dissenting.
I respectfully dissent from the majority's determination that summary judgment in favor of GTE was erroneous. In reversing summary judgment, the majority expressly rejects Northern Indiana Pub. Serv. Co. v. Sell, 597 N.E.2d 329, which clearly compels the opposite result. This rejection is based upon the majority's conclusions that the holdings in Sell and State v. Cornelius, 637 N.E.2d 195, cannot be reconciled with one another and that Cornelius is the better view. I believe that Sell was correctly decided. Moreover, I believe that both Sell and Cornelius support the grant of summary judgment.
In my view, the majority's analysis is incorrect in that it applies differing standards when analyzing the foreseeability components of the questions of duty and proximate cause, respectively. Specifically, I disagree with the majority's conclusion that because both duty and proximate cause incorporate a foreseeability component, by logical deduction the foreseeability component of the duty analysis must be something different than the foreseeability component of proximate cause.
*482The difference between the two, in the majority's view, is that foreseeability in the context of duty is a lesser inquiry, le., "a more general analysis of the broad type of plaintiff and harm involved, without regard to the facts of the actual occurrence." Slip op. at 7. Applying the more general analysis, the majority concludes that the foreseeability component of duty is satisfied in the instant case because it is foreseeable that motorists will leave the traveled portion of the road and strike utility poles. The majority's approach does not consider any but the most general of facts of the occurrence. I believe that the Sell analysis is preferable because, among other things, it does take into account the undisputed facts of the occurrence when considering the question of duty.
Citing Webb v. Jarvis, 575 N.E.2d 992 (Ind.1991), the Sell panel noted that the existence of duty is determined after considering three factors: (1) the relationship between the parties; (2) the reasonable foreseeability of harm; (8) and public policy concerns. I conclude that all three factors indicate that no duty existed in the instant case.
While there is a relationship between users of public roads and utility companies that locate poles along public roadways, I agree that "this relationship is limited to those members of the public using state highways as they were intended to be used." Sell, 597 N.E.2d at 332. The majority, however, rejects this principle, apparently because it takes into account the facts of the particular occurrence, which in this context include the cause of the vehicle leaving the roadway. It is upon this basis that the majority rejects Sell and approves of Cornelius. I believe, however, that Sell and Cornelius do not conflict in this regard.
The Cornelius panel did not reject this aspect of the Sell analysis, but instead held that the plaintiff in Cornelius was using the roads as intended. The Cornelius panel also held that the foreseeability of a collision with the utility pole in question was determined after a consideration of certain factors pertaining to that particular pole.4 In so doing, the court impliedly acknowledged that in Sell there were no facts susceptible of the inference that it was reasonably foreseeable that a motorist would leave the roadway and strike a pole.
Cornelius and Sell were superficially similar in that the plaintiffs in both cases struck utility poles after leaving the roadway. While the panels reached different results regarding the existence of a duty, such was premised in each case upon an examination of the undisputed facts before the court. The Sell panel noted that the plaintiff left the roadway because he fell asleep and concluded that such did not constitute an intended use of the road and thus no relationship existed. The Cornelius panel disagreed with Sell only in that it considered the "intended use" inquiry to be a component of the foreseeability analysis, not the relationship analysis. It did not, however, reject the concept of examining the particular facts of an occurrence in deciding the duty question. Irrespective of where such analysis should be placed, the Cornelius panel noted that the plaintiff left the roadway as a result of having been struck by another vehicle and concluded that he was using the roadway as it was intended to be used when he left the roadway. Therefore, in both Sell and Cornelius, the court undertook a detailed examination of the undisputed facts of the particular occurrence, including the reason that the vehicle left the road, in determining the existence of a duty.
Applying this aspect of both Cornelius and Sell to the instant case, I proceed to an examination of the undisputed facts of this occurrence. Goldsberry and Grubbs had *483been visiting friends and drinking beer during the evening before the accident. While driving home at approximately 3:80 a.m. the next morning, Grubbs fell asleep and the car left the roadway, striking a utility pole. At the time of the accident both Grubbs and Goldsberry were intoxicated. Subsequent tests revealed that Grubbs had a blood-aleo-hol content of .14% and Goldsberry's blood-alcohol content was .15%. Following the accident, Grubbs was arrested and charged with operating a motor vehicle while intoxicated.
I. Relationship
The Sell analysis compels the conclusion that once the car left the road as a result of Grubbs's intoxication and falling asleep, the road was no longer being used as intended and Grubbs and Goldsberry no longer had a relationship with GTE that would give rise to a duty.
II. Foreseeability
While Cornelius would relocate the consideration of intended use to the foreseeability component of duty, there is no indication the Cornelius panel would have reached a different result on the ultimate question of duty. Presumably, the Cornelius panel would have concluded that driving off of the road as a result of intoxication and falling asleep would not have been sufficiently foreseeable to impose a duty upon GTE.
Under Sell, foreseeability is determined through examination of
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 as an alternative, a less dangerous location for the pole existed.
Sell, 597 N.E.2d at 333. The telephone pole in question was located beside a two-lane road that was approximately twenty-two feet wide. The pole was 7.2 feet from the edge of the pavement, was only 1.8 feet from the right-of-way line, and was located at the bottom of a drainage ditch that was 1.2 feet deep. The road was straight and level in the vicinity of the pole and the nearest intersection was more than 2500 feet away. The pole was installed in 1960 and since that time there has been only one accident involving a vehicle and the pole. That accident occurred approximately nine months before the accident in the instant case, but there is no evidence that the previous accident was serious enough to cause property damage or personal injury.
Such cireumstances were not of a character to put GTE on notice that the pole was in a dangerous place and should be located elsewhere. Moreover, the pole could have been moved only 1.8 feet further from the road. On the facts of this case, the conclusion of the Sell panel with respect to foreseeability is equally applicable here:
Although in some cases it would be reasonably foreseeable that motorists (or their occupants) would leave the traveled portion of a road and strike a utility pole, there are no facts in the present case susceptible of that inference. Therefore, the factor of foreseeability also militates against imposing a duty on [GTE].
Id. at 884.
III. Public Policy
Sell analyzed the public policy element as follows:
Public policy considerations also weigh heavily against finding a duty in this case. Under state law, NIPSCO has the qualified right to locate its utility poles along the highways of this state. IC § 8-20-1-28. Indiana has long recognized the substantial public interest that is served by the grant and exercise of this right. [Citation omitted.] The Sells do not contend that NIPSCO was negligent for exercising its right, nor do they specify in what portion of the highway right-of-way NIPSCO could have placed the pole without being negligent. As mentioned above, NIPSCO could not have relocated the pole in question more than seven inches further from the highway without the pole being at least partially on private property.
To hold NIPSCO to a duty in this situation would be to impose absolute liability upon utilities for such accidents, for there are undoubtedly thousands of poles similarly installed in this state. We are not prepared to say that a utility is the insurer *484of all persons injured by utility poles that otherwise pose no unreasonable risk of harm. l
Id. The Cornelius panel did not disapprove of the foregoing analysis, but concluded that the facts of Cornelius dictated the opposite result.5
In the instant case, GTE exercised a qualified statutory right in placing the poles along the road and, because of the right-of-way limitation, could only have moved the pole 1.8 feet further from the road even had it chosen to do so. For the reasons set forth above in Sell, I believe that public policy considerations counsel against imposition of a duty in this case.
In summary, I believe that the foreseeability and public policy components of the duty analysis, under both Sell and Cornelius, dictate the conclusion that GTE did not owe a duty to Goldsberry upon the undisputed facts of this case. Additionally, the relationship component is lacking under the Sell analysis.
Finally, I feel compelled to express my concern about what I consider to be a likely ramification of the majority's holding. As previously stated, duty is generally a determination to be made by the court, while proximate cause is a jury question. In removing consideration of all but the most general of facts from the duty analysis and allocating such consideration instead to the proximate cause analysis, the court has restructured summary judgment in such cases practically into nonexistence.
In the instant case, for example, the only thing that Goldsberry is required to establish in order to get her case to a jury is that she was a motorist or an occupant of a motor vehicle when she was injured. It is irrelevant to the majority's determination that Goldsberry and Grubbs were intoxicated, or that Grubbs admittedly fell asleep while driving. Yet, it cannot seriously be disputed that the car initially left the road and the accident occurred as the result of a combination of these two factors. By precluding courts from taking such facts into account and restricting them to the single inquiry of whether the plaintiff was a motorist or an occupant, it cannot be doubted that today's decision will render summary judgment practically unavailable any time an accident involves a telephone pole. The Sell panel was correct; such is tantamount to imposing absolute liability upon utility companies.
I agree with the majority that our goal in formulating and implementing a duty analysis "is to establish parameters for deciding as a legal matter which cases will survive in the system and which will perish." Op. at 477. I believe that under a proper duty analysis, in view of the intoxicated condition of the driver and occupant, the cause and nature of the accident, and the condition of the road in the vicinity of the accident, the instant case should perish,. I would affirm the grant of summary judgment.
. The court stated:
Here, the utility pole was located in a traffic island surrounded by roadway, the curb surrounding the island had been removed, and the pole was only one to two feet from the shoulder of S.R. 67. Further, the traffic island in which the pole was located was at an intersection of a state highway and a secondary road. The jury could conclude that it is foreseeable that collisions will occur in an intersection and that one of the motor vehicles will leave the traveled portion of the highway. Given the proximity of the pole to the intersection, the jury could likewise conclude that it is foreseeable that a motor vehicle could strike the pole. A question of fact to be resolved by the jury exists.
Cornelius, 637 N.E.2d at 199.
. The distinguishing facts were that IPL (1) could relocate the pole, (2) had been requested to do so by the Highway Department, and (3) was planning to relocate the pole.