By Dean B. Wisecarver
During a consultation visit with one of our rural electric utility clients recently, the conversation with the General Manager turned to the value of teaching meter readers and even office staff how to recognize basic problems or hazards around the system. The manager said, “We already have more condition reports than we can handle. If I encourage our people to find and report even more, we’ll have greater potential liability for having identified things that we wouldn’t be able to get out and fix right away. Better we not find any more until we get caught up on those we already know about.”
Certainly, I understand the layman’s logic and frustration behind this comment, but the comment is, unfortunately, not true. Just because you don’t know about a problem or hazard doesn’t mean you would not be held legally responsible for the damages it might cause to others.
Most people know that if you know there is something wrong with our system that could cause someone to be injured or otherwise suffer damages, there is a legal obligation to do something to prevent this from happening. Of course, the key phrase is “if you know!” Thus, notice is a significant legal element involved in determining negligence and ultimately liability. If you do not know about a problem, it would be unreasonable to expect you to do something about it. If you do know about a problem, then it would be reasonable to expect you to do something about it.
This concept of notice seems pretty simple. Unfortunately, it isn’t. There are actually two types of notice. If someone tells you about the problem, or if you see it first-hand, you have what is called direct notice. But, under the law, there are times when you are presumed to have notice of the problem even if you have not yet seen it yourself or been told of it by others. This more complicated type of notice is called constructive notice.
Actually, the basic concept of constructive notice really is not so complicated. It only becomes complicated when trying to determine if there was, in fact, constructive notice in any given situation. Constructive notice also has two types. One comes about when the problem or hazard is so open and obvious that it seems difficult to believe you didn’t know about it almost immediately. The other arises when the problem or hazard existed long enough that you should have discovered it even if you have not.
Let me use a simple example. Let’s say a thunderstorm blew through your operating area over night. The storm pushed one of your poles over, and it is leaning some 30 degrees off vertical and is out over a road.
If this pole was on the main street or a major route in and out of your town, it would probably be deemed “open and obvious.” As such, you would certainly be expected to discover it and do something about it in a relatively short time (and if you did not discover it and do something about it very quickly you would be negligent).
If this same pole were out over some back-woods road that very few people travel, 50 miles from your headquarters, it would probably not be deemed as immediately open and obvious. In fact, if it took several days or more for you to find out about it and do something about it, that might be reasonable. However, if four months go by and you still have not discovered the problem, that probably would not be reasonable and you will no longer be able to use your lack of direct notice as a defense for why you didn’t take action.
I’m only using this pole situation and the time frames as an example, but from it, I believe you can see the logic in the concept of constructive notice. You can see also that the two aspects - open and obvious and existing for so long - are closely related, differing only in the length of time between the onset of the problem or situation and when you should have discovered it and taken action to correct it. You can also see that the complications with constructive notice center primarily on the issue of how much time would be reasonable for you to discover the problem or situation and act to correct it.
So, how much time is reasonable? The answer depends on many variables. One variable could be location. In my simple example, the pole in town should be discovered much sooner than the pole 50 miles away on a back road. Another variable could be foreseeability. For example, if the storm that blew through last night was typical of other storms in your area over the years, and if those previous storms tipped poles over around your system, you probably should inspect your entire system as soon as possible to find any poles that might be down or tipped. Another variable could be the degree of risk, which is often determined by your knowledge of activities in a certain area or by past experience. For example, if the pole on the back road was on top of a mountain or high ground and you frequently have had problems in the past with poles in the area blowing over even in the most modest of storms, then you should make that part of your system among first to be inspected after a windstorm.
Without doubt, determining the reasonable time for discovering a problem is prone to disagreement and often becomes an issue of hot dispute. Still, you can see there is certain logic to the concept, making constructive notice easy to understand if sometimes difficult to determine.
The thing to keep in mind is that under the law, notice is notice. It doesn’t matter which type of notice it is - direct or constructive. What does this mean for you in the course of daily business activities?
It means if you know of, or should have known of, any activity around or condition involving your system that might lead to injuries or property damage to other’s, you have an obligation (referred to legally as a duty) to take prudent steps to prevent such accidents. If you fail to do your duty, you are negligent. If your negligence directly causes someone to become injured or damaged, you are liable for the injuries or damage.
Furthermore, since electricity is considered an ultra-hazardous commodity, you are held to the highest degree of care in executing your duty. This means that what is deemed normally prudent care on your company’s part will be considerably more stringent than, for example, what might be expected of a cable TV or telephone company.
It also means that even if you are already swamped with more condition reports and work orders than you can handle, you still want reports flowing in. The key is learning how to prioritize the reports you have, not stop any more from building up. If someone reports a problem that has much more potential for costly disruption to service or damage to others, it should be moved up on your work schedule. If you stop getting reports, there may be such a situation out there and you’ll never know about it until it jumps up and bites you. Thus, it is just good business to keep asking your field people to look for and report problems. Not knowing about them, as I just covered above, will not be a suitable defense, anyway, so there really isn’t any good reason to stop finding things.
And finally, it isn’t really about legal defense anyway. A satisfactory legal defense in these cases is just a spin-off benefit. The primary reason for finding problems on your system is so you can fix them as economically and thoroughly as possible.
If you can find problems on your system that need repair or correction early enough, you can schedule the work to be done in a safe, efficient, effective manner. If you spot a badly secured pole, one that has lost its base and is tilting badly, you can schedule the work to either replace it or reset it. It can be done by a crew that has a chance to plan the job correctly, take the proper equipment with them, do it in daylight so they can see what they are doing, attend to any attachments to the pole that may need improvement while they are out there and, if there will be an interruption to power for your consumers during the work, you have opportunity to let them know. That’s the safe, efficient, effective approach.
Doing this same fix in the middle of the night in a storm because the pole blew down makes the work inherently more difficult and dangerous, not to mention putting the crew into a position where they must rush and ultimately do only what is necessary to restore power even though other things should be done.