By Dean B. Wisecarver
Roadside hazards are a larger issue for electric utilities than many people seem to realize, and a couple of recent claims involving roadside hazards have prompted this article.
Defining and identifying “Roadside hazards”
“Roadside hazards” related to electric utilities most often are simply utility poles that are perilously close to the travel portion of streets or roads. “Perilously close” is a fairly clear concept in general but may be difficult to define exactly in any individual case. It varies according to the nature of the roadway or street, the speed vehicles typically travel on the road, the type of vehicles typically using the road, and a host of lesser variables. In general, however, any solid structure that is so close to the road as to make it likely a vehicle might strike it and cause serious or fatal injuries to the vehicle occupants could be considered a roadside hazard.
The photographs at right illustrate a simple example. The utility pole in these photos is about 11 inches from the edge of a smooth, rural, blacktopped road where vehicles typically travel 45 to 50 miles per hour. Actually, while you can’t see it in the photos, the next pole on the other end of the same span is no more that 13 inches from the pavement and is also on a curve. The road has no center or edge lines, making it even more treacherous at night. It doesn’t take much to imagine a vehicle hitting either of these poles, perhaps even without the tires leaving the blacktop.
These poles are 1 mile from my home and I pass them frequently. I know those yellow reflectors visible in the photos were added only recently. In fairness to the electric cooperative that owns these poles, the roadway shown was not always as wide, as smooth, or as heavily used as it is today. In fact, in recent years the traffic on this road has increased due to nearby development. The county has contracted to have it repaved several times over the course of 20 years and each time the road was widened slightly as the paving contractor used more and more of the original shoulder to get a nice, clean edge. The poles were there all along. They were far less of a hazard 10 years ago but, as you can see, they present a very real hazard today.
This situation didn’t happen suddenly, it evolved over time. It is, therefore, a good example of why thorough, systematic line patrols are so vital.
Establishing the scope of the problem
The Insurance Institute For Highway Safety recently published its annual report on the subject of roadside hazards, using the fatality figures from the USDOT for the most recent complete year of data, 2000. The next paragraph is the opening summary of the findings from that report. The added emphasis is mine, intended to call your attention to the parts most pertinent to your operations.
"About a third of motor vehicle deaths involve vehicles leaving the roadway and hitting fixed objects such as trees or utility poles alongside the road. Almost all such crashes involve only 1 vehicle. Roadside hazard crashes occur in both urban and rural areas but are mostly a problem on rural roads. They're most likely to occur on curves and/or downhill road sections. More than a third involve a vehicle that rolls over, and about a third involve occupant ejection. Trees are by far the most common objects struck in roadside hazard crashes."
Below are two charts taken from the same reports - one from 1996 and one from the most recent report for 2000 - reflecting the types of roadside hazards involved in reported fatal accidents. Notice the numbers haven’t changed much over the 4 year interval and that utility poles are involved in 9% of the cases.
To learn more about these reports, click on the following link or copy and paste the line into your browser’s address line:
Lessons from an actual case
One of the utilities insured in our program has an actual case pending that involved a vehicle striking a pole and knocking it down. The plaintiff in this case was a passenger in the vehicle that got out and stepped on a hot primary that was lying on the roadway (the re-closer had not yet locked out). One of the plaintiff’s principle allegations is that the pole was too close to the road. If you look closely at the photos below you can see the pole in question. It is about 6 feet off the white edge line of the road, the road is well lined and straight. Compare these photos to the ones above that I took of the poles near my home. It is striking, is it not, that the poles alleged to be “too close” in the existing case are so much further from the road than the ones I have offered as illustration.
The comparison begs the question -- how far off the road is prudent and sufficient? The answer, unfortunately, isn’t really clear, but there are some good clues. The actual case I just described is still in litigation so I can’t really cover the details, plus we don’t yet know what the final outcome will be. However, in the process of learning more about that claim, we looked up some prevailing case law. We found three other similar cases on which the Supreme Court of Mississippi had rendered opinions that established law in that state.
One case was particularly noteworthy. The case involved a car with 4 teenagers in it. The driver had been drinking beer just prior to the nighttime accident and admitted to possibly being slightly impaired. He approached a tight curve in the roadway with too much speed and lost control of the car. It left the roadway in the curve, became slightly airborne, and struck an electric utility pole, snapping it into 3 pieces and bringing down the wires. Miraculously, no one was injured when the car came to rest, but the young girl in the front seat decided to exit the car immediately and, in the dark, she walked into the downed primary, touching it with her shoulder. Incredibly, she was barefooted because the ground was so muddy her shoes were sticking in the mud so she removed them just before contacting the line. As you can guess, she was very seriously injured and she ultimately filed suit against the driver and the utility.
During the lower court trial, testimony revealed that the pole and the lines met the measurable requirements of the National Electrical Safety Code, which has been adopted in Mississippi as state statute governing electric and communications utilities. Other testimony indicated several years earlier another vehicle had left the road at the same curve and struck the same pole (albeit with far less negative results). Testimony also revealed this particular pole was 21’ 6” off the roadway! It seems amazing its placement was even an issue, but you’ll soon see its placement became one of the key focal points the justices of the state Supreme Court struggled with during the appeal.
The Court’s decision was divided. The Court’s published opinion filled 20 pages with small type so I cannot cover it all here. The best I can do is hit some interesting highlights. At the risk of greatly simplifying the opinion by grossly paraphrasing what was written, I offer the following: (Hey, I’m not an attorney so I’m not going to get hung up on jargon here. Bear with me.)
The majority opinion said that since the utility had experienced a previous accident at this same curve where a different vehicle left the road and hit the same pole several years earlier, the utility knew it could happen and it should have moved the pole. By failing to do so, it may be held liable for any further accidents involving this pole regardless of why the vehicle left the road.
The minority opinion said, okay, if this pole had been hit several times by vehicles leaving the road at that curve, then yes, the utility was negligent in not moving the pole to a safer location. It went on to question, however, how the utility could reasonably determine where a safer place is? How can the utility ever predict where some crazy, speeding, or intoxicated driver might travel off the roadway? This pole was already over 21 feet off the roadway! Is one previous accident involving this pole enough to yield meaningful prediction? The minority opinion agreed with, and specifically quoted, an expert witness who said, “It [is] an absolute impossibility to design a utility pole distribution system when required to consider drunk, reckless drivers and other variable factors being figured into an equation when attempting to predict where an out-of-control driver might run off a road.”
I’m sure many of you are now cheering the author of the minority opinion. But don’t loose sight of the fact it is the minority opinion. The majority saw things differently. If educated, well informed, presumably very competent thinkers can argue about the relative hazard posed by a utility pole placed 21 feet away from a road, what chance is there to successfully defend the utility whose poles I illustrated at the beginning of this article, no matter what a driver might do to cause an accident?
Also, both opinions agreed that utilities have a duty to maintain safe public right-of-ways along roads and highways. They also both agreed the possible reason any vehicle leaves the roadway may not matter in establishing the utility’s liability if the placement of the pole is inherently unsafe.
If there are any useful clues about how to determine the safe, appropriate placement of poles, they come first from the majority opinion that stated: “In determining whether the placement of a pole may be considered unreasonably dangerous such that liability may follow, the [utility] should consider such factors as the structure’s proximity to the roadway, the configuration of the roadway, whether the utility had notice of previous accidents of sufficient similarity to give reasonable notice of the danger, and whether there are feasible alternative locations for the structure which are less dangerous.” The minority opinion tended to agree with the general duty the above statement implies, saying: “The shoulders of a highway are for the use of traffic in cases of emergency, and when circumstances indicate their usefulness, they should be kept free of unnecessary obstructions, like utility poles, which are likely to cause injury to persons using the highway.” That’s still pretty vague but it does provide some clues as to what one must consider in deciding whether a pole is a roadside hazard or not.
The NESC, unfortunately, is somewhat vague on this issue, too. I mentioned in the description of this case that the pole and lines met all “measurable” NESC requirements. However, the majority opinion quoted the following NESC provision to support its decision: “All electric supply and communications lines and equipment shall be installed and maintained so as to reduce the hazards to life as far as practical.” Of course, you all know this provision already. You know it applies to situations such as where line clearances above ground may not be enough just because they meet the minimum NESC requirements. It depends on the activities (actual or foreseeable) under or near the lines. Apparently, this same general duty clause goes for placement of poles along roads.
Conclusions
So, what conclusions can we make? Well, first it is clear to me that roadside hazards, created primarily by poles placed too close to roadways (or in potentially dangerous locations such as on severe curves, etc.), should be taken into account when designing, constructing, or maintaining a distribution system. To me that means every person who works in a utility’s engineering department or has outside system inspection responsibilities should be educated about roadside hazards. The goal is to do two things - avoid creating roadside hazards during design as much as possible, and then find and fix any obvious, existing roadside hazards that may have cropped up on our system over time.
I can also conclude that poles like those pictured at the start of this article should be addressed as soon as possible. If a pole 21 feet from a roadway can become an issue, or one just 6 feet from the road on a clear, open, straight section of highway can become an issue, then the hazard created by the pole in those first photos is a no-brainer to identify and take action to correct.
Of course, another conclusion is that I would attempt to record and mark (perhaps on system maps) any pole that has been struck by a vehicle for any reason so I can assess whether that pole is in a potentially hazardous position. I would retain such data, too, because if I decide after the first accident that the pole’s position is not the problem but the same pole is involved in yet another accident, I may change my opinion. Keeping an historical record of this kind data is important. I need to be certain others who may follow me in my job, perhaps several years later, will recognize immediately when a pole involved in an accident has been involved in a previous accident.
I recognize this issue is complex and messy, and that it can lead you to frustration. I also recognize I have addressed it in this article from the “legal consequences” point of view. I believe, however, that there are basic operational reasons for identifying and addressing possible roadside hazards that have nothing to do with legal defense or liabilities. If you can identify potential roadside hazards and get them into your normal work schedule, you can fix them for far less expense and under far more favorable circumstances than doing so in the middle of the night at an unexpected time because someone finally hit the pole with his vehicle and knocked down your lines. Even if there is no “liability” on your company for such an accident, it creates an interruption to your consumers and an extra operating expense you don’t want.
I hope this article has provided some useful insight and information for you. I hope, too, that if you haven’t already done so you can use this article as a beginning point for educating key people on your staff about roadside hazards.