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Legally Speaking – with Bob Mionske: Threat from above

Dear Bob,While I was away for a long weekend, I brought my bike with me on a rooftop rack. About a mile from my home, as I came down an exit ramp from the highway, an overhead telephone wire snagged my bike from the carrier. I watched my bicycle tumble across the road in my rear-view mirror. I’m now sure how much damage was done—the rear wheel is definitely bent, and the bike rack is pretty twisted. Do I have any recourse with the utility company or am I on my own?C.O.,Massachusetts Dear C.O.,There are actually two important questions here: 1. Can you go after the utility company? It is

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By Bob Mionske

Dear Bob,
While I was away for a long weekend, I brought my bike with me on a rooftop rack. About a mile from my home, as I came down an exit ramp from the highway, an overhead telephone wire snagged my bike from the carrier. I watched my bicycle tumble across the road in my rear-view mirror. I’m now sure how much damage was done—the rear wheel is definitely bent, and the bike rack is pretty twisted. Do I have any recourse with the utility company or am I on my own?
C.O.,
Massachusetts

Dear C.O.,
There are actually two important questions here:

1. Can you go after the utility company?

It is generally possible, and in Massachusetts you would have a fairly good chance of succeeding.

2. Can you go after the road department or local government?

Not likely, unless there are exceptional circumstances. In Massachusetts, you may have an outside chance.

Public utilities, such as power and telephone companies and cable TV (CATV) providers are special creatures. They are for-profit companies, but they cannot refuse any legitimate demand for service, where purely private businesses may independently determine whom they will serve. Therefore, a utility may need to take some risks and work under constraints that a private company would not normally accept. Thus, under some circumstances a utility may have a degree of government-like immunity. In general, utilities do not enjoy general immunity against lawsuits and they owe a duty of care to the public. If a utility company’s conduct creates an unreasonable risk of harm to others, it has a legal duty to take reasonable precautions to prevent injury or damage to property. If it doesn’t, it can be held accountable.

Because roads frequently provide the most convenient means of stringing power and telecommunications lines over extended distances, the federal government and most states give utilities preferential treatment, called a franchise, to use these corridors. The fact that the law authorizes the construction and placement of lines, poles and appliances in the highways and streets does not relieve a utility of liability. In general, a utility is not liable for injuries sustained by the traveling public from the presence of such structures and appliances provided they are properly located and constructed. However, the contrary is true where they are located, constructed, or maintained so as to render the roadway dangerous to travelers. For electric wires, the standard is very strict:

“Companies furnishing electricity are not absolute insurers of the safety of the public, but because electricity is dangerous, invisible and a subtle force, a high degree of care commensurate with the danger is required, so one who negligently allows wires to sag over a public sidewalk, street or highway is liable to a person who comes in contact with them.”

But what about a telephone or CATV line, where the danger isn’t getting zapped, but snagged? In this case, the law is not so clear, and often depends on the height of the load, the height of the wire, and the knowledge of the driver. In Chant v. Clinton Telephone Co. (Illinois, 1907), a steam-powered threshing machine caught on a 13-foot high wire. The telephone company argued that the thresher should have disassembled his machine before taking it down the road. The court awarded damages to the thresher:

“There can be no doubt that the telephone company was bound to construct and maintain its wires so as not incommode the public use of the highway in question. There is evidence tending to show that this wire during the spring and summer preceding the accident had been swinging loose and was considerably sagged. The telephone company contends, however, that the plaintiff was guilty of contributory negligence because . . . he should have removed the elevator and other equipment [from the threshing machine] while going from job to job. It cannot be said as a matter of law that it was negligence to move the machine along the highway in question with the elevator in position since, had the wire been properly constructed and maintained, it would not have come into contact with the thresher’s elevator.”

But twenty years later, another court, in Harre v. Fayette County Telephone Company (Illinois, 1936) ruled that a utility was not at fault when two farm boys riding on top of a truckload of straw were snagged by a wire variously measured between 11 feet 3 inches and 13 feet 4 inches high.

“A wire strung above and across a public county highway is an object calculated to attract attention. Whether it was the exercise of ordinary care for appellants to climb to the top of a truck loaded with bailed straw, in the growing dusk of the evening, and there ride at a height of nearly 10 feet from the ground when they no doubt knew they were approaching a wire strung across the highway, or whether such conduct was negligence were matters within the provice of the jury to decide, and if the jury found for the [telephone company] such decision does not offend the court.”

Fortunately, in your state of Massachusetts, there is an applicable state law to help sort things out. Chapter 166, Section 21 of the Massachusetts General Laws Annotated states that:

“A company incorporated for the transmission of intelligence by electricity by telephone, whether by electricity or otherwise, or for the transmission of television signals . . . may construct such lines for such transmission upon, along, under and across the public ways . . . but such company shall not incommode the public use of public ways or endanger or interrupt navigation.”

This section of the code requires utilities to receive permission from local municipalities before running telephone, CATV or power lines along or across roads. In a 1968 case, Boston Edison v. Selectmen of Concord, the Massachusetts Supreme Court held that “incommode” should be defined broadly:

“The word itself carries broad connotations. We do not feel inclined to adopt the restrictive meaning of “incommode” that Boston Edison has urged upon us. We are not of the opinion that its application is limited to that which ‘may cause any insignificant physical inconvenience or danger to the traveling public [and may include] showings involving distinct molestation and annoyance.’”

In summary, I think you may have a pretty good chance of getting a settlement out of the utility company in Massachusetts, especially if you can prove that the overhead wire was in a municipality and the utility did not get the required permission, or did not install the wire to the height it promised the city that it would.
Good Luck
BobFollow up
I represented C.O. against the company who owned and controlled the low hanging and damaged wire. After submitting evidence to the company we were able to come to a fair and full settlement for his property damage.
(Research and drafting provided by Bruce Epperson J.D.)


Now read the fine print:
Bob Mionske is a former competitive cyclist who representedthe U.S. at the 1988 Olympic games (where he finished fourth in the roadrace), the 1992 Olympics, as well as winning the 1990 national championshiproad race.After retiring from racing in 1993, he coached the Saturn Professional Cycling team for one year before heading off to law school. Mionske’s practice is now split between personal-injury work, representing professional athletes as an agent and other legal issues facing endurance athletes (traffic violations, contract, criminal charges, intellectual property, etc).If you have a cycling-related legal question, please send it to mionskelaw@hotmail.comBob will answer as many of these questions privately as he can. He willalso select a few questions each week to answer in this column. Generalbicycle-accident advice can be found at www.bicyclelaw.com.Important notice:
The information provided in the “Legally speaking”column is not legal advice. The information provided on this publicweb site is provided solely for the general interest of the visitors tothis web site. The information contained in the column applies to generalprinciples of American jurisprudence and may not reflect current legaldevelopments or statutory changes in the various jurisdictions and thereforeshould not be relied upon or interpreted as legal advice. Understand thatreading the information contained in this column does not mean youhave established an attorney-client relationship with attorney Bob Mionske.Readers of this column should not act upon any information contained inthe web site without first seeking the advice of legal counsel.