Ann Maher Jun. 25, 2014, 3:31pm

Illinois Power did not owe a duty to maintain a utility pole that was struck after the driver of a car traveling 80 miles an hour on a residential road lost control, crashed through a berm and birdbath, became airborne and hit a backyard fence before smashing the pole six feet from an Edwardsville roadway.

Madison County Circuit Judge Dennis Ruth properly entered summary judgment for the defense in a case brought by Sandy Dods over injuries her daughter Molly Carver suffered as a passenger in a March 2006 accident on Yellow Hammer Crossing, according to a recent Fifth District Appellate Court decision.

Carver was injured outside the vehicle - upon which a live 12,000 volt power line rested after impact - when her foot touched it.

Dods and Carver originally filed suit over the accident in 2007, represented by the late Charles Chapman.

The suit was voluntarily dismissed without prejudice in 2010 with Ruth allowing plaintiff to refile. Attorney Lanny Darr refiled the case against Illinois Power in 2011, and also filed suit against the driver of the vehicle Abby Kansal in 2009. The case against Kansal was voluntarily dismissed in 2010 with leave to reinstate.

Dods and Carver claimed Illinois Power was at fault because it failed to maintain its poles and lines or to replace them at appropriate intervals; failed to provide proper and adequate protection devices to promptly de-energize or cut off power to the power lines; failed to adequately secure, maintain, and guard said utility pole to prevent it from breaking and falling to the ground; failed to properly install, maintain, and operate the reclosers and other de-energizing devices which govern the power lines attached to the utility pole; and allowed its downed power line to be back-fed.

After Illinois Power moved for summary judgment, plaintiffs introduced a wood preservatives expert who stated that because the pole was installed in 1956, it should have been inspected in 1968, 1978, 1988, and 1998, pursuant to industry standards. He stated that the typical life of a utility pole, if no remediation is completed, is 40 years. He opined that the vehicle at issue was traveling under 30 miles per hour at the time of impact and that a non-decayed utility pole could typically withstand an impact from a car traveling 30 miles per hour or less.

In reaching his decision in favor of Illinois Power, Ruth relied on precedent in Gouge v. Central Illinois Public Service Co.

In Gouge, it was held that to state a cause for negligence, a complaint must allege facts sufficient to show the existence of a duty, a breach of that duty, and injury to the plaintiff which is proximately caused by that breach.

In a Rule 23 order, Justice Gene Schwarm wrote that the present case is “remarkably” similar to Gouge.

“As in Gouge, the plaintiffs here have alleged no facts which would indicate that it was reasonably foreseeable that the vehicle at issue would deviate from Yellow Hammer Crossing in the ordinary course of travel or as a normal incident of travel and strike the utility pole,” Schwarm wrote.

“Since it was not reasonably foreseeable in the ordinary course of travel that Abby would deviate from Yellow Hammer Crossing and strike this utility pole, we do not believe the defendant owed a duty to the plaintiffs to ensure that the pole would not break upon impact.

Gordon Broom of HeplerBroom in Edwardsville had represented Illinois Power.

Justices Richard Goldenhersh and Judy Cates concurred.

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