By Walter J. Pfender
To you it’s an old utility pole. In the eyes of a consumer though it might be something completely different. If you’re lucky it will become something harmless like a flowerbed border in a happy customer’s back yard. Just as likely though, the consumer sees your old poles as the makings of a son’s tree fort, new support columns for an old barn, legs for a planned deer stand or maybe just as a convenient pile of free firewood. I won’t insult your intelligence by asking if you see any potential problems with these “second-life” pole uses.
There can be complications when you give old poles to the public. As a general rule, I advise our program's clients against the practice. Even so, I still hear from some managers out there who take the position that the company is only going to trash them anyway, so it’s good public relations to give them to consumers if they really want them. Coming from the insurance industry, I don’t personally subscribe to this position, but I do understand the well-intentioned rational behind it. So, for those of you who feel this way, I simply want to remind you of an old saying, “No good deed ever goes unpunished.”
After all that, if you’ve made up your mind to make a practice of allowing crews to give condemned poles to your customers, okay, it's certainly your choice to make. But, you should probably take some time right now to make sure you have a few new controls in place that may help to shield your organization from some of the substantive liability exposure that your generosity may create. Here are a few tips:
Tip # 1- Train your people to ask smart questions of consumers when they ask for old poles. I think our examples above make it pretty clear that the potential for misuse of old poles is extremely high, limited only by the creativity and imagination of the new owner, and once you give them away, you have little or no control over how these poles may be used. Recognize this then, and at least train your people to screen these requests. Hand-in-hand with this, train your people on how to nicely say “no” (and to effectively explain why to the customer) when they discover inappropriate intended uses. There is nothing wrong with asking a customer what they want the poles for or with asking your trained staffers to make sound, on the spot decisions about whether to give poles to the public or not, based on the intended use. The bottom line is that you need to exercise control while you have it. Weigh the request, consider the customer’s intended use for the pole and make a rational decision about whether the use is suitable or not. Your organization’s liability exposure for donated poles doesn’t necessarily go away when the pole goes away -- it just changes form – to a pure product’s liability exposure. It doesn’t matter that you didn’t sell it to the recipient. And, any preconceived notion of an “assumption of risk” defense that you might be hanging your hat on is probability untenable too. Look how well it is working for the cigarette manufacturers. More important will be the fact that the pole (Read- your product!) was defective when you donated it. Heck, you already knew that –that’s why your people changed it out in the first place!
Tip #2- If you are donating old poles, instruct your people never to just leave them in the ROW. Instead, ask the customer where they want them, verify that it is an appropriate location and then put them there. Leave those poles in the ROW and, too many times, that’s where they’ll stay, right up until something goes seriously wrong. Weeds grow up around them, snow falls and covers them, and sooner or later a dirt bike or snow mobile drives by and “bang!” – the poles have been found. We even had a recent case in our program where a farmer/property owner asked a crew for some old poles, the crew left them in the ROW (exactly what the farmer asked them to do) and months later his own son drove his ATV into them and was hurt. Can you guess what happened next? Yep, the farmer went ahead and sued the coop for leaving the poles there!
Tip # 3- With the help of your legal counsel, create a document that formally transfers pole ownership from the coop to the new owner and train your people to use it. Many pole donation transactions take place on a handshake, not the safest way to do business in today’s legal liability climate. Beyond just documenting the transfer of ownership though, this agreement should be written with two additional goals in mind: giving information to the consumer and protecting the interests of your organization. To do this effectively, the document should include some specific items. The agreement should clearly state that the new owner will be solely responsible for suitability of application, i.e., the suitability of the pole to the intended use. It should contain a hold harmless clause in your favor indicating that the new owner can’t come after you if things go wrong. To meet your organization’s duty to warn, the form should also contain warnings against inappropriate uses (like as structural elements or as firewood to name just two) and, finally, it should provide notice that the poles may have been treated with chemicals.
Tip # 4- Finally, let's take the last point to its logical next step. Your pole may be a bit more than just plain wood, right? So, when you give a pole to a consumer, also give them an MSDS (Material Safety Data Sheet) for the pole itself, plus data sheets for any herbicides, pesticides, or preservatives you may have used on the pole over the years. And, since others outside of your organization may have put material on the pole too, include a notation in your transfer agreement that the new owner is ultimately responsible to retain a lab to test the pole to see exactly what materials might be present. Will they do it? Yeah, well, probably not. But at least you will have done your part in telling them what they should do and you will have a signed agreement in hand to this effect, just in case you need it after the fact, if and when something goes wrong.
This short list of tips certainly doesn’t cover everything you could or might do to reduce the likelihood of problems or mishaps arising from pole donations, but it’s a start. We hope it serves to get you thinking about this particular exposure, and even starting a dialogue within your organization about how to best control it.