By Dean B. Wisecarver
This article is about claims. Or, more precisely, it is about how electric utilities might avoid getting caught up in messy claims related to the failure of street or security lights. Unfortunately, similar claims problems arise from school crossing warning lights and other traffic control devices, but in this article I will focus on streetlights and, to a lesser extent, security lights.
Defining the Risk
A woman in a small, mostly rural town is walking her small black dog after dark. At a quiet residential intersection, she is crossing the street and is struck by a car. She suffers very serious injuries. Among many other things, she claims, through her attorney, that the streetlight on that very corner was not working and the absence of the additional light contributed directly to the car’s driver not seeing her in time to avoid striking her. Thus, she claims the non-working streetlight directly contributed to her injury.
The town owns the light and the town relies on the electric cooperative that serves the town’s residents to replace bulbs in streetlights that fail. The cooperative, wanting to be a good citizen and neighbor in the communities it serves, does this for the town at no charge because it understands it has the aerial devices to perform this task while the town does not. This gracious service is done without any formal or written agreement or arrangements between the town and the cooperative.
The driver and owner of the car involved has rather low auto liability limits on his policy and has few personal assets. The attorney, believing his client’s case is worth far more than what is available from the driver’s insurance policy, presents claims to the town’s municipal government and to the electric cooperative.
The cooperative is stunned and angry. The management’s initial attitude is, “Wait a minute! We’re not responsible for going around every town we serve to be certain every streetlight is working. That’s the towns’ responsibility. Sure, we maintain the lights for them and if they tell us a light is out, we’ll get out as soon as practical to fix it.”
The claim ends up in court and the woman is awarded a 7-digit sum. When all the negotiations are finished, the cooperative ends up paying over half the awarded amount.
This fictitious case is based on a collection of real cases we’ve seen. While this case involves a cooperative providing a free service to the municipality, there are other real cases where the cooperative or utility charges a fee to maintain the lights. We even have several where the cooperative typically purchases the materials, installs the light pole and lamp, and charges the municipality a flat monthly fee that includes doing any maintenance that might be needed into the future. What most of these arrangements have in common is there is no clearly written and mutually signed agreement that spells out who is responsible for what.
The Key Issues
Negligence is based on two simple concepts - there is a duty owed and there is a failure to fulfill that duty. If the negligence is the direct, immediate cause of someone’s injury or damages, the person that committed the negligence incurs a liability to pay for the other person’s injury or damages.
Most liability claims arising out of negligence are settled long before they go into court. However, anticipating what a jury of ordinary people might decide about the claim is the ultimate yardstick used to determine if and how to settle the claim before it goes to court.
Imagine my fictitious case going in front of a jury. It would be fairly easy for the plaintiff’s attorney to convince the jury members that the driver of the car had a duty to watch out for pedestrians and give them the right of way and not hit them, and especially so at an intersection, and that the he failed to fulfill his duty. It would also be easy to convince the jury that the non-operating streetlight at the corner directly contributed to the accident and the resulting injuries. Had the streetlight at the corner been operating as it should, the driver may have had a better opportunity to see the woman and stop or avoid hitting her. It is a short step from there to convince the jury that both the municipality and the electric cooperative had a duty to assure the streetlight was working as expected and they failed to fulfill their duty.
As you recall, the cooperative in this case was doing something for the town for no charge. Imagine how much easier it would be to convince a jury that the cooperative had a duty that it failed to fulfill if they were told the cooperative collected a regular monthly fee to “maintain” the light.
Also in my sample case (and too often in the real cases), there is only the apparently self-serving oral testimony from the cooperative to suggest that the cooperative does not and should not have the duty to go out and look for any streetlights that are not working -- the municipality should have that duty. Of course, faced with this position from the cooperative, the municipality may testify that it knew the light was not working and someone in town hall called the cooperative to report it but the cooperative did not respond in a timely manner. The jury is now hearing these two parties orally arguing and pointing fingers at each with no hard evidence to clarify the truth. The jury may come to the conclusion, “Hey, you guys blew it. We don’t know why it wasn’t working but you both had a role in it so you’re both partly responsible for this lady’s injuries.”
Controlling the Risk
Continuing with my fictitious case, let’s suppose that when the official from the cooperative testified in front of the jury, he produced a document, duly signed by an official from the municipality and an official from the cooperative, that in essence stated:
- The municipality is responsible for finding and recording the exact location of any streetlights that are not working.
- The municipality is responsible for accurately reporting to the cooperative the location of any light that is not working by calling [a specific person or department at the cooperative] at [a specific phone number] during normal business hours.
- The cooperative has the responsibility to have a service person respond to the report and repair (or attempt to repair) the light within 3 normal business days of receiving the report.
- If the service person finds the light at the reported location to be working or otherwise in proper working order, or he cannot repair the light because of some problem beyond his ability or authority to repair, he will notify [some specific person or department at the municipality, such as the Engineering Department]. The cooperative will not be responsible for any further action until the municipality initiates another revised notification.
- The cooperative will maintain a log of date and time it receives all notifications from the municipality, and update the log with the date and time of the action taken by our service person.
Now the jury has a tangible piece of evidence beyond just oral testimony that seems to clarify the respective “duties” to be fulfilled. Furthermore, if the cooperative’s official produces the log, and it appears well maintained, and it shows no entry to confirm someone from the municipality called to report the light in question being out, the jury would probably feel much more inclined to find no negligence on the part of the cooperative.
This type of written agreement is a simple solution for effectively managing a sizeable risk. It may not always work and in real life there may be other issues that affect the outcome of a specific case, but having a simple agreement in writing can be a powerful bit of protection.
Other Considerations
Streetlights can be a complex matter. For example, the design and placement of the base and pole is an issue. If it is a substantial base and pole and it is too close to the roadway, it could be deemed a roadside hazard. If it is placed in a location that obstructs the view of oncoming traffic it may be deemed a hazard. If the placement is not close enough to provide sufficient light where it is needed, it may be deemed a negligent design. Thus, the placement of the pole and light require careful attention.
The selection of the bulb/luminary is also an issue. Crosswalks, bike paths, playgrounds/parks, and main intersections generally require brighter light at ground level than a light placed midway down a residential street. Thus, the design of the light as to the amount of illumination it provides in various situations requires careful attention.
In fact, there are several consensus standards that have been published by various engineering or other professional groups that deal with placement of light poles, level of illumination, and even electrical wiring. Also, many municipalities, drawing on these published consensus standards, have promulgated their own streetlight standards into laws. Unfortunately, not many small, rural municipalities have done so, or are even aware of such standards. But the absence of a local standard or code does not mean a sharp plaintiff’s attorney might not use existing consensus standards to convince a jury that a streetlight involved in an accident was defective in placement, design, or maintenance. For these reasons, the decision on design and placement should be up to the municipality and any written agreement should reflect this.
Similar issues arise with private businesses. They often want the electric utility to install poles and lights along their entry drives or around their lots or yards for security purposes. The placement and level of illumination of these lights can be critical and may require careful considerations. There are consensus standards on these issues, too. The decision on design and placement should be up to the business owner and any written agreement should reflect this. Furthermore, when the lights are intended for security, the agreement might need to address who is responsible for maintaining security when a light is out and before the utility can reasonably respond to make repairs. (Imagine, for example, a claim from a female employee of the business that is attacked in the parking lot as she leaves work because one or more of the security lights in the lot are not working. Or, a car is stolen off a dealer’s lot because a security light or two were not working. If a light fails, who should be responsible for the interim security precautions until the light is repaired?)
Our Recommendation
If I were the Loss Control Consultant working with your utility and I discovered you were actively involved in installing and/or maintaining streetlights or security lights without a written agreement with you customers, I would make the following recommendation. (The wording may vary depending on your specific involvement in such activities.)
Your utility should create and execute some form of simple, but written, agreements with each customer for whom the cooperative installs and/or maintains streetlights or security lights. The agreements should clearly stipulate each party’s responsibilities for the installation and future maintenance of the lights.
At the very least, these agreements should indicate that once installed it is the customer (not your utility) that is responsible for determining whether the lights are working. And, if a light has failed, it is the customer that must report it to your company.
In turn, your company should indicate in the agreement how the customer should report a non-working light and how long it should take for your company to get out to fix it. (While not part of the agreement, you should have an internal procedure to log or otherwise record the time and date of any notice you receive about a non-working light.)
Since there are differences in the intent and installation of the lights, it may require differing agreements, depending on the situation. For example:
- Municipalities - If your company installs and agrees to maintain streetlights and/or security lights for municipalities, as many cooperatives do for the small towns in their service areas, the agreement should specify which party is responsible for the final decision on design and placement of the light. The intensity and distribution of the light from a typical streetlight may require some careful consideration, depending on the area where it will be placed. Also, the exact placement of the supporting base and pole may require some consideration to assure it does not create visibility problems for pedestrians or vehicle operators and does not create a roadside hazard. (There are recognized consensus standards for determining the best design.) These are considerations and decisions best left to the municipalities that will own or have custody of the lights rather than by your company. Any municipalities you serve in this way should probably get priority attention to get agreements in place.
- Private companies - This category is wide but it includes key places such as auto sales lots or other companies where “security” is truly one of the primary reasons for the lights. The placement of the light is key in these cases and the agreement should state that the customer is responsible for the decision on placement, not your company. I understand that the location of your tap and access for installation are factors for you, too, but these can be negotiated and still leave the responsibility with the customer for the final decision. (Also, if the base and pole are near roadways or driveways, placement takes on additional considerations, as noted in the section above on municipalities.) The agreement also should indicate the customer is responsible for any interim security measure that may be needed while a light is not working. These private companies that you service with lights should get priority immediately after the municipalities, if any.
- Private residences/farms - The security lights you install and maintain for these customers are less of a risk that the previous two above. Still, they deserve some attention, if only a letter (rather than a signed agreement) sent to each existing customer reminding them they are responsible for notifying your company if their light fails. The letter could also remind them of your commitment to fixing the light in whatever reasonable time frame you wish to tell them.
There are probably a variety of ways to clarify each party’s responsibilities in these matters, and I am NOT an attorney so my recommendation is about the need for form, not about the final content of any agreement. Your cooperative should seek professional legal advice in deciding how to approach this issue overall.
That last line is important. I am not an attorney, only a Loss Control Consultant trying to help your company avoid getting caught up in messy claims. I believe the services you provide customers in the area of security and street lighting are both appropriate and valuable business activities. With just a little attention, I believe you can remove much of the risks that these activities may entail.
If you have comments about this article or you want more information or want to locate the consensus standards I mentioned, please feel free to contact us via email by clicking here.