difficult place to win a case.

What a roadside-hazard claim must now show

The claims are harder, not impossible. The Court itself said its holding "does not limit a finding of liability only for obstructions located in the improved roadway," and it pointed to a case where a pole prevented tractor-trailers from completing a legal turn.

  • Interference with normal travel. Does the object force vehicles making lawful movements, including turns and lane changes, off their line? Is it inside the marked lane, on the shoulder a truck must use, or at a curve where the road geometry pushes traffic toward it?
  • Formal action by the road authority. Resolutions, nuisance declarations, permit conditions and relocation orders carry the force of law. Letters do not. We obtain the township, county or city records immediately.
  • New installations. Link involved a pole that pre-dated the road work. A pole newly installed or relocated during a project may require a permit, and installation without one changes the analysis.
  • The road authority itself. The Link jury put 37 percent of the fault on the county engineer and the township. Claims against governments carry their own immunity hurdles, which we explain on our claims against the government page, but they remain part of the picture.
  • What actually caused the crash. In many run-off cases the real defendant is the driver who crowded the rider, the contractor who left debris, or the landowner whose fence or tree sat in the right-of-way.

A word to motorcyclists

Mr. Link did nothing wrong; a deer hit him. Yet the jury assigned him 17 percent of the fault, and the defense argued he had already fallen off the bike before it reached the pole. Riders face that kind of skepticism in every case, as I discussed in an earlier post on bias against motorcyclists. The answer is the same here as always: a prompt reconstruction, scene photographs before the evidence disappears, and an advocate who understands how riders actually operate a motorcycle. Our motorcycle crash practice exists for exactly these cases.

What this means for you

If you or a family member hit a pole, tree, sign post or guardrail after leaving the road, do not assume there is no case and do not assume there is one. The answer now depends on measurements, permits and public records that must be gathered quickly, and on identifying every party whose conduct put you off the pavement in the first place. The sooner that work starts, the better the odds.

This article is general information about Ohio law, not legal advice about your situation. Reading it does not create an attorney-client relationship. Deadlines and rules change; talk to a lawyer about your specific case.