Letters Warning MET Entities About Liability for Not Marking Towers

In another move to ensure proper marking of towers under 200 feet, NAAA has sent letters to the American Wind Energy Association and dozens of U.S. meteorological evaluation tower (MET) manufacturers warning them that ignoring an FAA Advisory Circular (AC) providing guidance on the marking of METs and other government warnings on the risks posed by unmarked METs would very likely result in legal liability for a tower company whose tower resulted in an accident due to improper marking.
 
NAAA has conducted research identifying legal cases whereby defendants that did not properly follow an FAA AC have been found negligent and liable for damages in accidents that could be tied to the defendant’s failure to heed such guidance. In those cases, the courts determined that Advisory Circulars serve as an established standard of care which people should have towards others. 
 
The FAA amended Chapter 3 of its AC 70-7460-1 in 2011 to include marking METs under 200 feet in height and recommended the entire MET structure should be painted with alternate bands of aviation orange and white paint. In addition, the AC recommends that all markings should be replaced when faded or otherwise deteriorated. Additionally, the FAA advises that all METs should have high visibility sleeves installed on its outer guy wires and should have high visibility spherical marker (or cable) balls of aviation orange color attached to the guy wires. 
 
Another government action referenced in the letter that may establish a standard of care that should be met in regard to marking METs was a spring 2013 National Transportation Safety Board (NTSB) issuance of six safety recommendations. Among these was a recommendation that the American Wind Energy Association (AWEA) revise its Wind Energy Siting Handbook so as to include language informing the reader of the hazards posed by METs to low-level aviation and to encourage the voluntary marking of METs to increase visibility.

Additionally, the letter references a milestone settlement that was reached in September, 2014, on the wrongful death action filed by the family of California agricultural aviator Steve Allen in the amount $6.7 million against a group of defendants representing tower manufacturing, wind energy, land-owning and farming interests for not marking or making aware the location of an unmarked MET to protect the pilot. Allen was killed in 2011 after colliding with an unmarked MET less than 200 feet in height. 

There are also numerous state laws in existence requiring marking of METs and other ground-based obstacles. 


Draft Letters Available

NAAA is making information related to tower entities’ potential liability for not abiding by the AC available to U.S. aerial applicators in the form of draft letters. The first letter may be used to prompt those responsible for erecting unmarked towers in an applicator’s area to abide by FAA AC 70-7460-1 and existing state law. NAAA is also making a second letter available for aerial applicators to use to thank entities responsible for properly marking towers for low-level aviators. 
 
Draft language from these letters states that these government issuances on METs have “created an adequate level of foreseeability so as to place a legal duty on the part of those installing these towers, to mark all METs in accordance with the recommendations of both the NTSB and the FAA. Courts which have examined this issue find that Advisory Circulars represent persuasive authority for exemplifying safety practices prevailing within an industry (see Muncie Aviation Corp. v. Party Doll Fleet, Inc. (5th Cir. 1975) 519 F.2d 117, Sierra Pacific Holdings Inc. v. County of Ventura 204 Cal.App.4th 509). These cases have shown that Advisory Circulars can be presented as evidence of the standard of care; and, given their status as a recommendation drafted by the FAA itself, they carry significant weight in determining liability and resultant damages. We ask that you reconsider your decision to leave this tower unmarked. It is, quite literally, a matter of life and death.”