Case Reaffirms Duty of Contractors to “One-Call” Excavation Projects

September 29, 2009 | Erin Herbold

Despite warnings from state officials that the Iowa Code (through the Underground Facililities Information Act (Iowa Code §480.4(1)(a)), requires contractors to notify “Iowa One-Call” at least forty-eight hours prior to commencement of an excavation project, some contractors routinely fail to heed those warnings. When a contractor notifies “One-Call” of a project, underground facility operators in the area must mark the location of their installations in the project area. The idea of the law is to help ensure that excavation projects don’t rupture underground developments such as water lines, phone lines, or natural gas and oil pipelines. The duty to contact “One-Call” rests squarely on the contractor and not the landowner.

Here, a custom tiling and excavating contractor struck a gasoline pipeline owned by British Petroleum while in the course of a tiling project. About 8400 gallons of gasoline were released from the pipeline and the contractor was fined $15,000 by the State for violating Iowa “One-Call” laws. The gas company also sued the contractor, seeking to recover expenses it incurred in the clean-up of the gas leak and the loss of its product. The gas company and the contractor subsequently settled their dispute out of court. 

In his defense against the imposition of a “One-Call” fine, the contractor claimed that the landowner was jointly liable for the damage done to the pipeline because of his failure to warn the contractor of the gas line’s existence and should “contribute” to the fines the State levied on the contractor.  But the trial court disagreed, noting that the contractor did not identify any legally enforceable claim for common liability. 

The Iowa Court of Appeals affirmed, noting that the contractor, to establish the landowner’s liability, needed to establish that the gas company could have sued the landowners directly and recovered damages from the ruptured pipeline.  But, because the landowner had no statutory duty to notify the State or the contractor of buried lines, the issue boiled down to the common law rules that come into play when a party hires an independent contractor.  Under those rules the key element is control.  If the landowner did not control the mode, method and manner of the contractor’s excavation activities, the landowner is not responsible for the damages arising from the contractor’s negligence.  That was the situation here and the contractor had sole liability for injuries arising out of the contractor’s negligence.  BP Pipelines v. Bockenstedt, No. 9-241/08-1681, 2009 Iowa App. LEXIS 633 (Iowa Ct. App., Jul. 2, 2009).

Note:  Many states have “one-call” statutes with nuances in the statutory language from state-to-state.   Recently, the Ohio Court of Appeals construed its statute. In Boyd v. Moore, et al., No. 08-CA-30, 2009 Ohio App. LEXIS 4275 (Ohio Ct. App., Sep. 25, 2009),a landowner hired an excavator to dig fence post holes associated with the construction of a fence between his property and that of the owner of a tanning salon. When the excavator arrived on the property to begin work, he saw that the fence line was marked and assumed that the landowner had notified the Ohio Utilities Protection Service (OUPS) - the party required to be notified of excavation projects under the state’s “one-call” procedure.  While digging, the excavator cut the electrical and telephone lines running to the tanning salon owner’s which caused and electrical “surge” resulting in damage to the tanning salon’s business.  The owner of the tanning salon sued the landowner and contractor on theories of negligence, trespass, and nuisance.   The trial court rendered a judgment against the landowner for $13,378.50 in compensatory damages and $500 in punitive damages.  The plaintiff appealed, claiming that the excavator should also be held liable for violating the “one-call” statute.  The Ohio Court of Appeals agreed, noting that the statute required the excavator to “one-call” the project, and that failure to do so constituted negligence per se.  The court noted that the statute was created for the benefit of the public at large rather than simply for utility companies and that, as a result, the plaintiff could sue on a negligence theory.  The appellate court upheld the trial court’s judgment against the landowner, and that issue was not part of the appeal.  However, they reversed the trial court’s judgment of non-liability concerning the excavator and remanded the case on that point.