Mary Elizabeth Dokmo, Plaintiff/Appellant, v. Southwestern Bell Telephone Company, Defendant/Respondent.

This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court. Opinion Missouri Court of Appeals Eastern District Case Style: Mary Elizabeth Dokmo, Plaintiff/Appellant, v. Southwestern Bell Telephone Company, Defendant/Respondent. Case Number: 72891 Handdown Date: 03/31/1998 Appeal From: Circuit Court of the City of St. Louis, Hon. Robert H. Dierker, Jr. Counsel for Appellant: Daniel J. Bruntrager and James R. Mendillo Counsel for Respondent: John F. Medler, Jr. Opinion Summary: In this personal injury case, the trial court sustained defendant's summary judgment motion. On appeal plaintiff alleges the trial court erred in granting the summary judgment because whether the pole in question was located either on the roadway or so close to the roadway as to constitute a hazard is a question of fact for the jury. AFFIRMED. Division One Holds: A utility company does not owe a duty to a plaintiff whose vehicle operates outside of the traveled and improved portion of the road. Here, the pole was five feet off the traveled portion of the road. Citation: Opinion Author: PER CURIAM Opinion Vote: AFFIRMED. Grimm, P.J., Pudlowski and Gaertner, J.J., concur. Opinion: In this personal injury case, the trial court sustained defendant's summary judgment motion. Plaintiff appeals. Her sole point on appeal alleges the trial court erred in granting the summary judgment because "whether the pole in question was located either on the roadway or so close to the roadway as to constitute a hazard is a question of fact for

the jury." We disagree and affirm. The summary judgment facts disclose that plaintiff was a passenger in a car going west on Manchester Road in St. Louis County. The driver swerved to avoid a stopped vehicle and hit defendant's utility pole. At the scene of the accident, Manchester Road has four lanes, two for each direction. The four are divided by double yellow lines. The two west-bound lanes are divided by white hash-marks. The inner lane's left edge is marked by one of the double yellow lines; its right edge is marked by white hash marks. The outer lane's left edge is marked by the same white hash marks which mark the inner lane's right edge. The outer lane's right edge is marked by a solid white line. The pole which the car hit was located approximately five feet from the edge of the solid white line, i.e. five feet north of the solid white line. To reach the pole from the solid white line, the car crossed a four-foot wide gutter area; the pole was approximately one foot north of this gutter. A utility company does not owe a duty to a plaintiff whose vehicle operates outside of the traveled and improved portion of the road. Clinkenbeard v. City of St. Joseph, 10 S.W.2d 54, 62 (Mo. Div.1 1928). Thus, in Godfrey v. Union Elec. Co., 874 S.W.2d 504 (Mo.App.E.D. 1994), this court held that the defendant did not owe a passenger in a car any duty when the car left the traveled portion of the roadway and hit a utility pole "approximately five feet from the white line delineating the travelled portion" of the road. Id. at 505. The trial court's judgment is affirmed. Separate Opinion: None This slip opinion is subject to revision and may not reflect the final opinion adopted by the Court.