Automobile accidents have been recognized by the courts as a “frequent and inevitable contingency of normal automobile use,” as in Larsen v. General Motors Corp. (1968). In addition, the courts have recognized the distinction between the reason a vehicle departed from normal traffic movement and the reason damage was suffered in a subsequent collision. “If a governmental body or private party creates a dangerous condition near a highway, the condition may be at least one cause of an injury,” says the Insurance Information Institute (I.I.I.) in it publication, The Law and Roadside Hazards.

Therefore, a growing body of legal doctrine and policy guidance is aimed at reducing the impact of potential accidents though hazard avoidance and mitigation. “The century-old common-law duty has been construed to require that the areas adjacent to the road…be kept safe and free from hazards.” As such, “obstacles or devices capable of causing collisions resulting in injury or death should not be placed so close to a highway that a driver cannot stop before hitting them,” states the I.I.I. document.

Within this framework, roadside hazards can be considered public nuisances and indicative of negligence. The government is “liable for public nuisances which endanger travelers,” according to the Transportation Research Board book, Utilities and Roadside Safety, and has “a duty to maintain the roads in a safe condition, so as not to expose motorists to any undue hazards,” as outlined in The Law and Roadside Hazards.

Negligence occurs when reasonable care has not been used to avoid an expected hazard. Actions are measured against a standard of care which “may be a written set of instructions, a policy, a guideline, or the accepted normal practice,” says Utilities and Roadside Safety.

Standard of Care

The American Association of State Highway and Transportation Officials (AASHTO) is the national body that develops the standards for customary and ordinary practice in roadway design. AASHTO standards have been incorporated into the design guidelines of many state departments of transportation, including the Massachusetts Department of Transportation's Project Development & Design Guide, and are referenced by the Federal Highway Administration as the guiding principles of roadway design. Therefore, for measuring reasonable care in avoidance of roadway hazards, AASHTO guidelines can be considered the standard of care.

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

However, AASHTO recognizes that in urban environments right-of-ways are often constricted such that providing a full clear zone may not be practical. AASHTO recommends that in these circumstances there should still be an offset of at least four feet, with at least six feet on the outer side of a curve. In addition, since utility poles “can pose a substantial hazard,” AASHTO states that “known utility pole hazardous locations should be avoided” and poles should be as far as possible from travel lanes.

Existing Conditions

Throughout Massachusetts, electricity and telecommunication providers utilize roadside poles to support cables and related distribution equipment. These poles are placed with the concurrence of the local jurisdiction with authority over the right of way through a process called a “Grant of Location.” Roadside poles are involved in numerous vehicular accidents and “far too many people…are being killed and injured each year in collisions with utility poles,” cites Utilities and Roadside Safety.

Allowing these roadside hazards to be installed and maintained in close proximity to normal traffic flow contributes to property loss, injury and death. As such, some responsibility should rest upon the locality and the utility. According to The Law and Roadside Hazards, “Where such hazards exist, the duty to maintain the roads in a safe condition means much more than merely an obligation to preserve the roads in their original condition. It includes the duty to make the roads safer.”

In Massachusetts and throughout the United States, unsafe roadway conditions exist due to the placement of utility poles within what should be an unobstructed roadside clear zone. Bodily injury and property damage suffered by people traveling the public roads is in part caused by the presence of the poles, yet under current practices the liability for compensation rests with the driver and his or her insurer. These public nuisances exist due to negligence on the part of the locality and the utility in taking reasonable care, and some liability should be assumed by them for the result.

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

Ned Baldwin is a forensic engineering, urban planning, and real estate development consultant. He holds a master's in Urban Planning from the University of Virginia and an MBA from Boston University. He is a project manager for Integritas LLC, a Boston-based forensic engineering and claims analysis consulting firm.

William F. Lyons Jr. is an attorney, a transportation engineer, and an expert witness. He holds a Juris Doctor from Suffolk University Law School, a Master of Transportation and Urban Systems from North Dakota State University, a Master of Strategic Studies from the U.S. Army War College, and a Bachelor of Science in Electrical Engineering from Norwich University. He is the President of Integritas.