What Constitutes Actual or Constructive Knowledge of a Defective Pole?

It's often hard to know when equipment in the field is defective, as many things wear over time.  Inspecting equipment is critical, to avoid incidence of resulting damage. When equipment is defective, and damages occur as a result, the utility is exposed to liability.  In general, most states find that the utility, like other actors, must have notice of the defective condition before being held liable.  

In Michigan, when a rotted or otherwise defective utility pole falls and causes damage, the standard is similar to the governmental immunity standard for municipalities for potholes or road hazards, in that the utility must have knowledge of the hazardous pole before it caused the damage.¹ Under the Michigan governmental immunity statutes, MCL 691.1402 and MCL 691.1403, one must show that the State knew of the road hazard before the loss, and had an opportunity to repair it, before the State would be liable for damages caused by a road hazard.² This is true even in the case of a private utility.

In Allied Property and Casualty v. DTE, State of Michigan, 36th Judicial District Court, Case #13-121485, a large delivery truck snagged an overhead wire.  It pulled and snapped off a utility pole, causing it to fall on top of another vehicle destroying the vehicle.  The utility company was held not liable for the damage, even where it was found that the utility pole was nearly completely rotted through at the base. The court found that the utility established it had the pole timely inspected in 2012, which at the time had no damage, and was in conformance with its three year cycle of maintenance to ensure utility pole integrity, in compliance with the Michigan Public Service Commission.  The utility also demonstrated that it never received any complaints about the pole before the accident.  The court ruled that in order to recover for injuries sustained from a falling utility pole, it is not enough for the injured person to show that a dangerous condition existed.  It must also be shown that the utility had actual or constructive knowledge of the unsafe condition of the pole and permitted the defect to remain more than a reasonable time after notice.  As a result of the above findings of fact, the court dismissed the case after trial in favor of the utility.³ 

Likewise, in Ohio, the bulk of the authority provides that a utility must have actual or constructive notice of a defect with its pole before it will be found liable for damage caused by that pole.  The Ohio Supreme Court has ruled on the issue of contributory negligence regarding utility equipment and stated that to recover under a contributory negligence theory, there must be "evidence which clearly shows a reasonably prudent person knew or should have known of the existence of electrical wires and recognized their dangerous propensities."⁴

The Eighth District Court of Appeals in Worley v. Cleveland Public Power (1991) 77 Ohio App. 3d 51, found that where there was no evidence the utility was aware that another utility had connected to its poles, or that it was aware that those other utilities lines posed a hazard, the utility could not be liable in negligence for the damage caused by those wires.  The Ohio Supreme Court further stated that in order to find that the utility had constructive notice of the hazard, the condition had to exist for sufficient time to find that the utility acting reasonably should have been aware of the hazard.⁵

When confronted with a claim for damages resulting from a fallen utility pole which has deteriorated over a long period of time, or any claim for damage from utility equipment in the field, a utility should be prepared to show it routinely inspects the poles and equipment; if conditions are known they are immediately repaired; such that any defects incidental to a damage claim are not reasonably known or disclosed to the utility.   
 

¹ Liability of electric power, telephone, or telegraph company for personal injury or death from fall of pole; 97 ALR2d 664 Section 6.
² Under the Michigan governmental immunity statutes, MCL 691.1402 and MCL 691.1403, one must show that the State knew of the road hazard before the loss, and had an opportunity to repair it, before the State would be liable for damages caused by a road hazard.
³ Allied Property and Casualty v. DTE, State of Michigan, 36th Judicial District Court, Case #13-121485
⁴ Lazar v. Cleveland Elec. Illum. Co. (1975), 43 Ohio St.2d 131.
⁵ Anaple v. Standard Oil Co. (1955), 162 Ohio St. 537.