dissenting.
{¶ 28} I respectfully dissent. We accepted jurisdiction over this case to resolve two questions certified to us by the Cuyahoga County Court of Appeals. The *223first is “[wjhether a utility pole that is located off the improved portion of the roadway, but in close proximity to the improved portion thereof and within the right-of-way, may constitute an obstruction dangerous to anyone properly using the highway.” Turner v. Ohio Bell Tel. Co., 113 Ohio St.3d 1439, 2007-Ohio-1266, 863 N.E.2d 656. The second is “whether a utility company may be held liable in negligence to motorists who strike a utility pole located in close proximity to the improved portion of a roadway and within the right-of-way when it presents a foreseeable and unreasonable risk of harm to users of the roadway.” Id. Based on this court’s precedent, I would answer these questions in the affirmative and accordingly affirm the judgment of the court of appeals in its entirety.
{¶ 29} R.C. 4931.03(A)(1) permits a telephone company to construct telephone lines “upon and along any of the public roads and highways.” The statute, however, provides that the lines “shall be constructed so as not to incommode the public in the use of the roads or highways.” Id.
{¶ 30} Today the majority holds that a utility company’s placement of a telephone pole, regardless of its proximity to the improved portion of the roadway, cannot be a basis for liability if the utility obtained any necessary permission to place the pole in the particular location and the pole “does not interfere with the usual and ordinary course of travel.” Majority opinion at syllabus. Thus, if the utility complied with the requisite statutory requirements, its placement does not, as a matter of law, “incommode the public in the use of the roads or highways.” Id. In my view, this is an overbroad reading of our precedent and an infringement on the province of a jury.
{¶ 31} This court considered a similar issue in Cambridge Home Tel. Co. v. Harrington (1933), 127 Ohio St. 1, 186 N.E. 611. There, Harrington sustained injuries while riding in the passenger seat of a car when the car collided with a telephone pole. A jury found Cambridge Home liable for its placement of the pole. We noted that there was some dispute as to the exact location of the pole, i.e., whether the pole was located on the finished road or just to the side, but we held that, regardless of the pole’s location, “[t]he traveling public has a right to the use of a public highway, to the entire width of the right of way, as against all other persons using such highway for private purposes.” (Emphasis added.) Id. at paragraph one of the syllabus. In so holding, we reasoned that the statutory phrase “shall not incommode the public in the use thereof’ “constitutes a danger signal to public utilities using the highways for their own private purposes * * *. [T]hey must not prejudice the superior rights of the traveling public by the location and maintenance of such posts, piers or abutments.” (Emphasis added.) Id. at paragraph two of the syllabus. Harrington therefore establishes that the public has a right to use “the entire width of the right of way” and that this right is “superior” to any rights belonging to a utility company. Id. at paragraphs one *224and two of the syllabus. None of the statutes regulating the procedure for placement of utility poles, whether R.C. 4939.03, 5547.04, or 5515.01, alters this rule.
{¶ 32} Two years later in Ohio Bell Tel. Co. v. Lung (1935), 129 Ohio St. 505, 2 O.O. 513, 196 N.E. 371, we affirmed a jury verdict in favor of a passenger who had been killed when his car hit a pole located in the berm. We stated, “Where a guest is killed while riding in an automobile which collides with a telephone pole located in an improved portion of the roadway * * *, the question[ ] whether the telephone company is guilty of negligence by placing the pole in the highway so as to incommode the traveling public * * * [is] properly submitted to the jury for determination.” (Emphasis added.) Id. at paragraph one of the syllabus. In both Harrington and Lung, therefore, we permitted the jury to determine whether the placement of a utility pole “incommod[ed] the public in the use of the roads or highways,” R.C. 4931.03(A)(2).
{¶ 33} The majority relies on several cases in support of its holding, including Ohio Postal Tel.-Cable Co. v. Yant (1940), 64 Ohio App. 189, 18 O.O. 57, 28 N.E.2d 646; however, Yant recognized a superior right belonging to drivers and stated that the right is qualified only by negligent travelers who “abus[e] [the] privilege.” Id. at 193, 18 O.O. 57, 28 N.E.2d 646.
{¶ 34} Yant further illustrates my disagreement with the majority: its holding fails to mention either negligent travelers who abuse their driving privileges or the location of the pole in proximity to the road. I agree that “the traveling public has no superior right to misuse the highways,” id. at 192, 18 O.O. 57, 28 N.E.2d 646, but not every car that leaves the roadway “misuses” it. Circumstances arise where drivers leave the roadway without necessarily abusing their superior right to the use of the right-of-way. The majority’s position does not allow for these possibilities.
{¶ 35} Moreover, the majority makes no distinction between a pole located two feet five inches from the berm, as in this case, or one located 11 feet from the berm as in Yant. According to the majority, no utility company — even one that obtains permission to place a pole just to the side, as in Harrington — can be held liable if it has obtained any necessary permission to install the pole from the owner of the right-of-way and it does not interfere with the ordinary course of travel. Majority opinion at syllabus. This holding seems to contradict our decisions in Harrington and Lung by removing the question from jury consideration.
{¶ 36} Obtaining permission for pole placement from the proper authority is not the test established by the General Assembly to determine whether liability arises from pole placement. Rather, in accordance "with R.C. 4931.03, the issue presented is whether the construction of the poles and the telephone lines *225incommode the public in the use of the highway. The relevant factors for consideration, then, would include whether those using the roadway have been incommoded by the pole and whether they have misused the highway or are negligent travelers who have abused their driving privileges, as determined from the facts and circumstances surrounding the accident.
John J. Spellacy; and Allan & Gallagher, L.L.P., and Sean P. Allan, for appellee. Thompson Hiñe, L.L.P., William R. Case, Scott A. Campbell, and Jennifer E. Short, for appellant South Central Power Company. Calfee, Halter & Griswold, L.L.P., Thomas I. Michals, and Anthony F. Stringer, for appellant Ohio Bell Telephone Company, d.b.a. SBC Ohio. Ulmer & Berne, L.L.P., and Richik Sarkar, urging reversal for amici curiae Ohio Edison Company, Cleveland Electric Illuminating Company, Toledo Edison Company, and FirstEnergy Corp. Thompson Hiñe, L.L.P., and Kurt P. Helfrich, urging reversal for amicus curiae Ohio Rural Electric Cooperatives, Inc. Thompson Hiñe, L.L.P., Thomas E. Lodge, Andrew H. Cox, and William J. Hubbard, urging reversal for amicus curiae Verizon North, Inc. Douglas E. Hart, urging reversal for amicus curiae Cincinnati Bell Telephone Company, L.L.C. Joseph R. Stewart, urging reversal for amicus curiae United Telephone Company of Ohio, d.b.a. Embarq. Bailey Cavalieri, L.L.C., and William A. Adams, urging reversal for amici curiae Windstream Ohio, Inc., and Windstream Western Reserve, Inc. Thompson Hiñe, L.L.P., Thomas E. Lodge, and Carolyn Flahive, urging reversal for amicus curiae Ohio Telecom Association.{¶ 37} In this instance, based on the placement of the pole, the evidence of prior accidents involving this pole, and the other attendant circumstances, including the speed of the vehicle, road conditions, and visibility, a jury issue is presented — whether or not the placement of the pole has incommoded the public in the use of the roads or highways. Accordingly, I would affirm the judgment of the court of appeals.
Pfeifer, J., concurs in the foregoing opinion.