dissenting.
I dissent in this rather ordinary negligence case because the majority finds grounds to exonerate utilities from any responsibility for the placement of telephone poles and, in effect, accords them unwarranted immunity. Generally, I agree with Judge Brochin’s dissent from the Appellate Division’s judgment substantially for the reasons that he set forth, and would reverse and remand the case for trial.
The majority seemingly acknowledges that negligence can occur with respect to the placement of a utility pole along a travelled roadway that contributes to an accident caused by an errant motorist whose car leaves the road and strikes the pole. 136 N.J. at 585, 643 A.2d at 1007. It thus apparently distinguishes Oram v. *592New Jersey Bell Telephone Co., 132 N.J.Super. 491, 334 A.2d 343 (App.Div.1975), in which the court ruled that the defendant utility company was not liable when the plaintiffs car was forced off the road by another car and hit a utility pole because “a telephone company is under no obligation of guarding against extraordinaiy exigencies created when a vehicle leaves the travelled portion of a roadway out of control.” Id. at 494, 334 A.2d 343.
In McMillan v. Michigan State Highway Commission, 426 Mich. 46, 393 N.W.2d 332 (1986), the Michigan Supreme Court ruled that a utility could be found to owe a duty to a motorist who was a passenger in a car that left the traveled portion of the highway when the car was struck by a hit-and-run driver and collided with a utility pole. The McMillan court reversed the trial court’s granting of summary judgment to the utility company. In so doing, the court overruled its prior case law because it
“fail[ed] to impose any obligation of reasonable conduct [on utility companies] 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 [utility company] in all cases in which a pole is placed outside the traveled portion of the highway.”
[Id., 393 N.W.2d at 339-40.]
The court delineated a number of factors for a court to consider in determining whether summary judgment is appropriate in such utility-pole negligence cases, including “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.” Id,, 393 N.W.2d at 340. The court continued that “[ajfter 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.” Ibid.
The McMillan case fairly accounts for the factors that would be most relevant in determining whether a utility violated the duty of *593care it owes to the public in the placement of utility poles. In this case a “factor which may be probative of the issues” could include the existence of the municipal ordinance adopted by the Borough of Franklin Lakes. See id., 393 N.W.2d at 340; see also Ball v. New Jersey Bell Tel. Co., 207 N.J.Super. 100, 112, 504 A.2d 29 (App.Div.) (recognizing that compliance with or deviation from standard of conduct defined in statute or regulation is “relevant circumstance to be considered” by jury in determining tort liability), certif. denied, 104 N.J. 383, 517 A.2d 391 (1986). However, that ordinance is not determinative, as a matter of law, in insulating a utility company from liability. See, e.g., Hoyt v. Public Serv. Elec. & Gas Co., 117 N.J.L. 106, 107, 187 A. 43 (E. & A.1936) (finding basis for negligence suit against utility company because even though electric-transmission pole was authorized, “no permit can authorize the construction and maintenance in the highways of a structure dangerous to ordinary travel”); Adams v. Atlantic City Elec. Co., 120 N.J.L. 357, 379, 199 A 27 (E. & A.1938) (ruling that “[n]o State Highway Commission permit can authorize the construction and maintenance on the highway of a structure dangerous to ordinary travel”). See generally Annotation, Placement, Maintenance, or Design of Standing Utility Pole as Affecting Private Utility’s Liability for Personal Injury Resulting from Vehicle’s Collision with Pole Within or Beside Highway, 51 A. L. R. 4th 602, 611, 615 (1987 & Supp.1993) (observing that “courts in most jurisdictions have held or recognized that a pole’s having been erected pursuant to governmental sanction does not relieve the proprietor from liability or from a charge of negligence otherwise established,” and interpreting Adams as holding that “the permit was not sufficient to render the placement or maintenance of the pole nonnegligent if that negligence was otherwise established”).
Clearly, governmental authorities have the right to determine the location of utility poles. N.J.S.A 48:17-11 (providing that utilities must erect poles in accordance with ordinances and resolutions adopted by local municipalities or boards of freeholders that designate “the location, number and size of the poles” and *594that such poles shall be “so placed as not to interfere with the safety or convenience of persons or vehicles traveling on any such street, road or highway”). That governmental involvement in the placement of utility poles relieves utilities of all responsibility of reasonable care in the placement of such poles is unclear, however. Nothing suggests that the Legislature intended the relevant statutory scheme to exonerate utility companies of their duty to exercise reasonable care in the placement of utility poles. Cf. Feldman v. Lederle Labs., 97 N.J. 429, 446, 479 A.2d 374 (1984) (ruling that regulation by Food and Drug Administration of drug industry does not relieve drug manufacturers of duty to provide adequate warnings concerning harmful risks of their products).
I would reverse the trial court’s grant of summary judgment for defendants and allow plaintiff to prove her cause of action for negligence.
Justice STEIN joins in this opinion.
For affirmance—Justices CLIFFORD, POLLOCK and O’HERN—3.
For reversal and remandment—Justices HANDLER and STEIN—2.