In the United States, automobile use is extensive and pervasive.Vehicle accidents are such a common occurrence that they areconsidered an unavoidable part of normal activity. As a result,there is a legal duty to provide safe roadways that are clear ofundue hazards.

Transportation policy and design standards reflect this byrecommending the provision of a “clear zone” along the edge of theroad. According to the Federal Highway Administration, a clear zoneis an “unobstructed, traversable roadside area that allows a driverto stop safely, or regain control of a vehicle that has left theroadway.”

Nonetheless, along many public roadways in New England andacross the United States, above-ground utility infrastructure islocated inappropriately close to vehicular traffic, creating apotential hazard. Impact with utility poles is a major category ofvehicular accidents, including a large share of fatal crashes. Assuch, roadway jurisdictions and utility companies should shareresponsibility for the damages incurred from these collisions.

Legal Framework

Automobile accidents have been recognized by the courts as a“frequent and inevitable contingency of normal automobile use,” asin Larsen v. General Motors Corp. (1968). In addition, the courtshave recognized the distinction between the reason a vehicledeparted from normal traffic movement and the reason damage wassuffered in a subsequent collision. “If a governmental body orprivate party creates a dangerous condition near a highway, thecondition may be at least one cause of an injury,” says theInsurance Information Institute (I.I.I.) in it publication, TheLaw and Roadside Hazards.

Therefore, a growing body of legal doctrine and policy guidanceis aimed at reducing the impact of potential accidents thoughhazard avoidance and mitigation. “The century-old common-law dutyhas been construed to require that the areas adjacent to theroad…be kept safe and free from hazards.” As such, “obstacles ordevices capable of causing collisions resulting in injury or deathshould not be placed so close to a highway that a driver cannotstop before hitting them,” states the I.I.I. document.

Within this framework, roadside hazards can be considered publicnuisances and indicative of negligence. The government is “liablefor public nuisances which endanger travelers,” according to theTransportation Research Board book, Utilities and RoadsideSafety, and has “a duty to maintain the roads in a safecondition, so as not to expose motorists to any undue hazards,” asoutlined in The Law and Roadside Hazards.

Negligence occurs when reasonable care has not been used toavoid an expected hazard. Actions are measured against a standardof care which “may be a written set of instructions, a policy, aguideline, or the accepted normal practice,” says Utilities andRoadside Safety.

Standard of Care

The American Association of State Highway and TransportationOfficials (AASHTO) is the national body that develops the standardsfor customary and ordinary practice in roadway design. AASHTOstandards have been incorporated into the design guidelines of manystate departments of transportation, including the MassachusettsDepartment of Transportation's Project Development & DesignGuide, and are referenced by the Federal HighwayAdministration as the guiding principles of roadway design.Therefore, for measuring reasonable care in avoidance of roadwayhazards, AASHTO guidelines can be considered the standard ofcare.

AASHTO guidelines specify the need for a clear zone “beyond theedge of the traveled way, available for safe use by errantvehicles.” Vertical obstructions should not be located within theclear zone. The width of the clear zone depends on traffic volume,design speed and roadway geometry. The minimum recommended clearzone is seven feet. Roads with higher volumes and faster designspeeds should feature wider clear zones. Slopes and curves alsoinfluence the size of the clear zone.

However, AASHTO recognizes that in urban environmentsright-of-ways are often constricted such that providing a fullclear zone may not be practical. AASHTO recommends that in thesecircumstances there should still be an offset of at least fourfeet, with at least six feet on the outer side of a curve. Inaddition, since utility poles “can pose a substantial hazard,”AASHTO states that “known utility pole hazardous locations shouldbe avoided” and poles should be as far as possible from travellanes.

Existing Conditions

Throughout Massachusetts, electricity and telecommunicationproviders utilize roadside poles to support cables and relateddistribution equipment. These poles are placed with the concurrenceof the local jurisdiction with authority over the right of waythrough a process called a “Grant of Location.” Roadside poles areinvolved in numerous vehicular accidents and “far too manypeople…are being killed and injured each year in collisions withutility poles,” cites Utilities and Roadside Safety.

Allowing these roadside hazards to be installed and maintainedin close proximity to normal traffic flow contributes to propertyloss, injury and death. As such, some responsibility should restupon the locality and the utility. According to The Law andRoadside Hazards, “Where such hazards exist, the duty tomaintain the roads in a safe condition means much more than merelyan obligation to preserve the roads in their original condition. Itincludes the duty to make the roads safer.”

In Massachusetts and throughout the United States, unsaferoadway conditions exist due to the placement of utility poleswithin what should be an unobstructed roadside clear zone. Bodilyinjury and property damage suffered by people traveling the publicroads is in part caused by the presence of the poles, yet undercurrent practices the liability for compensation rests with thedriver and his or her insurer. These public nuisances exist due tonegligence on the part of the locality and the utility in takingreasonable care, and some liability should be assumed by them forthe result.

Legislative and regulatory action is in order to reconcile thecurrent practices of the utility companies and municipalities withthe standard of care as articulated by AASHTO and as found by thecourts. Until the legal realities of the current landscape catch upwith the proper allocation of risk, liability, and cost, driversand consumers will be saddled with the inappropriate burden ofpaying higher automobile insurance premiums. These premiums shouldbe reduced to reflect the liability of utilities and municipalitiesand should not be shouldered by insurance rate payers.

Ned Baldwin is a forensic engineering, urbanplanning, and real estate development consultant. He holds amaster's in Urban Planning from the University of Virginia and anMBA from Boston University. He is a project manager for IntegritasLLC, a Boston-based forensic engineering and claims analysisconsulting firm.

William F. Lyons Jr. is an attorney, atransportation engineer, and an expert witness. He holds a JurisDoctor from Suffolk University Law School, a Master ofTransportation and Urban Systems from North Dakota StateUniversity, a Master of Strategic Studies from the U.S. Army WarCollege, and a Bachelor of Science in Electrical Engineering fromNorwich University. He is the President of Integritas.