Perspectives
Anatomy of the underground utility damage lawsuit, Part 2
The first installment of this series introduced pre-lawsuit activities involved in claims involving damage to underground utility facilities. Once the excavator notifies the utility owner of the damage, and the parties conduct their investigation of the damage, the utility owner typically makes a claim for damages against the excavator. While pre-suit discussions and negotiations often resolve disputed questions of fault or damage, some damage claims involve disputed issues of fault or damage that are not resolvable by informal negotiations. In such cases, the damaged party (in our case, the utility owner), often resorts to litigation.
Litigating the underground utility damage claim is not procedurally unlike other damage litigation. The lawsuit commences by the filing of a complaint in court. Rule 3 of the Mississippi Rules of Civil Procedure. The utility owner plaintiff must first decide in which county (venue) and court (jurisdiction) to file suit. In a utility damage case, venue is generally proper in the county where the damage occurred or where the defendant resides. Miss. Code Ann. § 11-11-3. Strategically, a utility owner will often opt for the county where the damage occurred so as to avoid a trial in the “back yard” of the excavator.
Along with selecting the venue, the plaintiff must also select the court for adjudication. Generally, Mississippi has three court systems per county in which to litigate the excavation damage. These court systems have concurrent jurisdiction so that each court has jurisdiction over such claims, subject to specified damage limits. Justice courts may adjudicate cases up to $3,500. Miss. Code Ann. §9-11-9. County courts may adjudicate cases up to $200,000. Miss. Code Ann. § 9-9-21. Finally, circuit courts may adjudicate cases of any level of damage. Miss. Code Ann. § 9-7-81. As a practical manner, cases move more quickly through justice and county courts than circuit courts. However, damages of any significance will exceed the jurisdictional limit of the justice court, and only 20 of Mississippi’s 82 counties have county courts. Therefore, in selecting the court of adjudication, the plaintiff must consider and balance the amount of damage, the desire to expeditiously move the case to trial, and whether the county of damage has a county court.
The utility owner plaintiff must decide which legal theories most effectively address his claims for damage. In the first installment of this series, we introduced a hypothetical case in which an excavator damaged a buried gas line with a backhoe. For purposes of this example, suppose that the (1) the excavator called for a locate of the gas line, (2) the gas line was located with paint on the ground, and (3) the utility owner’s investigation revealed that the backhoe damage occurred less than eighteen inches from the paint marks.
In this hypothetical case, the plaintiff might assert two primary legal theories in his complaint — negligence per se and negligence. Negligence per se applies where the plaintiff proves that “he is a member of the class that a statute was designed to protect and that the harm he suffered was the type of harm which the statute was intended to prevent.” Thomas v. McDonald, 667 So 2d 594 (Miss. 1995). The utility owner would argue that pursuant to statute, its facilities were buried somewhere beneath the strip of land that spans 18 inches in both directions from the painted mark on the ground. Miss. Code Ann. § 77-13-3(o). As the hypothetical damage occurred within eighteen inches of the painted mark by a backhoe, the utility owner plaintiff could argue that the excavator was negligent per se by failing, as required by statute, to “maintain a clearance between any underground utility line or underground facility and the cutting edge or point of any mechanical excavating equipment, taking into account the known limit of control of such cutting edge or point, as may be reasonably necessary to avoid damage to such facility.” Miss. Code Ann. § 77-13-5(1)(b).
The utility owner plaintiff could also assert a general negligence theory against the excavator. A negligence claim requires proof that defendant had a duty to use care, that he failed to use care, and that the plaintiff was injured as the proximate result of the failure to use care. Wilson v. Terry, 67 So. 2d 387 (Miss. 1953). Under this theory, the utility owner would argue that the use of mechanical equipment within 18 inches of the painted mark constituted a failure to use care, and thus a breach of the excavator’s duty of care.
Should the utility owner plaintiff prevail on either of these legal theories, it will be able to collect a judgment against the excavator. However, the excavator will have legal defenses and strategies that it might employ in litigation. First, the excavator will likely not concede that the damage actually occurred within 18 inches of the mark. This again emphasizes the importance of both parties performing thorough investigations of the damage site.
Next, the excavator’s investigation may lead him to believe that the locator failed to correctly mark the underground utility. The utility itself or a separate locating company may have performed the locating service. In either situation, the excavator would argue for dismissal because the damage was caused exclusively due to incorrect location. At the very least, the excavator could argue that damages should be diminished by the percentage of fault attributable to the utility owner or locating company. See Miss. Code Ann. §§ 85-5-7 and 11-7-15.
In the situation where a separate locate company allegedly mismarked the damaged gas line, the excavator must make a strategic decision. He may decide to simply attempt to establish fault by the locator in an effort to diminish damages. Or, he could file a motion to add the locate company as a party to the lawsuit. While this approach helps emphasize the excavator’s seriousness in its belief in the locator’s fault, it also adds another defendant and attorney at trial to point fingers at the excavator. Neither approach is incorrect, and both should be considered in the defense of the damaged underground utility case.
The parties in a buried utility facility lawsuit must make many strategic decisions. As we will see in subsequent installments to this series, these decisions will directly affect the ultimate outcome of the litigation.
