By R. Bruce Wright, CPCU

"Everyone who works for you probably should have some training in how the distribution system works and how to spot at least basic defects or problems so they can report them to your service department."

The quote shown above, taken from an article first published in RE-marks' January 2000 issue, is as pertinent today as it was then. In the past month as I visited participants in our program, the issue of hazard identification came up on more than one visit. Perhaps it’s time to review this issue again, since our last article on the subject was more than 18 years ago! 

We often talk about training programs used for employees to enable even the least technical of them to identify and report hazards or defects that they may observe in the course of their daily activities, both on the job and while off work. Over the years, many or most of the utilities in the Hurtado Utility Program have done some type of regular training on this, and presented it to all staffers. Several statewides have had their JT&S folks put together programs to use as part of the annual training rotation. That’s good and makes us happy to see when we find it. But some participants do not do this, or do it only for field employees, which leaves a gap relative to the inside staff. We think that training all of your employees on how to spot and report hazards around your system is an important part of a loss prevention program. Here’s why: 

There is a theory of legal liability that is based on a doctrine known as  "constructive notice" that can be used whenever an open and obvious  defect exists. I am not an attorney, so this is going to be a non-technical explanation of how that doctrine works. 

To start off, most of us can probably all can figure out what "direct notice" is; direct notice means you are told directly about, or see with your own eyes, an existing hazard or problem. Either way, you are “on notice” of the issues immediately once you are told about it, or see it yourself. Pretty straightforward. 

Constructive notice is a bit of a more slippery concept. This is deemed to be effective when a hazard or problem is either so open and obvious, or has existed so long, that you could have and should have become aware of it through observation. As a rule, if virtually anyone (regardless of their technical knowledge or experience) could have seen that there was a problem, it will be considered open and obvious. In cases that reach the legal system, a jury will use its collective judgment, based on evidence presented by both parties, to decide if something was sufficiently open and obvious or if it existed for sufficient time that a "reasonably prudent person" could have been expected to see it. In either case, the court may find there was "constructive" notice and the fact that you never had "direct" notice of the hazard is no longer a defense. It becomes a matter of, "Hey, maybe you didn't know, but the problem was so obvious or was there so long, you should have known!" 

The phrase about a "reasonably prudent person" isn't easy to define in every case and is often left up to the judgment of the court itself. The concept of what is reasonably prudent usually entails the court's assessment of what degree of knowledge the person has. Obviously, a normally prudent person who knows that, for example, tree branches in contact with overhead power lines could cause a problem would be expected to act on the observation before someone gets hurt. Thus, what is prudent for employees of the electric distribution company who pass by that tree every day may be quite different from that which is prudent for the person who actually lives on the property but does not have, and would not be expected to have, knowledge of the danger. The jury (or the judge in a non-jury proceeding) will decide what a "reasonable prudent person" could have and should have seen as it relates the specific case being considered. 

I know we can go too far down the rabbit hole on this, but it worth noting that nearly everyone I meet with agrees that today’s public is far less conscious of the hazards of electric power lines than they were years ago, when many of us started our careers. As the adage tells us, familiarity breeds contempt, and in this case, the idea of power lines is no longer new, in fact, most of your members have no experience of a time when they couldn’t flip the switch to turn on the lights, and mostly, neither do you! So it is not a surprise that the general public, having seen the poles and lines for their lifetimes, have come to believe that they are safe and nothing to be concerned about. That fact makes our duty to keep them as safe as possible even more important. 

Public line contact events have become fairly rare and unusual, to everyone’s great satisfaction, but they haven’t ceased entirely. When one does occur, it may be surprising, but it should be a wake up call to us, a reminder if you will that the danger still exists and the public may be less aware of it now than ever. 

So how does that relate to the doctrine of “Constructive Notice” that we started several paragraphs back? Well, if a member of the public has a loss — property damage, a burn, or worst case, an electrocution — you can almost count on hearing from them or their representatives about a claim. To succeed, a claim requires negligence on your part, legally defined as a duty owed to the victim that was not met. Or as I have been hinting around, if there is a defect in your utility, a distribution system that you alone maintain and keep working properly, and you didn’t find and fix that defect, there is a good argument that you have a duty to find and fix any and all open and obvious defects, and if you didn’t you will likely not be able to plead ignorance. If there is a defect to be seen, and you didn’t see it and fix it, then unless you can show it happened the moment before the injury, then you have a case where constructive notice can be argued. And for those of you who have had the bad luck to be in court, you know that juries tend to think that the power company is responsible for keeping the lines up and working right all the time. 

So what does this mean for your safety efforts? Simply enough, it means you need to do all you can to find and fix defects in your lines before they cause losses to member/consumers or the general public. You need formal line patrol programs to inspect the system on a regular basis. You need a thorough “see it, fix it, or report it” program for all field employees and managers. But you should also have an annual hazard identification training program presented to the entire staff, including "inside" or office workers, and make it part of every new employee's orientation. In the eyes of the general public, every utility employee is seen as an expert. As a result, you need to be sure that all of your employees can recognize, and know how to report, any open and obvious hazard on the system. 

Finding and fixing problems on your system is basic good business. The better your entire employee group is at seeing and reporting system hazards, the more likely you will be able to identify and repair problems before something bad happens. Your office workers are not going to be “line-worker savvy,” but everyone on your staff has a stake in finding defects, so why not use all the eyeballs you can? It’s always better (not to mention cheaper) to find a defect and fix it, than to have to react  after it has caused a failure.