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08/26/87 JOHN R. SOWERS AND PHYLLIS SOWERS v.

Filed: August 26, 1987.

JOHN R. SOWERS AND PHYLLIS SOWERS, PLAINTIFFS-APPELLANTS,
v.
TRI-COUNTY TELEPHONE CO., INC., DEFENDANT-APPELLEE



APPEAL FROM THE CLINTON CIRCUIT COURT1 The Honorable Jack R. O'Neill, Judge Cause No. 85-258.

Ratliff, C.j., Robertson, J., concurs. Neal, J., Dissents with separate opinion.

Author: Ratliff

RATLIFF, C.J.

STATEMENT OF THE CASE

John and Phyllis Sowers appeal a summary judgment granted in favor of Tri-County Telephone. We reverse.

FACTS

On June 26, 1984, John Sowers and a coworker were trimming trees while working for Covered Bridge Tree Service. Tri-County Telephone Co. (Tri-County) had hired the tree service on an independent contractor basis to trim trees located near Tri-County's telephone lines. While assisting his coworker, Sowers accidentally fell into an abandoned manhole which was approximately five feet deep and two feet wide. Weeds concealed the manhole from view. Sowers suffered personal injuries as a result.

The owners of the property upon which the manhole was located were Halden and Rita Bodkin. When the Bodkins purchased the property in 1954, the manhole was already there. It was located near the north property line at the upper edge of a five or six foot embankment. Although its original purpose and use were unknown, the Bodkins used it to dispose of bricks, field rocks, and other debris.

Tri-County's telephone line was located on the Bodkins' north property line. The telephone line was installed in the late 1950's. A telephone pole is located just four (4) feet from the manhole. Although Tri-County did not have a recorded easement for the lines and poles, it was undisputed that they had a prescriptive easement.

John Sowers filed suit against Tri-County and the Bodkins alleging negligence. Both Tri-County and the Bodkins filed motions for summary judgment. The trial court denied the Bodkins' motion but granted Tri-County's motion. The Sowerses appeal.

ISSUES

1. Whether a telephone company owes a duty to inspect its prescriptive easement to a business invitee whom it instructs to trim trees which are too close to its telephone lines.

2. Whether there is a material issue of fact as to whether the abandoned manhole is located within ...


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