McMillan v. State Highway Commission

393 N.W.2d 332, 426 Mich. 46

• Court: Michigan Supreme Court
• Decided: September 16, 1986
• Docket: 73474, (Calendar No. 8)
• Status: Published

Opinions

Cavanagh, J.

The lower courts ruled, as a matter of law, that Detroit Edison owed no duty of reasonable care to an occupant of a vehicle which leaves the traveled portion of the highway and strikes a utility pole located on the median. We reverse.

On January 10, 1976, plaintiff Tamara McMillan¹ was a passenger in an automobile traveling south on Woodward Avenue in the City of Royal Oak. Woodward is a state-owned highway. At the point in question, the north- and southbound lanes are separated by a grassy median strip. The vehicle was struck by a hit-and-run driver, went out of control, and collided with a utility pole owned by the defendant Detroit Edison Company. The pole was located on the median, approximately three feet from the traveled portion² of Woodward Avenue.

Plaintiff alleged that the construction of a non-energy-absorbing pole, and its placement within three feet of the traveled portion of the highway, constituted a traffic hazard. Paragraph eight of plaintiff’s complaint states that, "Defendants owed a duty to plaintiffs to maintain safe traffic conditions including maintaining a utility pole so as to prevent collision with an automobile and/or to minimize injuries to a passenger in the event of such collision.” Paragraph nine stated that the defendant "impliedly warranted the crashworthiness of said utility pole in respect to being equipped with a breakaway feature or energy absorbing material . . . .” Plaintiff concluded that these duties were breached since the pole was not crashworthy and was located in such a manner as to create a traffic hazard.

The district court granted defendant’s motion for summary judgment on the basis of our decisions in Dawson v Postal Telegraph-Cable Co, 265 Mich 139; 251 NW 352 (1933), and Cramer v Detroit Edison Co, 296 Mich 662; 296 NW 831 (1941).³ The circuit court affirmed the judgment on appeal.⁴ The Court of Appeals granted leave to appeal and affirmed. McMillan v State Highway Comm, 130 Mich App 630; 344 NW2d 26 (1983). On reconsideration, we granted leave to appeal and also granted permission to the Michigan Trial Lawyers Association to appear as amicus curiae.

I

We are essentially faced with the question whether the defendant owes any obligation to avoid negligent conduct to the plaintiff for personal injuries under the facts set forth in the complaint and the settled statement of facts. See Moning v Alfono, 400 Mich 425, 436-442; 254 NW2d 759 (1977).

The answer to this question necessarily includes considerations of duty, proximate cause, and the function of the court and jury. Proximate cause can be thought of as a policy determination which is often indistinguishable from the duty question. Moning, supra, p 438. Prosser and Keeton address the interrelationship between duty and proximate cause:

Once it is established that the defendant’s conduct has in fact been one of the causes of the plaintiffs injury, there remains the question whether the defendant should be legally responsible for the injury. Unlike the fact of causation, with which it is often hopelessly confused, this is primarily a problem of law. It is sometimes said to depend on whether the conduct has been so signiñcant and important a cause that the defendant should be legally responsible. But both significance and importance turn upon conclusions in terms of legal policy, so that they depend essentially on whether the policy of the law will extend the responsibility for the conduct to the consequences which have in fact occurred. Quite often this has been stated, and properly so, as an issue of whether the defendant is under any duty to the plaintiff, or whether the duty includes protection against such consequences. This is not a question of causation, or even a question of fact, but quite far removed from both; and the attempt to deal with it in such terms has led and can lead only to utter confusion.

It is quite possible to state every question which arises in connection with "proximate cause” in the form of a single question: was the defendant under a duty to protect the plaintiff against the event which did in fact occur? Such a form of statement does not, of course, provide any answer to the question, or solve anything whatever; but it may be helpful since "duty” — also a legal conclusion— is perhaps less likely than "proximate cause” to be interpreted as if it were a policy-free factfinding. Thus, "duty” may serve to direct attention to the policy issues which determine the extent of the original obligation and of its continuance, rather than to the mechanical sequence of events which goes to make up causation in fact. The question whether there is a duty has most often seemed helpful in cases where the only issue is in reality whether the defendant stands in any such relation to the plaintiff as to create any legally recognized obligation of conduct for the plaintiff’s beneñt. [Prosser & Keeton, Torts (5th ed), § 42, pp 272-274. Emphasis supplied.]

The Court of Appeals, citing our earlier decisions in Dawson and Cramer, declined to impose any obligation on the defendant under the circumstances. The Court "distilled” the following rule from those decisions:

[AJctionable negligence will not be found in a utility company for erection or maintenance of a pole unless it is on the traveled portion of the highway or in such close proximity thereto as to constitute an obstruction dangerous to anyone properly using the highway. The lighting pole in this case was located on a grassy median strip, not itself a traveled portion of the roadway, approximately three feet from the paved surface of the road. Under these facts we find that defendant breached no duty to plaintiffs in failing to design the pole in anticipation of the possibility that an automobile, leaving the roadway out of control, would collide with it.

Other jurisdictions have similarly held that a utility company is under no obligation to guard against extraordinary exigencies created when a vehicle leaves the traveled portion of the roadway out of control. Speigel v Southern Bell Telephone & Telegraph Co, 341 So 2d 832 (Fla App, 1977); Oram v New Jersey Bell Telephone Co, 132 NJ Super 491; 334 A2d 343 (1975); Wood v Carolina Telephone & Telegraph Co, 228 NC 605; 46 SE2d 717; 3 ALR2d 1 (1948); Monaco v Comfort Bus Line, Inc, 134 NJL 553; 49 A2d 146 (1946). [130 Mich App 635-637. Emphasis supplied.]

In light of the development of the law since our decisions in Dawson and Cramer, we believe that it is necessary to review these decisions.

DAWSON AND CRAMER

Defendants argue that Dawson and Cramer state that a defendant owes no duty to an occupant of a motor vehicle which collides with a utility pole unless the pole is located on the traveled portion of the highway, or is in such proximity thereto as to constitute an obstruction dangerous to anyone properly using the highway. See Dawson, supra, p 142. Plaintiff, supported by amicus curiae, contends that neither Dawson nor Cramer should prohibit a jury from deciding the question of the defendants’ negligence.

In Dawson, a car swerved to avoid a turning truck and crashed into a pile of telephone poles. The poles were lying a foot or two off the traveled portion of the highway. The trial court found the pole owners liable.

Although the Dawson Court stated the general rule advanced by Detroit Edison in this case, Dawson was apparently decided on the basis of a finding of a lack of "proximate cause”:

The following statement from 82 ALR 395 [superseded by 3 ALR2d 6] is borne out by many decisions cited therein:

"It may be stated as a general proposition that a company lawfully maintaining poles in or near a public highway is not liable for the damage to person or property resulting from a road vehicle striking such a pole, unless it is erected on the traveled portion of the highway or in such close proximity thereto as to constitute an obstruction dangerous to anyone properly using the highway, and the location of the pole is the proximate cause of the collision.”

Even were we to assume, however, that defendant lacked authority or was otherwise negligent in piling its poles in the untraveled portion of the road, we do not believe that plaintiff could recover against defendant. Such action, even if negligent, was not the proximate cause of the accident. Defendant could not have foreseen a collision of this kind resulting from an act of negligence by another party, forcing the car in which plaintiff was riding to leave the main portion of the road. [Dawson, supra, p 142. Emphasis supplied.]

The Dawson Court continued:

We believe the law is correctly stated in Wyatt v Chesapeake & Potomac Telephone Co, [158 Va 470; 163 SE 370 (1932)]:

"Of course it is true that but for the location of this pole there would have been no accident, but its unlawful location and the happening of the disaster leaves the question of causal connection still open. . . . Probable consequences are to be anticipated and not those which are merely possible. . . .

"This pole was in the road and was placed there without the necessary statutory permit, and so was negligently placed, but its unlicensed location did not proximately contribute to plaintiff’s hurt, nor is this affected by her abstract right to use the entire highway.” [Id., p 143.]

The Dawson Court concluded that the case was:

[Governed rather by our statement in Bleil v Railway Co, 98 Mich 228 [57 NW 117 (1893)], where we said:

"Ample room was left in the street for the passage of vehicles in the ordinary manner while under the control of their drivers. . . . The accident was not the natural and probable result of piling the rails in the street close to the curb, but of the fright of the horse. The proximate, and not the remote, cause controls in such cases in this State.” [Id., p 144.]

Thus, the Dawson Court embraced the general rule that no duty was owed unless the pole constituted an obstruction dangerous to anyone properly using the highway (the duty question), and the location of the pole was the proximate cause of the accident (the proximate or legal cause question). Dawson focused on the fact that the accident was not the natural and probable result of the defendant’s conduct (placing the telephone poles close to the curb). Regardless of whether the question was framed in terms of duty or proximate cause, it appears that the Dawson Court made a policy determination that the defendant should not be held liable for the unforeseeable consequences of its actions. Id.

In Cramer, plaintiff drove his car off the road and hit one of three posts placed on a parkway by the defendant utility company to protect a light pole. Without citing Dawson, the Cramer Court stated the law as follows:

The ornamental light pole was back about five feet from the curb, at the east end of the parkway, and the posts were set about a foot inside the curb. The guard posts were not in the highway but upon the parkway and were not a menace to travel on the highway. There was no duty on the part of defendant to make the posts more distinct or advertise their presence at that place.

Clinkenbeard v City of St Joseph, 321 Mo 71 (10 SW2d 54; 61 ALR 242 [1928]), is like the case at bar.

* * *

The [Clinkenbeard] court held (p 89):

"We are of opinion that neither of the defendants herein is chargeable with actionable negligence in the maintenance of the parkway, or its incidents, including the pole in question, which were entirely and wholly outside of the traveled and improved roadway of Ashland boulevard set aside and designated by the defendant city for ordinary vehicular travel and use of the public.”

Applying the law to the facts, the Court concluded:

Considering the testimony of the plaintiff in the case at bar in its most favorable light it shows the cause of the accident was the want of care on the part of the plaintiff.

Under plaintiff’s testimony the proximate cause of the accident was his own want of ordinary care. He was driving near the center of the street and saw a dark object right ahead of him and bushes directly in the path of his car, noticed a traveled portion of the highway on both sides of the bushes and yet he continued his course until it was too late to turn aside and avoid striking the posts.

The defendant was not guilty of actionable negligence. The ornamental light pole was back a short distance from the curb at the east end of the parkway and the posts set between that pole and the curb of the parkway. So situated the posts were not a menace to travel on the highway, and there was no duty on the part of defendant to advertise the presence of the posts by warning signs. [Cramer, supra, pp 666-667. Emphasis supplied.]

The last two quoted paragraphs indicate that Cramer was decided on the basis of two separate theories. First, the "proximate cause” of the accident was plaintiffs own want of care. The Court’s discussion of the facts suggest that, even if a duty-existed, the plaintiff was barred from recovery due to his contributory negligence. Cramer did not discuss the accident in terms of foreseeability, but rather in terms of causation-in-fact. The use of "proximate cause” in this manner is confusing and should be contrasted with the use of the phrase in Dawson. See Prosser & Keeton, supra, pp 451-453. We note that while causation-in-fact must always be shown, the importance of a finding of "contributory negligence” would be diminished today by the principles of comparative negligence. Placek v Sterling Heights, 405 Mich 638; 275 NW2d 511 (1979).

Second, and more important for our analysis, is the fact that Cramer stated that "defendant was not guilty of actionable negligence” because the placement of the pole and the posts "were not a menace to travel on the highway, and there was no duty on the part of the defendant to advertise the presence of the posts by warning signs.” This conclusion, along with the Court’s citation of Clinkenbeard, indicates that Cramer was also decided on the basis that the defendant did not owe any duty at all to a motorist leaving the traveled portion of the highway.

The lower courts were bound by Dawson and Cramer under the principles of stare decisis. However, the Court of Appeals noted that "it is for the Supreme Court to overrule or modify its case law when and if it becomes obsolete.” McMillan, supra, p 635. We believe that the time has come. To the extent that Dawson and Cramer stand for the proposition that a private utility company owes no duty whatsoever to the occupants of a vehicle which leaves the traveled portion of the road, we overrule them for the reasons set forth below.

ii

Defendant essentially advances a rule which would relieve it of any duty of reasonable care whenever an automobile is not properly using the highway. This translates into a rule (supported by Cramer and Dawson) that defendant owes no duty to an occupant of a vehicle leaving the traveled portion of the highway (since those leaving it are not properly using it).

A number of jurisdictions follow this rule. For example, in Oram v New Jersey Bell Telephone Co, supra, plaintiffs car was forced off the roadway by another car and hit a pole located approximately two feet from the road. The Oram court stated:

[A] telephone company is under no obligation of guarding against extraordinary exigencies created when a vehicle leaves the travelled portion of a roadway out of control. Monaco v Comfort Bus Line, Inc, 134 NJL 553 [49 A2d 146] (E & A 1946). It need only anticipate ordinary travel which "contemplates an automobile being driven and kept on the roadway.” Monaco v Comfort Bus Line, Inc, supra, at 557. To require a telephone company to anticipate extraordinary occurrences, such as the one which gave rise to this accident, would be to require it to exercise extraordinary rather than ordinary care to prevent injuries. The duty imposed, however, is to provide for the usual and ordinary risks of travel. Monaco v Comfort Bus Lines, Inc, supra. [132 NJ Super 494-495.]

See also Speigel v Southern Bell Telephone & Telegraph Co, 341 So 2d 832 (Fla App, 1977); Florida Power & Light Co v Lively, 465 So 2d 1270, 1276 (Fla App, 1985); Wood v Carolina Telephone & Telegraph Co, supra; Shapiro v Toyota Motor Co Ltd, 38 NC App 658; 248 SE2d 868 (1978).

Similarly, in Simpson v City of Montgomery, 282 Ala 368; 211 So 2d 498 (1968), a car crashed into a utility pole located two feet, seven inches from a curb. The court cited 3 ALR2d 6 and noted that several cases made a distinction between poles located both on and off the traveled portion of the highway:

The cases which expressly refer to poles within the median or parkway bounded by a curb as a general rule hold that as a matter of law a utility maintaining a pole in this location does not breach any duty which it owes to the traveling public.

There is a difference between the location of a pole outside the traveled way on a shoulder and the location of a pole outside of the traveled way in the median behind a curb. For this difference to become a matter of law and not a matter of fact, the difference must be one of kind and not merely of degree.

The standard texts state the general rule of no liability where the pole is located in the median. The case most often quoted is that of Clinkenbeard v City of St Joseph, 321 Mo 71; 10 SW2d 54; 61 ALR 242. [282 Ala 373.]

The majority of the court also cited our decision in Cramer in support of its conclusion that a utility company cannot be liable when it places a pole outside the traveled portion of the highway.

However, other courts have concluded that similar situations present questions which should be submitted to the jury. For example, in Scheel v Tremblay, 226 Pa Super 45; 312 A2d 45 (1973), the car swerved to avoid an oncoming car and struck a utility pole placed ten inches from the pavement by defendant Philadelphia Electric Company. The Scheel court reversed a summary judgment granted in defendant’s favor.

While no genuine issue as to a material fact exists, we believe the trial court erred in ruling as a matter of law that the appellee was not liable for the injuries sustained by Tremblay’s passengers. It has long been the law in this and other jurisdictions that utility companies are liable for harm caused by the negligent placement and maintenance of utility poles. Nelson v Duquesne Light Co, 338 Pa 37; 12 A2d 299 (1940); Scalet v Bell Telephone Co, 291 Pa 451; 140 A 141 (1928); Little v Central District & Printing Co, 213 Pa 229; 62 A 848 (1906); see Annot., 3 ALR2d 6. In Nelson v Duquesne Light Co, supra, the Supreme Court adopted the test announced by then Judge Cardozo in Stern v International Ry Co, 220 NY 284, 291; 115 NE 759 (1917): "The poles, if placed and maintained with due regard for the public safety, are not unlawful obstructions . . . they must be so located as to avoid any unreasonable danger to travelers on the highway .... The question is whether the place chosen is so dangerous and the danger so needless that the choice becomes unreasonable. If danger in that degree is present [the company is] charged with liability.” Liability is not, as the trial court held, limited to those situations in which the pole is located in the roadway itself, but may be imposed where the placement of a pole close to the edge of a highway constitutes a foreseeable and unreasonable risk of harm to users of the highway. In such cases, the conditions of the highway are critical in determining whether the location of a utility pole adjacent thereto constitutes an unreasonable risk of harm to users of the road. Nelson v Duquesne Light Co, supra; Martin v Southern Bell Telephone Co, 126 Ga App 809; 192 SE2d 176 (1972); Bourget v Public Service Co, 98 NH 237; 97 A2d 383 (1953); Peninsular Telephone Co v Marks, 144 Fla 652; 198 So 330 (1940); Norton v Pomona, 5 Cal 2d 54; 53 P2d 952 (1935); see 3 ALR2d 6, at pp 51-57. The narrowness and general contours of Scottsdale Road, the lack of illumination of the pole, the presence or absence of reflective markers, the proximity of the pole to the highway, the availability of less dangerous locations, and the natural tendency of westbound traffic to veer toward the middle of the road near this pole are circumstances in light of which a jury could ñnd that the appellee’s placement and maintenance of the pole constituted an unreasonable danger to users of the highway. [226 Pa Super 47-49. Emphasis supplied.]

Accord Weiss v Holman, 58 Wis 2d 608; 207 NW2d 660 (1973); Bernier v Boston Edison Co, 380 Mass 372; 403 NE2d 391 (1980); Gerberich v Southern California Edison Co, 5 Cal 2d 46; 53 P2d 948 (1935); Bourget, supra5

As in Scheel, we are persuaded that the plaintiff should not be precluded, as a matter of law, from presenting her case to the jury. The question whether a duty exists, and the question whether the cause (here, the placement of the poles) was so significant and important to be regarded as a proximate cause of the plaintiff’s loss, depends "in part on foreseeability — whether it is foreseeable that the actor’s conduct may create a risk of harm to the victim, and whether the result of that conduct and intervening causes were foreseeable.” Moning, supra, p 439.

The Court of Appeals said that "the probability that a vehicle will careen involuntarily off the traveled surface of the road, striking a particular pole with such force as to endager [sic] its occupants, is relatively slight.” McMillan, supra, p 636. However, other courts have reached conflicting conclusions regarding the foreseeability of such an occurrence. Compare Lively,6 supra; Simpson, supra; Oram, supra; Hyde v Co of Rensselaer, 73 AD2d 1021; 424 NYS2d 755 (1980), aff'd 51 NY2d 927 (1980) with Scheel, supra; Frangis v Duquesne Light Co, 232 Pa Super 420, 422-423; 335 A2d 796 (1975); Gutelle v City of New York, 80 AD2d 538; 435 NYS2d 608 (1981).⁷

After reviewing these decisions, we hold that the summary judgment granted as a matter of law by the lower courts should be set aside. When reasonable minds may differ regarding the application of the reasonableness of the risk of harm, the question is best left to the jury. Moning, supra; Fiser v City of Ann Arbor, 417 Mich 461; 339 NW2d 413 (1983); Prosser & Keeton, supra, p 321.⁸

In sum, it cannot be said that there was no "obligation of reasonable conduct for the benefit of the plaintiff,” or that all reasonable men would agree that defendants’ conduct was not "a substantial factor in producing the result” or regarding "the foreseeability of [the] particular risk” or regarding "the reasonableness of the defendants’ conduct with respect to it, or the normal character of [Alfono’s conduct]” as an intervening cause.

Since reasonable persons can differ regarding the balance of risk and utility (the reasonableness of the risk of harm) and since there is no overriding policy based on social utility of maintaining absolute access to slingshots by children, we reverse and remand for a new trial. [Moning, supra, pp 458-459.]

We overrule Dawson and Cramer because they fail to impose any obligation of reasonable conduct for the benefit of occupants of vehicles which leave the traveled portion of the highway. We fail to see an overriding policy which would insulate the defendant in all cases in which a pole is placed outside the traveled portion of the highway.⁹ Upon remand, should the defendant seek a motion for summary disposition based upon a lack of genuine issue of material fact, the trial court may consider such factors as the location of the pole, its proximity to the roadway, the configuration of the roadway, whether the utility company had notice of previous accidents at that location, and whether alternative, less dangerous locations for the pole existed. After considering these factors and any other factor which may be probative of the issue, the trial court, upon finding that reasonable minds could differ as to whether the defendant acted negligently in the placement of the pole, should place the issue before the jury to decide. See Scheel, supra.

The duty imposed today is not an intolerable burden. In an analogous situation, the Court held a utility company to a reasonable standard in positioning and maintaining its power lines. Laney v Consumers Power Co, 418 Mich 180; 341 NW2d 106 (1983). We believe that a similar duty should be imposed regarding the location of the utility poles.

Our decision today overruling Dawson and Cramer is to be given limited retroactive effect, that is, it is applicable to this case, all cases pending on appeal where the issue has been preserved for review and where the issue is currently pending in the trial courts.

in

Plaintiff also claims that she is a third-party beneficiary of a contract between Detroit Edison and the State Highway Commission. See Clark v Dalman, 379 Mich 251; 150 NW2d 755 (1967); Talucci v Archambault, 20 Mich App 153; 173 NW2d 740 (1969). We first note that this theory was not pled in plaintiffs complaint. Nonetheless, we will review this issue to prevent needless argument on remand.

The contract at issue is actually an application granting Detroit Edison permission to enter onto the right of way and install street lights and underground cables. Plaintiff focuses on the following language from the State Highway Commission’s standard printed form:

[I]f said permit is granted, the above named applicant agrees to do the following:

3. Take, provide and maintain all necessary precautions to prevent injury or damage to persons and property from operations covered by this permit and use safety devices which are approved by the Michigan Department of State Highways.

A permit as requested in the foregoing application subject to the conditions to which applicant thereby agrees is hereby granted for the period commencing 7/14/66 and ending 12/31/66.

Plaintiff concedes that the contracting parties must intend to benefit her in order for her to be entitled to recovery under this theory. See Talucci, supra; MCL 600.1405; MSA 27A.1405.

It is clear to us, as it was to the Court of Appeals, that the parties did not intend this plaintiff to benefit from their agreement. By its express terms, the indemnity provision only applies to "operations covered by this permit.” The "desired activity” only involved installation of the street lights and cables. Furthermore, the expressed term of the agreement ended almost ten years before the accident. The plaintiff attempts to focus on general language, while ignoring the express terms and length of the agreement. We therefore affirm that portion of the Court of Appeals decision dealing with this issue.

Affirmed in part, reversed in part, and remanded for a new trial.

Williams, C.J., and Levin, Brickley, and Boyle, JJ., concurred with Cavanagh, J.

1 Plaintiff Patricia McMillan is Tamara’s mother, and claimed derivative damages. For simplicity, this opinion will refer to the parties in the singular number.

2 For our purposes, the "traveled portion” of a highway includes the paved surface as well as adjoining shoulders. Although the facts indicate that the pavement was separated from the median in this case by a cement curb, there is no indication in the record that a shoulder separated the pavement from the grassy median.

3 The district court’s opinion states:

The Court has reviewed the authority cited by Defendant, The Detroit Edison Company, in support of its Motion. Based on that authority, this Court is satisfied that the Defendant, The Detroit Edison Company, owed no duty to Plaintiffs in regards [sic] to the placement or maintenance of the utility pole in question since the utility pole was placed in such a manner as to be wholly outside the traveled portion of the highway and, as such, not a menace to the normal travel on said highway. Dawson v Postal Telegraph-Cable Co, 265 Mich 139 (1933); Cramer v Detroit Edison Co, 296 Mich 662 (1941).

4 The circuit court concluded:

The law in Michigan is clear that there is no duty on the part of the Defendant to make the poles more distinct or advertise their presence. Further, the record below supports the conclusion that there was no genuine issue of material fact relative to the placement of the pole in question, which was entirely outside the travel portion of the highway. Cramer v Detroit Edison Co, 296 Mich 662 (1941). Defendant cannot be held responsible for a collision resulting from another’s act of negligence which forced the car in which Plaintiff was riding to leave the travel portion of the road causing an unforeseen collision of this nature. Dawson v Postal Telegraph-Cable Co, 265 Mich 139, 142 (1933).

5 At least one other court adhered to the general rule advanced by the defendant, but concluded that the question whether the placement of the pole constituted an obstruction dangerous to motorists was a question for the jury. Memphis Light, Gas & Water Division v Goss, 494 SW2d 766 (Tenn, 1973). However, we agree with the analysis in Scheel to the effect that the "proximity of the pole to the highway” should only be one factor in determining reasonable conduct under the circumstances.

6 We believe that the analysis in Speigel is correct because courts must place limits on foreseeability. Clearly, it is foreseeable in the practical sense that planes and cars will crash or encounter emergencies. However, only acts which are likely to result in injury are compensable. Acts which cause injury but are foreseeable only as remote possibilities, those only slightly probable, are beyond the limit of legal liability. National Airlines, Inc v Edwards, 336 So 2d 545 (Fla, 1976). [465 So 2d 1276.]

7 We also note that injuries due to car collisions are considered foreseeable in products liability actions as incident to the normal use of automobiles. However, this does not mean that the duty arises from foreseeability of risk, but only that a manufacturer must consider the environment in which its product is used. See Rutherford v Chrysler Motors, 60 Mich App 392; 231 NW2d 413 (1975).

In the case at bar, plaintiffs complaint briefly mentions that "defendants impliedly warranted the crashworthiness” of the pole. Plaintiff and amicus have attempted to expand this theory through the use of off-the-record information. Although plaintiff asserts that defendant is responsible for the design of their poles, defendant counters that it neither manufactures nor sells poles to the public or governmental entities for a profit. (It does, however, sell electricity at a profit.) We conclude that the record in this case does not contain sufficient information to facilitate meaningful appellate review. Plaintiff’s theory may be developed on remand if the facts so warrant.

8 If the facts bearing upon other aspects of "proximate cause” (that is, aspects other than causation in fact) are not in dispute and reasonable persons could not differ about the application to those facts of the legal concept of "proximate cause,” the court determines that issue. But if reasonable persons could differ, either because relevant facts are in dispute or because application of the legal concept of "proximate cause” to the ease at hand is an evaluative determination as to which reasonable persons might differ, the issue of "proximate cause” is submitted to the jury with appropriate instructions on the law. [Prosser & Keeton, supra, p 321. Emphasis supplied.]

9 As noted by the dissent in Simpson, supra, 282 Ala 374-375:

The majority opinion, when stripped, says that from this day forward there can be negligence on the part of one placing a pole in Alabama, if that pole is placed on a shoulder; but there cannot be negligence on the part of one placing a pole in Alabama, if that pole is placed on a median — no matter where.

Medians do not necessarily have curbs, and poles can be located around blind corners within medians. Medians are constructed in many different ways and shapes. Medians will continue to be constructed in new and different ways in the future. The mind can fashion hundreds of future happenings where a pole, carelessly placed in a median, will cause injury and death to the innocent. The majority opinion grants free license to the pole placer within a median but restricts him to the scrutiny of a jury on a shoulder. I fail to see the difference.