[TowerTalk] Fwd: anti-climb, litigation, attractive nuisance

[Hans Hammarquist]

Dear Fellow Radio Hams

After some InterNet research I have found the following, not to be taken as set-in-stone but more as a guideline what we can do to take reasonable measures to protect ourself from lawsuits. Needless to say anybody can sue but we can take measure to reduce the possibility of having to fork out large amount of compensations.

Our towers are not the only thing that can be considered an Attractive Nuance. There are 10 different thing commonly are considered Attractive Nuance. They are:

1. Railroads: I don't expect us to have a railroad in our back yard but if you do, watch out.

2. Swimming pools: A lot of us have swimming pools. There are probably local ordinances regulating this. If not, you still should pay attention.

3. Farm Equipment: I think we all at one time seen a piece of farm equipment seemingly unguarded of a farm field. There are steps you should take to protect yourself.

4. Construction Sites:We all have had a construction site at some point. When we have been in the process of installing a tower we have a construction site. We have material, open holes and other things that can be dangerous.

5. Power Lines and Towers: This is what I believe would be the category that closest pertain to us.

6. Fountains & Ponds: Some of us have them and they can be just as dangerous as the swimming pool.

7. Abandoned Cars: I don't know what make an abandoned car more dangerous than any other parked car but apparently the courts differentiate between them.

8. Old Appliances: I think we all have heard about kids that have suffocated inside refrigerators and we therefor faithfully remove the doors once they are left outside. The danger is not limited to refrigerators but other appliances such as laundry machines and dryers etc.

9. Holes: This refer to any hole beside holes at construction sites. If there is a hole on your property that can pose danger you better make sure to secure it.

10. Playgrounds: Most of us don't have playgrounds on our property but if you plan to put anything outside such as a slide or anything else for the kids you have to make sure it is secure. I always wondered why I see think rubber mats covering the ground in public playgrounds. Now I know.

I understand that all of the following should apply if you should be considered at fault:

1. You know (or should know) that children are likely to trespass on the property.

I don't think a court would accept your explanation that you didn't know there were any children around. Kids can travel long distances especially if they see something that they want to examine. Our towers are usually visible far away and kids have plenty of energy.

2. The condition on the property has the potential to cause death or serious bodily harm to children.

Yes, that's our towers. Also low hanging wires such as elevated groundplanes and antennas belong in this category. G-d only knows what can cause injuries. An antenna for a QRO repeater can also cause injuries such as burns. I wonder if an area with a high RF level counts but I guess so.

3. The children involved are too young or inexperienced to understand the risk presented by the condition.

Your own kids probably know how dangerous your stuff is even if they are just ten years old, but your neighbors kids might not. One case I reviewed referred to a child mentally limited AND affected by malted beverages. So, this can apply to dumb, drunk kids.

4. The benefit of maintaining the condition or the cost required to remedy the condition is minimal compared with the risk to children.

I don't think anybody can claim that it would be too expensive to put up some planks around the tower to prevent climbing. A couple of warning signs is not enough as these kids are assumed not able to read them.

5. You fail to take reasonable measures to eliminate the danger posed by the condition.

Simply, you can not ignore the danger and you should just not do minimum to protect the neighbor's kids.

As we are talking about courts and attorneys we have to know that these principles are applied on a case-by-case basis. A condition considered an attractive nuisance in one case might not in another. I do believe that if you put up the anti-climb planks or a reasonable high fens around the tower and add signs warning about the danger you should be relatively safe. Regarding high RF levels I suggest that you keep this under control so you can interrupt transmission if somebody enter that area. A better alternative would be to avoid high RF levels at ground altogether.

This is just what I have read over the InterNet and you are solely responsible for yourself using this information. Your insurance agent is probably the best source of information. I have noticed over my years in this country that it is the insurance company not the legislators that control what is allowed and not.

I'm sure this will generate comments but I just hope that we could put to rest what our responsibilities are when it comes to protect kids from the danger of our towers.

73 de,

Hans - N2JFS




-----Original Message-----
From: jimlux <jimlux at earthlink.net>
To: towertalk <towertalk at contesting.com>
Sent: Wed, Feb 8, 2017 12:15 pm
Subject: [TowerTalk] anti-climb, litigation, attractive nuisance


This may actually be a non-issue... Are there any reported cases of someone unauthorized climbing a amateur radio tower and getting hurt/killed and a lawsuit happening? Dumb idiots climb electric transmission towers all the time, and I recall hearing a story some idiot trying to chop the guy wires on a AM broadcast tower. Those are, I would argue, qualitatively different than a ham tower, both in attractiveness and accessibility. Anti-climb devices are a "good idea" in general, but I've seen an awful lot of "panel over the ladder secured by a padlock" things over the years, but I've not seen any more elaborate schemes (except, perhaps where there is a "access to the roof for theft" kind of risk) Maybe the reason for anti-climb devices is good-sense, not "avoiding litigation". some casual googling (since I don't have access to Lexis..) pretty much all the stuff I can find is either 1) just advice - make sure nobody can climb the tower 2) embedded in zoning/planning regulations "The tower shall provide a means to prevent unauthorized climbing" 3) discussions like the one we can find Lots of stuff about people killing themselves on towers - but they were all about things that were more "occupational" (e.g. Joe Blow climbing tower, and forgetting to hook in, and falling off). There was a "tower tech's girlfriend" lawsuit.. http://caselaw.findlaw.com/tx-supreme-court/1322270.html 14 year old climbing 90 ft 69kV electric transmission tower as attractive nuisance. "After spending the evening drinking beer and malt liquor at a friend's house, Billy Edwin Byrum, age 14, walked outside and down the street about half a block to a utility tower and began to climb it." lots of stuff about the tower (barbed wire, etc.) " At 1:18 a.m., Billy started to descend when there was a bright flash and all the lights in the area went out. Billy's body fell to the ground." interesting note that the attractive nuisance idea came from kids playing on railroad turntables in the late 19th century it goes on to discuss that "Many families and children live nearby.   The tower is easy to climb, and several other children in the area did so routinely before Billy's death.   Billy himself had climbed it many times without injury." and the real issue is whether Billy was aware of the danger of arcing (as opposed to simply touching the live wire), and whether a 14 year old (and receiving poor grade in special education classes) could be expected to know about flashovers, and whether the utility had the duty to warn of such things, etc. "The public knows that it is dangerous to touch a live wire, but very few know that there exists danger of death from this powerful current by near approach to the wire so charged, without actually coming in contact with the wire.   Only those who are engaged in the business, and those who have stood beside some inanimate form whose scorched and burned flesh bears mute evidence to its tremendous power, know this." _______________________________________________ _______________________________________________ TowerTalk mailing list TowerTalk at contesting.com http://lists.contesting.com/mailman/listinfo/towertalk