By Walter J. Pfender, ME
Let's contemplate the following scene:
It’s a brisk, sunny, fall afternoon and with school out for the day, a young man decides to take a ride on his new ATV. His excursion begins on a friendly neighbor’s property - a location where he’s been given permission to ride.
Cruising the edge of the property, he spies a opening in the tree line, and running through it, a dirt path which seems to connect to an established dirt bike trail running onto an adjacent land parcel. Curious to explore, he turns his four-wheeler through the tree break and onto the newly found trail.
Utility poles run through the clearing with power lines overhead, but the trail looks well worn with terrific moguls, and the young rider can’t wait test his skill and his new machine’s performance. Engine revving, the ATV roars into action.
Fifteen minutes later, the sound of the revving ATV is gone. It has been replaced by the wails of an ambulance siren, speeding to the scene. No one will ever know if the young rider noticed the utility pole guy wire that he struck.
Work in this business long enough and you’ll eventually hear a story like this one. Accidents like this happen regularly, and they can exact a tremendous human toll, resulting in permanent disabling injuries or even fatalities. In addition to the human consequences, accidents involving off-road vehicles (dirt bikes, snow mobiles or ATVs) may open utilities to significant public liability exposure - even if their equipment (poles, guy wires, etc.) meets code requirements in every way. In today’s legal liability climate, notice and accident forseeability are as important as system functionality and compliance with RUS construction requirements. Code compliance is not a complete defense to negligence, nor will it insulate your organization from liability exposure in cases where you have knowledge of a hazard and fail to address it.
We’ve spoken about direct and constructive notice in these pages before. (See the article entitled "Hazard Identification & Constructive Notice" in the Jan-Feb-Mar issue of RE-marks, using the "Archive" button above. The legal theory reviewed there also applies to the case described above. If your employees (any employee), your contractors, or even your member-consumers observe this activity around your system and report the activity you, then you have received direct notice of a potential problem. Even if the problem has not been reported directly to you, if the situation or hazard was so open or obvious or had existed for so long that someone in your organization could have, or should have, seen it and reported it, then constructive notice applies - and your organization is in the same legal position. Having said all this, what does it mean in a practical sense?
When a case like the one above goes to trial (if it ever makes it that far) a number of questions will likely be asked. Examples include: When did the cooperative last perform any line patrol in the area? When was the ROW last cleared? What maintenance was recently done on the lines involved and who were the cooperative’s employees that did the work?
One after another, a number of your employees will be placed on the stand and asked -“What have you been taught about spotting hazards? Did you notice these trails? What did you do about it? Who did you tell? What did they do?”
Are you starting to see a pattern here?
Dirt bike, snowmobile, or ATV riding on the ROW around cooperative poles and guy wires is an inherently dangerous activity. You might think that this means the people doing the riding are even more responsible for their own safety. That’s not what it means. On the contrary, it means that there is more responsibility on the owner of the “potentially hazardous instrumentality,” which means you. It’s similar to the way that the owner of a swimming pool has a duty to make sure no one can get into it, usually by building a fence around it. The owner is required to protect the public since it is known that the item in question poses a hazard to the public. It might surprise you to learn that where riding paths exist on your ROW, whether the rider is an invitee or a trespasser on the property may be of little consequence. The primary issues the law will look at are (1) that the activity exists, (2) that it is potentially hazardous (given the presence of your equipment), (3) that you knew about it (or should have known about it) and, therefore, (4) that you (the electric cooperative) have an obligation to take some corrective action to prevent injury or damages. So what should you do?
In a situation like this there are only two effective choices for prevention. You can either eliminate the hazard, or warn users about the hazard. The first option is highly preferable, since elimination of the hazard ensures that this type of accident won’t happen in the first place. If you can’t eliminate the hazard, however, then you need to do everything in your power to warn riders of the potential danger of riding near your equipment. Practical suggestions for addressing this situation include:
1) Whenever and wherever you find off-road riding activity near poles, lines or equipment, you should first make sure that your equipment is properly located. This is a simple step that shouldn’t cost you anything extra, but one that can save headaches and heartaches down the road. You don’t want your organization to find itself in the position of learning that a given pole or a guy wire that was involved in an accident just happened to be slightly outside of your legal ROW. This is a prime example of how an otherwise lawful activity (placement of a pole, etc.) can become a major liability exposure for your organization, even if the error in placement may not seem to have been a significant contributing factor in the accident.
2) If you can, move your equipment. Where possible, run the service underground, as this eliminates the hazard completely. If that’s not possible, then look for ways to minimize what’s there. Remove unnecessary guy wires and their anchors.
3) Mark poles so they are easy to see. High quality reflectors are cheap and easy to mount on co-op poles, and are actually quite common for this kind of application. Drive down any county road and you’ll see them marking roadside mailboxes everywhere.
4) When trying to determine if a potential hazard exists, put yourself in the place of the riders and look at the ROW through their eyes. Guy wires may offer a simple, cost effective way to stabilize poles with multiple loads but they are also hard to see, particularly when traveling at high speed with mud spattered riding goggles or in bad weather, when cables may be obscured by mist or fog, or covered with snow or ice. Guy wires are easier to see if brightly colored guy covers are installed. Better yet, replace the guy cables with raker poles in locations where off road riding activity is present. Yes, it costs more to use bracing poles as opposed to guy wires and anchors. But, it’s a heck of lot easier for a rider to see and avoid a twelve-inch thick pole as opposed to a skinny little wire.
5) Conspicuously post warning signs in locations where riding is taking place if you find it impossible or impractical to relocate lines. Everyone is familiar with the little white signs with red circles and a red line through the middle - used to indicate prohibited activity (No Smoking, No U-turn, No Pedestrian Crossing, etc.). Why not have signs made with the black silhouette of a dirt bike or snowmobile with the traditional red circle and line - and post them in locations where riding is occurring. These kinds of warning signs are almost universally understood and they can help you fulfill your obligation to warn riders of the potential hazard.
6) Patrol known riding locations on a regular basis. Installing guy wire covers, posting signs, and mounting reflectors on poles is all well and good, but once they are in place, you need to make sure that these warning devices are in good shape and stay where you’ve put them.
7) Discuss this exposure with all of your employees during regularly offered Hazard Recognition Training and encourage all your associates to report what they see. Remember, constructive notice applies in these situations. That means you may be responsible for a problem whenever you knew, or should have known, about the situation. As a result, it is important to train your people so that they know what to look for. After all, it’s far better to know about a problem and address it now rather than ignore the possibility and have to justify this approach after something goes wrong.
We don’t pretend that these ideas cover everything that you might do if you find off road vehicle use at locations around your system. They are just a starting point, designed to get you thinking. Don’t hesitate to be creative in seeking practical alternatives when faced with this kind exposure. Remember, the worst thing that you can do is to do nothing.
Note: The author wishes to gratefully acknowledge the invaluable assistance of Mr. Mark Barber, Attorney, Atlanta, Georgia. His good advice and practical suggestions were instrumental in guiding the content of this article.